Evans, R (on the application of) v Secretary of State for Defence  EWHC 1445 (Admin) (25 June 2010)
Ms Evans, a peace activist, sought to stop the practice of British personnel transferring detainees to the Afghan authorities by arguing the practice exposed such transferees to a real risk of torture or serious misconduct.
The British High Court, while troubled by this case, determined the operation of British monitoring systems (which included regular and full access to the detention facilities and individual transferees) would be sufficient to safeguard against the occurrence of abuse and, while isolated examples of abuse may occur, a consistent pattern of abuse that would expose all British transferees to a real risk of ill-treatment was not reasonably likely.
Currently, approximately 9000 British armed forces personnel operate in Afghanistan. Subject to the law of armed conflict, those British forces are authorised to kill or capture insurgents and this power to capture extends to a power to detain temporarily.
Concurrently, the Afghan Government is entitled to prosecute those within its jurisdiction who are believed to have committed offences against Afghan law. This is considered to be an important element of the strategy for securing the rule of law and bringing security to Afghanistan.
What follows is that, where captured insurgents are believed to have committed offences against Afghan law, there are sound reasons for transferring them into the custody of the Afghan authorities for the purposes of questioning and prosecution. According to British policy, however, detainees must not be transferred into the custody of Afghan authorities if there is a real risk they will suffer torture or serious mistreatment.
Ms Evans, a peace activist opposed to the presence of UK and US armed forces in Afghanistan, sought to stop the practice of transferring detainees into Afghan custody. To that end, she argued that transferees in Afghan custody have been, and continue to be, at real risk of torture or serious mistreatment and, as such, the practice of transfer has been, and continues to be, in breach of the policy and unlawful.
Independent reports considered by the Court painted a picture of widespread and serious ill-treatment of detainees in Afghanistan. Against that background, the Court concluded it was essential for British personnel to implement an effective set of safeguards for the transfer of detainees into Afghan custody. This meant complying with international human rights obligations, including ensuring full access to detainees for the purpose of monitoring their conditions.
When considering the type of access required, the Court said it is necessary to consider a number of aspects: physical access to facilities, the extent to which it is possible to locate detainees at those facilities and the quality of the visits to individual detainees (for example, whether interviews could be conducted in private so that detainees could voice any complaints they had about their treatment).
Following a consideration of the evidence, the Court determined there existed the possibility British transferees would be subjected to torture or serious mistreatment at all facilities. However, it held that, while isolated examples of abuse may occur, a consistent pattern of abuse that would expose all British transferees to a real risk of ill-treatment was not reasonably likely at NDS Kandahar and NDS Lashkar Gah provided:
- all transfers were made on the express basis British personnel would be given full access to each transferee on a regular basis;
- each transferee was actually visited on a regular basis; and
- British personnel would consider the immediate suspension of transfers if full access was denied at any point without an obviously good reason or a transferee made an allegation of serious mistreatment which could not be reasonably and rapidly dismissed as unfounded.
The British High Court held that transfers to NDS Kabul, on the other hand, where access to detainees was denied, would expose transferees to a real risk of torture or serious mistreatment and as such would be unlawful.
Relevance to the Victorian Charter
The Court found this a ‘troubling and difficult case’ and noted ‘[i]f it were not possible to transfer detainees to Afghan custody, the consequences would be very serious’. For example, detainees would have to be released after a short time, leaving them free to renew their attacks and cause further death and injury and the opportunity to prosecute them and gain intelligence would be lost. Nonetheless, the Court was clear that none of these considerations affect the standard to be applied when determining the lawfulness of the transfer of detainees.
In light of this decision, if the transfer of a detainee raises a real risk of torture or serious mistreatment, the transfer breaches the prohibition against torture and ill-treatment regardless of the consequences of not being able to transfer that detainee. Therefore, the prohibition against torture and ill-treatment requires Australian authorities to put in place adequate safeguards for assessing the risk of torture and serious mistreatment before detainees are transferred out of their custody.
The decision is at www.bailii.org/ew/cases/EWHC/Admin/2010/1445.html.
Susanna Kirpichnikov is a lawyer with Lander & Rogers