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A unanimous Court of Appeal upheld the first instance decision which found that the detention policy used by British forces in Afghanistan was unlawful. The Court of Appeal also allowed Serdar Mohammed’s cross-appeal, ruling that his private law claim was not barred by the Crown act of state principle.
The judgment by the Lord Chief Justice, Lord Justice Lloyd Jones and Lord Justice Beatson held: “It is, as we have stated, a longstanding fundamental principle of common law that interference with personal liberty is unlawful unless the person responsible (here the Secretary of State) can show it is justified. In the particular circumstances of [Serdar Mohammed]’s case, there was no authority to detain either under the legal regime established by the United Nations or under the law of Afghanistan or under UK legislation.” The Court of Appeal further ruled that “procedural safeguards appropriate under international law for a non-international armed conflict were not put in place by the Secretary of State. … [Serdar Mohammed]’s detention was in any event made unlawful as a result of the failure to provide such procedural safeguards.”
The full judgment is available at here.
Sample media coverage of the judgment includes:
Nikolaus Grubeck acted for Serdar Mohammed