Victory for Army over Taliban bombmaker’s human rights claim

... but case has already cost taxpayer £1million

A TALIBAN bomb-maker trying to sue the Government over his detention in the Afghan war was dealt a major blow by Britain’s top judges yesterday. The Supreme Court ruled that British troops had acted lawfully in holding dangerous insurgents for longer than specified under the European Convention on Human Rights.

Judges said the laws were designed for ‘peacetime’ and were ‘ not easily adapted to armed conflicts’.

The ruling was a victory for the Ministry of Defence, which has already spent more than £1million defending the claim by senior Taliban commander Serdar Mohammed that his detention for 106 days was in breach of his human rights.

But the case of Mohammed, who has been handed legal aid during three years of legal wrangling, may still go to trial as the MoD must prove that his detention beyond the legal maximum of 96 hours was for ‘imperative reasons of security’.

His is a test case to determine whether the UK military acted within the law during the 13-year campaign.

The Supreme Court ruling means a further 70 suspected insurgents represented by Leigh Day law firm will find it more difficult to sue the Government over their detention.

The Supreme Court unanimously allowed the Government’s appeals against a previous ruling that the power of detention was limited in Afghanistan to 96 hours.

Handing down the judgment yesterday, Lady Hale, its deputy president, said: ‘It would be absurd if the Government could not be held liable for killing people in battle but could be held liable for detaining them.’

Lord Sumption added: ‘ The United Kingdom was entitled to operate its own detention policy. The power of detention was in principle exercisable for as long as the imperative reasons of security continued to apply.’

He said Article 5 of the European Convention on Human Rights allowed for detention but was designed for ‘peacetime condition … not easily adapted to armed conflicts’.

‘The capture and detention of hostile forces is a necessary fea- ture of the conduct of lawful military operations,’ he said.

In the case of Mohammed, Lord Sumption added that the court decided the decision to interrogate him was not a legitimate reason for detaining him and he may be entitled to damages.

He said: ‘There is an issue, which will have to be tried, about whether his detention in that period was also justified as being necessary for imperative reasons of security.’

The MoD said Mohammed, also known as Mullah Gulmad, helped make explosives on an ‘industrial scale’ during the Afghan war and was found covered in bomb dust when he was captured in 2010 following a firefight.

He was detained for 106 days without charge before being handed over to the Afghan authorities and later jailed for ten years after being convicted of terrorist offences. However, he has already been freed and a new trial, which would likely last for weeks and cost tens of thousands of pounds, raises the prospect of him being flown into Britain to give evidence.

A Ministry of Defence spokesman said: ‘It is vital that our troops have the ability to detain enemy forces when they are engaged in conflict, and today’s judgment is a significant step in clearing up the legal fog that has surrounded this issue.’

Leigh Day said it would review its remaining cases in light of the judgment.