The Queen (on the application of Maya Evans) v. Secretary of State for Defence
| Court |
High Court of Justice, Queen's Bench Division, Divisional Court, Great Britain (UK) |
| Case number |
CO/11949/2008 |
| Decision title |
Approved Judgment |
| Decision date |
25 June 2010 |
| Parties |
- Maya Evans
- Secretary of State for Defence
|
| Categories |
Torture |
| Keywords |
Afghanistan; detention; law of armed conflict; torture |
| Links |
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| Other countries involved |
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back to topSummary
The case came as a result of information that Afghan terror detainees transferred by the British Armed Forces to the Afghan National Directorate of Security (NDS) were beaten and physically mistreated. Maya Evans, a U.K. peace activist, sought to stop that practice and brought a case before the British High Court of Justice. On 25 June 2010, the Court decided that there was a chance that detainees were indeed mistreated at the NDS detention facility in Kabul. Therefore, the Court banned detainee transfers to this NDS facility. Transfers to the NDS facilities in Kandahar and Lashkar Gah remained allowed, although the Court imposed a series of ‘safeguards’ and monitoring arrangements on all future transfers of detainees.
back to topProcedural history
In December 2008, Maya Evans brought a case against the British Government, alleging that the transfer of detainees by the British Government to the Afghan National Directorate of Security (NDS) was illegal because there was a substantial risk that they would be subjected to torture or serious mistreatment.
back to topRelated developments
On 6 September 2011, the North Atlantic Treaty Organization (NATO) suspended the transfer of detainees to several Afghan prisons.
On 10 October 2011, the United Nations Assistance Mission in Afghanistan issued a report finding ‘compelling evidence that NDS officials at five facilities systematically tortured detainees’, including at least one facility at Kandahar that had been pronounced safe for detainee transfers by the High Court (p. 3 of the report).
back to topLegally relevant facts
Following allegations that Afghans captured by British forces and subsequently handed over to the Afghan authorities had been beaten and tortured whilst detained in the NDS facility, Maya Evans, an anti-war activist, together with the private law firm “Public Interest Lawyers”, filed a complaint for judicial review of the U.K. detainee transfer policy. The claim alleged that British forces handed over detainees to the NDS, of which it was believed that it had used torture techniques when interrogating prisoners who were held in its detention facilities. Amnesty International already reported in 2007 that detainees held in NDS detention facilities were at risk of torture.
The case is unique in that, unlike similar cases before the U.K. courts, the claim concerns complicity in abuses committed by the Afghan authorities, and in addition, because the case is brought by a third party, rather than by victims of torture by the NDS.
In 2007, the U.K. House of Lords ruled in the Al-Skeini case that the U.K. Human Rights Act applied outside the U.K. More recently, in the case of Binyam Mohamed, the Court of Appeal heavily criticised the U.K. security forces.
back to topCore legal questions
Were the transfers of detainees by the British Government to the Afghan NDS illegal?
back to topSpecific legal rules and provisions
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, UN General Assembly:
The Constitution of Afghanistan, 2004:
back to topCourt's holding and analysis
On 25 June 2010, the U.K. High Court of Justice ruled that strict restrictions must be placed on the transfer of detainees to Afghan-run facilities.
First, the Court upheld a moratorium on UK transfers of detainees to the NDS facility in Kabul, which was issued after it first came to light that detainees held at NDS detention facilities did face a substantial risk of being subjected to torture or other ill-treatment. According to the Court, detainees might be ‘subjected to torture or other serious mistreatment’ at the NDS facility in Kabul, which was ‘at the heart of the concerns about the NDS’s use of abusive techniques in the interrogation of detainees’ (para. 315).
However, citing a Canadian decision based on similar facts, the Court ruled that transfers to the NDS facility in Kandahar should be allowed (paras. 318-320). The Court found that there was not a real risk that detainees held in the NDS facility in Kandahar would be ‘subjected to torture or serious mistreatment […], provided that the existing safeguards are strengthened […]’ (para. 320). These safeguards include, inter alia, that U.K. monitoring teams are regularly given access to each transferee, and that the U.K. must consider the immediate suspension of further transfers if access is denied without a good reason (para. 320).
Furthermore, with a certain ‘degree of hesitation’ the Court also allowed the transfer of detainees to the NDS detention facility in Lashkar Gah, provided that various safeguards set out in relation to the NDS facility in Kandahar are also observed there (such as the right of U.K. monitoring teams to get access to the detainees on a regular basis) (paras. 321-323).
back to topFurther analysis
J. Horowitz, ‘Transferring Wartime Detainees and aState’s Responsibility to Prevent Torture’, American University National Security Law Brief, May 2012, Vol. 2(2), pp. 43-66.
back to topInstruments cited
back to topRelated cases
Federal Court of Appeal (Canada), Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, Case No. 4 F.C.R. 149, Appeal Judgment, 17 December 2008.
back to topAdditional materials
'Afghanistan. Detainees transferred to torture: ISAF complicity?', Amnesty International, 13 November 2007.
J. Jansen, ‘NATO forces exposing detainees to torture risk with Afghanistan transfers: Amnesty’, Jurist, 13 November 2007.
J. Percival, ‘Activist wins partial victory over transfer of Taliban suspects’, The Guardian, 25 June 2010.
‘UK court rejects halt to Afghan prisoner transfers’, The Seattle Times, 25 June 2010.
‘‘Partial victory' in challenge to UK Taliban transfers’, BBC News, 25 June 2010.
R. Norton-Taylor, ‘Afghan detainees must be safeguarded against abuse, says high court’, The Guardian, 25 June 2010.
B. Jackson, ‘UK court rules Afghan detainees must be protected from possible abuse’, Jurist, 26 June 2010.
‘Afghan Jurisprudence’, Rule of Law in Armed Conflict Project, January 2013.
back to topSocial media links
S. Kirpichnikov, ‘Torture and the Transfer of Prisoners’, Human Rights Law Centre, 25 June 2010.
‘Maya Evans Judicial Review - Courts See Sense’, Army Rumour Service, 25 June 2010.
‘Defence in the Media: 25 June 2010 - Ruling in Maya Evans High Court case’, Official News Blog of the UK Ministry of Defence, 25 June 2010.
K. Clark, ‘UK court rules on detainee transfers and the risk of torture’, Afghanistan Analysts Network, 5 July 2010.
‘Maya Evans Peace Activist Wins Legal Aid Court Battle’, Gordon Lyew Blog, 13 May 2011.
