Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs  UKSC 48
Mr Rahmatullah was detained by UK forces in Iraq in 2003 and handed over to US forces, subject to a Memoranda of Understanding on the transfer of detainees. He was held in Afghanistan at Bagram Airbase from some time in 2004. Supported by Reprieve, his family sought habeas corpus, and the writ was subsequently granted by the Court of Appeal. Although the writ was discharged following the production of further correspondence between UK and US diplomats, the UK Government pursued an appeal to the Supreme Court to argue that the Court of Appeal had no jurisdiction to act. Mr Rahmatullah cross-appealed.
Unanimously, the Supreme Court rejected the Government’s appeal. It also rejected the cross-appeal.
Giving the lead judgment, Lord Kerr, roundly rejected the Government’s case:
“Memoranda of Understanding or their equivalent, Diplomatic Notes, are therefore a means by which the courts have been invited to accept that the assurances which they contain will be honoured. And indeed courts have responded to that invitation by giving the assurances the weight that one would expect to be accorded to solemn undertakings formally committed to by responsible governments. It is therefore surprising that in the present case [the Government] asserted that it would have been futile to request the US Government to return Mr Rahmatullah…this bald assertion was unsupported by any factual analysis. No evidence was proffered to sustain it.” 
The Court concluded that for the purpose of habeas corpus, the UK does not need to have physical custody of the person concerned. It is sufficient that there is material before the Court which supports the conclusion that the UK has a reasonable prospect of securing release. In this case, the international obligations of the UK under the Geneva Conventions and the terms of the Memoranda of Understanding between the UK and the US were sufficient to justify the issue of the writ by the Court of Appeal.
Baroness Hale and Lord Carnwath would have allowed the cross appeals and gave dissenting judgments on these issues. Both Lord Phillips and Lord Reed gave separate judgments in which they expressed some reservations about some parts of the majority decision.
JUSTICE intervened in this case principally to argue against a narrow interpretation of the jurisdiction of habeas corpus and to highlight the inconsistency between the Government’s submissions in this case and their wider use of Memorandum of Understanding for the purposes of allowing return of individuals to States where they may face a real risk of torture.
JUSTICE was represented pro bono by Thomas de la Mare QC and Fraser Campbell, Blackstone Chambers and by Allen &Overy.
Had the Government’s case succeeded, habeas corpus could have become irrelevant for any persons transferred outside the direct custody of UK Government agencies. It would have significantly reduced the power of UK courts to require full and effective justification when our Government has been involved in the detention of individuals, both at home and overseas.
On 19 November 2014 a High Court judge, Mr Justice Leggatt, dismissed a Government claim that the ‘foreign act of state’ doctrine barred Mr Rahmatullah’s claim seeking damages against the UK Government in the UK. The ruling follows the recent Court of Appeal decision of Belhaj&Anor v Straw &Ors in which JUSTICE intervened.
Read the Supreme Court judgment.
Read the Court of Appeal judgment.