UK transfer of Afghan prisoners: High Court victory

A UK citizen has won an important case about the UK’s detention policy in Afghanistan where the UK is a member of the International Security and Assistance Force (ISAF). Maya Evans, a peace activist, challenged the UK’s policy of transferring Afghan detainees held by UK Forces to the National Directorate of Security (NDS) despite clear evidence that these Afghan detainees face a real risk of torture and ill-treatment at the hands of the NDS.

The UK have had a policy of transferring Afghans to NDS bases at Kabul, Kandahar and Lashkar Gah since 2006. In that period the UK has transferred over 400 detainees into the custody of the NDS. At a lengthy judicial review hearing over 9 days in April 2010 the Divisional Court (a Court of Appeal Judge, Lord Justice Richards and a High Court Judge, Mr Justice Cranston) heard evidence that various NGOs (the Afghan Independent Human Rights Commission, Amnesty International, Human Rights Watch, and Human Rights First) and the UN itself presented cogent evidence to the effect that Afghans within Afghan facilities are regularly subjected to torture, and worse. These allegations include:

- 66 cases of torture in Kabul including the amputation of limbs;
- electric shocks; deprivation of sleep, water and food;
- beatings by rod and cable;
- scorching;
- abusive language; and
- the death of at least one detainee in NDS Department 17 in Kabul.

Ms Evans’ lawyers focused at the hearing, in particular, on 7 Afghan detainees and what happened to them when the UK transferred them to the NDS. These prisoners known as “X”, “A”, “B”, “C”, “D”, “E”, and “G” are dealt with at paras 188-217 of the court’s judgment released today. The court dismissed the British forces’ questioning of these prisoners’ credibility.

On the basis of all the evidence and, in particular, the disclosure produced by the Secretary of State for Defence the court has found as follows:

1. That it is not lawful for the Secretary of State for Defence to transfer any Afghans to the NDS in Kabul.

2. That it will not be lawful for the Secretary of State for Defence to transfer Afghans to the NDS at Kandahar and Lashkar Gar unless the following strict conditions are observed:

(i) All transfers are on the express basis that the UK Monitoring Team is to be given access to each transferee on a regular basis, with the opportunity on each occasion for a private interview (i.e. individually and in a room in which no guards are present);

(ii) Each transferee in practice must be visited and interviewed in private on a regular basis; and

(iii) The Defendant must consider the immediate suspension of further transfers if full access is denied at any point without an obviously good reason or if a transferee makes allegations of torture or serious mistreatment by NDS staff which cannot reasonably and rapidly be dismissed as unfounded.

These conditions promise to profoundly change British detainee policy in Afghanistan for the better. None of them have been complied with properly since transfers commenced in 2006, leading to the likelihood that many many more prisoners have been tortured with British complicity.

Ms Evans said today; “I am delighted with this ruling and I feel completely vindicated by it. The Secretary of State for Defence attacked my credentials in bringing this case at all saying I didn’t have an interest in the case, that there was no problem and that my concerns were academic. That position has been completely shredded. I can rest easy that these fundamental changes to the UK’s policy in Afghanistan means no less than the saving of Afghan lives and the end of transferring them to face torture or worse. If the practice of transfer to torture re-emerges in the future the court will now know about it and will be able to stop it”.

Phil Shiner of Public Interest Lawyers who are acting for Maya Evans said today: “The Government’s case has been exposed for what it is – an attempted cover-up of the truth that we were transferring Afghans knowing full well the NDS would likely torture them. The policy must now change in the light of this clear ruling. It is important to note that this case could not have shone a bright light on this disgraceful policy without our legal aid system. The Government have now changed the rules – following political pressure from the MOD – so that no case like this could be brought in the future. Maya Evans is about to start a fresh case to challenge those changes. The UK says it respects democratic principles and the rule of law but this case shows that we don’t always do so and it is vitally important that the Government can be held to account if it does not”.

The court will now deal with submissions from both parties as to the monitoring of the future policy and on the question of costs. Maya Evans claims all of her costs from the Secretary of State for Defence.

For further information, contact:
Public Interest Lawyers

Phil Shiner

Telephone: 0121 515 5069
Mobile: 07715 485 248
E-mail: info@publicinterestlawyers.co.uk

Maya Evans
Mobile: 07973 484 202