Consolidated Guidance on Detainees (Update)

Lord Cameron of Chipping Norton Excerpts

Thursday 10th November 2011 Written Statements

[The Prime Minister (Mr David Cameron)]

The Government published the “Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees” on 6 July 2010. The guidance was subsequently made the subject of two linked legal challenges; one brought by the Equality and Human Rights Commission, and the other brought by public interest lawyers on behalf of Mr Al-Bazzouni. Judgment in these two linked cases was handed down by the High Court on Monday 3 October. The Court dismissed the challenge brought by the Equality and Human Rights Commission, accepting the Government’s position that there was no material difference between “real risk” and “serious risk” as the threshold at which officers may proceed or must refer cases for more senior consideration, and that it was legitimate for the guidance to use the term “serious risk”. As a judicial endorsement of Government policy, this was an extremely positive outcome.

The Court, however, found in favour of Mr Al-Bazzouni on his challenge regarding the lawfulness of the exception in the annex to the guidance which states that the following could constitute cruel, inhuman or degrading treatment or punishment (CIDT):

“methods of obscuring vision or hooding (except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit)”.

The Court considered that although the exception could conceivably operate lawfully (so that UK officers could legitimately proceed where a detainee had been hooded in accordance with the conditions set out in the exception), it was unworkable to expect officers on the ground to judge whether the detainees held by foreign liaison services came within the exception, and that the annex should therefore be amended to omit hooding from the ambit of the exception. The relevant section of the guidance has therefore been slightly reworked to reflect this finding. The revised version of the guidance has been placed in the Libraries of both Houses.

To be clear, the Government stand firmly against torture and cruel, inhuman and degrading treatment or punishment. We do not condone it, nor do we ask others to do it on our behalf. Officers whose actions are consistent with the guidance should have confidence that they will not risk personal liability.