UK forces' policy of detention in Afghanistan was unlawful, Court of Appeal upholds

Defence Secretary Michael Fallon appealed 2014 High Court decision

The Royal Courts of Justice in London, where the Court of Appeal sits (Photo by Dan Kitwood/Getty Images)

The Court of Appeal has unanimously confirmed that the British armed forces' use of detention in Afghanistan was unlawful, following an appeal by the British government.

Defence Secretary Michael Fallon had declared the 2014 High Court finding in favour of Afghan farmer Serdar Mohammed “fundamentally flawed” with no legal basis.

Mr Mohammed was detained by British soldiers for 110 days in 2010 after they suspected him of being a Taliban commander involved in creating improvised explosive devices (IEDs).

Afterwards, he was handed to Afghan security forces who he alleges tortured him before sentencing him to 10 years in prison.

The Court of Appeal upheld the High Court’s decision that his detention after 96 hours was unlawful – under both international and Afghan law – and that there were not sufficient procedural safeguards to prevent Mr Mohammed’s detention from becoming arbitrary.

Lord Chief Justice, Lord Thomas of Cwmgiedd, together with two further Lord Justices, found that the Secretary of State was unable to demonstrate a lawful basis to detain the farmer beyond 96 hours.

They also overturned a High Court ruling that prevented Mr Mohammed, who is reportedly seeking damages for unlawful detention and mistreatment, from suing over his treatment.

Leigh Day, lawyers representing Mr Mohammed, welcomed the court’s decision.

“It is also re-assuring to note that the Court has affirmed that ‘to deny a remedy to a victim of a wrong should always be regarded as exceptional’ and that ‘any exception must be necessary and requires strict and cogent justification’, which were not found to be present in this case,” Sapna Malik, partner at Leigh Day, told The Independent.

Mr Mohammed is now believed to have been released and is back with his family.