Nine Supreme Court judges will hear legal arguments over the legality of MoD detention overseas.
From the 1st to the 4th February 2016 the Supreme Court will hear legal argument in two test cases concerning the legal framework which applies when the UK detains people overseas while assisting other states in maintaining security during periods of internal armed conflict.
Last July, the Court of Appeal unanimously held in the case of Serdar Mohammed v MoD that the UK is prohibited from detaining individuals without due legal process , which the Court, led by the Lord Chief Justice, found was lacking in Mr Mohammed's case.
Serdar Mohammed, is an Afghan man who was detained by British troops in 2010 and held by them without charge and without access to a lawyer for 110 days.
He was then handed over to the Afghan Security Services, whom he alleges brutally tortured him and forced him to thumbprint a document which, he was told, confirmed that he had ‘confessed’ to being a Taleb.
He was later convicted following a trial in a language he did not understand. Leigh Day, who represents Mr Mohammed, says that he maintains his innocence. He was eventually released from detention in Afghanistan in 2014.
The other test case, Al Waheed v MoD, concerns an Iraqi man who was was detained without charge by British Forces in Iraq from 11 February to 28 March 2007.
Leigh Day, who represents Mr Al Waheed, says that he complains that he was mistreated by British soldiers during his detention.
The nine law lords hearing both cases will decide whether British forces had the legal power to detain the two men without charge under the relevant UN Security Council Resolutions in place and/or International Humanitarian Law as it applies in internal armed conflicts; and whether any such legal powers modified the UK's obligations under Art.5(1) of the European Convention of Human Rights ('ECHR'), which defines when the UK can lawfully detain individuals.
A spokesperson from Leigh Day said
“The 800th anniversay of the Magna Carta was a timely reminder that imprisonment should not occur without due legal process in any circumstances. We are hopeful that the Supreme Court will recognise the fundamental importance of the rule of law even in situations of internal armed conflict, which requires a lawful authority for any detention and for core procedural safeguards to be afforded to a detainee to prevent detention from becoming arbitrary.