Case: Foday Saybana Sankoh [2000] EWCA Civ. 386
Outcome: considered
decision in O'Brien was subsequently considered in the matter of Foday Saybana Sankoh [2000] EWCA Civ. 386 by the English Court of Appeal. The application failed because it was brought against the Secretary of State on extremely tenuous grounds by the wife of Mr Sankoh. She sought habeas corpus against the British government authorities on the basis that there was some information which allegedly showed that Mr Sankoh was within the custody or control of British authorities. The Court of Appeal considered the material which had been adduced before the primary judge, and concluded that a link with the British government was so thin that it could not possibly amount to sufficient control. The case bore no similarity to O'Brien. The Court of Appeal considered the claim as a question of fact, particularly with regards to the nature and extent of the alleged links with Britain. In that case, the only connection appeared to be that British Armed Forces had assisted the Sierra Leone Police to transport Mr Sankoh to a United Nations site from which he then was removed by the Sierra Leone Police, without any assistance from United Kingdom Forces, to a place unknown. There was some evidence from the British file, submitted on behalf of the British government, to the effect that the British Taskforce involvement was purely to provide some brief transport and security to the Sierra Leone Police, together with some medical attention on an emergency basis while Mr Sankoh was aboard a helicopter. From this flimsy basis, the applicant argued there was sufficient 'control' by the British government to grant an application for habeas corpus. In forceful language, Lord Justice Laws, with whom Lord Justice Ward and Lord Justice Waller agreed, held that there was not a 'whisper of an objective basis' for the suggestion that the Secretary of State had any control over Mr Sankoh so as to warrant the issue of a writ of habeas corpus. Lord Justice Waller added that there was 'absolutely no shred of evidence of any degree of control', and Lord Justice Ward referred to it as an 'impudent appeal' and awarded indemnity costs. It is specifically pleaded in the present case that the Australian government is in 'a position effectively to order to secure the release of and repatriation to Australia of Mr Hicks'. Counsel referred to statements by the Australian government to the effect that it has power to bring about the return of Mr Hicks to Australia, and that it has co-operated over the past five years with the United States government in relation to the custody of Mr Hicks. In particular, there are references in the pleading to the release of other detainees to justify the allegation that the Australian government could procure the release of Mr Hicks at any time and that it is probable that any request would be acceded to. The allegation is made in the form that '[t]here is no reason to suppose that the authorities of the United States of America would respond to a request by the Commonwealth Government for the repatriation of Mr Hicks differently from the way they responded' to other requests for other detainees, which I take to allege that a request of behalf of Mr Hicks would not be refused. In the light of these allegations and authorities, counsel for Mr Hicks submits that the case is within the principles applied in O'Brien , and that it cannot be said there is no reasonable prospect of success on the question of whether the Australian government has the necessary degree of control for a writ of habeas corpus to be made absolute. There is at least sufficient doubt generated, it is contended, to bring the present case within the habeas principles relating to 'control.' Since the question is one of fact and degree, it is not appropriate to dismiss the proceeding at this point without permitting evidence to be adduced as to the nature and extent of the co-operation, arrangements and agreements and any other relevant commitments between the Australian and United States governments in relation to the detention of Mr Hicks. The role of 'doubt' and 'control' in relation to the issue of the writ of habeas corpus was succinctly summarised Justice Sharpe, writing before his appointment to the Ontario Court of Appeal, in The Law of Habeas Corpus (2 nd ed., 1989) at 179: 'The writ will issue even where the respondent's control is doubtful, and the court will determine one the return whether or not the respondent has taken sufficient steps to produce the party.' The respondents submit that the cases referred to above are distinguishable from the present case. For example, in the case of O'Brien , there was an agreement or arrangement between the British and the Irish Free State governments. The respondents note that no such agreement exists between the governments of the United States and Australia in relation to Mr Hicks. Furthermore, in O'Brien, the internment of the applicant was subject to further order and there was also a clear contradiction in the positions taken by the Home Secretary before the Parliament and before the Court in relation to the nature and existence of control. In addition, the respondents contend that there is support for the position contrary to the applicant's in a number of statements made in Sankoh . In that case, Lord Justice Laws said at [9]: 'It seems to me, moreover, looking at the matter more broadly, that unless Mr Sankoh is actually in the custody of the United Kingdom authorities, the applicant's case must be that the British Government should be required by this court to attempt to persuade Sierra Leone either to identify his whereabouts or to deliver him up. But that involves the proposition the court should dictate to the executive government steps that it should take in the course of executing Government foreign policy: a hopeless proposition. (Emphasis added) The respondents submit that persuasion or the power to make a request falls far short of, and can never amount to, control. However, unlike Sankoh , in the present case the location of Mr Hicks is known, and given that the pleading alleges that there is not only control but also that a request by the Australian government would be granted, the case for Mr Hicks is that the respondents retain more than an ability to simply persuade the United States government. Mr Hicks submits that he should be permitted to lead and test evidence regarding control to determine whether there is the requisite degree of co-operation and control on the part of the Australian government in relation to his internment by the United States authorities. It should be noted that Mr Hicks does not contend that the Court should dictate to the executive what should be done in the course of executing foreign policy. Notwithstanding the force of the submissions made by the respondents, I am not persuaded, having regard to the authorities and the line of reasoning, that there is no reasonable prospect of success on this issue. The respondents contend that there is no evidence that the detention is unlawful and therefore the proceedings should be dismissed. It is said that the application has is no reasonable prospect of success because this essential element is lacking.