C/2000/3024 
Neutral Citation Number: [2000] EWCA Civ 386
IN THE SUPREME COURT OF JUDICATURE                       
IN THE COURT OF APPEAL (CIVIL DIVISION)     
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mr Justice Elias)
 
							Royal Courts of Justice 
							Strand 
							London WC2A 2LL 
 
							Wednesday, 27th September 2000  
B e f o r e:

LORD JUSTICE WARD

LORD JUSTICE WALLER

LORD JUSTICE LAWS

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IN THE MATTER OF FODAY SAYBANA SANKOH

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0170 421 4040
Official Shorthand Writers to the Court)

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MR PHILIP ENGLEMAN and MS SUSAN DORIS (Instructed by Teacher Stern Selby, 37-41 Bedford Row, London, WC1R 4JH) appeared on behalf of the Appellant.

MR PHILIP SALES (Instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JH) appeared on behalf of the Respondent.

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J U D G M E N T
Wednesday, 27th September 2000 
1.	LORD JUSTICE WARD: Lord Justice Laws will give the first judgment. 
2.	LORD JUSTICE LAWS: This is an appeal in a habeas corpus case. On 1st September 2000, Elias J refused to issue a writ of habeas corpus against the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence at the behest of the applicant, Mrs Sankoh. It is asserted that she is the wife of Saybana Sankoh, leader of the Revolutionary United Front in Sierra Leone. He was arrested in Sierra Leone on 17th May 2000 and has since been detained. The applicant seeks a habeas corpus against the British Government authorities on the basis that there is material tending to show that he is within the custody or control of the British authorities. 
3.	The decision of this court in The King v the Secretary of State ex parte O’Brien [1923] 2 KB 361, was extensively referred to in the court below and has been relied on by Mr Engleman in this court. That was a case which followed in the wake of the making of the Irish Free State Constitution Act. The applicant had been interned pursuant to an order made by the Secretary of State. He was interned in the Irish Free State. A habeas corpus was sought. It is clear from the judgment, to which, with respect, I need not refer in any detail, that there was at least a live question on the facts whether the applicant remained subject to the control of the Secretary of State so that the Secretary of State might have returned him here. In those circumstances, the writ was ordered to go. Mr Engleman, in this case, says he needs to establish no more than a prima facie or arguable case that the Secretary of State has control over Mr Sankoh such that he may be able to secure his release or production here. 
4.	Before Elias J a number of affidavits and statements were deployed; and we have them also. In particular, we have the statement of Brigadier David Richard, who was the British Task Force Commander in Sierra Leone. That statement is dated 23rd August. There is also the statement of Sean Martin of the Treasury Solicitors Department dated 29th August, and there are two affidavits from Mr Rabinowicz, solicitor acting for the applicant, made on 28th July and 30th August. These materials show at least that on the authority of Brigadier Richards certain support was given by the British Armed Forces to the Sierra Leone police. In particular, on 17th May Mr Sankoh was air‑lifted by a military helicopter from the barracks where he was held to a more secure location; and later on the same day a British helicopter was again used to transfer him to the United Nations Headquarters’ Helicopter Landing Site, at a place called the Mamy Yoko Hotel on the Aberdeen Peninsula. Thence, Mr Sankoh was moved again by the Sierra Leone Police, without any assistance from the UK Forces. Brigadier Richards asserts, in the plainest and most unambiguous terms, that the location to which Mr Sankoh was moved was unknown to him and he has no knowledge of Mr Sankoh’s current whereabouts. He adds at paragraph 12: 
“At all times Mr Sankoh was in the custody of the Sierra Leone Police. Task Force involvement was purely to provide transport and additional security as requested by the Sierra Leone Police. A small amount of medical attention was provided by the Task Force doctors on an emergency basis whilst Mr Sankoh was at Lunghi Airfield and aboard the Task Force helicopter.” 
5.	Before Elias J particular reliance was placed by Mr Engleman upon Mr Rabinowicz’s second affidavit. I can do no better than cite the judgment of the learned judge below, starting at page 9: 
“I will not read passages from the particular extracts. Mr Engleman submits that they demonstrate the following: firstly, that the United Kingdom Forces are in Sierra Leone in pursuance of an agreement between the UK Government and Sierra Leone. Secondly, that these forces were called upon to assist the police and army in Sierra Leone in the arrest and transfer of Mr Sankoh. Thirdly, that at all times, the United Kingdom Government has been, what the Foreign Secretary has described, a ‘principal supporter of Sierra Leone’. Fourthly, that they have made it plain that they want to ensure that Mr Sankoh is brought to justice. Fifthly, that there is evidence from Mr Hain, in particular, that assistance has been given to training the military authorities in Sierra Leone, although it is relevant to point out that it appears that a request from the President of Sierra Leone that Brigadier Richards should become the Sierra Leone Chief of Defence staff was not considered acceptable. 
Finally, Mr Engleman puts some emphasis on a particular speech made by Mr Hain of 23rd May 2000. This arose in the context where he had been asked for the Government’s reaction to a demand from the RUF that Foday Sankoh should be released in return for certain hostages who were being held by the RUF.
In giving his answer to that question, he said as follows: 
‘Let me make it absolutely clear that we do not negotiate deals with hostage takers. That has been British Government policy. Sankoh and his followers must understand that they are in defiance of the United Nations and the international community. The hostages must be released safely and in good health. We will not trade Sankoh’s freedom. He must face justice.’” 
6.	The judge continues: 
“Mr Engleman says that that language suggests strongly that Mr Hain was indicating that the British Government were in a position where they could, if they wished, trade Mr Sankoh for the hostages. 
I accept that the material relied upon by Mr Engleman does broadly reflect those particular points. The question is, however, whether they arguably demonstrate de facto control over detention, so as to justify the issuing of the writ? In my judgment, they plainly do not, and not even arguably so. There is no evidence which approaches the sort of material which justified the inference of de facto control in the O’Brien case. Moreover, in my view, it would be extremely surprising if the Sierra Leone Government were to concede to the United Kingdom the right to determine when and where Mr Sankoh should be detained.” 
7.	I may go to a short passage on the next page where the judge said this: 
“I quite accept that the United Kingdom Government may have political influence and perhaps significant political influence with the Government of Sierra Leone, but that, in my view, falls very short of constituting the kind of de facto control necessary for a writ of this kind to be issued.” 
8.	Before us Mr Engleman has effectively repeated his submissions made to the learned judge. He encapsulated the various factors which, he submits, suggest that the Secretary of State may have retained control over Mr Sankoh in six propositions. All of them are covered one way or another in the passage from Elias J’s judgment which I have read. 
9.	I may perhaps pick out Mr Engleman’s repeated emphatic reliance on the statement in Parliament by Mr Hain and on the events of 17th May 2000. He was also at pains to draw our attention to certain newspaper reports in the bundle. He said they demonstrated that there is at least what he described as a degree of ambiguity concerning Mr Sankoh’s whereabouts after Brigadier Richards had dealt with him. The truth is that these newspaper reports, if one were to attach any value to them at all (which for my part I am far from accepting) are all dated round about the time of the events of 17th May which Brigadier Richard has described. Mr Engleman has rightly accepted that the critical date for the purpose of this application is that on which the proceedings were issued, a date in July 2000. The newspaper reports advance the matter nowhere at all. 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 that the court should dictate to the executive government steps that it should take in the course of executing Government foreign policy: a hopeless proposition. 
10.	More specifically, it is to be noted that among the materials before us is a quotation from a letter of 28th July 2000 from the Foreign and Commonwealth Office to the solicitor Mr Rabinowicz, in which this was said: 
“I can assure you categorically that Mr Sankoh is not in the custody or control of the British Armed Forces. I can also say Mr Sankoh was not arrested by forces of the United Kingdom Government employed by the Ministry of Defence. There are no forces employed by the Foreign Office.” 
11.	Moreover on 31st August 2000, the day before Elias J dealt with the matter, there was written a letter from the Foreign and Commonwealth Office giving instructions to Sean Martin of the Treasury Solicitor’s department. This is what was said: 
“I understand that at the hearing in the High Court this afternoon counsel for the applicant sought to suggest that Foday Saybana Sankoh was under the control of the Government of the United Kingdom in the sense that there may be some agreement between the Government and the Government of Sierra Leone under which the United Kingdom is entitled to require his release or delivery up. For the avoidance of any doubt, I can confirm categorically that there is no such agreement and that Mr Sankoh is not under the control of the British Government. 
I also understand that reference was made to an excerpt from Hansard, dated 23rd May 2000, whereby Mr Hain, Minister of State at the Foreign and Commonwealth Office referred to a meeting with Mr Sankoh. I can confirm that that meeting took place on 12th January 2000 during a two-day visit to Sierra Leone.” 
12.	In my judgment there is not the whisper of an objective basis for the suggestion that the Secretary of State has now, or had at any time from July 2000 onward, anything amounting to a degree of control over Mr Sankoh such as might justify the issue of a writ of habeas corpus. The case on its facts is wholly unlike the case of O’Brien, to which, as I have said, much reference was made. 
13.	For my part, I regard this application as misconceived, irresponsible and mischievous; and it should never have been brought. I would dismiss it. 
14.	LORD JUSTICE WALLER: I agree. Mr Engleman sought to persuade us that there was evidence from which the court should conclude that it was arguable that the respondent Secretary of State had control in fact over Corporal Sankoh and his detention. It seems to me, for the reasons given by my Lord, that Mr Engleman has not so demonstrated. I am doubtful whether, even at 17th/18th May, an arguable case could have been demonstrated because Brigadier Richards deals with that date. That is evidence more worthy of the name than the newspaper reports relied on by Mr Engleman,  which appear at page 255 to 268. But the critical date, as Mr Engleman accepts, is the date when this application was listed; and for the period following the 18th May there is absolutely no shred of evidence whatever of any degree of control by the Secretary of State. 
15.	I agree that this appeal should be dismissed. 
16.	LORD JUSTICE WARD: I agree with my Lords’ judgments. The evidence to which Mr Engleman has drawn our attention does not even begin to establish an arguable case that, as at the date of the issue of this application, Corporal Sankoh was in the control or power of the Secretary of State for Foreign Affairs, or the Secretary of State for Defence or any arm of Her Majesty’s Government. Mr Engleman’s submissions do not give me cause to entertain even the slightest doubt that he may be so illegally detained. The submissions do, however, leave me in no doubt whatever that this is an impudent appeal which must be dismissed. 
Order: Appeal dismissed. The Respondent to have costs on an indemnity basis. Respondent at liberty to seek to restore the matter before the court for the consideration of a wasted costs order against the Appellant’s representatives.