Related Rule
United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 100. Fair Trial Guarantees
Section A. General
The UK Military Manual (1958) provides that if civil inhabitants “commit or attempt to commit hostile acts, they are liable to punishment, after a proper trial”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 88.
The manual further provides that “the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples” is prohibited at any time. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 131(1)(d).
The manual specifies that “wilfully depriving a prisoner of war of the rights to a fair and regular trial prescribed in the Convention” is a grave breach of the 1949 Geneva Convention III. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 282.
In cases of occupation, the manual states: “Sentences may be pronounced only after a regular trial.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 570.
The manual further emphasizes that wilfully depriving a prisoner of war or persons protected under the 1949 Geneva Convention IV of the rights of fair and regular trial required by the 1949 Geneva Conventions III and IV is a grave breach of those instruments. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 625(b)–(c).
The UK LOAC Pamphlet (1981) recalls: “[The 1977 Additional] Protocol I contains fundamental guarantees to … ensure that persons are not punished without properly conducted trials.” 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 9, p. 35, § 10.
With respect to non-international armed conflicts, the Pamphlet refers to common Article 3 of the 1949 Geneva Conventions and states that persons hors de combat “may not be sentenced without proper trial”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 12, p. 42, § 2(a)(4).
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed. No sentence may be passed and no penalty executed “except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on punishment of prisoners of war, the manual states:
Where there are to be judicial proceedings, prisoners of war are normally to be tried by military courts. If the law of the detaining power permits the trial by civil court of members of its own armed forces for particular offences, the civil courts may try prisoners of war under the same conditions. However, trial may only take place if the court is independent and impartial and the accused is given due rights of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.118.
In its chapter on internal armed conflict, the manual restates the provisions of common Article 3 of the 1949 Geneva Conventions:
Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply “as a minimum”, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(d) the passing of sentences … without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.4.
In the same chapter, the manual specifies:
Indispensable judicial guarantees include as a minimum:
a. individual criminal responsibility (so that collective punishments would be unlawful);
b. the right of the accused not to be compelled to testify against himself;
c. the presumption of innocence until proved guilty;
d. notification to the accused of the charges against him;
e. adequate time and opportunity for the accused to prepare his defence;
f. the attendance of both prosecution and defence witnesses and, if necessary, an interpreter;
g. trial in person and public judgment. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
In its chapter on enforcement of the law of armed conflict, the manual states:
Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant convention:
f. wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.24.
The manual further states:
Additional Protocol I extends the definition of grave breaches to include the following:
c. the following, when committed wilfully and in violation of the Conventions or the protocol:
(5) depriving a protected person of the rights of fair and regular trial. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.25.
Lastly, the manual provides:
Prisoners of war charged with war crimes must be tried by the same courts, applying the same procedures, as would be applicable to members of the armed forces of the detaining power. Civilians so charged may be tried either by the ordinary courts of the state concerned or in courts set up by an occupying power. Persons accused of war crimes are entitled to a proper trial and have rights of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 16.30.1.
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions or of [the 1977 Additional Protocol I]”. 
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(a)(vi) and (c)(iv) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
In 2003, in a reply to a written question in the House of Commons asking whether the UK Foreign Secretary had “called for the status of the prisoners held at Guantanamo Bay to be decided by a tribunal”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, wrote:
Although the Foreign Secretary has not called for a tribunal to decide the detainees’ status, he has raised the issue of the detainees with Colin Powell several times, most recently on 23 January. Officials are in frequent contact.
We have made clear that whatever their status the detainees are entitled to humane treatment and, if prosecuted, a fair trial. We have been encouraging the US to move forward with the process of determining the future of the British detainees. We shall continue to do so. 
United Kingdom, House of Commons, Written answer by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 2 April 2003, Vol. 402, Written Answers, cols. 741W–742W.
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
So far, neither of the detainees has been charged. However, we have made it clear to the US that we expect the process to fulfil internationally accepted standards of a fair trial. We will follow the process carefully.
The right hon. and learned Gentleman asked under what law the men would be charged. We understand that “designation” means that the persons concerned are subject to the order that governs military commissions and can now be charged and prosecuted. However, that is not automatic and we understand that matters will proceed on a case-by-case basis.
We are still seeking information about the conduct of any trial. Indeed, we continue to express strong views about the way in which we hope that a trial will be conducted. The same applies to the right of appeal.
We understand that the Americans will nominate the defence lawyers in some way. We are seeking further information about that, too. The right hon. and learned Gentleman will forgive me if I do not go into much detail, but many aspects are a cause of concern to us and we intend to pursue them all.
The precise way in which the trials will be conducted is not yet clear, and we are taking a close interest in that issue. Many of the questions that the right hon. Gentleman asks relate to matters that we are pursuing with the United States, and I can endorse his last point about our concern that the trials be conducted within the rule of law.
One concern that we are pursuing with the Americans is that in our view, all the evidence concerning the case against these people must clearly be made available to them, so that they are in a position to rebut it.
We understand that the detainee does have the right to choose his own defence lawyer – if he meets the security requirements laid down by the Americans. However, it is clear that this matter will have to be checked out.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
As the right hon. Gentleman knows, the United States is now talking about the right method by which to try anybody against whom charges would be brought. We will make active representations to the United States – indeed, we are already doing so – to make absolutely sure that any such trial will take place in accordance with proper international law.
It is of course important that the commission that tries these people is conducted according to proper rules. Those rules have not yet been drawn up, and it is precisely for that reason that we are making active representations …
What my hon. Friend says must be right. If charges are brought, they must be proved in accordance with proper rules of evidence. As he rightly says, the charges are serious. It is worth remembering that the allegations revolve around what happened in Afghanistan some time ago, when British and American troops were putting their lives at risk there. However, I entirely agree with my hon. Friend – there must be no question about this at all. Any commission or tribunal that tries these men must be conducted in accordance with proper canons of law so that a fair trial takes place and is seen to take place. 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 9 July 2003, Vol. 408, Debates, cols. 1152–1153.
In 2003, in a reply to a written question in the House of Commons, the UK Solicitor-General wrote:
The Attorney-General has been involved in discussions within Government about the position of UK nationals detained in Guantanamo Bay. He has also raised the matter with those responsible in the United States Administration, to express the Government’s profound concern that if the UK detainees are to be tried they should have a fair trial with all proper safeguards. 
United Kingdom, House of Commons, Written answer by the Solicitor-General, Hansard, 10 July 2003, Vol. 408, Written Answers, col. 959W.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
The assessment of the status of the detainees is a matter for the US, as the detaining power. We have, however, discussed the detainees’ status with the US authorities. They have told us that they do not consider any of the British detainees to be entitled to prisoner of war status. The US authorities have assured us that the detainees are being treated humanely and consistently with the principles of the Geneva Conventions.
Whatever their status, the detainees are entitled to humane treatment and if prosecuted, a fair trial. 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 14 July 2003, Vol. 651, Written Answers, cols. WA74–WA75.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, as I indicated in my original Answer, the issue of the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland is still a matter under discussion, although, as I am sure all noble Lords are aware, it is not possible for the United Kingdom of Great Britain and Northern Ireland Government to give any guarantees even about a trial taking place because of the separation of powers – rightly – between the Government in the form of Government Ministers and the Crown Prosecution Service as the body which would decide whether there is sufficient evidence to go to trial.
However, the noble Lord is quite right to remark that the issues adduced by him of due process and the right to a fair trial still arise. Further, there are widely recognised international norms covering the various elements that constitute a fair trial which my right honourable friend will be addressing with the President of the United States.
My Lords, the question raised by the noble Lord may be premature at this stage; we are still discussing what those procedures should be. If the trials as originally formulated by the United States authorities do go ahead, I think that there would be grave difficulties as regards any observers feeling that those trials would be fair on the basis that we have already discussed. There is no secret about this issue. The United Kingdom of Great Britain and Northern Ireland Government have very strong reservations about what is being proposed at the moment. However, to take the point that were some of those issues to be resolved and the trials to go ahead, I can agree with the noble Lord that the presence of international observers would provide something of a confidence boost to the international community. As my noble friend Lord Judd pointed out, this is a question not just for the United Kingdom of Great Britain and Northern Ireland but also for the international community.
However, we must recognise that some of the issues which may be brought up at those trials may have to be dealt with in camera, for very obvious security reasons.
My Lords, the noble Lord raises two issues. We have made representations to the United States Government in regard to the physical conditions under which the individuals are held – for example, the inadequate facilities for exercise and the inadequate facilities for contact with their families. Representatives of the International Red Cross have visited Guantanamo Bay and are giving their advice to the United States Government.
The more difficult issue pinpointed by my noble friend concerns coercion. It might be argued that a system of plea-bargaining where the alternative to admitting to charges is to face the death penalty is a coercive and difficult line of pre-trial cross-examination.
My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion.
These matters are still under discussion with the United States. As I indicated when we last debated this issue, my right honourable friend the Foreign Secretary is dealing with these matters with his opposite number, Colin Powell. He has raised the serious concerns that we have over the kind of issues raised by the noble Lord and they have agreed that discussions on them will continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
As my right honourable friend the Prime Minister said during Prime Minister’s Questions on 9 July, Official Report, Commons, col. 1152-3, “Any commission or tribunal must be conducted in accordance with the proper canons of law so that a fair trial takes place and is seen to take place”.
The UK has made this view clear to the US. On 18 July the US announced that they would not commence any military commission proceedings against UK nationals, pending discussions between American and British legal experts …
The US announced on 18 July that they would not commence any military commission proceedings against UK nationals detained at Guantanamo Bay, pending discussions between American and British legal experts. We understand from the US authorities that medical facilities, including psychiatric care, at Guantanamo Bay available to the detainees are of a high standard and are the same as those for US military personnel. We firmly believe that a fair judicial process should take account of a person’s fitness to stand trial. This is one of the specific issues we have raised with the US authorities, and continue to discuss with them. 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 8 September 2003, Vol. 651, Written Answers, col. WA17.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
Over the past few months, my noble and learned friend the Attorney-General has vigorously expressed to the United States Administration our strong reservations about the military commission’s procedures. Our objective has been to ensure that if any British nationals are detained at Guantanamo Bay and prosecuted, a fair trial takes place in accordance with generally recognised principles. Discussions continue. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 15 October 2003, Vol. 653, Debates, col. 936.
In 2003, during a debate in the House of Commons, the UK Solicitor-General stated:
The Attorney-General has held meetings with his counterpart, the Attorney-General of the United States, and with officials from the Department of Defence. As the Prime Minister, the Foreign Secretary and others have placed it on record, I take this opportunity to remind the House that the Attorney-General has been holding discussions with the US authorities and has been seeking undertakings that if UK citizens are put on trial in the US they will have a fair trial. We have made it clear that if the Attorney-General is not satisfied that those citizens would receive a fair trial under the United States’ procedures they will be returned to the UK. The hon. Gentleman can be satisfied that either they will have a fair trial or they will be returned to the UK. As negotiations are continuing, I am afraid that I can say nothing further about timing. 
United Kingdom, House of Commons, Statement by the Solicitor-General, Hansard, 30 October 2003, Vol. 412, Debates, col. 434.
In 2003, during a debate in the House of Commons, the UK Prime Minister stated:
On Iraq, the US Secretary of State is correct: Saddam Hussein will be treated with all the rights of a prisoner of war. The trial process should be determined by the Iraqi Government and the Iraqi people. It should be left to them. Of course we must ensure that the process is proper, independent and fair, but I am sure that the Iraqis have the capability to achieve that. We and other countries will work with them to ensure that that is correct. 
United Kingdom, House of Commons, Statement by the Prime Minister, Hansard, 15 December 2003, Vol. 415, Debates, col. 1323.
In 2004, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated the following on the trial of UK citizens detained by US authorities in Guantanamo Bay:
The Government’s position, reported frequently to Parliament, has been that the detainees should either be tried fairly in accordance with international standards or be returned to the UK. Last July, we expressed publicly our reservations about the US military commissions and the US Government suspended legal proceedings against two of the British detainees who had been designated for trial by the commissions. Those proceedings remain suspended. Subsequently, after a lengthy series of discussions with the US, led for the British side by the Attorney-General, we concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. Therefore, we requested that the nine British detainees be returned to the UK. 
United Kingdom, House of Commons, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 1 July 2004, Vol. 423, Debates, cols. 528–529.
In 2004, during a debate in the House of Commons, the UK Solicitor-General stated the following on the trial of UK citizens before a US military commission:
We have strongly stood behind the rights of those detainees either to have a fair trial or be brought home. We have made that position clear. That is why the military commissions that were proposed by the US authorities in respect of those particular UK detainees have been suspended. 
United Kingdom, House of Commons, Statement by the Solicitor-General, Hansard, 9 September 2004, Vol. 424, Debates, col. 858.
In 2006, during a debate in the House of Commons, the UK Minister of State for Trade, Foreign and Commonwealth Office, stated:
The British Government’s view is that, whatever the status of the so-called global war on terror, the detainees at Guantanamo are entitled to humane treatment and, if prosecuted, to a fair trial. We have made that clear to the United States authorities … In private diplomatic discussions, at both ministerial and official levels, the UK has made its views known to the US Government and has made representations to them about the circumstances in which, and conditions under which, detainees are held at Guantanamo.
After a lengthy series of discussions with the US, which were led for the Government by the Attorney-General, in 2004 the Government concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. That eventually led to the release and return of the British detainees at Guantanamo. 
United Kingdom, House of Commons, Written answer by the Minister of State for Trade, Foreign and Commonwealth Office, Hansard, 22 May 2006, Vol. 446, Debates, col. 1307.
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated regarding common Article 3 of the 1949 Geneva Conventions: “On its face this protection is restricted to armed conflicts not of an international character. However, it is understood to apply in all forms of armed conflict as part of customary international law to set out the irreducible minimum standard.” 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, § 10.2, p. 10.