Abd Ali Hameed Ali Al-Waheed v The Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWHC 2714 (QB),[2017] UKSC 2 |
| Docket Number | Case No: HQ13X01906 |
| Court | Queen's Bench Division |
| Date | 31 July 2014 |
[2014] EWHC 2714 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Leggatt
Case No: HQ13X01906
Richard Hermer QC & Alison Pickup (instructed by Leigh Day) for the Claimant
Derek Sweeting QC (instructed by Treasury Solicitors) for the Defendant
Hearing date: 12 June 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
Several hundred claims have been brought in the High Court in which Iraqi civilians are seeking damages from the Ministry of Defence (" MoD") for their allegedly unlawful detention and/or unlawful treatment by British armed forces on various dates during the period when British armed forces were present in Iraq. That period began on 20 March 2003, when a coalition of armed forces led by the United States and including a large contingent from the UK invaded Iraq, and ended on 31 December 2008. The claims are made under the Human Rights Act 1998. In particular, those claimants who allege that they were unlawfully detained contend that they were deprived of their liberty in violation of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and are accordingly entitled to compensation under Article 5(5) of the Convention and section 8 of the Human Rights Act.
More than 200 of these claims concern detention which occurred after 8 June 2004, when United Nations Security Council Resolution ("UNSCR") 1546 entered into force. It is common ground that on the present state of the law this court is bound to follow the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332 and to dismiss these claims, notwithstanding the subsequent decision of the Grand Chamber of the European Court of Human Rights in Al-Jedda v United Kingdom (2011) 53 EHRR 23.
At a pre-trial review in the litigation held on 12 June 2014 the claimants applied to the court to dismiss one or more of the claims and to grant a 'leapfrog' certificate under section 12 of the Administration of Justice Act 1969 to enable an appeal to proceed directly to the Supreme Court. The matter has since been further addressed by the parties in written submissions and the MoD has consented to this course. I consider that this is a proper case in which to grant such a certificate and this judgment gives my reasons.
The present case
The case in which I am granting the certificate is a typical example of the relevant group of claims. Mr Al-Waheed was arrested by British soldiers on 11 February 2007 and detained until 28 March 2007, when he was released. He alleges that his detention was unlawful and violated Article 5 of the Convention, and also that he was assaulted while in custody. The MoD in its defence admits that Mr Al-Waheed's internment was attributable to the United Kingdom and that during his internment he fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention. However, the MoD contends (among other defences) that Mr Al-Waheed's detention was authorised by UNSCR 1546 which displaced the obligation of the UK to secure Mr Al-Waheed's rights under Article 5 of the Convention.
The basis for this contention is the decision of the House of Lords in Al-Jedda v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332.
The Al-Jedda case: the House of Lords
By the time of his appeal to the House of Lords, Mr Al-Jedda had been detained by UK armed forces at detention facilities in Iraq for over three years (since October 2004). He was suspected of being a member of a terrorist group, but had not been charged with any offence, and no charge or trial was in prospect. He sought judicial review of his detention on the ground that it was contrary to Article 5 of the Convention. His claim failed on the basis that his rights under Article 5 were displaced by an obligation on the UK to detain him pursuant to UNSCR 1546.
UNSCR 1546 authorised a multi-national force ("MNF") under unified command to "take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution …" The letters annexed to the resolution were two letters both dated 5 June 2004 to the President of the Security Council written by, respectively, the Prime Minister of the Interim Government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell). The letter from Dr Allawi sought a new resolution of the Security Council to authorise the MNF to contribute to maintaining security in Iraq, "including through the tasks and arrangements set out in the letter from [Mr Powell]". The letter from Mr Powell confirmed that the MNF was prepared to continue to contribute to the maintenance of security in Iraq and stated:
"Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq's political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq's security. …" [emphasis added]
The mandate for the MNF conferred by UNSCR 1546 was extended by three subsequent Security Council resolutions: UNSCR 1637 of 8 November 2005, which extended the authorisation of the MNF until 31 December 2006; UNSCR 1723 of 28 November 2006, which extended the authorisation until 31 December 2007; and UNSCR 1790 of 18 December 2007, which extended the authorisation until 31 December 2008.
The argument advanced by the Secretary of State to justify Mr Al-Jedda's detention was founded on...
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