R (Al-Saadoon & Mufdhi) v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS,Lord Justice Richards: |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] EWHC 3098 (Admin),[2008] EWHC 2391 (Admin) |
| Date | 19 December 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5608/2008,CO/5608/2008 |
[2008] EWHC 2391 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/5608/2008
Ms K Monaghan QC and Mr R Husain (instructed by Public Interest Lawyers) appeared on behalf of the Claimants
Mr Tim Eicke and Mr Sam Wordsworth (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
As I have indicated, in my view this claim is arguable and normally I would therefore have granted permission, but because of a delay argument I have decided to order a rolled-up hearing. That is purely so that the defendant can, if he so wishes, maintain an argument based on delay without needing to depend upon the provisions of section 31(6) of the Supreme Court Act 1989.
This claim arises at the instance of two Iraqi nationals, who were fairly important officials in the Ba'ath Party before the downfall of Saddam Hussein. After the intervention of the American and British forces in 2003, two soldiers were murdered and it is alleged that the two claimants were involved in those murders. Each was detained in April 2003 in one case and in November 2003 in the other case, and they were held —and it is not necessary for me for the purposes of this judgment to go into any detail —as security risks under the provisions that from time to time were in place.
However, in 2006 a formal complaint was laid before the Iraq criminal court that had jurisdiction, by an officer of the British forces, that the two were guilty of murder and the Iraq criminal court assumed jurisdiction.
The base in which they were held was a detention centre, as I recall it, which was run by the British authorities. There was a memorandum of understanding which was issued between the Iraqi government and the British government, in which the British government agreed that at the request of the Iraqi criminal authorities they would make available detention facilities in circumstances such as this, although they retained a discretion not to agree in any particular case to accept that responsibility.
There was also included in the memorandum an agreement by the Iraqi authorities that they would, putting it broadly, not ill-treat any individual in terms that would otherwise be a breach of Article 3 of the European Convention on Human Rights. Having said that, that does not imply that the Convention was believed to be applicable, merely that the conduct in question was equivalent to that which would fall within Article 3.
Originally, the Iraqi criminal court assumed jurisdiction. However, the decision was made that the murders with which the claimants were involved were war crimes. Indeed, it is clear from what I have seen that prima facie they fall within the definition of such crimes. The appropriate court to deal with such war crimes was not the ordinary criminal court in Iraq, but a special tribunal which is known as the IHT. That is of considerable concern to the claimants, because they have asserted that it is likely to bring a political element into the proceedings and they are concerned in those circumstances that will be unable to obtain a fair trial.
The other relevant factor is that both crimes of murder and war crimes involving killing (as these allegedly do) carry a death penalty. It is not as I understand it a mandatory death penalty, but a discretionary one. As is well known, HM Government is a signatory to the relevant protocol, I think it is Protocol 13, to the European Convention which effectively bars capital punishment. Again, to use an analogy, in extradition cases the government will always insist on an undertaking which it regards as binding that the death penalty will not be imposed if someone is to be extradited. That is normally an undertaking by the relevant administrative body concerned with the investigation that they will not seek a death penalty, but the effect is no death penalty.
Negotiations have been held with the Iraqi authorities. No undertaking has been obtained that there will be no death penalty, but there is evidence from a relevant official that the negotiations have resulted in a situation where it is unlikely that the death penalty will result because at least one of the victim's family have indicated that they do not seek that there should be such a penalty. Apparently that is something which is likely to carry considerable weight with the Iraqi authorities. But I make it clear that there is no guarantee that there will be no death penalty.
There is material which needs to be built on, if possible, that indicates that there have been concerns about what goes on in some detention facilities run by the Iraqis and that there has been a pattern in some cases of ill-treatment that would amount to such as would contravene Article 3 were Article 3 to be applicable. Accordingly, the submission is that it is arguable that there is a real risk on the evidence put before the court that there might be such treatment, quite apart from the problems in relation to the death penalty.
The defence contention is, as indeed is the case, that the claimants are detained by the British authorities because the British authorities have agreed to make the facilities for which they are responsible available for the use of the Iraqi criminal justice system. Therefore the claimants are already within that system and, although the memorandum of understanding exists, there is in reality no power in the British government to refuse to permit the Iraqi judicial system to operate, and therefore to hand the two over to that system on request. It would be contrary, it is submitted, both to international law and would be a breach of the sovereignty of the State of Iraq were the government to refuse. In fact the government has been seeking the necessary assurances and it was not until recently, I think in August, that the final decision was made that the assurances that were obtained were considered to be sufficient to satisfy the government that it was appropriate to hand over.
Nonetheless, Mr Eicke submits that that was something which, although as a matter of policy our government decided was necessary, as a matter of law if it came to the crunch, as it were, they would not have been able to justify a refusal to handover, whether or not such satisfactory assurances were obtained.
The claimants' case is that the Human Rights Act is arguably applicable. It is submitted that if the authorities at the detention centre run by the British were to act in such a way as breached Article 2 or Article 3 in relation to a detainee, that detainee would have rights arising under the Human Rights Act because, following the decision of the House of Lords in Al-Skeini, it is the sort of situation where the Act would apply.
If that is right, then it is submitted that it is all or nothing, as it were, and so a breach of Article 3 by removing an individual from the care of the British authorities to the risk of ill-treatment by the Iraqi authorities would be a breach of Article 3. That is applying the law as developed from Chahal in Strasbourg, and as confirmed by the more recent case of Saadi v Italy.
The defendant contends that the Act does not apply. Reliance is particularly placed upon a decision of the Court of Appeal in R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643. That was the case where would-be asylum seekers in Australia were complaining that the conditions in the detention centre there were such as breached Article 3 and sought protection in the British Consulate in Melbourne. The question arose as to whether it was in the circumstances necessary for the British authorities to maintain protection and refuse to hand over the claimants to the Australian authorities.
The claim failed on its facts, but there were observations of the court which are material in relation to, in particular, the standard which had to be met in order to justify diplomatic asylum. It may be that from that it is possible to say that if the Human Rights Act applies, the standard required is not the lower standard developed in Chahal and Saadi, but a higher standard because of the issues of the sovereignty of Iraq. Whether that is the case or not is not for me to decide.
It seems to me that in all the circumstances, the question as to whether the two claimants are entitled to a protection so that they cannot be handed over by the British government or whether there is no power in the British government to refuse to hand over even if there are real fears of the lack of a fair trial or some other breach of the Convention, is an issue of some importance and an issue which needs to be properly and fully considered by the court.
There was a further basis asserted —and this came before me as well —for relief in relation to the decision to transfer, namely that the detention was and is unlawful. However, Ms Monaghan has accepted, as a result I think of observations by me, that that is not an issue which it would be helpful or necessary to deal with as a separate issue in the hearing. The reason for that is perhaps a fairly obvious one: if the claimants fail to persuade the court that it would be contrary to law to hand them over to the Iraqi authorities, then they will be handed over and the detention will not continue, and therefore whether or not it is lawful becomes immaterial. If on the other hand the decision of...
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