R (Al-Skeini) v Secretary of State for Defence

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Richards,Lord Justice Brooke
Judgment Date21 December 2005
Neutral Citation[2005] EWCA Civ 1609
Docket NumberCase No: C1/2005/0461, C1/2005/0461B
CourtCourt of Appeal (Civil Division)
Date21 December 2005
Between:
The Queen
(On The Application of Mazin Mumaa Galteh Al-Skeini and Others)
Appellants/Claimants
and
The Secretary of State for Defence
Respondents/Defendants

[2005] EWCA Civ 1609

[2004] EWHC 2911 (Admin)

Before:

Lord Justice Brooke,

Vice-President, Court of Appeal (Civil Division)

Lord Justice Sedley and

Lord Justice Richards

Case No: C1/2005/0461, C1/2005/0461B

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Rabinder Singh QC, Michael Fordham, Shaheed Fatima and Christine Chinkin (instructed by Public Interest Lawyers) for the Appellants

Christopher Greenwood QC, Philip Sales and Cecilia Ivimy (instructed by the Treasury Solicitor) for the Respondents

The Redress Trust and the Aire Centre intervened with a joint written submission

(This Summary forms no part of the Judgment)

This is an appeal by the families of five Iraqi civilians and a cross-appeal by the Secretary of State in a sixth case from an order made by the Divisional Court (Lord Justice Rix and Mr Justice Forbes) on 14 December 2004. The claimants are appealing against the declaration of that court that the European Convention on Human Rights ("ECHR") and the Human Rights Act 1998 (" HRA") do not apply to the circumstances of each of their cases. The Secretary of State's cross-appeal relates to the court's declaration that the HRA applies to the circumstances of the sixth claimant's case ("the Mousa case") and that the UK has violated its procedural duties under Articles 2 and 3 of the ECHR. The factual background and relevant case law have been set out in much greater detail in the judgment of the Divisional Court (see [2004] EWHC 2911 (QB); [2004] 2 WLR 1401).

By the present judgment, the Court of Appeal (( Lord Justice Sedley expressing doubts about the result) has dismissed the appeal and (unanimously) has dismissed the cross-appeal, subject to an adjustment of the Divisional Court's order in the Mousa case (at paras 178–179).

Lord Justice Brooke's leading judgment is in fourteen parts.

Parts 1 and 2 (paras 1–11) set out the main issues raised by these appeals and explain why it is arguable that the HRA and the ECHR may apply in the south- east of Iraq. This section of the judgment outlines the relevant principles of international human rights law and considers their implications for these appeals.

Parts 3 and 4 (paras 12–30) outline the circumstances in which the claims arose. References to the paragraphs of the judgment of the Divisional Court are in the form of "DC1", "DC2" etc. All six claims are test cases arising out of the death of civilians in Basrah City, in the south- east of Iraq, between August and November 2003. It is accepted that these deaths occurred whilst the UK was an occupying power. The central issue in this appeal is "whether national and European human rights law also confer on the relatives of the dead Iraqi civilians enforceable rights against the British authorities arising out of the fatal incidents that are at the centre of this case" (para 14) . The facts relating to the deaths of the six Iraqi civilians are summarised at paras 22–30.

In Parts 5–6 the judgment considers whether the HRA applies in these circumstances (paras 31–47) . In particular, it describes the circumstances in which the ECHR may have extra-territorial effect and refers to the relevant case law (paras 48–53).

Part 7 addresses the arguments that arise from a line of cases concerned with the Turkish invasion of northern Cyprus (paras 54–69).

In Part 8 (paras 70–81) it is noted that it was against this background that the Grand Chamber of the European Court of Human Rights ("EC tHR") determined an admissibility issue in Bankovic v Belgium & Others (2001) 11 BHRC 435. The Divisional Court's analysis of Bankovic is set out at para 72–73. The judgment sets out the extent to which the Court of Appeal accepts that analysis (paras 74–81).

The judgment goes on in Part 9 (paras 82–96) to consider the decisions of the EC tHR following Bankovic, with particular reference to its judgment in Issa v Turkey [2004] ECHR 31831/96 (paras 86–96) . The case law relied on by the court in Issa is discussed in Part 10 (paras 97–112).

Parts 11–14 contain the main conclusions of the court in respect of these appeals.

Part 11 considers whether the UK was in effective control of Basrah City in August-November 2003 (paras 113–128) . The court considers Articles 42, 43, 45 and 46 of Section III of the 1907 Hague Convention and the relevant provisions of the 1949 Fourth Geneva Convention. The circumstances in which the UK's troops found themselves in Basrah City are addressed at paras 119–123. The court concludes (at para 124) that although it is accepted that the UK was an occupying power, it is impossible to hold that it was in effective control of Basrah City for the purposes of ECHR jurisprudence at the material time.

In Part 12 the judgment is concerned with the question whether there was compliance with Articles 1 and 2 ECHR in the case of the first five claimants (paras 129–142) . There is a detailed analysis (at paras 131 – 137) of the case law of the EC tHR in relation to the kind of investigation that is required of a contracting State when its armed forces or its police are involved in the death of a civilian within its own territory. The deficiencies in the investigations are addressed at paras 140–141. The court is satisfied on the facts that the UK was not exercising jurisdiction for Article 1 purposes, and therefore the appeals of the first five claimants are dismissed (para 142).

In Part 13 (paras 143–149) , the judgment is concerned with the question whether the HRA applies to the Mousa case. The Secretary of State had conceded that the UK was exercising extra-territorial jurisdiction for ECHR purposes in this case. The court held that the HRA has extra-territorial effect in those cases where a public authority is found to have exercised extra-territorial jurisdiction on the application of State Agent Authority ("SAA") principles (para 147–148).

In Part 14 (para 150–179) , the question whether the UK was in breach of its procedural obligations under Articles 2 and 3 of the ECHR in the Mousa case is analysed. Details of the post-death investigations are set out from para 153 onwards. The Divisional Court found that there had been a breach of the procedural obligations under Articles 2 and 3. The Court of Appeal, however, was provided with much more evidence about these matters. In the light of this new evidence, the court concluded that it would be premature to give any substantive answer to the second preliminary issue directed by Collins J and that the matter should be remitted to the Administrative Court, with the recommendation that all further proceedings on that issue be stayed until after the conclusion or other disposal of the pending court-martial proceedings. The first part of the Divisional Court's order in Mousa is upheld.

Sedley LJ agrees with the majority that the Human Rights Act applies in the Mousa case (paras 182–188) . He prefers the view, however, that for Article 2 purposes, British troops, as an occupying power, were in effective control of Basrah City for the purposes of Strasbourg jurisprudence, and that the de facto assumption of civil power places on the occupying power an obligation to do all it can to protect essential civil rights, and particularly the right to life, even if in the near-chaos of Iraq it was unable to guarantee the full range of Convention rights (paras 189–197) . But he doubts whether this conclusion is compatible with the present Strasbourg case-law.

In a short judgment Richards LJ agrees with Brooke LJ, and explains why despite the views he expressed as a first instance judge in the Abbasi case on the proposition that the Human Rights Act has extra-territorial application, he is now willing to follow the dicta in two cases mentioned by Brooke LJ in paras 45 and 46 of his judgment and leave it to the House of Lords to decide whether those dicta are wrong (paras 208–9).

INDEX

Paragraph

Lord Justice Brooke
1

The main issues raised by these appeals ….. ….. ….. ….. …..….. 1

2

The reasons why the HRA and the ECHR may apply in south- east Iraq ….. 3

3

The circumstances in which the claims arose ….. ….. ….. ….. ….. 12

4

The facts underlying the six appeals ….. ….. ….. ….. ….. ….. 22

5

Does the HRA apply? ….. ….. ….. ….. ….. ….. ….. ….. ….. 31

6

When does the ECHR have extra-territorial effect? ….. ….. ….. ….. 48

7

The line of cases concerned with northern Cyprus ….. ….. ….. ….. 54

8

Bankovic v Belgium….. ….. ….. ….. ….. ….. ….. ….. ….. 70

9

Decisions of the Court following Bankovic ….. ….. ….. ….. ….. 82

10

The caselaw relied on by the Court in Issa v Turkey: Ocalan v Turkey…..97

11

Was the United Kingdom in effective control of Basrah City in August-

November 2003? ….. ….. ….. ….. ….. ….. ….. ….. ….. 113

12

Was there compliance with Articles 1 and 2 of the ECHR in the cases

of Claimants 1–5? ….. ….. ….. ….. ….. …. ….. ….. ….. 129

13

Did the HRA apply to the Mousa case? ….. ….. ….. ….. ….. ….. 143

14

Was this country in breach of its procedural obligations under Articles

2

and 3 of the ECHR in the Mousa case? ….. ….. ….. ….. ….. 150

Lord Justice Sedley
1

The responsibility of the United Kingdom ….. ….. ….. ….. ….. 180

2

The reach of the ECHR ….. ….. ….. ….. ….. ….. ….. ….. 182

3

The reach of the Human Rights Act ….. ….. ….. ….. ….. ….. 184

4

The applicability of the ECHR and the HRA ….. ….. ….. ….. ….. 189

5

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