Al-Saadoon and Others v Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lord Justice Tomlinson,Lady Justice Arden |
| Judgment Date | 09 September 2016 |
| Neutral Citation | [2016] EWCA Civ 811 |
| Docket Number | Case No: C1/2015/1613, C1/2015/1620 & C1/2015/2006 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 September 2016 |
[2016] EWCA Civ 811
Lady Justice Arden
Lord Justice Tomlinson
and
Lord Justice Lloyd Jones
Case No: C1/2015/1613, C1/2015/1620 & C1/2015/2006
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR. JUSTICE LEGGATT
CO/5608/2008 & hq13x01841
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fordham QC, Dan SquiresQC, Jason PobjoyandFlora Robertson (instructed by Public Interest Lawyers Limited) for the Appellants in Al-Saadoon
Phillippa Kaufmann QC and Adam Straw (instructed by Leigh Day Solicitors) for the Appellant in Rahmatullah
James Eadie QC, Karen SteynQC andKate Grange (instructed by Government Legal Department) for the Respondents on both cases
Hearing dates: 16th – 19th May 2016
Approved Judgment
| Section | Para No. |
| I. INTRODUCTION | 1 |
| 9 | |
| Bankovic v Belgium | 11 |
| Al-Skeini v United Kingdom | 18 |
| The judge's decision | 24 |
| The exceptional nature of extra-territorial jurisdiction | 26 |
| Departures from Bankovic | 29 |
| Effective control over an area | 34 |
| Espace juridique | 37 |
| State agent authority and control | 38 |
| (1) Diplomatic and consular agents | 45 |
| (2) Public powers | 46 |
| (i) The occupation period | 34 |
| (ii) The invasion period | 51 |
| (iii) The post-occupation period | 55 |
| (3) Exercise of physical power and control | 58 |
| Application to test cases | 74 |
| 106 | |
| Article 3 | 106 |
| Application to test cases | 140 |
| IV ARTICLE 5: DETENTION | 143 |
| Enforced Disappearance | 147 |
| Strasbourg Case Law | 156 |
| Issue 7(A) The effect of international humanitarian law | 178 |
| Application to the test cases | 186 |
| V UNITED NATIONS CONVENTION AGAINST TORTURE | 188 |
I. INTRODUCTION
British military involvement in Iraq between 2003 and 2009 has given rise to a large number of civil claims before the courts of this jurisdiction, most involving allegations of ill-treatment, unlawful detention and, in some cases, unlawful killing of Iraqi civilians by British soldiers.
One group of claims consists of claims for judicial review in which the claimants seek orders requiring the Secretary of State for Defence ("the Secretary of State") to investigate alleged human rights violations ("the public law claims"). There are currently 1,282 public law claims in which the claimants were represented at the time of the hearing before us by Public Interest Lawyers. In addition separate judicial review proceedings have been brought by Yunus Rahmatullah and Amanatullah Ali who are represented by Leigh Day.
A second group of claims consists of claims for compensation brought against the Ministry of Defence ("the private law claims"). There are currently approximately 646 such claims pending, approximately 257 claims having been settled.
The extent to which the European Convention on Human Rights ("ECHR") applies to the conduct of British forces in Iraq remains highly controversial. There are two particular areas of controversy.
(1) The first concerns the question of the scope of application of the Convention and when individuals are to be considered to be within the "jurisdiction" of a contracting State within Article 1 of the Convention. This issue has been much litigated and it is now established, at least, that persons taken into the custody of British forces in Iraq had certain rights under the Convention which the United Kingdom was bound to respect, in particular the right to life under Article 2, the right not to be tortured or subjected to inhuman or degrading treatment under Article 3 and the right to liberty under Article 5. However, the question whether, and if so in what circumstances, the Convention applies to the use of force against Iraqi civilians who were not in the custody of British forces remains controversial.
(2) The second major area of controversy concerns the extent to which there is a duty on the United Kingdom to investigate alleged violations of the ECHR rights of Iraqi civilians who were within the jurisdiction of the United Kingdom. Here it is clearly established that where a person who is within the jurisdiction of a contracting State is killed by agents of the State, dies in State custody or makes a credible allegation of torture or other serious ill-treatment by State agents, the State has a duty to carry out an independent and effective investigation. However, it remains in dispute whether a procedural duty of investigation arises into allegations of a violation of Article 3 where the allegation is that the claimant was transferred to United States or Iraqi authorities in circumstances where there was allegedly a real risk that they would subject the claimant to torture or mistreatment. Furthermore, there remains a dispute as to whether, and if so in what circumstances, there is a duty to investigate allegations that a claimant was unlawfully detained in violation of Article 5.
In his judgment of the 17 March 2015 ( [2015] EWHC 715 (Admin)) Leggatt J. has included (at [21] to [31]) an account of the two public inquiries established by the Secretary of State to investigate particular incidents, the establishment by the Secretary of State of the Iraq Historic Allegations Team ("IHAT") and the legal challenges to the independence of IHAT, an account which I gratefully adopt.
In its judgment in R (Ali Zaki Mousa) v Secretary of State for Defence (No. 2) [2013] EWHC 1412 (Admin) the Divisional Court recognised that there were unresolved issues of law relating to the applicability of the ECHR. Following its further judgment in that case [2013] EWHC 2941 (Admin) the Divisional Court gave directions for the identification of appropriate preliminary issues in test cases to resolve those issues. These are the issues which were decided by Leggatt J. in his judgment of 17 March 2015 and which are now before this court. The issues relate to four matters:
(1) The scope of application of the Convention;
(2) The extent to which there is an investigative obligation in respect of handover cases within Article 3 ECHR;
(3) The extent to which there is an investigative obligation in respect of cases within Article 5 ECHR;
(4) The impact, if any, on investigative duties under Articles 2 and 3 of the United Kingdom's obligations under the United Nations Convention Against Torture ("UNCAT").
The first preliminary issue asks whether Article 1 ECHR applies to the assumed facts of a number of test cases. By the time of the hearing before Leggatt J. the Secretary of State accepted that on the assumed facts of ten of these test cases, involving individuals whose rights were allegedly violated while they were in the custody of British forces, the claimants were at the relevant time within the jurisdiction of the United Kingdom for the purpose of Article 1.
In addition, the Secretary of State applied to have the claims of Mr. Rahmatullah and Mr. Ali dismissed on the ground that they were outside the scope of Article 1. A direction was given that this issue should be considered at the same time. The Secretary of State subsequently made the same concession in relation to these claims, namely that the claimants were within the United Kingdom's Article 1 jurisdiction during any period when they were in the custody of British forces.
The first preliminary issue is whether Article 1, European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") applies in the test cases. Article 1 makes provision for the extent of the application of ECHR.
"The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention."
In Soering v United Kingdom (1989) 11 EHRR 439 the Strasbourg Court stated at [86]:
"Article 1 … sets a limit, notably territorial, on the reach of the Convention. In particular, the engagement undertaken by a Contracting State is confined to "secure" ("reconnaître" in the French text) the listed rights and freedoms to persons within its own "jurisdiction". Further, the Convention does not govern the actions of states not parties to it, nor does it purport to be a means of requiring contracting states to impose Convention standards on other states."
Bankovic v Belgium
Bankovic & Others v Belgium & Ors (App No. 52207/99) (2001) 44 EHRR SE5 concerned an application to the European Court of Human Rights arising out of the bombing of the Federal Republic of Yugoslavia by NATO forces during the Kosovo conflict. The applicants sought to invoke Articles 2, 10 and 13 ECHR. The respondent governments contended that the applicants and their deceased relatives were not, at the relevant time, within the jurisdiction of the respondent states and that the application was therefore incompatible with the provisions of the Convention. The Grand Chamber held that it lacked jurisdiction ratione loci over the claim. It explained the concept of jurisdiction under the ECHR as primarily territorial:
"59. As to the "ordinary meaning" of the relevant term in article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a state's exercise of jurisdiction...
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