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

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWN OF EATON-UNDER-HEYWOOD,LORD RODGER OF EARLSFERRY,LORD CARSWELL,BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL
Judgment Date13 June 2007
Neutral Citation[2007] UKHL 26
Date13 June 2007

[2007] UKHL 26

HOUSE OF LORDS

Appellate Committee

Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Al-Skeini

and others

(Respondents)
and
Secretary of State for Defence
(Appellant)
Al-Skeini

and others

(Appellants)
and
Secretary of State for Defence
(Respondent) (Consolidated Appeals)

Appellants

Rabinder Singh QC

Michael Fordham QC

Shaheed Fatima

Christine Chinkin

(Instructed by Public Interest Lawyers, Birmingham)

Respondents

Christopher Greenwood QC

Philip Sales QC

Cecilia Ivimy

(Instructed by Treasury Solicitor)

Interveners

Keir Starmer QC

Richard Hermer

Charles Banner

(Instructed by Bhatt Murphy)

LORD BINGHAM OF CORNHILL

My Lords,

1

These proceedings arise from the deaths of six Iraqi civilians, and the brutal maltreatment of one of them causing his death, in Basra. Each of the deceased was killed (or, in one case, is said to have been killed) and the maltreatment was inflicted by a member or members of the British armed forces. In each case a close relative of the deceased has applied in the High Court in London for an order of judicial review against the Secretary of State for Defence, seeking to challenge his refusal (by a letter of 26 March 2004) to order an independent enquiry into the circumstances of this maltreatment and these deaths, and his rejection of liability to afford the claimants redress for causing them. These six cases have been selected as test cases from a much larger number of claims in order, at this stage, to resolve certain important and far-reaching issues of legal principle.

2

The claimants found their claims in the English court on the Human Rights Act 1998 ("the HRA" or "the Act"). To succeed each claimant must show that a public authority has acted unlawfully, that is, incompatibly with a Convention right of the claimant or the deceased (section 6(1) of the Act). A Convention right means a right set out in one of the articles of the European Convention on Human Rights reproduced in Schedule 1 to the Act (sections 1(1), 1(3) and 21(1)). The claimant must also show that he or the deceased is a victim of the unlawful act (section 7(1), (3)), a requirement which gives rise to no issue in this case and may be set on one side. For present purposes it may be said that a claimant seeking to establish a claim under the Act has three substantial conditions to meet.

3

First, the claimant must show that his complaint falls within the scope of the Convention. This is an essential step, since it is clear that a claim cannot fall within the HRA if it does not fall within the Convention. In the ordinary run of claims under the Act, this condition gives rise to no difficulty: the claim relates to conduct within the borders of a contracting state such as the United Kingdom, and the question is whether a claimant's Convention right has been violated and if so by whom. But here the substantial violations alleged did not take place within the borders of a contracting state. They took place in Iraq, which is not part of the UK and not a contracting state. This is an important fact, since the focus of the Convention is primarily on what is done or not done within the borders of contracting states and not outside. To this rule, however, there are certain limited exceptions, recognised in the jurisprudence of the European Court of Human Rights in Strasbourg, the court vested by the Convention with the duty of interpreting and applying it. The claimants say that in each of their cases, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the UK (and, for that matter, any other contracting state), falls within the exceptions recognised by the Strasbourg jurisprudence, which the English court must take into account (section 2(1) of the Act). The Secretary of State originally contended in these proceedings that none of the claimants' complaints fell within the limited extra-territorial exceptions recognised by the Strasbourg court. But the Queen's Bench Divisional Court (Rix LJ and Forbes J, [2004] EWHC 2911 (Admin), [2007] QB 140) held that although the first five of the present claims fell outside the scope of the Convention the sixth, that of Colonel Mousa, did not. That is a ruling which the Secretary of State now accepts. So the first major issue between the parties is whether, as the first five claimants (strongly supported by the Interveners) contend, and the Secretary of State denies, their claims (or, at the very least, some of them) fall within the scope of the Convention. If the Secretary of State is right, their claims must fail. The Court of Appeal (Brooke, Sedley and Richards LJJ, [2006] EWCA Civ 1609, [2007] QB 140) held, although on grounds somewhat differing from those of the Divisional Court, that the first five claims do fall outside the scope of the Convention, accepting that the sixth falls within it. The Secretary of State supports that conclusion, although criticising the basis upon which the Court of Appeal held the sixth case to fall within the Convention.

4

Even if the claimants succeed on that first issue, they must satisfy a second condition: of showing that their claims, although falling within the scope of the Convention, also fall within the scope of the HRA. This again is an essential condition, for while a claim cannot succeed under the Act unless it falls within the scope of the Convention the converse is not true: a claim may in some circumstances fall within the scope of the Convention but not within the scope of the Act. Here the parties are in radical disagreement. The Secretary of State contends that the HRA has no application to acts of public authorities outside the borders of the UK. The Act has, in legal parlance, no extra-territorial application. Therefore, he submits, the claim of Colonel Mousa in the sixth case, and those of the other five claimants, cannot succeed under the Act. The claimants say that the Act does extend to cover the conduct of the British forces in Basra, given the special circumstances in which they were operating and what they did. Neither of the courts below accepted the full breadth of either party's submissions. They both held that Colonel Mousa's claim falls within the scope of the Act, a conclusion which the Secretary of State challenges. They both held that the first five claims fall outside the scope of the Act, a conclusion which those claimants challenge. If the claimants are wholly correct on the first issue (paragraph 3 above) but the Secretary of State is wholly correct on this issue, the claimants may have a claim which would succeed against the UK at Strasbourg but they have none against the Secretary of State under the Act.

5

If, and to the extent that, the claimants can satisfy these first two conditions, the success of their claims depends on their satisfying a third condition: that a Convention right has, in each case, been violated. The violation alleged consists primarily of a failure to investigate a violent death caused, or allegedly caused, by agents of the state, as the Convention has been held to require. The Divisional Court found such a violation in the case of Mr Mousa and would have found violations in the other five cases had they fallen within the scope of the Convention and the Act. The Court of Appeal agreed with the latter conclusion. But in Mr Mousa's case there had been factual developments of potential significance since the date of the Divisional Court's judgment, and the Court of Appeal concluded that this question should, in his case, be remitted to the Divisional Court. It is common ground that that order should stand, if the first two issues are resolved in Colonel Mousa's favour. But the Secretary of State resists the finding of violation, provisional though it has so far been, in the first five cases. Thus claimants 1-5 appeal against the dismissal of their claims and the Secretary of State cross-appeals against the ruling that Mr Mousa's case falls within the scope of the HRA.

The cases

6

The facts of the six cases, so far as they are now known, are rehearsed at some length in the judgments of the Divisional Court (paragraphs 56-89) and the Court of Appeal (paragraphs 22-29), to which reference may be made. The barest summary will suffice for present purposes.

Case 1

Mr Hazim Jum'aa Gatteh Al-Skeini was shot dead on 4 August 2003 by a member of a British military patrol in Basra. The claimant is his brother. Very different accounts of the incident have been given by the claimant and his witnesses on one side and British military witnesses on the other.

Case 2

Mr Muhammad Abdul Ridha Salim was fatally wounded on 6 November 2003 when British troops raided a house in Basra where he was. He received medical attention but died on 7 November 2003. The claimant is his widow. There is again a radical divergence between the respective parties' accounts of this incident.

Case 3

Mrs Hannan Mahaibas Sadde Shmailawi was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra. On the British military account she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen. The claimant is the widower of the deceased, who accepts that the shooting of his wife was not intentional. It appears that she may have been a very unfortunate bystander, and the Secretary of State does not accept that the fatal shot was fired by a British soldier rather than a gunman.

Case 4

Mr Waleed Sayay Muzban was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a people-carrier when he was shot, and he died the next day. The shooting occurred when a British military patrol was,...

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