As part of our January review of the ways in which international law has featured in the English courts, we are looking back at a few of the cases on our Top 10.
On 9 September 2016, the Court of Appeal gave judgment in Al-Saadoon & Ors v Secretary of State for Defence  EWCA Civ 811, on appeal from the judgment of Leggatt J of 17 March 2015 ( EWHC 715;  3 WLR 503). This is the latest in a series of cases, arising out of over 2000 public law and private law claims, concerning the controversial issue of the extent to which the European Convention of Human Rights (“ECHR”) applies to the conduct of British forces in Iraq.
Lloyd Jones LJ, giving judgment, considered four key issues:
- The scope of the application of the ECHR: in particular, the limits of the three categories of “exceptional” circumstances capable of giving rise to extra-territorial jurisdiction, as identified by the Strasbourg Grand Chamber in Al Skeini v United Kingdom (2011) 53 EHRR 18. (These are: i. effective control over an area, ii. espace juridique, and iii. state agent authority and control).
- The extent to which there is an investigative obligation in respect of “handover cases” within Article 3 ECHR.
- The extent to which there is an investigative obligation in respect of cases within Article 5 ECHR.
- 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”).
Scope of application
Appealing Leggatt J’s conclusion on the scope of the ECHR, the Secretary of State submitted that Leggatt J had failed to recognise the “exceptional” nature of extra-territorial jurisdiction, and that he had erred in failing to require some special justification to establish extra-territorial jurisdiction. Lloyd Jones LJ, drawing on Lord Hope’s judgment in Smith v Ministry of Defence  AC 52, noted that the word “exceptional” does not set an exceptionally high threshold before a finding of extra territorial jurisdiction can be established, but simply means that the presumption that a state’s power is exercised normally within that state’s territory does not apply. Further, while the House of Lords and Supreme Court have held that Article 1 ECHR should not be construed as reaching further than existing Strasbourg jurisprudence, that does not mean that domestic courts can hold that extra-territorial jurisdiction exists only in factual situations already recognised by the Strasbourg Court as qualifying. Instead, while emphasising the particular need for care in determining the fundamental issue of the ambit of the application of the ECHR, Lloyd Jones LJ held that it is necessary to identify the principles underlying the decisions of the Strasbourg court.
The relevant “exceptional” category in this case was “state agent authority and control”
In undertaking this exercise, Lloyd Jones LJ concluded that the Grand Chamber’s decision in Al-Skeini must now be taken as the starting point for any consideration of the extra-territorial application of the Convention. He noted that, in Al-Skeini, the Strasbourg court departed in important ways from the principles laid down in Bankovic & Others v Belgium & Ors (App No. 52207/99) (2001) 44 EHRR SE5, while seeming to criticise the failure of the court to provide guidance on the current status of the Bankovic
The relevant “exceptional” category in this case was “state agent authority and control” – that whenever a state through its agents exercises control and authority over an individual, the state is under an obligation to secure to that individual the rights and freedoms under Article 1 of the Convention that are relevant to the situation of that individual. This can be further divided into sub-categories of: acts of diplomatic and consular agents (not applicable in this case); the exercise of public powers; and the exercise of physical power and control over individuals.
- Exercise of public powers: As formulated in Al Skeini, this exception applies when “through the consent, invitation or acquiescence of the government of that territory, [the contracting party] exercises all or some of the public powers normally to be exercised by that government”. The Secretary of State argued that the words “normally to be exercised by that government” were an important limitation to the exception. Agreeing with Leggatt J, Lloyd Jones LJ observed that he could see no good reason why the principle of territorial jurisdiction should apply only where state agents purport to exercise powers normally exercised by the occupied state but that, “This is an issue on which clarification from the Strasbourg court is urgently required” . Overall, what gives rise to this exception will depend on the facts of each case.
- Exercise of physical power and control over individual: More controversially, Lloyd Jones LJ disagreed with Leggatt J that the effect of Al-Skeini is to establish a principle of extra-territorial jurisdiction under Article 1 that whenever and wherever a state which is a contracting party to the Convention uses physical force it must do so in a way that does not violate Convention rights. Referring specifically to situations in which an individual is not in the custody of the British armed forces (“non-custody cases”), Lloyd Jones LJ held that “the Grand Chamber required a greater degree of power and control than that represented by the use of lethal or potentially lethal force alone”. What is required is that there is an “element of control of the individual prior to the use of lethal force”. Lloyd Jones LJ acknowledged that in considering the “element of control”, it will be necessary to distinguish between different types and degrees of physical power and control. This, he considered, “will result in fine and sometimes tenuous distinctions”. Leggatt J, for example, had pointed to the difficulty in principle of distinguishing between killing an individual after arresting him and simply shooting him without arresting him first.
Investigative obligation under articles 3 and 5
It is well established that Article 3 ECHR gives rise to an obligation, in so-called “handover cases”, not to send an individual to another State where there are substantial grounds for believing that s/he would face a real risk of being subjected to torture or other prohibited treatment (Soering v United Kingdom (1989) 11 EHRR 439). The issue of debate in this case was whether there is a corresponding procedural duty on a contracting state to investigate allegations of a breach of the Soering duty after the event. Agreeing with Leggatt J, Lloyd Jones LJ held that “neither on the authorities nor in principle” was there support for this proposition. Affirming Leggatt J’s reasoning that the Soering obligation cannot be regarded as having the same fundamental status as the prohibition against torture and inhuman or degrading treatment itself, Lloyd Jones LJ concluded that the protective duty under Article 3 is a duty to investigate the ill-treatment, not to investigate an allegation that state agents have exposed an individual to a risk of ill-treatment by others. “Where the alleged ill-treatment occurs outside the jurisdiction of the contracting state it has no power and no obligation to investigate it”.
“Where the alleged ill-treatment occurs outside the jurisdiction of the contracting state it has no power and no obligation to investigate it”.
Nevertheless, Lloyd Jones LJ upheld Leggatt J’s conclusion that there are two bases on which, in principle, a violation of Article 3 could occur in a Soering-type case which would give rise to a duty to investigate. The first is a situation in which an individual is handed over by a contracting state to agents of another state who torture or mistreat him under the direction or at the instigation of the contracting state. The second is one in which it cannot be said that the contracting state which handed over the detainee continues to exercise control over him, but there is a sufficient level of involvement in torture or other serious mistreatment to which the detainee is subsequently subjected to amount to complicity in such treatment on the part of the contracting state. In other words, the investigative duty arises in a situation considered indistinguishable from that where the contracting state itself inflicts the ill-treatment. In terms of the content of such an investigation, the obligation would be to conduct an investigation which is effective and independent.
In relation to Article 5, there was no challenge to Leggatt J’s finding that there was no duty on the State to hold an investigation whenever an arguable claim is made that the detention of an individual violates Article 5. However, in reliance largely on El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25, the claimants submitted that the duty to investigate an alleged violation of Article 5 was not limited to cases of enforced disappearance, but arises in all cases where detention takes place beyond the reach of the courts, even if such detention is not secret or unacknowledged. Lloyd Jones LJ held that there is no reason in principle why an investigative duty should be extended in the way proposed. In such cases, where the detention has not been concealed or wilfully denied by the State, the procedures under Article 5(4) and (5) will normally provide a suitable remedy. Further, in situations of armed conflict, Article 5 and the provisions of international humanitarian law will co-exist and both apply to issues of detention (Hassan v United Kingdom (App No. 29750/09) (2014) 38 BHRC 358), such that it is necessary to effect an accommodation between the two. As a result, in an international armed conflict a system of judicial control over detention may not always be required: further undermining the proposition that an investigative obligation is found on the absence of judicial control.
Obligations under UNCAT
Of particular relevance to the issue of the application of international law in domestic courts, the claimants were refused permission to appeal against Leggatt J’s ruling that UNCAT does not give rise to domestically enforceable legal rights and, in any event, even if it did, that there is nothing to suggest that Article 12 UNCAT imposes a broader investigative duty on a State party under Article 3 ECHR. Both Leggatt J and Lloyd Jones LJ rejected the claimants’ submission that, under the principle of legality, the UK public authorities owe a duty in domestic public law not to override fundamental rights, including those contained in international human rights treaties. Instead, Lloyd Jones LJ affirmed that the principle of legality is a principle of statutory interpretation that depends on its application on the fundamental rights in question already being part of domestic law.
The claimants did not pursue the submission that the relevant provisions of UNCAT have the status of customary international law, which automatically forms part of domestic law in the United Kingdom. Leggatt J rejected that argument on the basis that, notwithstanding the oft cited Trendtex Trading Corp v Central Bank of Nigeria  QB 529, 554, “The position in England is not that custom forms part of the common law (how can foreign states of whatever legal tradition make the common law?), but that it is a source of English law that the courts may draw upon as required.” Further, while the claimants did not establish that the obligations imposed by UNCAT have the status of customary international law, following the judgment of Keyu v Secretary of State for Foreign & Commonwealth Affairs  QB 57,  EWCA Civ 312, the Court considered that the very fact that a duty to investigate allegations of torture and inhuman or degrading treatment contrary to article 3 of the Convention forms part of English domestic law pursuant to the Human Rights Act precludes the development of a parallel but non-identical duty in this area derived from customary international law.
Despite the significant amount of litigation concerning the extent to which the ECHR applies to the conduct of the British armed forces operating abroad, much controversy remains about the limits of the Convention’s reach. As Lloyd Jones LJ observed, the full implications of the Grand Chamber’s decision in Al-Skeini remain to be worked out, and will call for refinement of concepts and accommodations between the Convention and other legal systems, as already apparent in the decision of Hassan.
Amid often inaccurate reporting about the nature of such claims, clarifying the legal principles underlying them is particularly significant.
This important judgment comes in the midst of a growing political debate about whether the legal system is being “abused” for “vexatious” claims against the British armed forces. Amid often inaccurate reporting about the nature of such claims, clarifying the legal principles underlying them is particularly significant. Both Leggatt J and Lloyd Jones LJ expressed concerns about accommodating the realities of international peacekeeping operations and situations of armed conflict, acknowledging that there are strong policy reasons for seeking to interpret the territorial scope of the Convention in a way that limits the extent to which it impinges on military operations in the field. Further, they were concerned that the inevitable consequence of concluding that the Convention applies to the use of force in overseas military operations would be a flood of claims before the courts. However, none of these concerns provide a legitimate reason for failing to give effect to the expanded scope of application of the ECHR if that is the clear intention of the Strasbourg court.
It is interesting that, at a time, when the relationship of the domestic courts with “foreign” courts (be it Strasbourg or the Court of Justice of the European Union) is under the spotlight, Lloyd Jones LJ more than once stressed the need for the Strasbourg court to take the lead in clarifying the uncertainty surrounding the effect of its decision in Al-Skeini and the extension of extra-territorial jurisdiction.