Preliminary hearing of issues in UK Iraq armed forces proceeding


Re: Al-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 (Admin)

This was a preliminary hearing to decide upon a number of points of law in anticipation of the upcoming trial of the operations of the UK armed forces in Iraq. The Court was asked to decide upon i) the jurisdiction of the ECHR, ii) whether there is an investigative obligation under ECHR, arts 3 and 5 and iii) the application in domestic law of the United Nations Convention Against Torture (“UNCAT”).

Leggatt J made four key findings:

i)    Individuals allegedly shot by British forces were within the UK’s jurisdiction because (a) the shootings occurred in the course of security operations in which British forces were exercising public powers and (b) through shooting, the UK had exercised physical power over those individuals.

ii)    An allegation that UK agents breached the non-refoulement obligation does not trigger a duty to investigate under ECHR, art 3 (save if there is a credible allegation that the UK agents were complicit in the alleged torture or serious mistreatment such as to commit a substantive breach of ECHR, art 3 themselves).

iii)    There is no duty to investigate cases of detention which are arguably in breach of ECHR, art 5 (with the exception of cases of enforced disappearance).

iv)    UNCAT does not give rise to domestically enforceable legal rights either directly or via customary international law. Thus, UNCAT has no direct effect on the scope of any investigative obligation which arises under ECHR, art 4

Danny Friedman QC, Phillippa Kaufmann QC and Dan Squires QC were involved in this case.