The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the applicants were within the jurisdiction of the court for this purpose, but merely being held at the request of the Iraqi authorities.
Held: The claim failed. In the earlier leading cases, the applicants had been held when there was no other lawful authority, and therefore the detention could only be by and for the occupying force. In these caes however the arrests had been made when there as a lawful authority requiring assistance. There was an obligation to bring the claimants before the courts of Iraq. However the claimants did fall within the jurisdiction of the United Kingdom for the purposes of article 1, and ‘the claimants are at present in the physical custody of the British forces and that their transfer to the custody of the Iraqi court would be an act attributable to the United Kingdom, not to Iraq.’ The Soering principle applied to any transfer even though it was a transfer within the same territory, and ‘the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; . . if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention.’ The court however rejected the claim that a fair trial would not be provided, but noted that there had been no re-assurance that the death penalty might not be applied, and therefore a transfer would infringe the claimant’s article 13 rights. This however did not amount to an obligation on the UK not to comply with its international obligations.
Richards LJ, Silber J
 EWHC 3098 (Admin)
European Convention on Human Rights 1 13
England and Wales
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Applied – Gentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Othman (Abu Qatada) (Jordan) v Secretary of State for the Home Department CA 9-Apr-2008
The claimant appealed an order for his deportation back to Jordan, saying that if returned there was a real risk that he would face a trial based on evidence obtained by torture.
Held: The appeal succeeded. A foreign national could not be . .
See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See Also – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
Appeal from – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
At High Court – Al-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See Also – Al-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
See Also – Al-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
Lists of cited by and citing cases may be incomplete.
Armed Forces, International, Human Rights, Crime
Updated: 09 November 2021; Ref: scu.278991