Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence: Admn 2 Oct 2009

The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the Secretary of State was correct and Mr Al-Sweady died on the battlefield, then the ECHR could not be invoked.’ The claimant challenged a refusal by the respondent to confirm that it had disclosed all relevant documents. The repeated and unexplained failures by the respondent to make full disclosure had led to a waste of costs in the order of andpound;2,000,000. Additionally the defendant had supplied admittedly false claims for public interest immunity.
Held: ‘the general practice of the court when contested issues of fact arise in applications for judicial review is that ‘in so far as there are factual disputes between the parties, the court is ordinarily obliged to resolve them in favour of the defendant’ However, the court considered that in future in judicial review cases involving human rights questions: ‘cross-examination might occur with increasing regularity in cases where there are crucial factual disputes between the parties relating to jurisdiction of the ECHR and the engagement of its Articles.’
The court criticised as unreliable the evidence of a senior army officer having conduct of the investigation. The court emphasised the need for the Treasury Solicitor to substantially improve its handling of such claims.

Scott Baker LJ, Silber J, Sweeney J
[2010] UKHRR 300, [2010] HRLR 2, [2009] EWHC 2387 (Admin), Times 14-Oct-2009
European Convention on Human Rights
England and Wales
CitedRegina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .
CitedWoods v Martins Bank Ltd 1958
If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: ‘In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. . .
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
CitedMiddleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
CitedRegina v Secretary of State for Home Department ex parte Fayed CA 13-Nov-1996
The nature of the Secretary of State’s objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated ‘fishing . .
CitedRegina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd HL 1993
One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance . .
CitedRegina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
CitedRegina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
CitedSecretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
See AlsoAl-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .
See AlsoAl-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence Admn 10-Jul-2009
The court rejected an application by a further claimant to be added to the action. . .

Cited by:
CitedShoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .
CitedQ, Regina (on The Application of) v Q Constabulary and Another Admn 17-Mar-2011
The claimant renewed his request for an order against the defendant that he should be given a place on a witness protection scheme. He had given evidence for the prosecution in a gangland murder trial. A risk assessment had identified a risk ‘real . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Judicial Review

Updated: 09 November 2021; Ref: scu.375610