Regina v The Right Honourable Lord Saville of Newdigate, Sir Edward Somers, Mr Justice William Hoyt ex parte A and others: Admn 28 Jul 1999

Judges:

Lord Woolf MR, Lord Justice Robert Walker, Lord Justice Tuckey

Citations:

[1999] EWHC Admin 747

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoA and Others, Regina (on the Application of) v Lord Saville of Newdigate and others CA 28-Jul-1999
Former soldiers who had been involved in the events in Londonderry in 1972, and were to be called to give evidence before a tribunal of inquiry, still had cause to fear from their names being given, and so were entitled to anonymity when giving such . .
Lists of cited by and citing cases may be incomplete.

Administrative, Armed Forces

Updated: 23 May 2022; Ref: scu.135821

Regina v John Spear, Philip Hastie and David Morton Boyd: CMAC 15 Jan 2001

The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they were appointed for a fixed term. There was no history of them being removed, and the circumstances were impartial. The test was not some neurotic distrust, but rather the absence of any appearance of bias on a reasonable view. The system met that standard.

Citations:

Gazette 22-Mar-2001, Times 30-Jan-2001, [2001] EWCA Crim 1751

Links:

Bailii

Statutes:

Human Rights Act 1998

Citing:

Appealed toRegina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others HL 18-Jul-2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by . .

Cited by:

Appeal fromRegina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others HL 18-Jul-2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Human Rights, Armed Forces

Updated: 23 May 2022; Ref: scu.135616

Murray v The United Kingdom: ECHR 28 Oct 1994

The Army’s powers of arrest in Northern Ireland, did not breach the European Convention on Human Rights.

Judges:

Ryssdal, President

Citations:

Times 01-Nov-1994, 14310/88, [1994] ECHR 39, (1994) 19 EHRR 193

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedSecretary of State for the Home Department v AF AM and AN etc CA 17-Oct-2008
The claimants were subject to non-derogating control orders, being non EU nationals suspected of terrorism. They now said that they had not had a compatible hearing as to the issue of whether they were in fact involved in terrorist activity.
Lists of cited by and citing cases may be incomplete.

Human Rights, Northern Ireland, Armed Forces, Human Rights

Updated: 22 May 2022; Ref: scu.165336

Cox v Army Council: PC 1963

The provisions of the English Army Act, are to be applied ‘in diverse circumstances wherever the armed forces of the Crown happen to be, in developed or undeveloped countries, as conquerors or guests, and their purpose is . . Disciplinary.’ Criminal law applies only in respect of acts committed or omissions made within England. Viscount Simons said: ‘apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England.’ and ‘with rare exceptions the whole body of our criminal law is ‘domestic’ in the sense that it is made for the order and good government of this country and is applicable only to acts done on English soil.’

Judges:

Viscount Simonds, Lord Reid

Citations:

[1963] AC 48, (1962) 46 Cr App R 258

Cited by:

CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Commonwealth

Updated: 20 May 2022; Ref: scu.373404

Regina v Ministry of Defence ex parte Colin James Murray: QBD 15 Dec 1997

The defendant sought judicial review of his court-martial and of the confirming officers. He said the court should have heard that he committed the offence whist intixicated after taking an anti-malarial drug. The court dd not explain why it had found no causal connection beween the treatment and the offence.
Held: There is no over-riding principle of law that reasons must be given for a decision in disciplinary decisions, but fairness will often require them to be given. Does ‘fairness require in this case that reasons should have been given both as to why the Court reached the conclusion that there was no causal connection and why it decided that the sentence of imprisonment was required rather than some lesser sentence which would not have had the same dire consequences for the Applicant? The answer to that question must be in the affirmative. Are there public interest reasons why reasons should not be required? The only public interest reasons . . . advanced relied upon drawing analogies with other judicial bodies. I accept . . . submissions . . . that the examples which he gave are not analogous.’

Judges:

Lord Bingham of Cornhill LCJ, Hooper J

Citations:

Times 17-Dec-1997, [1997] EWHC Admin 1136

Links:

Bailii

Statutes:

Army Act 1955 70, Armed Forces Act 1996, Rules of Procedure (Army) 1972 (SI 1972/316) 76(1)

Citing:

CitedRegina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
CitedRegina v Guppy and Another CACD 8-Mar-1994
Court of Appeal (Criminal Division) may hear (but not require) evidence in person from an appellant. . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedRegina v Universities Funding Council ex parte Institute of Dental Surgery QBD 30-Jul-1993
When considering whether a disciplinary board should have given reasons, the court may find the absence critical ‘where the decision appears aberrant’. ‘the giving of reasons may among other things concentrate the decision-maker’s mind on the right . .
CitedRegina v Mayor, Commonalty and Citizens of the City of London, ex parte Matson CA 18-Aug-1995
The court considered the need to give reasons for the election of Aldermen. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Armed Forces

Updated: 19 May 2022; Ref: scu.87364

Regina v Clegg: HL 25 Jan 1995

The defendant was a soldier on patrol in Northern Ireland. He was convicted of the murder of the passenger and attempted murder of the driver of a stolen car. He said he had fired in self defence. The Court of Appeal had rejected his appeal saying that on the facts it had been a grossly excessive and disproportionate use of force. The House was asked: ‘whether a soldier on duty, who kills a
person with the requisite intention for murder, but who would be entitled to rely on self-defence but for the use of excessive force, is guilty of murder or manslaughter.’
Held: The use of grossly excessive force in self defence can be no justification for murder, even when the act was committed by a soldier on duty. The alternative of manslaughter was not available in such a case.

Judges:

Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead

Citations:

Gazette 22-Feb-1995, Independent 01-Feb-1995, Times 25-Jan-1995, [1995] UKHL 1, [1995] 1 All ER 334, [1995] 1 AC 482

Links:

Bailii

Statutes:

Criminal Law Act (Northern Ireland) 1967

Jurisdiction:

Northern Ireland

Citing:

MentionedRex v Cook 1640
The intent to resist unlawful apprehension is treated as a state of mind constituting ‘that lighter degree of malice which is necessary to the crime of manslaughter’ rather than murder. . .
CitedThe Queen v Howe 1958
High Court of Australia – Criminal Law – Murder – Conviction – Quashed on appeal to Supreme Court – New trial ordered – Appeal to High Court by Crown – Special leave – Questions of law affecting law of homicide – Importance – Self-defence – . .
CitedRegina v McInnes CACD 1971
Edmund Davies LJ said: ‘But where self-defence fails on the ground that force used went clearly beyond that which was reasonable in the light of the circumstances as they reasonably appeared to the accused, is it the law that the inevitable result . .
CitedPalmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces

Updated: 19 May 2022; Ref: scu.86397

Regina v General Officer Commanding, Second Division, the Army and Another, Ex Parte Buchanan (Chris Lee); Regina v Same Ex Parte Fals (Raymond Carbery): QBD 14 Oct 1998

When reviewing sentences imposed by military courts, the divisional court should not become an alternative Court of Appeal, but should still look at the overall position. The different treatments of time in close custody and on remand must be allowed for.

Citations:

Times 20-Oct-1998, [1998] EWHC Admin 955

Links:

Bailii

Criminal Sentencing, Armed Forces

Updated: 19 May 2022; Ref: scu.86689

Regina v Ministry of Defence, Ex Parte Walker: CA 5 Feb 1999

The scheme provided by the Ministry of Defence to compensate soldiers for being injured by criminal acts did not cover a wound inflicted by a shell fired from a tank whilst on peacekeeping duties. This was akin to a war injury.
Auld LJ said: ‘there is no irrationality in the Ministry’s adoption of the Scheme in its original or amended form. The purpose of the exclusion is to produce as nearly as possible some parity in the recovery of compensation for crime by military personnel abroad with that available to those injured by crime at home. To achieve that, it seeks to remove from the Scheme a feature peculiar to the life of a member of the armed services abroad in a theatre of war or where there is military activity between warring factions, but not present at home, the risk of injury from warlike behaviour. In my view also, the Ministry was entitled to develop the Scheme with the problems of the type posed by Bosnia particularly in mind, just as it was entitled to take the view that the circumstances in Northern Ireland were materially different from those in Bosnia so as to warrant different policies for the two territories.’

Judges:

Auld, Chadwick LJJ, Sir Christoper Staunton

Citations:

Times 11-Feb-1999, [1999] EWCA Civ 726, [1999] PIQR Q168, [1999] 1 WLR 1209

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina v Ministry of Defence ex parte Walker Admn 9-Feb-1998
The court dismissed the plaintiff’s request for judicial review of the refusal of the Criminal Injuries Compensation (Overseas) Scheme. He was injured serving as a United Nations Peacekeeper in Bosnia, from a single round fired into the block by a . .

Cited by:

Appeal fromRegina v Ministry of Defence, ex parte Walker HL 6-Apr-2000
The Ministry of Defence operated a scheme for compensating soldiers serving abroad who were injured as a result of criminal activity. The claimant, whilst serving on a peace-keeping mission in Bosnia, was injured when a hut was hit by a shell fired . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Armed Forces

Updated: 19 May 2022; Ref: scu.85413

Cable et Al v United Kingdom: ECHR 18 Feb 1999

The English Courts martial system did not give a fair trial because the role of the convening officer meant that the tribunal was not sufficiently independent or impartial since the officer might outrank the court and could dissolve the proceedings.
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings.

Judges:

L Wildhaber P

Citations:

Times 11-Mar-1999, (2000) 30 EHRR 1032, 24436/94;24582/94;24583/94;, [1999] ECHR 8

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Armed Forces, Criminal Practice

Updated: 19 May 2022; Ref: scu.78815

Regina v Ministry of Defence Ex Parte Smith and Others: QBD 7 Jun 1995

An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’ After referring to changes of attitude in society towards same-sex relationships: ‘I regard the progressive development and refinement of public and professional opinion at home and abroad, here very briefly described, as an important feature of this case. A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z. Public and professional opinion are a continuum.’
Sir Thomas Bingham MR: ‘It is, inevitably, common ground that the United Kingdom’s obligation, [under article 8] binding in international law, to respect and secure compliance with this article is not one that is enforceable by domestic courts. The relevance of the Convention in the present context is as background to the complaint of irrationality. The fact that a decision-maker failed to take account of convention obligations when exercising an administrative discretion is not of itself a ground for impugning that exercise of discretion.’

Judges:

Simon Brown LJ and Curtis J

Citations:

Times 13-Jun-1995, Independent 08-Jun-1995

Statutes:

European Convention on Human Rights 8

Citing:

CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:

Appeal fromRegina v Secretary of State for Defence Ex Parte Smith; Regina v Same Ex Parte Grady Etc CA 6-Nov-1995
A ban on homosexuals serving in the armed forces was not irrational, and the challenge to the ban failed. The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more . .
CitedRegina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
CitedRegina v Secretary of State for Home Department ex parte Turgut CA 28-Jan-2000
When the Court of Appeal was asked to look at the decision of the Home Secretary on an appeal to him for asylum, the court should investigate the factual circumstances which lay behind the decision. The court must follow the practice of the European . .
CitedCumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
CitedFitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Manelfi Admn 25-Oct-1996
The applicant sought judicial review of the defendant’s refusal to employ him to work at GCHQ, which had a policy not to employ anyone with non-British parents save exceptionally. The claimant said this was racially discriminatory.
Held: The . .
CitedRogers, Regina (on the Application of) v Swindon NHS Primary Care Trust CA 12-Apr-2006
The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
Held: The policy had not been settled upon lawfully and was to be set aside. On the one hand the PCT developed a policy . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Appeal fromRegina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Employment, Administrative, Human Rights, Discrimination, Armed Forces

Updated: 17 May 2022; Ref: scu.87365

Derry v Ministry of Defence: QBD 8 Jun 1998

A military doctor has exemption under Crown Immunity, from liability from his failure to diagnose and treat ocular cancer properly, and the exemption applied even though the medical condition pre-existed the treatment. The cause of action lay in the failure to diagnose.

Citations:

Times 08-Jun-1998

Statutes:

Crown Proceedings Act 1947

Cited by:

Appeal fromDerry v Ministry of Defence CA 18-Mar-1999
Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions, Armed Forces

Updated: 15 May 2022; Ref: scu.79928

Secretary of State for Defence v Warn: HL 1970

A courts martial prosecution begun without the necessary prior consent, the proceedings were a nullity.

Citations:

[1970] AC 394

Jurisdiction:

England and Wales

Cited by:

CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Criminal Practice

Updated: 14 May 2022; Ref: scu.254622

Britain Steamship Company Limited v The King and Others (“The Matiana”): HL 1921

The House considered the relationship between a merchant vessel in convoy and a convoying naval vessel.
Held: The appeal succeeded. Lord Atkinson: ‘With all respect, I am quite unable to concur in the learned judge’s view that the merchant ships convoyed, whose task was simply to sail peacefully on the course they might be directed to follow, and to keep their proper places in the convoy, became so identified with the ships of war directing and protecting them, as to be treated as members of a joint flotilla on a common enterprise. I concur with Atkin LJ in thinking that the learned judge treats as he said the sheep and the shepherd as both engaged in the operation of shepherding. The duties and proper tasks of convoying warships and the ships they convoy are respectively indicated in ss 30 and 31 of the Naval Discipline Act of 1866 . . The naval officers are to diligently perform the duties of convoying and protecting the ships they are appointed to convoy according to instructions, to defend these ships and the goods they carry without deviation, to fight in their defence if they are assailed and not to abandon them or expose them to hazard. Every master or other officer in command of any merchant or other vessel convoyed is bound to obey the commanding officer of the ships of war in all matters relating to the navigation or security of the convoy, and is also bound to take such precautions for avoiding the enemy as may be directed by this commanding officer. It does not appear, however, that this latter officer has any power to require the master, officers or crew of any merchant ship which is being convoyed to take combative action against a vessel of any kind, or to join in such action if taken by all or any of the ships of war. The roles of the two classes of ships are entirely different in nature and character. That of the ships of war is protective and if need be combative; that of the merchantmen is not at all combative in nature and character as would be their enterprise in time of peace’ Viscount Cave: ‘But in the present case the orders were a part of the convoying operation which included the choice of the route, the setting of the course, and the precautions taken on the voyage; and I do not think that the transaction can be split up and treated as in part an operation and in part something other than an operation . . .’
Lord Shaw: ‘ . . I think that the putting of a vessel under convoy, with all that that involves, is an actual and accomplished change of circumstances and an operation which is conducted in the course of hostilities or war . . .’ and ‘To all intents and purposes it is the same as if he had placed on the convoyed ship a naval officer in command as subordinate to himself. In short, so far as the direction of the course of the vessel was concerned, the merchant captain and officers were no longer in control. The naval officers were. Not only so, but the orders of the commander of the convoy were clothed with the instant sanction of force . . . I myself see great force in the view which Bailhache J. so clearly expresses to the effect that all the vessels – those acting as convoy and those under convoy – must be treated as a unity. . . . I am humbly of opinion that, so far as ships under convoy are concerned, all these ships are, along with the ships acting as convoy, under a unified command, and that command issuing from the commander of the convoy is, as part of the direction of the convoy, a military operation.’

Judges:

Lord Atkinson, Lord Wright, Viscount Cave, Lord Shaw

Citations:

[1921] 1 AC 99

Statutes:

Naval Discipline Act 1866 30

Jurisdiction:

England and Wales

Citing:

At First instanceBritain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in . .
Appeal fromBritain Steamship Company Limited v The King and Others (‘The Matiana’) CA 1919
The court was asked wheter a merchant vessel was acting a a military ship when in convoy.
Held: The appeal succeeded. Warrington LJ said: ‘Of course the sailing with convoy may easily assume the character of a warlike operation; if the convoy . .

Cited by:

AppliedClan Lines Steamers Ltd v Liverpool and London War Risks Insurance Association Ltd 1942
In a collision in fog between the steamship Clan Stuart and the steamship Orlock Head, whilst both were travelling in convoy in the English Channel, the Clan Stuart was lost. It was said that the Orlock Head was engaged on a warlike operation and . .
CitedFogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
AppliedFogg and Another, Regina (on the Application of) v Secretary of State for Defence CA 5-Oct-2006
The Secretary of State appealed an order declaring the wreck of a merchant ship lost through enemy action in 1943 when part of a convoy. He said it was wrong in law to make the declaration, having not been in military service as such when sunk even . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Transport

Updated: 14 May 2022; Ref: scu.237694

Re Clifford and O’Sullivan: HL 1921

Military tribunals are ‘not courts at all, but mere committees of officers meeting to inform the mind and carry out the orders of the Commander-in-Chief’.

Citations:

[1921] AC 570

Jurisdiction:

England and Wales

Cited by:

AppliedBonalumi v Secretary of State for the Home Department CA 1985
In the course of extradition proceedings, an order was obtained under the 1879 Act. The defendant sought to appeal against the order, and applied to the Court of Appeal.
Held: The procedure under the 1879 Act was in the course of criminal . .
Lists of cited by and citing cases may be incomplete.

Extradition, Armed Forces

Updated: 12 May 2022; Ref: scu.183548

China Navigation Co Ltd v Attorney General: CA 1932

The Plaintiffs, an English shipping company, carrying on business in Hong Kong, traded in both local and Chinese waters. Its trade consisted both of carrying cargo and passengers. The Chinese and neighbouring waters were infested by pirates who frequently attacked ships trading in those waters, both from within and without the ships, the attacks from within being by evil-disposed persons who came on board – whether at the port of Hong Kong or Chinese ports – ostensibly as ordinary and peaceable passengers but who, on opportunity overpowered the officers and crew and took possession of the ship and all valuables therein. For some time the Government of Hong Kong was prevailed upon by various ship owners, including the Plaintiffs, to provide and place naval and military guards on board. Subsequently, however, Government notffied ship owners that as from a specified date ship owners would be required to pay in full for all guards supplied. The Plaintiff instituted proceedings in England against the Attorney General of England as representative of the Crown, seeking declarations that the Crown had no authority to demand money for providing protection against piracy, the ship owners, as subjects of His Majesty, being entitled to require the Crown to provide the necessary protection without payment. Rowlatt, J, before whom the action first came, dismissed it as misconceived.
Held: The Court of Appeal affirmed that decision. The Crown is under no legal duty to afford military protection to British subjects abroad. If, in the exercise of its discretion, the Crown decides to afford such protection, it may lawfully stipulate that it will do so only on the condition that the cost should be borne by those requiring such extraordinary protection.
The legal history relating to the relationship between servicemen and women and the Crown can be traced back over many centuries, and at least since the reign of Charles II, the government and command of military forces had been vested in the Crown by prerogative right at common law and by statute.

Judges:

Lawrence LJ

Citations:

[1932] 2 KB 197, [1932] All ER 626

Cited by:

CitedRegina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Armed Forces

Updated: 11 May 2022; Ref: scu.554757

Al-Jedda v Secretary of State for Defence: QBD 5 Mar 2009

The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process.

Judges:

Underhill J

Citations:

[2009] EWHC 397 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoAl-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
At CAAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
At HLAl-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 . .
At SIAC (1)Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At SIAC (2)Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At ECHR (1)Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .

Cited by:

See AlsoAl-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
See AlsoAl-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
See AlsoAl-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
See AlsoHilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
See AlsoAl-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
See AlsoAl-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
See AlsoSecretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
At QBDHilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
At QBDAl-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Armed Forces

Updated: 11 May 2022; Ref: scu.320870

Adams v War Office: QBD 1955

The fact that the Secretary of State has issued a certificate under section 10(1)(b) is no guarantee that the person in respect of whose case it is issued will be awarded a pension.

Citations:

[1955] 3 All ER 245, [1955] 1 WLR 1116

Statutes:

Crown Proceedings Act 1947 10(1)(a)(b), Pensions Appeal Tribunals Act 1943 10(1)(b)

Cited by:

ApprovedBell v Secretary of State for Defence CA 1986
The deceased was injured serving in the forces in Germany. His injury was worstened after negligent communications between army doctors. The defendant relied upon State Immunity to defend a claim, saying he had issued a certificate that he had died . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Personal Injury, Vicarious Liability

Updated: 09 May 2022; Ref: scu.194881

Regina v Aitken; Regina v Bennett; Regina v Barson: CMAC 8 Jul 1992

Recommendation to change rules allowing judge advocate to sit alone when the question is solely an issue of law.

Citations:

Gazette 08-Jul-1992, [1992] 1 WLR 1006

Cited by:

CitedRegina v Smith, Regina v Mercieca HL 16-Feb-2005
A member of the jury wrote to the judge saying that other members were failing to discharge their duties properly. Smith took a tactical decision not to seek a retrial. The judge saw counsel in chambers, after which the jury were reminded of their . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Armed Forces

Updated: 08 May 2022; Ref: scu.86043

Molaudi v Ministry of Defence: CA 21 Mar 2012

Affirmed

Judges:

Hooper LJ

Citations:

[2012] EWCA Civ 576

Jurisdiction:

England and Wales

Citing:

Appeal fromMolaudi v Ministry of Defence EAT 15-Apr-2011
molaudi_modEAT11
EAT JURISDICTIONAL POINTS
The Claimant sought to bring a claim for racial discrimination against the defendant relating to events which occurred while the Claimant was a serving soldier. He had previously . .

Cited by:

CitedWilliams v The Ministry of Defence EAT 7-Sep-2012
EAT Jurisdictional Points : Excluded Employments – The Claimant was in the RAF. Before presenting a discrimination claim to the Employment Tribunal she was required to go through the service complaints procedure. . .
Lists of cited by and citing cases may be incomplete.

Employment, Armed Forces

Updated: 08 May 2022; Ref: scu.470921

UG (Nepal) and Others v Entry Clearance Officer: CA 2 Feb 2012

Appeal about the circumstances in which the adult dependants of Gurkhas who have been granted indefinite leave to enter the UK as a Gurkha discharged from the British Army may themselves be granted indefinite leave to remain in order to settle in this country within the family unit. Whilst therefore the case inevitably raises issues connected with this country’s unquestioned debt of gratitude for generations of loyal and distinguished service by the Gurkhas, it is important to note from the outset that the arrangements under consideration are equally applicable to the dependants of all foreign and commonwealth nationals who seek settlement in the UK on discharge from HM Forces.

Judges:

Lord Justice Tomlinson

Citations:

[2012] EWCA Civ 58

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Armed Forces

Updated: 08 May 2022; Ref: scu.450535

Regina v Arnold: CMAC 16 May 2008

The prosecution sought to appeal.
Held: The prosecutor could not appeal unless it had before informing the court of its intention to appeal, informed the accused that if leave to appeal was not given, he would be acquitted of the charges.

Judges:

Lord Justice Hughes, Mr Justice Treacy and Sir Peter Cresswell

Citations:

Times 13-Jun-2008

Statutes:

Courts-Martial (Prosecution Appeals) Order (SI 2006 No 1786), Criminal Justice Act 2003 58(4) 58(6)

Jurisdiction:

England and Wales

Armed Forces, Criminal Practice

Updated: 07 May 2022; Ref: scu.277727

In re JS (A Minor) (Wardship: Boy Soldier): 1990

The Court considered the procedures for when a 17 year old a boy soldier who had gone absent without leave and returned home to his parents. He had been due to go to Iraq. His mother sought an order for wardship.
Held: The Court struck out wardship proceedings. It could not restrain the action.
Hollis J said: ‘It would obviously, I think, be inappropriate and, I consider, contrary to policy to continue the wardship on the facts of this case, however sympathetic one might be towards the ward, and indeed his parents . .
From what I have gleaned from the facts of this case, it may be in neither the minor’s best interest nor in the interests of the public, that he remain a member of the Army, but that is not a matter for me to decide.’

Judges:

Hollis J

Citations:

[1990] Fam 182

Jurisdiction:

England and Wales

Cited by:

CitedRe A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Children, Armed Forces

Updated: 06 May 2022; Ref: scu.588168

Scott v Regina: 2004

Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised with his superior his concerns about being made to participate in a prayer service in which he did not believe) refused to remove his headdress (but had evidently continued to stand on parade) and was being charged simply with that refusal.
Held: The order conflicted with paragraph 2(a) of the Charter: ‘The order that was given . . was to show ‘respect’ for what was being done and not mere passive toleration. That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe. .
The fact that the practice of pronouncing prayers at parades and requiring some form of public assent thereto has been hallowed by a tradition of many years in the military as well as other circles cannot justify a breach of the appellant’s Charter rights. We emphasize that what was required of the appellant was active participation in the religious ceremony with which he disagreed. The question of enforced passive participation by mere presence is an entirely different issue and one that we do not reach today.’

Citations:

[2004] 123 CRR (2d) 371

Jurisdiction:

Canada

Cited by:

ApprovedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Armed Forces

Updated: 06 May 2022; Ref: scu.582140

In Re Mansergh: 11 Jun 1861

Jurisdiction of Queen’s bench over tribunals abroad. Court martial. Military status.-I. This Court has no jurisdiction over tribunals out of the realm of England, although in countries subject to the British Crown. 2. Where the civil rights of a person in military service are affected by the judgment of a military tribunal, in which that tribunal has acted without jurisdiction, or has exceeded its jurisdiction, this Court will interfere; aliter where nothing but the military status of the party is affected by the judgmeat.-3. A. Captain in the Queen’s service, when stationed with his regiment in india, was gazetted to a majority ; and the appointment was notified in the general orders of the Commander-in-chief in India at head quarters, and in the regimental orders.

Citations:

[1861] EngR 711, (1861) 1 B and S 400, (1861) 121 ER 764

Links:

Commonlii

Armed Forces, Jurisdiction

Updated: 05 May 2022; Ref: scu.284472

Astley v Ray And Others: 28 Nov 1809

Under the militia acts 42 G. 3, c. 90, arid 47 G. 3, c. 71, if a person balloted is found at the time of enrolment to be unqualified for the service, and another is balloted in his piace, out of the same list, this is a continuance of the same ballot, and is a legal ballot.

Citations:

[1809] EngR 516, (1809) 2 Taunt 214, (1809) 127 ER 1059

Links:

Commonlii

Jurisdiction:

England and Wales

Armed Forces

Updated: 02 May 2022; Ref: scu.335139

Regina v Murphy: CMAC 1965

(Courts-Martial Appeal Court of Northern Ireland) The court has a discretion to exclude the evidence of an agent provocateur.

Citations:

[1965] NI 138

Cited by:

CitedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Northern Ireland

Updated: 01 May 2022; Ref: scu.250472

Regina v Page: CMAC 1954

The defendant, a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction under the statute creating it to try for murder a British subject who had killed an alien abroad in circumstances which would amount to murder if the killing was done in England and Wales. It was argued that section 9 of the 1861 Act extended the law of murder beyond the offence of murder at common law where the victim had to be a British subject, otherwise the requirement that the killing should be ‘within the Queen’s peace would not be satisfied.
Held: The appeal failed. The general rule of English law had been that the offences committed by British subjects out of England were not punishable by the criminal law of England. Statute had made exceptions to that rule, including the statute of King Henry VIII. After considering the statutory provisions that governed the jurisdiction of Courts Martial, the court concluded that a person subject to military law could be tried for any offence, wherever committed, which would be an offence against the law of England; the crime of murder when defined in a statute had the meaning it always had: an unlawful killing with malice aforethought.
As to the comment of Lord Ellenborough in R v Serva ‘That, of course, is entirely intelligible. Nobody would suggest that an English court could try an alien for an offence not committed on English soil.’ Speaking as to whether the victim of a killing committed abroad had historically to be a British subject if the killing was to amount to murder. He observed: ‘It was no doubt to allay any doubts that there may have been on the subject that section 9 of the Offences against the Person Act 1861 is in such wide terms . . We have no doubt that when the word ‘murder’ is found in a statute it has the meaning which has always attached to it throughout the ages, namely, an unlawful killing with malice aforethought.’

Judges:

Lord Goddard CJ, Havers and Glyn Jones JJ

Citations:

[1954] 1 QB 170

Statutes:

Offences Agansit the Persons Act 1981 9

Citing:

CitedRegina v Serva and nine others 26-Jul-1845
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime. . .

Cited by:

CitedRegina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
CitedRegina v Adebolajo and Another CACD 3-Dec-2014
The defendants had been convicted of the brutal and public murder of Fusilier Lee Rigby in London, and sentenced to whole life term for Adebolajo and 45 years for Adebowale. They now sought leave to appeal against conviction and sentence.
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces

Updated: 01 May 2022; Ref: scu.247652

Nyali Ltd v Attorney-General: CA 1956

The Kenyan and British authorities agreed for the building by the plaintiff of a bridge supported by the imposition of tolls. Btitish military were exempt from payment. At the time of the agreement there was only one unit of military, but as time went on more troops arrived, and the bulk of the traffic was exempt. The bridge owner challenged the arrangement in Britain.
Held: The term ‘military’ included all soldiers of the Queen and was not restricted to the original detachment. It remained a military vehicle when driven by a military driver on duty. However, construing the agreement, a toll became payable in certain limited circumstances.
The task of making qualifications to English law to suit the circumstances of overseas territories called for wisdom on the part of their judges. This was a ‘wise provision.’
As to the application of the common law in a foreign jurisdiction, the court recogised the wisdom of applying the common law qualified as necessary to suit local circumstances: ‘Just as with an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England.’

Judges:

Lord Denning

Citations:

[1956] 1 QB 1

Cited by:

CitedChristian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Land, Armed Forces

Updated: 01 May 2022; Ref: scu.245767

Livingstone v Ministry of Defence: CANI 1984

The plaintiff was injured when a soldier fired a baton round after some soldiers were attacked by rioters. The round had been deliberately fired, but not to strike the plaintiff. The claim was in negligence and assault and battery. The trial judge dismissed the claim in negligence but did not give a ruling on the question of battery.
Held: The court allowed the appeal and ordered a new trial, rejecting the argument that there could be no battery because the plaintiff was not the chosen target: ‘In my judgment when a soldier deliberately fires at one rioter intending to strike him and he misses him and hits another rioter nearby, the soldier has ‘intentionally’ applied force to the rioter who has been struck. Similarly if a soldier fires a rifle bullet at a rioter intending to strike him and the bullet strikes that rioter and passes through his body and wounds another rioter directly behind the first rioter, whom the soldier had not seen, both rioters have been ‘intentionally’ struck by the soldier and, assuming that the force used was not justified, the soldier has committed a battery against both.’

Judges:

Hutton J

Citations:

[1984] NILR 356

Cited by:

CitedBici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Northern Ireland, Armed Forces

Updated: 30 April 2022; Ref: scu.198140

Attorney General for Northern Ireland’s Reference no 1 of 1975: HL 1975

Often a soldier has to act intuitively, and, in assessing his conduct and judging the action of the reasonable soldier, it is important to recognise that his action ‘is not undertaken in the calm analytical atmosphere of the court room after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused, but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed.’

Judges:

Lord Diplock

Citations:

[1975] AC 105

Jurisdiction:

England and Wales

Citing:

CitedJames v Campbell 1832
The defendant was involved in a fight at a parish dinner and it was suggested that he had hit the claimant by mistake, giving him two black eyes. The jury were that even on that premise he would be liable. . .

Cited by:

CitedBici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Armed Forces

Updated: 30 April 2022; Ref: scu.198138

Le Petit v The United Kingdom: ECHR 15 Jun 2004

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings

Citations:

35574/97, Times 09-Jul-2004, [2004] ECHR 258

Links:

Worldlii, Bailii

Statutes:

Naval Discipline Act 1957

Jurisdiction:

Human Rights

Citing:

AppliedGrieves v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Criminal Practice

Updated: 30 April 2022; Ref: scu.198173

Long, Regina (on The Application of) v Secretary of State for Defence: Admn 15 Jul 2014

The claimant’s son had been one of six soldiers of the Royal Military police to have been murdered by an armed mob attacking a police station in Iraq in 2003. The said that their deaths had not been properly or sufficiently investigated. The corone had requested the police to investigate whether there had been any failure to take steps to protect the soldiers which constituted a criminal offence. The police had declined to do so, saying that any such investigation should be carried out by the appropriate military authority.

Judges:

Fulford LJ, Leggatt J

Citations:

[2014] EWHC 2391 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

CitedConnelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
CitedAl-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.

Armed Forces, Coroners, Human Rights

Updated: 15 April 2022; Ref: scu.534301

Mohammed and Others v Secretary of State for Defence: CA 30 Jul 2015

Appeal arising from the determination of preliminary issues in relation to claims arising out of the detention of the claimant by Her Majesty’s armed forces in 2010 in Afghanistan. They were acting as part of the International Security Assistance Force a multinational force under NATO command that was deployed to assist the Afghan Government in the maintenance of security in Afghanistan and to fight the insurgency led by the Taliban and others. HM armed forces believed he posed a threat to their safety and to the achievement of the ISAF mission.
Held: Crown act of state is a nuanced defence, applicable only where ‘there are compelling considerations of public policy which require the court to deny a claim founded on an act of the Executive performed abroad’ (para 359), with the result that there must be a trial on the facts on the issue of Crown act of state.

Judges:

Lord Thomas of Cwmgiedd CJ, Lloyd Jones and Beatson LJJ

Citations:

[2015] EWCA Civ 843, [2016] 2 WLR 247, [2015] HRLR 20, [2015] WLR(D) 354

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal fromRahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other

Updated: 12 April 2022; Ref: scu.550943

Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another (No 2): CA 23 Feb 2012

The claimant had been arrested by UK armed forces in Iraq, and pased to the US against an agreement as to his treatment. He had been taken instead.
Held: The UK needed to have in place an agreement which it could point to as showing that it had effectively ensured that the Geneva Conventions would be complied with in relation to those prisoners that it had handed over to the US. The 2003 MoU was the means of meeting those obligations. The government had failed to fulfil its obligations to the claimant.

Judges:

Lord Neuberger of Abbotsbury MR

Citations:

[2012] EWCA Civ 182, [2012] 1 WLR 1462

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoRahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another CA 14-Dec-2011
The claimant appealed against refusal of an order for habeas corpus. He was held by US forces in Afghanistan. He had been captured by British Forces and handed over to US forces and held in Bagram.
Held: The appeal succeeded. . .
See AlsoRahmatullah v Secretary of State for Foreign Affairs and Another Admn 29-Jul-2011
The claimant, a Pakistani national, detained by US Armed forces in Bagram in Afghanistan, sought a writ of habeas corpus. He had been first captured by British forces in Iraq in 2004, and transferred to US military under a Memorandum of . .

Cited by:

Appeal fromSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other

Updated: 12 April 2022; Ref: scu.451473

Rahmatullah v Secretary of State for Foreign Affairs and Another: Admn 29 Jul 2011

The claimant, a Pakistani national, detained by US Armed forces in Bagram in Afghanistan, sought a writ of habeas corpus. He had been first captured by British forces in Iraq in 2004, and transferred to US military under a Memorandum of Understanding as to his treatment, and held without trial ever since. A review board had decided in 2010 that he was no longer a threat.
Held: Bagram prison were he was now held was ‘a place said to be notorious for human rights abuses’.
Held: The claimant remained in the custody and control of the USA, and the defendant had no power to direct the claimant’s release.

Judges:

Laws LJ, Silber J

Citations:

[2011] EWHC 2008 (Admin)

Links:

Bailii

Statutes:

Geneva Conventions Act 1957 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal fromRahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another CA 14-Dec-2011
The claimant appealed against refusal of an order for habeas corpus. He was held by US forces in Afghanistan. He had been captured by British Forces and handed over to US forces and held in Bagram.
Held: The appeal succeeded. . .
See AlsoRahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another (No 2) CA 23-Feb-2012
The claimant had been arrested by UK armed forces in Iraq, and pased to the US against an agreement as to his treatment. He had been taken instead.
Held: The UK needed to have in place an agreement which it could point to as showing that it . .
See AlsoRahmatullah v The Ministry of Defence QBD 19-Nov-2014
. .
See AlsoBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other, Human Rights

Updated: 12 April 2022; Ref: scu.442442

Regina v Brown: CMAC 19 Jul 2007

The defendant appealed his convicion for failiing to obey an order to return, after also being accused of being absent without leave from his duties.
Held: The fact of being absent without leave did not excuse a failure to obey a lawful order.

Judges:

Lord Phillips of Worth Matravers, LCJ, David J, Simon J

Citations:

Times 23-Oct-2007

Statutes:

Naval Discipline Act 1957 17(1)(a)

Jurisdiction:

England and Wales

Armed Forces, Crime

Updated: 12 April 2022; Ref: scu.261442

Regina v McEnhill: CMAC 4 Feb 1999

A Court Martial should make allowance, when sentencing, for the exceptional financial penalty implicit in a custodial sentence for a serving officer. Such a sentence could lead to a loss of pension rights, and other penalties which would not suffered by civilians in otherwise comparable circumstances.

Citations:

Times 04-Feb-1999

Criminal Sentencing, Armed Forces

Updated: 10 April 2022; Ref: scu.88554

Regina v McKendry: CMAC 16 Mar 2001

The circumstances of the different armed services would differ considerably from each other in the seriousness of the effect of being absent without leave. Accordingly, it was not appropriate to seek to impose on the different services a requirement that they should act on a standard basis. The court felt it would be entirely improper to seek to impose such a common standard.

Citations:

Times 16-Mar-2001

Criminal Sentencing, Armed Forces

Updated: 10 April 2022; Ref: scu.88555

Regina v RAF General Court-Martial and Another, ex parte Wright: QBD 1 Jul 1999

It is not an abuse of process for the same officer to make recommendations to higher officers on whether charges should be referred to higher authority or dismissed, and also eventually to make the actual decision on whether a prosecution should proceed. The dual role of such officers did not offend against natural justice.

Citations:

Times 01-Jul-1999

Natural Justice, Armed Forces, Criminal Practice

Updated: 09 April 2022; Ref: scu.85451

Ataman v Turkey: ECHR 27 Apr 2006

The Court set out the need to supervise soldiers to whom weapons were entrusted and to prevent suicides. Since the carrying of weapons was involved, the authorities could be expected to show particular diligence and adopt a suitable system for dealing with the matter in the case of soldiers with psychological problems.

Citations:

46252/99, [2006] ECHR 481

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

CitedSavage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
CitedRabone and Another v Pennine Care NHS Trust CA 21-Jun-2010
The claimant’s daughter had committed suicide after being given home leave on a secure ward by the respondent mental hospital. A claim in negligence had been settled, but the parents now appealed refusal of their claim that the hospital had failed . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 03 April 2022; Ref: scu.243767

Sophocleous and Others v Secretary of State for The Foreign and Commonwealth Office and Another: QBD 12 Jan 2018

The 34 claimants complained of assaults, beatings, rape and other acts of violence allegedly inflicted from 1956 to 1958 in Cyprus during the ‘Cyprus Emergency’ (the Emergency) by agents of the United Kingdom government and of the then Colonial Administration of Cyprus.

Judges:

KerrJ

Citations:

[2018] EWHC 19 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Armed Forces, Limitation

Updated: 03 April 2022; Ref: scu.602630

Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another: Admn 8 Jul 2015

‘The claimants are both Afghan nationals who served as interpreters with the British Forces in Afghanistan. There are two policies in place to provide protection and benefits to Afghan nationals who worked for the British Government in Afghanistan. Between them they comprise the Afghan Scheme. One is known as the Intimidation Policy and the other as the Redundancy (or Ex Gratia) Policy. They offer financial benefits and relocation opportunities including, in limited circumstances, to the United Kingdom, to those who qualify. During the engagement of British Forces in Iraq many members of staff (including interpreters) were employed locally. A different scheme was put in place at the end of that engagement. The claimants’ case is that the Iraq Scheme was more generous.’
Held: A declaration was granted, but eth decision was not quashed: ‘ the answer to the crucial question as to why the Afghan LES were (in certain respects) treated less favourably than the Iraqi LES by the promulgation of the different Afghan Scheme is that, as compared with the conditions earlier experienced in Iraq, the different conditions prevailing in Afghanistan either required, or justified, such a different scheme.’

Judges:

Burnett LJ, Irwin J

Citations:

[2015] EWHC 1953 (Admin), [2015] WLR(D) 297

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal fromHottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another CA 9-May-2016
Appeal against refusal of judicial review of decision not to provide protection of Afghan nationals who had assisted armed forces as transalators. A declaration had been granted but the decision had not been quashed.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Immigration

Updated: 03 April 2022; Ref: scu.550020

Martin, Regina v: CACD 25 May 2017

The defendant appealed against his sentence after conviction of two minor assaults whilst drunk off base.

Judges:

Lord Thomas of Cwmgiedd LCJ, Hckinbottom LJ, Goss J

Citations:

[2017] EWCA Crim 648

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Sentencing, Armed Forces

Updated: 27 March 2022; Ref: scu.588230

Kimathi and Others v Foreign and Commonwealth Office: QBD 24 May 2018

The claimants sought damages alleging commission of atrocities in Kenya in the 1950s. The defendant sought to argue limitation, and the claimants now argued that the limitation period did not apply because of deliberate concealment by the defendant.

Judges:

Stewart J

Citations:

[2018] EWHC 1169 (QB)

Links:

Bailii

Statutes:

Limitation Act 1939 26

Jurisdiction:

England and Wales

Torts – Other, Armed Forces, Limitation

Updated: 26 March 2022; Ref: scu.617215

Hutchings, Re Application for Judicial Review: SC 6 Jun 2019

The appellant, a former army officer challenged proceedings against him as to the death of a civilian shot in Northern Ireland in 1974. His trial had been certified for trial by judge alone, and without a jury under section 1 of the 2007 Act.
Held: The appeal was dismissed. ‘The fact that a majority verdict can be delivered in a criminal trial might reduce the risk of partisan verdicts; there is no reason to suppose that it will eliminate it. Likewise, the abolition of peremptory challenges and disclosure of jury panel members’ names and addresses. On the question of jury tampering (to which, more obviously, these measures were primarily directed) it is right to record that Mr Gerald Simpson QC, who appeared for the Director, confirmed that the possibility of jury tampering was not a concern in this case. It was the prospect of a partisan outcome to the case which underlay the Director’s decision.’
and: ‘section 1 qualifies, if not indeed removes, the right to trial by a jury. Hence, the issue of a certificate does not itself remove the right (it is the statute which has done that). In reality the issue of a certificate under section 1 partakes of a case management decision aimed at ensuring the relevant end result of a fair trial. Viewed from this perspective, it is of obvious importance that elaborate, protracted challenges to the issue of a certificate under section 1 are wholly to be avoided, where possible. It is, no doubt, with this consideration in mind that section 7 circumscribed the opportunity for judicial review challenge. Such challenges have the potential to undermine the objective of the legislation to ensure that trials take place in accordance with the requirements of article 6 of ECHR (both as to fairness and to promptness).’

Judges:

Lord Reed, Deputy President, Lord Kerr, Lady Black,Lord Lloyd-Jones, Lord Sales

Citations:

[2019] UKSC 26

Links:

Bailii, Bailii Summary

Statutes:

Justice and Security (Northern Ireland) Act 2007 1

Jurisdiction:

England and Wales

Citing:

Appeal fromHutchings, Re Judicial Review QBNI 20-Dec-2017
H was shot by a British army patrol during the troubles in 1974. . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedMcParland, Re Judicial Review QBNI 9-Jan-2008
The case concerned a challenge to section 10 of the 2007 Act which had inserted a new provision (article 26A) into the Juries (Northern Ireland) Order 1996 (SI 1996/1141) restricting the disclosure of information about jurors. It was argued that the . .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
CitedShuker and Others, Re Applications for Judicial Review QBNI 31-Mar-2004
. .
CitedT and Others Regina v CACD 5-Jun-2009
The defendants appealed against an order allowing their trial to proceed without a jury. There had been earlier trials lost where the jury had suffered interference.
Held: The trials could go ahead on this basis. The right to a fair trial . .
CitedAttorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
CitedArthurs, Re Judicial Review QBNI 30-Jun-2010
Girvan LJ said, ‘[t]he strong presumption that a right to jury trial is not intended to be taken away will . . lead to a strict construction of any statutory restriction or limitation on the right to a jury trial.’ . .
Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 23 March 2022; Ref: scu.638152

Lyalyakin v Russia: ECHR 12 Mar 2015

ECHR Article 3
Degrading treatment
Nineteen-year old soldier forced to line up at parade ground in military briefs: violation
Facts – The applicant, who at the material time was a nineteen-year conscript in the Russian Army, was twice caught trying to escape. Allegedly in order to prevent him making further attempts to escape on the journey back to base, he was forced to undress. After his return, he was brought before the battalion commander and made to stand in front of the battalion wearing only his military briefs.
Law – Article 3 (material aspect): The Court reiterated that States have a duty to ensure that a person performs military service in conditions which are compatible with respect for his human dignity, that the procedures and methods of military training do not subject him to distress or suffering of an intensity exceeding the unavoidable level of hardship inherent in military discipline and that, given the practical demands of such service, his health and well-being are adequately secured.
The applicant had remained in his military briefs on two occasions, the first after his unsuccessful attempt to escape and the second a day later, during the lining up of the battalion. The Court accepted that the level of distress suffered by the applicant was less than it would have been had he been stripped naked, that the episode had taken place in summer, was short and had ended with a reprimand. Nevertheless, the respondent Government had not explained why, in particular, the applicant had been required to stand in front of the battalion wearing only his military briefs after he had already been brought under control. While it did not overlook the specific military context of the case and the need to maintain military discipline, the fact remained that the need to use the impugned measure had not been convincingly demonstrated. In these circumstances, the undressing and exposure of the applicant during the lining up of the battalion had the effect of humiliating him. The fact that he was aged nineteen at the time had aggravated the treatment, which constituted degrading treatment within the meaning of Article 3.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been a violation of the procedural aspect of Article 3 for failure to hold an effective investigation into the applicant’s allegations of ill-treatment.
Article 41: EUR 15,000 in respect of non-pecuniary damage.

Citations:

31305/09 – Legal Summary, [2015] ECHR 421

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Human Rights, Armed Forces

Updated: 09 February 2022; Ref: scu.546116

Regina (A and others) (Widgery Soldiers) v Lord Saville of Newdigate and Others: CA 19 Dec 2001

The court would apply common sense in deciding whether soldier witnesses should be obliged to attend in person at an enquiry in Londonderry, where they claimed their lives would be at risk. It was not appropriate to seek to define what would be meant by a threat to their article 2 rights to life. The state has a direct duty to seek to protect its citizens when their lives are threatened. The case raised the issue of whether, and in what circumstances, article 2 could require a public authority to desist from a lawful and peaceful activity because of a terrorist threat. The appropriate course is to consider first the nature of the subjective fears that that the soldier witnesses are likely to experience if called to give evidence in the Guildhall, to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldiers give their evidence somewhere in Great Britain rather than in Londonderry. That alleviation then has to be balanced against the adverse consequences to the inquiry of the move of venue, applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision. This course will, we believe, accommodate both the requirements of article 2 and the common law requirement that the procedure should be fair.

Judges:

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Jonathan Parker and Lord Justice Dyson

Citations:

Times 21-Dec-2001, [2001] EWCA Civ 2048, [2002] 1 WLR 1249, [2002] ACD 22, [2001] 3 All ER 289, [2001] All ER (D) 298, (2001) 60 BMLR 1, [2001] Lloyds Rep Med 187

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

CitedErgi v Turkey ECHR 28-Jul-1998
A village girl was shot dead when she went out onto the veranda of her home after security forces had been engaged in an ambush of PKK members close to the village where she lived. Nobody asked her family about the circumstances of the shooting, and . .
CitedOsman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
AdoptedRegina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .
Appeal fromRegina (A and Others) v Lord Saville of Newdigate and Others QBD 16-Nov-2001
When making a decision which would interfere with the human rights of an individual, and even where the risks from which protections was sought, could be seen as small, it was the duty of the decision maker to justify the interference. The . .

Cited by:

CitedRegina v Chief Constable of Norfolk, ex parte DF Admn 2002
Test for need for police protection
The court considered the duties of the police to protect the applicants.
Held: The search for a phrase which encapsulates a threshold of risk which engages article 2 is a search for a chimera. The degree of risk described as ‘real and . .
CitedPlymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
CitedVan Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
CitedVan Colle and Another v Chief Constable of the Hertfordshire Police CA 24-Apr-2007
The deceased had acted as a witness in an intended prosecution. He had sought protection after being threatened. No effective protection was provided, and he was murdered. The chief constable appealed a finding of liability.
Held: The . .
CitedIn re Officer L HL 31-Jul-2007
Police officers appealed against refusal of orders protecting their anonymity when called to appear before the Robert Hamill Inquiry.
Held: ‘The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain . .
CitedHertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police HL 30-Jul-2008
Police Obligations to Witnesses is Limited
A prosecution witness was murdered by the accused shortly before his trial. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2.
Held: The House was asked ‘If the police are alerted . .
CitedAssociated Newspapers Ltd, Regina (on The Application of) v Rt Hon Lord Justice Leveson Admn 20-Jan-2012
The defendant was conducting a public enquiry into the culture, ethics and practices of national newspapers. The claimant and others objected to the admission of anonymous evidence from journalists afraid of career blight. The claimants complained . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Administrative

Updated: 30 January 2022; Ref: scu.167106

K and Others, Regina (on The Application of) v The Secretary of State for Defence and Another: CA 23 Nov 2016

The claimants appealed against rejection of their claims that they had acted as covert intelligence sources for the British Army in Afghanistan, and should have been given support and assistance accordingly.

Longmore, Treacy, Underhill LJJ
[2016] EWCA Civ 1149, [2016] WLR(D) 625
Bailii, WLRD
England and Wales

Human Rights, Armed Forces, Immigration

Updated: 26 January 2022; Ref: scu.571937

Gurung, Pun and Thapa v Ministry of Defence: QBD 27 Nov 2002

The applicants were British Nepalese soldiers who had been imprisoned by the Japanese in the second world war. They challenged the decision of the respondent in November 2000 to exclude them from a compensation scheme, but to allow other British nationals from India who had also been imprisoned.
Held: The decision to exclude them was irrational. It offended the common law principle of equality before the law, and was discriminatory under the Convention. It was permissible for the government not to seek compensation on behalf of nationals of other states which had themselves reached a settlement with Japan, but that did not apply to these claimants. Standards which may have applied in 1955 need not be applied now. The ABCIFER case was to de distinguished because that case did not involve any element of race discrimination as did this.

McCombe J
Times 28-Nov-2002, [2002] EWHC 2463 (Admin)
Bailii
European Convention on Human Rights 8 14
England and Wales
Citing:
DistinguishedABCIFER v Secretary of State for Defence 2002
. .

Cited by:
CitedMohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
In 2000, the defendant introduced a policy to make compensation payments for those British services personnel who had been imprisoned by the Japanese in the second world war. The appellant, a citizen of Pakistan had served in the Indian Army, was . .
CitedDost Mohammed, Regina (on the Application of) v Secretary of State for Defence CA 1-May-2007
The applicant was a Pakistani national who had been in the Indian army during the secind world war, and had been imprisoned by the Japanese. The defendant had set up a system of ex gratia payments to five classes of beneficiary, but the claimant . .
See AlsoLimbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Discrimination, Immigration

Updated: 20 January 2022; Ref: scu.178477

Secretary of State for Defence v Nicholas: ChD 24 Aug 2015

Application to set aside an order granting the Secretary of State for Defence, the claimants in these proceedings, permission to issue a written possession.

Rose J
[2015] EWHC 4064 (Ch)
Bailii
England and Wales
Citing:
See AlsoNiholas v Secretary of State for Defence ChD 1-Aug-2013
The claimant had been the wife of a military officer, and occupied a property licensed to him by the defendant. They divorced and he left, and she now resisted grant of possession to the defendant.
Held: The claimant failed. However, there was . .
See AlsoNicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Armed Forces

Updated: 19 January 2022; Ref: scu.566761

Jordan, Re for Judicial Review: SC 6 Mar 2019

(Northern Ireland) The deceased had been shot by a member of the Royal Ulster Constabulary in 1992. There had been inquests in 1995 and 2012, but proceedings were again brought alleging delay. The Court of Appeal had ordered a further stay of proceedings until conclusion of the inquest. The inquest had now been completed with its verdict.
Held: The appeal from grant of the stay was allowed.
Lord Reed stated that ‘it must be borne in mind at the outset that, in cases of the present kind, it is the delay itself which constitutes a breach of the claimant’s Convention rights’ and that ‘[t]he breach does not crystallise only after the inquest has been concluded’

Lady Hale (President), Lord Reed (Deputy President), Lord Carnwath, Lord Lloyd-Jones,
Lady Arden
[2019] UKSC 9
Bailii, Bailii Summary
European Convention on Human Rights 2
Northern Ireland
Citing:
CitedAirey v Ireland ECHR 9-Oct-1979
Family law proceedings such as judicial separation do give rise to civil rights. In complex cases article 6 might require some provision for legal assistance, the precise form being a matter for the member state. The Court reiterated the importance . .
CitedWoodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
CitedJordan, Re Judicial Review QBNI 31-Jan-2014
. .
Appeal fromJordan, Re Judicial Review CANI 15-Oct-2018
. .
Appeal fromJordan’s (Teresa) Application CANI 25-May-2018
. .
CitedJordan and Others, Re Judicial Review QBNI 20-May-2014
. .
CitedHughes, Re Judicial Review QBNI 8-Mar-2018
. .
See AlsoJordan, Re Judicial Review CANI 22-Sep-2015
. .
See AlsoJordan, Re Applications for Judicial Review CANI 17-Nov-2014
. .

Lists of cited by and citing cases may be incomplete.

Coroners, Human Rights, Armed Forces

Updated: 16 January 2022; Ref: scu.634242

Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another: CA 19 Mar 2014

In 1948, there had been an incident in what later became part of Malaysia, in a counter insurgency patrol, when 24 civilians were said to have been killed by a patrol from the Scots Guards. The claimant now appealed against the refusal of a further inquiry.
Held: The appeal failed.

Maurice Kay, Rimer, Fulford LJJ
[2014] 4 All ER 99, [2014] WLR(D) 138, [2015] 1 QB 57, [2014] 3 WLR 948
Bailii, WLRD
European Convention on Human Rights 2, Inquiries Act 2005 1, Human Rights Act 1998
England and Wales
Citing:
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Appeal fromKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another Admn 4-Sep-2012
It was said that a squad of the British army had caused the deaths of 24 civilians in 1948 in Batang Kali (now part of Malaysia.
Held: No inquiry was required. It was a matter of discretion, and there were no sustainable reasons for . .

Cited by:
Appeal fromKeyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .
CitedFinucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Coroners, Armed Forces, Human Rights

Updated: 16 January 2022; Ref: scu.522605

Regina v Army Board of Defence Council, ex parte Anderson: QBD 1991

Members of the Armed Forces who alleged discrimination did not have access to Industrial Tribunals. The only recourse was to make a service complaint which would then be considered by the Army Board. Anderson complained of race discrimination. His service complaint had been dismissed and in his application for judicial review he challenged the procedure which the Panel had adopted including not holding an oral hearing.
Held:
Taylor LJ said: ‘The hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision-making bodies other than courts and bodies whose procedures are laid down by statute, are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing: see Local Government Board v. Arlidge [1915] A.C. 120, 132-133; Reg. v. Race Relations Board, Ex parte Selvarajan [1975] 1 W.L.R. 1686, 1694B-D and Reg. v. Immigration Appeal Tribunal, Ex parte Jones (Ross) [1988] 1 W.L.R. 477, 481B-G. Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made. It will also depend upon whether there are substantial issues of fact which cannot be satisfactorily resolved on the available written evidence. This does not mean that whenever there is a conflict of evidence in the statements taken, an oral hearing must be held to resolve it. Sometimes such a conflict can be resolved merely by the inherent unlikelihood of one version or the other. Sometimes the conflict is not central to the issue for determination and would not justify an oral hearing. Even when such a hearing is necessary, it may only require one or two witnesses to be called and cross-examined.’

Taylor LJ, Morland J
[1992] QB 169, [1991] 3 All ER 375, [1991] 3 WLR 42
England and Wales
Citing:
CitedLocal Government Board v Arlidge HL 1914
A right of appeal against the exercise of a statutory authority requires no general right to an oral hearing before an administrative decision maker, and a hearing on the papers may be perfectly fair for legal purposes.
Lord Shaw said: ‘The . .
CitedRegina v Race Relations Board, Ex parte Selvarajan CA 1975
Lord Denning MR said: ‘In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . In all these cases it has been held that the investigating body is under a duty to act . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Discrimination, Natural Justice

Leading Case

Updated: 12 January 2022; Ref: scu.539816

LSA, Regina v: CACD 16 May 2008

(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no further action if the appeal did not succeed as required under the Order.
Held: The prosecution’s right of appeal under Article 4 is, just as is its civilian equivalent under s 58 Criminal Justice Act 2003, an interlocutory appeal. The assertion to the contrary made on behalf of the defendant in the course of argument was wrong. The scheme for these appeals is that the proceedings in the court below stand adjourned pending the hearing of the appeal: see Article 4(10), the mirror of s 58(10), under which the ruling is to have no effect pending the outcome of the appeal.
Hughes LJ said: ‘we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with s 58 of the Criminal Justice Act 2003, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms. It may be that the new right could have been as effectively controlled if the statute and order had provided that whether or not an undertaking in the terms of article 4(8) was given in open court, any appeal was to be on terms that if leave were refused, or the appeal abandoned, or it failed in due course, acquittal should follow. Or it may be that alternative form of control would not be so effective. What is clear is that alternative form of control is not what has been enacted. The words ‘may not . . unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution ‘may not’ inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset. Nor can we see any proper basis of construction under which what is in section 58(8) . . can be read differently according to whether the ruling under challenge is ipso facto fatal to the prosecution or one in relation to which the Crown chooses to give the acquittal agreement. There would, moreover, be considerable scope for argument about which category some rulings fall into. On these grounds alone, we are unable to see that we have any jurisdiction to hear the appeal against either ruling.
Prosecutors who wish to launch appeals against rulings must give the article . . section 58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.’
The Elrington principle is a rule against sequential trials. It is in no sense breached if two charges arising out of the same facts are put before the same court on the same occasion.
Hughes LJ explained the requirement for the acquittal undertaking: ‘ . . we are unable to see how these statutory provisions can be read as meaning anything other than that there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal. The Order, with section 58 of the Criminal Justice Act 2003, represents a major departure from the former law. The Crown is given a right of appeal in relation to trial on indictment for the first time. Moreover, it is given a right of interlocutory appeal. The new right is given on strict terms . . The words ‘may not unless, at or before that time’ must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution ‘may not’ inform the court it intends to appeal, unless this is done. . .
As we have made clear, Art. 4 of the Order is in terms materially identical to s.58 of the Criminal Justice Act 2003. Prosecutors who wish to launch appeals against rulings must give the Art.4(8)/s.58(8) undertaking in open court at the time of invoking the right of appeal. We are not asked to consider whether it must be given in any particular form, and have not done so; it may well be that it can be given in shorthand or by reference to the statute; given, however, it must be, and that must happen at or before the time of invoking the right of appeal.’

Hughes LJ, Treacy J, Sir Peter Cresswell
[2008] EWCA Crim 1034, [2008] 2 Cr App R 37, [2008] RTR 25, [2008] 1 WLR 2881, [2009] 1 All ER 1103
Bailii
Courts-Martial (Prosecution Appeals) Order 2000 (SI 2006/1786) 4(8), Criminal Justice Act 2003 58(8), Air Force Act 1955 36(1)
England and Wales
Citing:
ExplainedRegina v Forest of Dean Justices ex parte Farley CACD 1990
The prosecutor had charged the defendant first with drink driving so as to take advantage of the provision placing upon the defendant the burden of proving that he had taken drink after the traffic accident and before testing. It iintended then to . .
CitedRegina v Hartnett CACD 2003
The defendant had pleaded guilty in the magistrates’ court to an excess alcohol offence. He was then committed to the Crown Court for trial on an associated charge of dangerous driving on the same occasion. He pleaded guilty to that also. He . .
CitedRegina v R CACD 29-Feb-2008
The court considered the application of section 58 to prosecution appeals and the use of the ‘acquittal agreement’. . .
ExplainedRegina v Elrington 9-Nov-1861
The appellant’s co-accused had been summarily tried and acquitted of common assault. The accused was subsequently indicted on the same facts for assault causing grievous bodily harm and assault causing actual bodily harm. The accused demurred.
CitedConnelly v Director of Public Prosecutions HL 1964
Plea of Autrefois Acquit is Narrow in Scope
The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
Held: The majority identified a narrow . .
CitedClarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .

Cited by:
CitedNT, Regina v CACD 31-Mar-2010
The prosecutor appealed against a stay of the prosecution as an abuse. The prosecution had failed give the undertaking necessary on lodging the appeal to the court against whose ruling it wanted to appeal, that it agreed that the defendant should be . .
CitedPY, Regina v CACD 22-Jan-2019
Police ‘lawful use’ of dog must be police work
The prosecutor wished to appeal from the acquittal of a police officer, whose police dog, while being exercised, attacked a runner causing injury. The judge had accepted the defence, since the dog required exercise, the officer was using the dog for . .
CitedWangige, Regina v CACD 14-Oct-2020
Second Prosecution on Same Facts was An Abuse
The defendant appealed his conviction of causing death by dangerous driving. He appealed from the refusal of the judge to give a stay the prosecution as an abuse He had been previously prosecuted for a lesser offence on the same facts.
Held: . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Armed Forces

Updated: 08 January 2022; Ref: scu.267714

B and Others (Former Soldiers) v Police Service of Northern Ireland: Admn 17 Dec 2015

The respondents wished to interview the claimants, former paratroopers, as to their involvement in the ‘Bloody Sunday’. They resisted being obliged to return to Northern Ireland for interview saying that they fully intended to make no comment replies, and that the risk of such a return was disproportionate.
Held: ‘we grant an order prohibiting the PSNI from arresting the claimants in order to interview them under caution in relation to the events of 30 January 1972 upon the claimants undertaking to the court that they will attend for an interview under caution (and remain for the duration of that interview) to be carried out by the PSNI at a police station in England or Wales (or other acceptable location to the Defendant in England or Wales) in relation to the events of 30 January 1972.’

John Thomas LCJ, Openshaw, Carr JJ
[2015] EWHC 3691 (Admin)
Bailii
England and Wales

Police, Armed Forces

Updated: 08 January 2022; Ref: scu.557140

Nour, Regina (on The Application of) v Secretary of State for Defence and Another: Admn 28 Sep 2015

The Claimant challenges assessments made under the Overseas Security and Justice Assistance Human Rights Guidance in relation to the provision of assistance and training offered to the Sudanese Armed Forces under the ‘Defence Engagement Sudan’ programme.

Simon J
[2015] EWHC 2695 (Admin)
Bailii

Armed Forces, Human Rights

Updated: 04 January 2022; Ref: scu.552786

Mayende and Others, Regina v: CACD 25 Sep 2015

Several soldiers appealed against assorted serious offences committed in Germany. They now appealed against conviction and sentence. They complained of failures in the disclosure as to failings in the police investigation process.
Held: The appeals failed. There had been failings by the police investigating the matter, particularly as to the recording of their investigations, however the accusations were insufficiently particular to identify any failing so serious as to undermine the overall validity of the process.

Fulford LJ, Flaux, Thirlwall JJ
[2015] EWCA Crim 1566
Bailii
Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2009
England and Wales

Crime, Armed Forces

Updated: 04 January 2022; Ref: scu.552732

Child Soldiers International v The Secretary of State for Defence: Admn 24 Jul 2015

The claimant challenged the lawfulness of the 2007 Regulations insofar as they restricted the rights of young recruits to leave the Armed Forces, saying that they were incompatible with the Directive.
Held: The UK had implemented a derogation to which it was entitled. The claim failed.

Kenneth Parker J
[2015] EWHC 2183 (Admin), [2015] WLR(D) 343
Bailii, WLRD
Army Terms of Service Regulations 2007, Equal Treatment Directive 2000/78/EC 3(4)
England and Wales
Citing:
CitedMayor of Bradford v Pickles HL 29-Jul-1895
The plaintiffs sought an injunction to prevent the defendant interfering with the supply of water to the city. He would have done so entirely by actions on his own land.
Held: The plaintiffs could have no property in the water until it came on . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, European, Discrimination

Updated: 03 January 2022; Ref: scu.550823

Long, Regina (on The Application of) v Secretary of State for Defence: CA 17 Jul 2015

The claimant appealed against a refusal of a declaration that (i) a declaration that the defendant, the Secretary of State for Defence, had acted in breach of article 2 and (ii) an order requiring him to conduct an effective independent investigation into the death of her son, one of six British soldiers of the Royal Military Police who had been murdered by an armed mob when visiting a police station in Majar-al-Kabir, Maysan Province, Iraq on 24 June 2004 in the course of their mission to help restore and maintain law and order by rebuilding the local police force.
Held: The appeal failed. The death of a soldier on active service abroad was necessary under article 2 when the circumstances suggested a systematic permitting of soldiers routinely to disregard a communications order. It was enough to show a failure to take reasonable measures which may have of avoiding the death.
Where the investigative process of an Army Board of Inquiry and a coroner’s inquest had revealed sufficiently why a system failure had occurred, what had gone wrong and what lessons were to be learnt, the obligation under article 2 was discharged.

Lord Dyson MR, Lewison, Underhill LJJ
[2015] EWCA Civ 770, [2015] WLR(D) 320
Bailii, WLRD
European Convention on Human Rights 2
England and Wales

Armed Forces, Human Rights, Coroners

Updated: 02 January 2022; Ref: scu.550370

Engel And Others v The Netherlands (1): ECHR 8 Jun 1976

The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so. It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a ‘criminal charge’ within the meaning of Article 6(1).’
The Court established three criteria for determining whether proceedings are ‘criminal’ within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring.
Article 5 is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. Article 6 applied to a Board of Visitors’ adjudication within a prison.
A distinction based on the rank of soldiers was a distinction based on status within Article 14. ‘A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’
The list in sub-paragraphs (a) to (f) of the cases where deprivations of liberty are permitted is exhaustive and is to be narrowly interpreted.

5101/71, 5354/72, 5102/71, 5370/72, [1976] ECHR 3, 5100/71, (1976) 1 EHRR 647
Worldlii, Bailii
European Convention on Human Rights 5(1) 14
Human Rights
Cited by:
CitedRegina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
CitedRegina (Mudie and Another) v Dover Magistrates’ Court and Another CA 4-Feb-2003
The applicants wished to challenge the confiscation of their goods by the Commissioners of Customs and Excise on their return to Dover. They appealed the refusal of Legal Aid.
Held: The Convention guaranteed the right to legal assistance for . .
CitedGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
CitedCampbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
CitedClingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
CitedTangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
CitedFrancis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedGentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedAustin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
CitedSecretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
See AlsoEngel And Others v The Netherlands (Article 50) ECHR 23-Nov-1976
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient. . .
CitedSecretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
CitedGale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
CitedKaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
CitedMubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
CitedHallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Armed Forces

Leading Case

Updated: 31 December 2021; Ref: scu.164879

Surek v Turkey (No 1): ECHR 8 Jul 1999

Hudoc Grand Chamber – Judgment (Merits and just satisfaction) No violation of Art. 10; Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – domestic proceedings; Costs and expenses partial award – Convention proceedings
The applicant was the major shareholder a Turkish company owning a weekly review entitled Haberde Yorumda Gercek published in Istanbul. The review published letters very critical of the Army in the conduct of the war against the PKK.
Held: The court convicting the applicant had not been sufficiently independent of the prosecuting authorities, including as it did military officers as members. Freedom of expression is one of the core rights protected by the Convention. It ‘constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment’. The exceptions in article 10(2) must therefore be ‘construed strictly and the need of any restrictions must be established convincingly’.

P Wildhaber P
[1999] ECHR 51, 26682/95, (1999) 7 BHRC 339
Worldlii, Bailii
European Convention on Human Rights 6-1 10
Human Rights
Cited by:
CitedLord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Media, Armed Forces

Updated: 31 December 2021; Ref: scu.165735

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 to acknowledge the detention or disclose the fate of the person who has been detained. Its cruelty and vice lie in the facts that the disappeared person is completely isolated from the outside world and at the mercy of their captors and that the person’s family is denied knowledge of what has happened to them.’

Leggatt J
[2015] EWHC 715 (Admin), [2015] WLR(D) 168, [2015] 3 WLR 503, [2017] QB 1015
Bailii, WLRD
England and Wales
Citing:
See AlsoAl-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 AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
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 . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See AlsoAl-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 . .
CitedAl-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 . .

Cited by:
See AlsoAl-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 AlsoAl-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 . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See AlsoAl-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
CitedMiller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Armed Forces, Human Rights

Updated: 30 December 2021; Ref: scu.544341