Hussein v Secretary of State for Defence: CA 12 Dec 2013

Application for permission to appeal against a decision dismissing the Claimant’s application for judicial review challenging the lawfulness of policies of the Secretary of State for Defence which apply to the questioning of persons captured by United Kingdom Armed Forces.

Lloyd-Jones, Moore-Bick LJJ
[2013] EWCA Civ 1797
Bailii
England and Wales

Armed Forces

Updated: 28 November 2021; Ref: scu.520112

Benzer And Others v Turkey: ECHR 12 Nov 2013

ECHR Article 2
Positive obligations
Article 2-1
Life
Effective investigation
Article 2-2
Use of force
Bombing of civilian villages by military aircraft and subsequent failure to conduct an effective investigation: violation
Article 3
Inhuman treatment
Anguish and distress as a result of bombing of civilian villages: violation
Article 38
Article 38-1-a
Obligation to furnish all necessary facilities
Failure by respondent Government to provide essential piece of evidence: violation
Article 46
Individual measures
Respondent Government required to conduct investigation to identify those responsible for bombing of civilian villages in 1994
Facts – The applicants were Turkish nationals who lived and worked with their families in two villages in South-Eastern Turkey. The facts of the case were disputed between the parties. According to the applicants, in 1994 their villages were bombed by an aircraft belonging to the Turkish military. As a consequence, 34 of the applicants’ close relatives died, some of the applicants themselves were injured, and most of their property and livestock was destroyed. After the incident, all surviving villagers abandoned their villages and moved to different parts of the country. At the time of the European Court’s judgment, the villages were still uninhabited. In 1994, 1996 and 2006, local prosecutors concluded that the bombing of the villages had been carried out by members of the PKK. The Government upheld this view and maintained that there was no evidence of the State’s involvement in the incident. In 2012 the applicants submitted to the Court a flight log drawn up by the Civil Aviation Directorate, which referred to two flying missions carried out by the national Air Force on the same day the applicants’ villages were bombed.
Law – Preliminary objection (six-month rule): The respondent Government argued that the applicants had not complied with the six-month rule as they had lodged their application twelve years after the incident. Owing to the particular circumstances of the case, the Court accepted that the applicants had been unable to complain about the events to the national authorities for a long period after the attack on their villages. They had introduced official complaints with the national authorities as soon as they had had the possibility to do so, and had applied to the European Court shortly after they realised that the domestic remedies would not yield any results.
Conclusion: preliminary objection dismissed (unanimously).
Article 2
(a) Substantive aspect – The only argument the Government relied on to support their claim that the villages had been attacked by members of the PKK were statements taken from a number of villagers in 2008 and the decisions of some civilian and military prosecutors taken in 1994, 1996, and 2006. As for the witness statements, all but one of these had been given by people who were not resident in either of the applicants’ two villages and were not present at the incident. That evidence was thus merely hearsay. Moreover, most of those witnesses had been questioned by members of the military and not by an independent judicial authority. The only witness who had allegedly been in one of the two villages on the day of the incident and who had claimed that PKK members, rather than planes, had carried out the bombing, could not be considered independent or impartial as he was employed by the State as a village guard. As for the ensuing investigations, the files of the investigations conducted in 1994 and 1996 by civilian prosecutors did not contain any evidence to substantiate the PKK’s involvement in the attacks. Therefore, the conclusions reached by those prosecutors were baseless. As for the investigation carried out in 2006 by the criminal prosecutor, the Court found that it had been based on evidence that involved illogical reasoning and was subsequently proven incorrect. The Court could therefore not attach any importance to the conclusions reached by the prosecutors or consider that they supported the Government’s submissions.
As for the applicants’ allegation that the attack had been carried out by a military aircraft, the Court noted that the applicants had consistently maintained this account over a number of years. Further investigations by the prosecuting authorities in 2004 and 2005, based on eyewitness testimony, concluded that the villages had been bombed by an aircraft and not the PKK. In addition, the flight log drawn up by the Civil Aviation Directorate established that missions had been flown to the location of the villages at the time the applicants claimed the attack had occurred. In the light of this evidence, the Court concluded that a military aircraft belonging to the Turkish Air Force had conducted an aerial attack killing 33 of the applicants’ relatives and injuring three of the applicants themselves. In the Court’s view, an indiscriminate aerial bombing of civilians and their villages could not be acceptable in a democratic society or reconcilable with any of the grounds regulating the use of force set out in Article 2 – 2 of the Convention, the customary rules of international humanitarian law or any of the international treaties regulating the use of force in armed conflicts.
Conclusion: violation (unanimously).
(b) Procedural aspect – The investigation into the bombing was wholly inadequate and many important steps were omitted. For example, the prosecutors had not carried out any significant inquiry in the immediate aftermath of the bombing, and, once the incident had actually been looked into, the investigators were not independent, had formed baseless conclusions on extremely minimal investigations, and had attempted to withhold the investigation documents from the applicants. Most crucially, no investigation had been conducted into the flight log which constituted a key element in the possible identification and prosecution of those responsible. Having regard to the abundance of information and evidence showing that the applicants’ villages had been bombed by the Air Force, the Court concluded that the inadequacy of the investigation had been the result of the national investigating authorities’ unwillingness to officially establish the truth and punish those responsible.
Conclusion: violation (unanimously).
Article 3: It was not disputed that the applicants had witnessed the killings of their relatives and the destruction of their belongings, had had to deal with the consequence of the incident alone, and had been obliged to leave their place of residence. The bombing had been ordered and carried out without the slightest concern for human life by the pilots or by their superiors, who had then tried to cover it up by refusing to hand over the flight log. The national authorities had failed to offer even the minimum humanitarian assistance to the applicants in the aftermath of the bombing. In these circumstances, the Court considered that witnessing the killing of their close relatives, coupled with the authorities’ wholly inadequate and inefficient response in the aftermath of the events had caused the applicants suffering that had attained the threshold of inhuman and degrading treatment. In addition, the bombing of their homes had deprived them and their families of shelter and support and obliged them to leave the place where they and their friends had been living. The anguish and distress caused by that destruction was sufficiently severe to constitute inhuman treatment within the meaning of Article 3.
Conclusion: violation (unanimously).
Article 38: Despite the fact that the Government had been expressly requested by the Court to submit a copy of the entire investigation file in 2009, they had not submitted the relevant flight log or mentioned its existence in their observations. This piece of information had been supplied to the Court by the applicants in June 2012, after the Government had already submitted their observations on the case. The Government had not disputed the authenticity of the flight log, argued that they were unaware of its existence, or provided any explanation as to why it had not previously been supplied to the Court. Bearing in mind the importance of a respondent Government’s co-operation in Convention proceedings, the failure to provide the flight log had amounted to a failure to comply with the obligation under Article 38 to provide all necessary facilities to assist the Court in its task of establishing the facts.
Conclusion: violation (unanimously).
Article 46: Having regard to the fact that the investigation file was still open at the national level and to the documents in its possession, the Court considered that new investigatory steps should be taken by the national authorities under the supervision of the Committee of Ministers. These steps should include carrying out an effective criminal investigation, with the help of the flight log, with a view to identifying and punishing those responsible for the bombing of the applicants’ villages.
Article 41: Sums ranging from EUR 15,000 to EUR 250,000 in respect of non-pecuniary damage.
(See also Akdivar and Others v. Turkey, 21893/93, 16 September 1996; Timurtas v. Turkey, 23531/94, 13 June 2000; and Musayev and Others v. Russia, 57941/00, 58699/00 and 60403/00, 26 July 2007, Information Note 99)

Guido Raimondi, P
23502/06 – Chamber Judgment, [2013] ECHR 1116, 23502/06 – Legal Summary, [2013] ECHR 1317, [2015] ECHR 8
Bailii, Bailii, Bailii
European Convention on Human Rights

Human Rights, Armed Forces

Updated: 28 November 2021; Ref: scu.519526

Joksas v Lithuania: ECHR 12 Nov 2013

ECHR Article 10-1
Freedom of expression
Dismissal from the armed forces at retirement age, but allegedly on ground of personal opinions: no violation
Facts – In 2002 the applicant was employed by the Lithuanian armed forces on a five-year contract which, under specific circumstances, could be rescinded even before the expiry date. In 2006 a Lithuanian newspaper published an article in which the applicant criticised new legislation for inadequately protecting the rights of servicemen in disciplinary proceedings. An internal investigation was initiated, but was eventually discontinued on the ground that the applicant had not violated military discipline. In 2006 the applicant’s contract was terminated because he had reached retirement age, in accordance with the legal provisions in force. The applicant challenged this decision before the administrative courts, alleging that he had been discriminated against on grounds of his personal opinions, and asked the courts to obtain and analyse evidence of other soldiers in his battalion who should also have been dismissed on grounds of age. The applicant’s complaints were dismissed and that decision was ultimately upheld by the Supreme Administrative Court.
Law – Article 6 – 1
(a) Applicability – The Government argued that Article 6 was not applicable to the applicant’s case, because the dispute at issue could not be regarded as ‘civil’ within the meaning of that provision. The Court noted that the domestic law provided the applicant with the right of access to court, which the applicant had exercised, claiming the right, which was ‘civil’ in nature, to continue his professional military service until the expiry of his existing contract. The dispute before the domestic courts had been genuine and serious and the result of the proceedings directly decisive for the right in question. Article 6 was thus applicable.
Conclusion: preliminary objection dismissed (unanimously).
(b) Merits – The Court noted that an allegation of discrimination was at the heart of the applicant’s complaint before the domestic courts. Therefore, a comparison between his situation and that of the other servicemen who had allegedly been allowed to continue serving after reaching their retirement age but before the expiry of their contracts was indispensable for the applicant to be able to present his grievance. The domestic courts’ failure to assist the applicant in obtaining evidence in this regard and to give it consideration, or at least to provide reasons why this was not necessary, had denied the applicant an essential means to argue his case. In disputes concerning civil rights, such as the present one, such a limited assessment could not be considered an effective judicial review under Article 6 – 1. Therefore, the proceedings before the domestic courts, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6 – 1.
Conclusion: violation (unanimously).
Article 10, alone and in conjunction with Article 14: The Court recalled that Article 10 applied also to military personnel. While Contracting States could legitimately impose restrictions on freedom of expression where there was a real threat to military discipline, they could not rely on such rules for the purpose of frustrating the expression of opinions, even if these were directed against the army as an institution. The internal inquiry into the applicant’s actions regarding his publication in the newspaper was terminated on the ground that he had not violated any legal provisions, and no disciplinary sanction had been imposed on him. Therefore, as far as it concerned that inquiry in itself, the applicant could not claim to be a victim of a violation of the Convention. Furthermore, in the applicant’s case, no new requirements for his post, which he did not meet, had been introduced after the impugned publication nor had any of the applicant’s army superiors made public statements to the effect that he should be discharged from service due to his opinions. Moreover, the obligation to terminate contracts when the retirement age was reached was an established practice of the domestic courts, which had also previously been confirmed by the Supreme Administrative Court. As for the applicant’s colleagues who had allegedly been treated differently from him although they were in a similar situation, the Court noted that they were entitled to serve until the expiry of their contracts, despite the fact that they had reached retirement age because, unlike the applicant, they all held military specialist codes. Therefore, the applicant had not been discriminated against.
Conclusion: no violation (unanimously).
Article 41: EUR 6,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Grigoriades v. Greece, 24348/94, 25 November 1997; Vereinigung demokratischer Soldaten Osterreichs and Gubi v. Austria, 15153/89, 19 December 1994)

25330/07 – Chamber Judgment, [2013] ECHR 1117, [2013] ECHR 1283, 25330/07 – Legal Summary, [2013] ECHR 1289
Bailii, Bailii, Bailii
European Convention on Human Rights

Human Rights, Media, Armed Forces

Updated: 27 November 2021; Ref: scu.519054

Mustafa Tunc And Fecire Tunc v Turkey (LS): ECHR 25 Jun 2013

Article 2-1
Effective investigation
Effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation
Facts – In February 2004, while he was doing his military service, a sergeant was fatally injured by gunfire. A judicial investigation was opened as a matter of course. In June 2004 the prosecutor discontinued the proceedings, finding that no third party could be held responsible for the sergeant’s death. In October 2004 a military tribunal of the air-force upheld an appeal by the applicants – the sergeant’s parents – and ordered the prosecutor to carry out a further investigation. In December 2004 the prosecutor closed the inquiries and sent the file back to the military tribunal, together with a report on the further investigation requested, presenting the measures taken and addressing the shortcomings identified by the tribunal. The military tribunal dismissed a further appeal by the applicants.
The applicants complained that the authorities had failed to carry out an effective investigation into their son’s death. They argued in particular that the legislation in force at the relevant time did not confer all the requisite guarantees of independence on the judicial authorities and, more specifically, on the military tribunal which had examined the case at last instance.
Law – Article 2
(a) Whether the investigation was prompt, appropriate and comprehensive – The inquiries in question had been carried out with the requisite diligence and the investigation had not been vitiated by any excessive delay. The authorities had taken appropriate measures to collect and preserve the evidence relating to the incident at issue. As regards the examination of witnesses, a number of statements had been taken immediately after the death. There was nothing to suggest that the authorities had failed to examine material witnesses or that the interviews had been conducted inappropriately.
(b) Whether the investigation was independent – The investigation had been carried out by the military prosecutor, assisted by detectives from the national gendarmerie. The decision to discontinue the proceedings after the inquiries had been subjected to the scrutiny of the air-force’s military tribunal, ruling on an appeal by the applicants. The Court referred to its previous finding in the Gurkan v. Turkey* judgment that, as composed at the material time, the military tribunal which had convicted the applicant in that case could not be regarded as independent and impartial within the meaning of Article 6 of the Convention, and that there had been a violation of that Article. In so ruling, the Court had pointed to the fact that one of the three judges sitting on the bench of the military tribunal was an officer appointed by his hierarchy and subject to military discipline, and that he did not enjoy the same constitutional safeguards as the two other judges, who were professionals from the judiciary. Those considerations were also valid in the present case, in so far as the tribunal acting as the supervisory body in the investigation at issue had the same composition. In that connection, it was to be noted that the doubts about impartiality in the present case concerned the judicial body responsible for the supervision at last instance of the investigation, and not simply the prosecutor’s office. It followed that the procedure could not meet the requirement of independence that was inherent in the national authorities’ obligation to carry out an effective investigation into the sergeant’s death.
(c) The participation in the investigation of the deceased’s family – The applicants had enjoyed access to the information emanating from the investigation to a sufficient degree to enable them to participate effectively in the proceedings.
In conclusion, notwithstanding its findings concerning the prompt, appropriate and comprehensive nature of the investigative measures and the effective participation of the applicants, the Court was of the view that there had been a violation of Article 2 under its procedural head, as the military tribunal did not have the requisite independence in its capacity as supervisory body, at last instance, in respect of the judicial investigation.
Conclusion: violation (four votes to three). Article 41: EUR 10,000 jointly in respect of non-pecuniary damage.

24014/05 – Legal Summary, [2013] ECHR 793
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal SummaryMustafa Tunc And Fecire Tunc v Turkey ECHR 25-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 19 November 2021; Ref: scu.515126

Mustafa Tunc And Fecire Tunc v Turkey: ECHR 25 Jun 2013

24014/05 – Chamber Judgment (French Text), [2013] ECHR 587
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal SummaryMustafa Tunc And Fecire Tunc v Turkey (LS) ECHR 25-Jun-2013
Article 2-1
Effective investigation
Effectiveness of investigation into death impaired on account of lack of independence of court upholding a decision to discontinue the proceedings: violation
Facts – In February 2004, while he . .

Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 15 November 2021; Ref: scu.512092

A v B; Regina (A) v Director of Establishments of the Security Service: Admn 4 Jul 2008

The claimant a retired senior officer in the intelligence services wished to publish a book of his memoirs. He was refused permission for his duty of confidentiality, and said that this infringed his human rights. The Director denied his right to take the case before the court saying that it was to be heard by the Security Commissioner who had exclusive jurisdiction.
Held: Where the issue regarded human rights the Security Commissioner did not have an exclusive jursdiction. Nothing in the section that indicated that the tribunal was to have exclusive jurisdiction to deal with matters raised in complaints for which the tribunal was the appropriate forum.

Collins J
[2008] EWHC 1512 (Admin), Times 05-Aug-2008, [2008] 4 All ER 511, [2008] ACD 76
Bailii
Regulation of Investigatory Powers Act 2000 65(2)
England and Wales
Cited by:
Appeal fromRegina (A) v Director of Establishments of the Security Service CA 18-Feb-2009
The director appealed against a finding that the court did have jurisdiction to determine whether its order preventing a restriction on publication of a book by a former member of the security services had infringed his right of free speech. The . .
Appeal fromA v B CA 18-Feb-2009
The claimant a former senior member of the Security Services sought to challenge a decision refusing permission to pulish his memoirs in full. The respondent argues that the Investigatory Powers Tribunal had exclusive jurisdiction. The respondent . .
At First InstanceA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Media

Leading Case

Updated: 12 November 2021; Ref: scu.270617

A Soldier v Revenue and Customs: FTTTx 11 Jun 2012

FTTTx VAT – new means of transport – private motor car supplied for removal to Germany – bought by member of UK armed forces based in Germany and taken there for two days – returned to UK because Appellant on temporary training here before six month operational deployment in Africa – car left in the UK during deployment – during deployment, Appellant notified that his German stationing was being terminated and he was being re-based in the UK – whether Appellant had sufficient intention to remove the vehicle from the UK when initially supplied to him to qualify for UK zero rating on that supply to him – X v Skatteverket (ECJ) considered – held yes – appeal allowed

Kevin Poole Judge
[2012] UKFTT 388 (TC)
Bailii
England and Wales

VAT, Armed Forces

Updated: 11 November 2021; Ref: scu.462774

Secretary 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 Afghanistan, but were not notified. He remained detained by US Forces. An agreement had been in place as to the treatment of prisoners in accordance with international obligations,and which provided that he should be returned to the UK. He complained that by doing nothing to secure his return, the government had colluded in his unlawful rendition, and the Court of Appeal had granted a writ of Habeas Corpus requiring the UK government to seek his return to the UK. The Secretary of State now appealed.
Held: The appeal was dismissed. The respondents cross appeal was dismissed by a majority. It was not necessary to show that the government had actual custody of the claimant, but only that they had influence which might be effective. Habeas corpus remains a flexible remedy.
That the Memorandum of Understanding (MOU) was not binding in law did not reduce its significance. The appellant had relied on the MOU to show that it had complied with its obligations under the Geneva Conventions, and the claim that a request for his return was a bare statement unsupported by other evidence.
Though the issue of the legality of his detention did not conclude the matter, the evidence suggested that his continued detention was unlawful.
The grant of a writ of habeas corpus was not an interference by the courts with foreign relations. The effet was to require evidence if there was such that the appellant did not have any control.
‘Memoranda of Understanding or their equivalent, Diplomatic Notes, are therefore a means by which courts have been invited to accept that the assurances which they contain will be honoured. And indeed courts have responded to that invitation by giving the assurances the weight that one would expect to be accorded to solemn undertakings formally committed to by responsible governments. It is therefore somewhat surprising that in the present case Mr Parmenter asserted that it would have been futile to request the US government to return Mr Rahmatullah. As the Master of the Rolls pointed out in para 39 of his judgment, this bald assertion was unsupported by any factual analysis. No evidence was proffered to sustain it. ‘
Lord Kerr contrasted the availability and purpose of judicial review and habeas corpus: ‘The fallacy in the suggestion that habeas corpus should not be available where judicial review is not, lies in its conflation of two quite different bases of claim. The mooted judicial review application would proceed as a challenge to the propriety of the government’s decision not to apply to the US authorities for Mr Rahmatullah’s return. The application for habeas corpus does not require the government to justify a decision not to make that application. It calls on the government to exercise the control which it appears to have or to explain why it is not possible (not why it is not reasonable) to do so.
Apart from the differing nature of the two claims, the fact that habeas corpus, if the conditions for its issue are satisfied, is a remedy which must be granted as a matter of automatic entitlement distinguishes it from the remedy of judicial review which can be withheld on a discretionary basis. It is unsurprising that habeas corpus is available as of right. If there is no legal justification for a person’s detention, his right to liberty could not depend on the exercise of discretion.’

Lord Phillips, Lady Hale, Lord Kerr, Lord Dyson, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 48, [2012] WLR(D) 301, [2012] 3 WLR 1087, UKSC 2012/0142, UKSC 2012/0033
Bailii, Bailii Summary, SC Summary, SC
Geneva Conventions of 1949 and their Additional Protocols
England and Wales
Citing:
See AlsoOthman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
CitedLukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Appeal fromRahmatullah 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 . .
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. . .
CitedSecretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .
CitedMT (Algeria) and others v Secretary of State for the Home Department CA 30-Jul-2007
The defendants challenged deportation orders made for national security purposes, saying that the Special Immigration Appeals Commission should not have taken closed material into account. They argued that if returned to Algeria, they would suffer . .
CitedKhera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
CitedBarnardo v Ford HL 1892
A boy who had been ‘found destitute and homeless’ by a ‘clergyman residing in Folkestone’ had been placed in an institution run by Dr Barnardo, who in turn said that he had handed over the boy to ‘an American gentleman’, who had taken him to Canada. . .
CitedRex v Earl of Crewe, Ex parte Sekgome CA 1910
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an . .
CitedRegina v Secretary of State for Home Affairs, Ex parte O’Brien CA 1923
Mr O’Brien had been arrested in London under regulation 14B of the Restoration of Order in Ireland Regulations 1920 and deported to Ireland there to be interned until further order. A writ of habeas corpus was sought as against the governor of . .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
CitedOmar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
CitedZabrovsky v The General Officer Commanding Palestine PC 4-Dec-1946
Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, . .
CitedEx parte Mwenya CA 1959
A writ of habeas corpus might issue to Northern Rhodesia.
Such a writ of should only be issued where it can be regarded as ‘proper and efficient’ to do so. However, it remains ‘the most efficient protection yet developed for the liberty of the . .
CitedAl-Haq, Regina (On the Application of) v Secretary Of State for Foreign and Commonwealth Affairs Admn 27-Jul-2009
The claimant sought a declaration that the UK was in breach of its international obligations. The claimant was a non-governmental human rights organisation based in Palestine. The respondent argued that the issue was beyond the court’s jurisdiction, . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai CA 1985
Sir John Donaldson MR said: ‘in the context of a situation with serious implications for the conduct of international relations, the courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if ever, be . .
CitedRegina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
CitedRegina v Secretary of State for Foreign Affairs ex parte Ferhut Butt Admn 1-Jul-1999
Lightman J said: ‘The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions . . This . .
CitedSankoh, Re CA 27-Sep-2000
The claimant appealed against a refusal to issue a writ oif habeas corpus on behalf of the Sierra Leonean revolutionary leader, Foday Sankoh, who had been detained in Sierra Leone while UK forces were supporting the national government there, and in . .
CitedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
CitedAl Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Torts – Other, International, Judicial Review

Leading Case

Updated: 11 November 2021; Ref: scu.465471

Secretary of State for Defence v Lance Corporal (Now Corporal) Duncan and Another: CA 12 Oct 2009

The servicemen had challenged the awards made to them for injuries suffered in service. The SSD now appealed.
Held: The awards had been increased when it became clear that the SD had failed to take account of some elements of the injuries suffered, and the injuries had been reclassified by the Tribunal, with its medical experts, as complex. The SSD complained that the injuries had been assessed at the date of the hearing, and that injuries arising during the course of treatment should not be included.
Held: It was agreed that further injury arising from medical negligence would not be claimable, the chain of causation being broken. However it was not proper to identify separately the first and subsequent injuries, and ‘Frequently, there are risks that quite independent illness or injury may result from carrying out perfectly proper medical treatment. If the risk materialises, however likely or unlikely that may be, then in my judgment, the consequential injury is referable to the original injury in service and there is no break in the chain of causation. ‘ and ‘injuries which are consequential upon medical treatment should be compensated under this Scheme where they flow from risks which are inherent in carrying out that treatment. However, the immediate consequences of the treatment itself, such as pain and the physical intrusion which necessarily follows any surgery and is an intrinsic in the cure, will not merit any additional award. ‘

Keene LJ, Carnwath LJ, Elias LJ
[2009] EWCA Civ 1043, [2010] AACR 5
Bailii
The Armed Forces and Reserve Forces (Compensation Scheme) Order 2005
England and Wales
Citing:
CitedBwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
CitedIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Personal Injury

Updated: 11 November 2021; Ref: scu.375985

Duncan v Ministry of Defence: EAT 2 Oct 2014

duncan_modEAT1410

EAT Sex Discrimination : Jurisdiction – Section 121 Equality Act 2010 – purposive construction required to achieve lawful balance between the statutory aim of enabling the Armed Forces to determine complaints internally prior to litigation and a complainant’s right of access to a Court/Tribunal within a reasonable time. That could be achieved by reading section 121(2) EqA as operating as a jurisdictional bar only where the right (under the Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007) to make a referral to the Defence Council has arisen and has not been exercised.
The Employment Judge’s failure to give this provision such a purposive construction had led him to strike out the Claimant’s Employment Tribunal claim. It was now common ground that the Employment Judge’s ruling amounted to an error of law and the appeal should be allowed on this basis.
Costs – given the outcome of the appeal, the Employment Tribunal’s costs award against the Claimant cannot stand. By consent the Respondent is ordered to pay the Claimant’s costs of the appeal and those occasioned by its application to strike out the claim before the Employment Tribunal.

Eady QC HHJ
[2014] UKEAT 0191 – 14 – 0210
Bailii
Equality Act 2010 121, Armed Forces Redress of Individual Grievances (Procedure and Time Limits) Regulations 2007
England and Wales

Employment, Armed Forces, Costs, Discrimination

Updated: 10 November 2021; Ref: scu.537758

Ali Hussein v Secretary of State for Defence: Admn 1 Feb 2013

The claimant sought to challenge the legality of techniques of interrogation intended to be used by forces members detaining person captured in Afghanistan. He had himself been mistreated by such officers in Iraq. The defendant denied he had standing to challenge a policy which would not affect him. He said it was in issue of such importance that it must be litigated.
Held: The claim failed: ‘whether or not treatment in interrogation can be regarded as unlawful will depend on whether it contravenes a prohibition on treatment which would be regarded as inhumane. A useful guide can be obtained from Article 3 of the ECHR since it is clear that any physical ill-treatment of a detainee is likely to contravene it and other forms of coercion may, if sufficiently serious. I have no doubt that if used in accordance with and applying the controls required by the policy the use of Challenge Direct cannot be regarded as a breach of the obligation of humane treatment. ‘

Hallett LJ DBE, Collins J
[2013] EWHC 95 (Admin)
Bailii
England and Wales
Citing:
CitedTrendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
CitedEquality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedRegina v Fulling CACD 1987
It was alleged that evidence had been obtained by police oppression. She had at first refused to answer questions, but an officer talked to her during a break between interviews, telling her that her lover had been having an affair. The . .
CitedThe Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other

Leading Case

Updated: 10 November 2021; Ref: scu.470696

Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening): HL 12 Dec 2007

The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security in Iraq as a suspected terrorist. It was said that the detention was attributable to the forces acting under UN authority.
Held: The claimant’s appeal was dismissed. The detention was by the UK, but the duties were affected by the fact that they acted also under the UN resolution. The operations of the authorities were subject to the duties under the Convention. However, the authorities had a responsibility also under the UN charter to prevent terrorism, and it was bound to exercise its power of detention where that was necessary for imperative reasons of national security.

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2007] UKHL 58, Times 13-Dec-2008, [2008] 2 WLR 31, [2008] 1 AC 332
Bailii
European Convention on Human Rights 5
England and Wales
Citing:
At first instanceAl-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 . .
Appeal fromAl-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 . .
CitedBehrami and Behrami v France; Saramati v France Germany and Norway ECHR 2-May-2007
The applicants complained of the action and inaction of members of an international security force (‘KFOR’) that had been deployed in Kosovo pursuant to Security Council Resolution 1244 (1999).
Held: The applications were inadmissible. The . .

Cited by:
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedAl-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 . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
At HLAl-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 HLAl-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 HLAl-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. . .
At HLAl-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. . .
At HLAl-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. . .
At HLAl-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. . .
At HLAl-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. . .
At HLHilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At HLAl-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 . .
At HLAl-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. . .
At HLSecretary 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 HLAl-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
At HLHilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Leading Case

Updated: 09 November 2021; Ref: scu.262254

Matthews v Ministry of Defence: HL 13 Feb 2003

The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided procedural bars to their enforcement. The issue of what is a substantive and what a procedural bar is a difficult distinction. At common law, the crown could do no wrong, and therefore no action lay against the crown. That was substantive law, and the 1947 did not stand as a bar to an action which would otherwise lie. The contention that a right existed from the happening of the injury until the Secretary of State issued his certificate did not succeed. The Act did not operate first to create then withdraw a right of action.

Bingham of Cornhill, Hoffman, Hope of Craighead, Millett, Walker of Gestingthorpe LL
Times 14-Feb-2003, [2003] UKHL 4, [2003] 2 WLR 435, Gazette 03-Apr-2003, [2003] 1 AC 1163, 14 BHRC 585, [2003] PIQR P24, [2003] UKHRR 453, [2003] ACD 42, [2003] ICR 247, [2003] 1 All ER 689, [2004] HRLR 2
House of Lords, Bailii
European Convention on Human Rights 6, Crown Proceedings Act 1947 10
England and Wales
Citing:
Appeal fromMatthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
CitedBell 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 . .
CitedMulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
CitedQuinn v Ministry of Defence CA 28-Nov-1997
. .
CitedDerry 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. . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedStubbings and Others v The United Kingdom ECHR 22-Oct-1996
There was no human rights breach where the victims of sex abuse had been refused a right to sue for damages out of time. The question is whether and to what extent differences in otherwise similar situations justify a different treatment in law: . .
CitedPowell and Rayner v The United Kingdom ECHR 21-Feb-1990
The applicants complained of the noise generated by Heathrow Airport saying that it affected their human rights to enjoy their private life and possessions.
Held: Whether the case was analysed in terms of a positive duty on the state to take . .
CitedFayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
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, . .
CitedTinnelly and Sons Ltd and Others and McElduff and Others v United Kingdom ECHR 10-Jul-1998
Legislation which disallowed claimants who asserted that they had been discriminated against, on the grounds of their religious background, from appealing through the courts system, was a clear breach of their human rights. A limitation will not be . .
CitedWaite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
CitedZ And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
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 . .

Cited by:
Appealed toMatthews v Ministry of Defence CA 29-May-2002
The Ministry appealed against a finding that the Act, which deprived the right of a Crown employee to sue for personal injuries, was an infringement of his human rights.
Held: The restriction imposed by the section was not a procedural . .
CitedBarnfather v London Borough of Islington Education Authority, Secretary of State for Education and Skills QBD 7-Mar-2003
The appellant was convicted of the crime of being a parent whose child had failed to attend school regularly. She challenged saying that the offence required no guilty act on her part, but was one of strict liability, and contrary to her human . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedSecretary of State for Work and Pensions v Kehoe CA 5-Mar-2004
The claimant had applied to the Child Support Agncy for maintenance. They failed utterly to obtain payment, and she complained now that she was denied the opportunity by the 1991 Act to take court proceedings herself.
Held: The denial of . .
CitedKehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
CitedO’Connor and Another v Wiltshire County Council CA 9-May-2007
The claimants sought compensation for the diminution in the values of their properties because of noise pollution from a new highway. The defendant highway authority said that liability had been transferred to its contractors, and it had not been . .
CitedReader and others v Molesworths Bright Clegg Solicitors CA 2-Mar-2007
The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of . .
CitedRegina v G (Secretary of State for the Home Department intervening) HL 18-Jun-2008
The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Personal Injury, Armed Forces

Leading Case

Updated: 09 November 2021; Ref: scu.179117

Reprieve and Others, Regina (on The Application of) v The Prime Minister: Admn 30 Jun 2020

Standing may not be enough for JR

The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and rendition of detainees in the aftermath of events in the USA on 11 September 2001.
Held: The request for review failed. The claimants’ standing to bring proceedings has not been the subject of dispute, but it does not follow that they may step into the shoes of third party victims:’ In these judicial review proceedings, the claimants contend that the decision not to hold a public inquiry breaches the defendant’s duty to hold an effective investigation under article 3 of the Convention. We are willing to assume for present purposes that a breach of the State’s article 3 investigative duty may in principle give rise to individual rights that may be classified as ‘civil rights’ (for example, in claims brought by an individual for damages for breach of the duty). However, in any public inquiry, the claimants would not seek a determination of their own article 3 rights but would raise the rights of others who (on the claimants’ case) may have been the subject of mistreatment. The claimants in our judgment cannot possibly be regarded as victims of article 3 violations. It follows that any duty to investigate article 3 breaches by way of a public inquiry is not a duty owed to the claimants as victims. In these circumstances, it is difficult to envisage how the present judicial review proceedings – which concern the investigative duty – have anything to do with the claimants’ civil rights.’
‘claims made in public law proceedings cannot simply be elided with ‘civil rights’ under article 6(1). Administrative and executive decisions may involve the ‘hard core of public-authority prerogatives’ which do not engage article 6 ‘

Dame Victoria Sharp P, Farbey J
[2020] EWHC 1695 (Admin)
Bailii, Judiciary
European Convention on Human Rights 6(1)
England and Wales
Citing:
CitedSecretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
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 . .
CitedEl-Masri v The Former Yugoslav Republic of Macedonia ECHR 13-Dec-2012
(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated . .
CitedRingeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
CitedMaaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedRB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
CitedLe Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
Hudoc The Court was faced with a disciplinary sanction imposed on doctors which resulted in their suspension for periods between 6 weeks and 3 months: ‘Unlike certain other disciplinary sanctions that might have . .
CitedKiani v The Secretary of State for The Home Department CA 21-Jul-2015
Lord Dyson MR (with whom Richards LJ and Lewison LJ agreed) held that the requirements of article 6 ‘depend on context and all the circumstances of the case’. The court will strike an appropriate balance between the requirements of national security . .
CitedFayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
CitedAksoy v Turkey ECHR 18-Dec-1996
In the context of Kurdish separatist terrorism which had claimed almost 8000 lives, the court accepted a derogation from the Convention because of a state of emergency. However the applicant had been detained, tortured and finally released without . .
CitedHome Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
CitedMohamed and Another v Secretary of State for The Home Department CA 2-May-2014
The claimants were suspected of terrorism and subject to control orders and terrorism prevention and investigation measures. They brought proceedings for abuse of process relating to the manner in which they had been removed to the United Kingdom . .
CitedKamoka v The Security Service QBD 1205
The court hearing an application for disclosure, should consider both the nature of the issue at stake and what is needed for the fair disposal of the litigation in hand. . .
CitedZZ v Secretary of State for The Home Department CA 24-Jan-2014
The claimant had appealed against his exclusion, confirmed by the Special Immigration Appeal Commission. The case had been remitted to the European Court of Justice, which had now made its decision.
Held: The essence of the grounds for . .
CitedBank Mellat v Her Majesty’s Treasury CA 23-Oct-2015
Bank entitled to information needed for defence
Application to set aside the directions contained in two statutory instruments. The measures were ‘highly restrictive . . with very serious effects’. The court considered the procedures for the use of closed material and whether the claimant bank . .
CitedAZ (Syria) v Secretary of State for The Home Department CA 27-Jan-2017
AZ, a refugee, had been refused general travel document for reasons of national security. The Court as now asked whether he was entitled to be told of the concerns in advance of defendant’s decision.
Burnett LJ referred to a ‘sliding scale for . .
CitedK, A and B v Secretary of State for Defence Secretary of State for Foreign and Commonwealth Affairs Admn 26-Apr-2017
The Claimants have brought public law claims against the Defendants in relation to protection, relocation and compensation, claiming to have acted as covert human intelligence sources, CHIS, for the United Kingdom in Afghanistan. . .
CitedQX v Secretary of State for The Home Department Admn 15-May-2020
Challenge to Temporary Exclusion Order.
Held: The concept of ‘civil rights and obligations’ cannot be interpreted solely by reference to national law but has an autonomous meaning within article 6(1) . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Administrative, Human Rights, Judicial Review

Updated: 09 November 2021; Ref: scu.652173

Al-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 applicants were within the jurisdiction of the court for this purpose, but merely being held at the request of the Iraqi authorities.
Held: The claim failed. In the earlier leading cases, the applicants had been held when there was no other lawful authority, and therefore the detention could only be by and for the occupying force. In these caes however the arrests had been made when there as a lawful authority requiring assistance. There was an obligation to bring the claimants before the courts of Iraq. However the claimants did fall within the jurisdiction of the United Kingdom for the purposes of article 1, and ‘the claimants are at present in the physical custody of the British forces and that their transfer to the custody of the Iraqi court would be an act attributable to the United Kingdom, not to Iraq.’ The Soering principle applied to any transfer even though it was a transfer within the same territory, and ‘the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; . . if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention.’ The court however rejected the claim that a fair trial would not be provided, but noted that there had been no re-assurance that the death penalty might not be applied, and therefore a transfer would infringe the claimant’s article 13 rights. This however did not amount to an obligation on the UK not to comply with its international obligations.

Richards LJ, Silber J
[2008] EWHC 3098 (Admin)
Bailii
European Convention on Human Rights 1 13
England and Wales
Citing:
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedEM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
CitedAl-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 . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
AppliedGentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
CitedRegina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedSaadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
CitedOthman (Abu Qatada) (Jordan) v Secretary of State for the Home Department CA 9-Apr-2008
The claimant appealed an order for his deportation back to Jordan, saying that if returned there was a real risk that he would face a trial based on evidence obtained by torture.
Held: The appeal succeeded. A foreign national could not be . .
See 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. . .

Cited by:
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
Appeal fromAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
At High CourtAl-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See 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 . .
See AlsoAl-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .

Lists of cited by and citing cases may be incomplete.

Armed Forces, International, Human Rights, Crime

Updated: 09 November 2021; Ref: scu.278991

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Judicial Review

Updated: 09 November 2021; Ref: scu.375610

Regina v Secretary of State for Defence ex parte Perkins: Admn 16 Jul 1998

The ECJ ruling that discrimination against same sex couples did not constitute sex discrimination under the Equal Pay Directive was also effective to decide that the Armed Forces rules against employment of homosexuals was not discrimination.

Times 16-Jul-1998, Gazette 03-Sep-1998, [1998] EWHC Admin 746
Bailii
Council Directive 75/117/EEC (Equal Treatment) Council Directive 76/297/EEC Equal Treatment
England and Wales

Discrimination, Armed Forces

Updated: 09 November 2021; Ref: scu.87700

Blackman, Regina v (Sentence): CACD 28 Mar 2017

Sentence – manslaughter of prisoner

The defendant whilst serving in Afghanistan had killed a prisoner. His appeal against his conviction for murder had been successful, and a conviction for manslaughter had been substituted on the basis that he was at the time suffering a recognised medical condition. The court now considered sentencing.
Held: A sentence of seven years was imposed, which would, allowing for time served, lead to his imminent release.

[2017] EWCA Crim 325
Bailii
England and Wales
Citing:
See AlsoBlackman, Regina v (Media) CACD 28-Mar-2017
The defendant officer appealed against his conviction for murder. Whilst serving a s an officer in Afghanistan, he had killed a captured soldier. That conviction had been quashed and a conviction for manslaughter on diminished responsibility . .
See AlsoBlackman, Regina v CACD 15-Mar-2017
The defendant appealed against his conviction for murder. As an army officer serving in Afghanistan he had killed an injured captured insurgent.
Held: The defendant had at the time of the offence suffered a recognised psychiatric condition, . .
See AlsoBlackman, Regina v CACD 22-May-2014
The appellant had been convicted of murder. As an Army sergeant serving in Afghanistan, he had killed a captured insurgent. . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Armed Forces

Updated: 09 November 2021; Ref: scu.581276

Ngouh, Regina (on The Application of) v Secretary of State for The Home Department: Admn 27 Aug 2010

The claimant, a Cameroon national, sought to challenge the refusal of indefinite leave to remain. He had served in the British Army in Iraq, and lived here for over ten years. However when serving he had been convicted of a minor sexual assault in 2005.
Held: The request for judicial review was granted. His first application had been mishandled, a refusal being made for his failure to supply documents he could not obtain. The second application was refused on the different basis of the offence. It was important when considering refusal based on an offending history for the officer properly to consider the nature of the offence and of the surrounding circumstances. Where as here, the offence was at the lowest end of criminality particular care was needed.

Foskett J
[2010] EWHC 2218 (Admin), [2010] WLR (D) 239
Bailii, WLRD
Immigration Rules
England and Wales
Citing:
CitedSecretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
CitedSteven O Omojudi v United Kingdom ECHR 24-Nov-2009
The claimant had been convicted of a sex offence and ordered to be deported after his release from prison. He had lived in the UK for 26 years and had a family.
Held: The deportation order was disproportionate. The measures complained of . .
CitedSL (Vietnam) v Secretary of State for The Home Department CA 11-Mar-2010
. .
CitedDaley-Murdock, Regina (on The Application of) v Secretary of State for The Home Department Admn 23-Jun-2010
. .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Armed Forces

Updated: 09 November 2021; Ref: scu.421891

Molaudi 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 made a complaint about the same matters to the military authorities, which was not brought in time and which was rejected.
The Employment Tribunal held that (a) pursuant to section 75(9) of the Race Relations Act 1976 as amended, a ‘service complaint’ had to be brought to the military authorities before a claim could be brought in the Employment Tribunal; and (b) a complaint to the military authorities which was brought out of time and was rejected by the military authorities was not a valid ‘service complaint’ and so the pre-condition for bringing a claim in front of the Employment Tribunal was not satisfied. There were adequate judicial procedures in this country ‘available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them’ as specified in article 7 of the Directive.
The Claimant appealed on (b).
Held: Dismissing the appeal
(1) The term ‘service complaint’ meant a complaint which could be considered substantively and that meant a complaint rejected by the military authorities brought out of time did not fall within that definition; and
(2) The Racial Discrimination Directive 2000/43/EC did not require a different meaning to be given to the words ‘service complaint’ so that it covered a complaint to the military authorities which was brought out of time.

Silber J
[2011] UKEAT 0463 – 10 – 1504, [2011] ICR D19
Bailii
Race Relations Act 1976 75(9), Equality Act 2010, Race Relations (Complaints to Industrial Tribunals) Armed Forces Regulations 1997, Armed Forces Act 2006 334, The Armed Forces Redress of Individual Grievance (Procedures and Time Limits) Regulations 2007 11(a), Racial Discrimination Directive 2000/43/EC 7
England and Wales
Citing:
CitedPinner v Everett HL 1969
The House was asked whether or not a person was ‘driving or attempting to drive’ a motor vehicle when he had been stopped by the police in connection with the illumination of his rear number plate, and the driver got out of the car and started to . .
CitedJ L Melbourne v Ministry of Defence EAT 26-Nov-2001
EAT Race Discrimination – Direct . .
CitedBarnes v Jarvis 1953
Lord Goddard CJ said: ‘A certain amount of common sense must be applied in construing statutes. The object of the Act has to be considered.’ . .
CitedRadakovits v Abbey National Plc CA 17-Nov-2009
The Tribunal had considered the question of jurisdiction as a preliminary issue. It heard evidence, and considered that there was no jurisdiction. This was despite the fact that, at an earlier stage, the employer had said that it would not contest . .
CitedRiley v First Choice Homes Oldham Ltd EAT 30-Apr-2008
riley_firstEAT2008
EAT Statutory Discipline and Grievance Procedures – Whether applicable – Whether infringed – Was the modified or standard grievance procedure applicable? The Employment Tribunal found the former, and held that . .
CitedMinistry of Defence v Wallis and Grocott CA 8-Mar-2011
Mrs Wallis was employed by the Ministry of Defence at the international school attached to SHAPE in Belgium. Mrs Grocott was employed by the Ministry in the British section of the Armed Forces North International School in the Netherlands. Both . .
CitedCrompton v The United Kingdom ECHR 27-Oct-2009
The applicant had joined the Territorial Army as a pay and accounts clerk but was made redundant. He claimed redress in respect of his redundancy from his Commanding Officer. There then followed a prolonged series of proceedings which took eleven . .

Cited by:
Appeal fromMolaudi v Ministry of Defence CA 21-Mar-2012
Affirmed . .
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, Discrimination, Armed Forces

Leading Case

Updated: 02 November 2021; Ref: scu.432795

Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening): HL 13 Jun 2007

Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied and run by British military personnel. It was argued for the civilians that, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the United Kingdom and any other contracting state, fell within the exceptions recognised by the Strasbourg jurisprudence.
Held: The acts of a UK public authority were subject to the human rights convention outside the UK, but only where at the time the victim was within the jurisdiction of the UK under article 1. Where a state through effective control of another territory exercised powers normally exercised by the government of that territory, the obligation to secure the Convention rights would arise only where a contracting state had such effective control over an area as to enable it to provide the full package of rights and freedoms guaranteed by article 1 of the Convention to everyone within that area.
The task of the English courts is to keep pace with the Strasbourg jurisprudence as it develops over time, no more and no less.
Lord Rodger remarked: ‘in case of doubt, the Act should be read so as to promote, not so as to defeat or impair, its central purpose.’
Lord Brown said that the Convention should not be construed as ‘reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach.’

Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2007] UKHL 26, TImes 14-Jun-2007, [2008] 1 AC 153, [2007] 3 All ER 685, [2007] 3 WLR 33, [2007] Inquest LR 168, [2007] UKHRR 955, [2007] HRLR 31, 22 BHRC 518
Bailii, HL
Human Rights Act 1998, European Convention on Human Rights
England and Wales
Citing:
At First InstanceAl Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
Appeal fromRegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
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 . .

Cited by:
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 . .
CitedBarclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
CitedAnimal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
CitedSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedBarclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
CitedAl-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 . .
CitedReynolds, Regina (on the Application of) v Sussex Police and Another Admn 16-May-2008
The complainant’s brother had been arrested for being drunk. After a time in a cell, he was found unwell and fell into a coma. Complaints were made of his treatment. The Police Complaints Commission was to investigate the events after the arrest . .
CitedAl-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 . .
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 . .
CitedMasri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
CitedA, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
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.
CitedMousa and Others v Secretary of State for Defence and Another Admn 16-Jul-2010
The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry. . .
CitedArmstrong v Chief Constable of West Yorkshire Police CA 5-Dec-2008
The Chief Constable appealed against a finding that the claimant had been arrested for rape without reasonable grounds. A description of the rapist had been given which the claimant met in several respects, but from which he clearly differed in . .
CitedZagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedSalimi, Regina (on The Application of) v Secretary of State for The Home Department and Another Admn 1-Jul-2011
The claimant said he had been assaulted by Iraqi police and contractors in Baghdad Airport whilst he was being forcibly returned there, and that the defendant had responsibility. He complained that about the failure of the IPCC to investigate his . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedSugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
At HLAl-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 and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedBarclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Leading Case

Updated: 02 November 2021; Ref: scu.253442

Bankovic v Belgium: ECHR 12 Dec 2001

(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own account in respect of injuries sustained during the raid. The claimants alleged that Articles 2, 10 and 13 of the Convention had been infringed.
Held: Decisions on military action abroad are not subject to review under the Convention. The court discussed the meaning of article 1: ‘As to the ‘ordinary meaning’ of the relevant terms in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are as a general rule defined and limited by the sovereign territorial rights of the other relevant States.
Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence . . in addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence unless the former is an occupying State, in which case it can be found to exercise jurisdiction in that territory, at least in certain respects . .
The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case.’
‘In keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of art 1 of the convention.’ and ‘Reference has been made in the court’s case law, as an example of jurisdiction ‘not restricted to the national territory’ of the respondent state (Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99 at para 62), to situations where the extradition or expulsion of a person by a contracting state may give rise to an issue under arts 2 and/or 3 (or, exceptionally, under arts 5 and/or 6) and hence engage the responsibility of that state under the convention (Soering v UK [1989] ECHR 14038/88 at para 91, Cruz Varas v Sweden ECHR 15576/89 at paras 69 and 70, and Vilvarajah v UK [1991] ECHR 13163/87 at para 103). However, the court notes that liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state’s competence or jurisdiction abroad (see also Al-Adsani v UK [2001] ECHR 35763 at para 39).’
‘In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.’ and ‘Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state.’

52207/99, (2001) 11 BHRC 435, [2001] ECHR 890, (2007) 44 EHRR SE5, 123 ILR 94
Bailii
European Convention on Human Rights 1
Human Rights
Cited by:
FollowedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
CitedMohamed Moneim Al-Fayed for Judicial Review of A Decision of the Lord Advocate To Refuse To Instruct A Public Inquiry Into the Death of Emad Al-Fayed OHCS 12-Mar-2004
The claimant sought judicial review of the minister’s decision not to order a judicial public investigation of the death of his son in a car crash in Paris.
Held: The primary obligation to undertake an enquiry fell upon France. The obligation . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedOcalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
CitedRegina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
CitedAl Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedRegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
CitedGentle and Others, Regina (on the Application of) v the Prime Minister and others Admn 20-Dec-2005
The applicants sought leave to bring judicial review of the decisions which led to the invasion of Iraq. They were relatives of servicemen who had died there.
Held: The court’s only duty at this stage was to ask whether there was an arguable . .
CitedSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedAl-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 . .
CitedAl-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 . .
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 . .
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.
ExplainedMedvedyev And Others v France ECHR 29-Mar-2010
(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but . .
CitedZagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedSmith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
CitedSandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 4-Feb-2013
The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by . .
CitedSandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
CitedPrivacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Leading Case

Updated: 02 November 2021; Ref: scu.196600

Stephen Jordan (No 2) v The United Kingdom: ECHR 10 Dec 2002

jordan_uk2ECHR2002

The applicant was a soldier who had been court marshalled for misuse of travel warrants. He wished to use in his defence his recent epilepsy. There was some delay while medical reports were obtained, and subsequently when the new legal system was brought in and again for the issue of a new legal aid order. Eventually he came to challenge the proceedings as an abuse for delay. The proceedings took nearly 5 years.
Held: The delay was not all at the feet of the prosecutors, but they should have taken a firmer hold on matters. The delay amounted to a time which was unreasonable and in breach of the appellant’s right to a fair trial.
‘The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention’, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann judgment cited above, p 49, para 161, and the Kaya v Turkey [1998] ECHR 22729/93, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p 324, para 86 of the latter reports). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, Ilhan v Turkey [GC] [2000] ECHR 22277/93, ECHR 2000-VII, para 63).’

49771/99, (2003) 37 EHRR 2, [2002] ECHR 797, [2002] ECHR 803, [2001] Inquest LR 101, (2001) 11 BHRC 1
Worldlii, Bailii
European Convention on Human Rights
Citing:
See AlsoJordan, Re an Application for Judicial Review QBNI 29-Jan-2002
The claimant challenged the Lord Chancellor’s failure to introduce legislation to ensure that the coroners’ system in Northern Ireland comprised with Human Rights Law. . .
See AlsoRe Jordan’s Application QBNI 8-Mar-2002
The claimant challenged a ruling of the coroner on 9 January 2002 that he would conduct the inquest on the basis of existing law and practice and would not leave to the jury the option of returning a verdict of unlawful killing. . .

Cited by:
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 . .
At ECHRJordan v Lord Chancellor and Another (Northern Ireland) HL 28-Mar-2007
In each case a death had occurred many years earlier where the deceased had apparently died at the hands of the armed forces. The relatives now challenged the range of verdicts which could be left to a coroner’s jury.
Lord Bingham said: ‘The . .
At ECHRJordan, Re an Application for Judicial Review QBNI 12-Jan-2004
. .
CitedJordan v Lord Chancellor and Another (Northern Ireland) HL 28-Mar-2007
In each case a death had occurred many years earlier where the deceased had apparently died at the hands of the armed forces. The relatives now challenged the range of verdicts which could be left to a coroner’s jury.
Lord Bingham said: ‘The . .
CitedSaunders and Tucker, Regina (on the Application of) v The Association of Chief Police Officers and others Admn 10-Oct-2008
The deceased had been shot by police during an armed siege. His family complained that the Independent Police Complaints Commission had declined to order the officers not to confer with each other before making statements.
Held: The authority . .
CitedReynolds, Regina (on the Application of) v Sussex Police and Another Admn 16-May-2008
The complainant’s brother had been arrested for being drunk. After a time in a cell, he was found unwell and fell into a coma. Complaints were made of his treatment. The Police Complaints Commission was to investigate the events after the arrest . .
CitedReynolds, Regina (on the Application of) v Independent Police Complaints Commission and Another CA 22-Oct-2008
The court was asked to consider whether the IPCC could investigate the circumstances leading to the arrest of a suspect who fell into a coma after being arrested for being drunk. The IPCC appealed, saying that it did not have jurisdiction to . .
CitedMousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
CitedLetts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Leading Case

Updated: 02 November 2021; Ref: scu.178422

Regina v Jackson: CACD 17 Oct 2006

The defendant appealed against his conviction for low flying contrary to the 1955 Act, saying that it had been treated wrongly as an offence of strict liability.
Held: Hooper LJ said: ‘Whilst it is always possible to adumbrate situations which would appear to be covered by a statutory provision and yet could have manifestly unjust results, one has to rely on the good sense of Prosecuting Authorities and the overall supervisory role of the courts to avoid such a situation developing. Likewise of course the penalty actually imposed in any particular case can reflect the actual degree of culpability involved in a particular case.’

Hooper LJ, Keith, Jones JJ
200505255C5, [2007] 1 WLR 1035, [2006] EWCA Crim 2380
Bailii
Air Force Act 1955
England and Wales
Cited by:
ApprovedEzeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Crime, Armed Forces

Updated: 02 November 2021; Ref: scu.464929

Smith, 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.
Held: The SSD’s appeal succeeded. ‘jurisdiction’ within the meaning of Article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. A soldier on active duty overseas was not within the jurisdiction of the UK so as to allow the operation of the Convention. The proposition asserted was a novel one, and the court should not extend a State’s duties beyond existing Strasbourg jurisprudence.
If the Convention had applied, an article 2 level coroner’s inquest would still not always be required. Baroness Hale, Lord Mance and Lord Kerr dissented in part.
Lord Collins said the exceptions to the finding of jurisdiction recognised by the Strasbourg court had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the ECHR. This case was none of them.
Lord Mance said: ‘However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention.’
Lord Hope of Craighead said: ‘Some situations in which the procedural obligation is triggered are now well recognised. The suicide of an individual while in the custody of the state is the prime example. It has been extended to the case where a prisoner attempted to commit suicide while in custody and suffered brain damage . This is because it has been recognised that prisoners as a class present a particular risk of suicide and because those who have custody of them, as agents of the state, are or may be in some way implicated. A Middleton inquest is required in all these cases, because it is at least possible that the prison authorities failed to take the steps to protect the prisoner’s life that the substantive right requires. As Lord Rodger of Earlsferry said in L’s case . . suicide is in this respect like any other violent death in custody. The procedural obligation extends to prisoners as a class irrespective of the particular circumstances in which the death occurred. The fact that they are under the care and control of the authorities by whom they are held gives rise to an automatic obligation to investigate the circumstances. The same is true of suicides committed by others subject to compulsory detention by a public authority, such as patients suffering from mental illness who have been detained under the Mental Health Acts . . This approach has the merit of clarity. Everyone knows from the outset that the inquest in these cases must follow the guidance that was given in Middleton’
Lord Phillips of Worth Matravers stated the difference between a preliminary inquiry to establish whether an article 2 investigation was called for on the facts surrounding any death, and an article 2 investigation itself: ‘The duty to hold an article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by article 2. This raises the question of how the State is to identify that there are grounds for such suspicion. Any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death, whether or not there are grounds for suspecting that there is anything untoward about the death. Where the first stage shows that the death has not, or may not have, resulted from natural causes, there will be a requirement for a further stage or stages of the investigation. The requirement for an article 2 investigation will only arise if the preceding stage of the investigation discloses that there is a possibility that the State has not complied with a substantive article 2 obligation.’

Lord Phillips of Worth Matravers PSC, Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Collins of Mapesbury, Lord Kerr of Tonaghmore
[2010] UKSC 29, [2010] WLR (D) 165, [2010] 3 WLR 223, [2010] 3 All ER 1067, [2011] 1 AC 1, [2010] Inquest LR 119, [2010] UKHRR 1020, [2010] HRLR 28, 29 BHRC 497
Bailii, WLRD, SC Summary, SC
Human Rights Act 1998, European Convention on Human Rights 1, Coroners and Justice Act 2009 5, Armed Forces Act 2006
England and Wales
Citing:
CitedIssa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
CitedBui van Thanh v United Kingdom ECHR 12-Mar-1990
The applicant, one of the ‘Vietnamese Boat People’, complained of the acts of government official in Hong Kong.
Held: The UK government had not extended the Convention to Hong Kong and the application failed. . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Appeal FromSecretary 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 . .
At First InstanceSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedOcalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
CitedOcalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
CitedLoizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
CitedAl Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
CitedLoizidou v Turkey (Merits) ECHR 18-Dec-1996
The court was asked whether Turkey was answerable under the Convention for its acts in Northern Cyprus.
Held: It was unnecessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities . .
CitedLoizidou v Turkey (Article 50) ECHR 28-Jul-1998
Hudoc Judgment (Just satisfaction) Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings; Costs and expenses – claim rejected (State) . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
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 . .
CitedCarson and Others v The United Kingdom ECHR 16-Mar-2010
(Grand Chamber) The court ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had . .
CitedX v United Kingdom ECHR 1979
(Commission) The claimant sought admission of her complaint that being employed by the European Commission and resident in Belgium she had lost her right to vote. She contrasted her position with that of members of the armed forces and members of . .
CitedStephens v Malta (No. 1) ECHR 21-Apr-2009
The applicant, a British subject, had been arrested and detained in Spain under an arrest warrant issued by a court in Malta, but without competence to do so. The Court considered the issue of jurisdiction under article 1, saying: ‘the question to . .
CitedRegina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
CitedCyprus v Turkey ECHR 26-May-1975
ECHR (Commission) Article 24 of the Convention : Case referred to the Commission by a Contracting Party.
(a) The applicant Government, as constituted at and since the time of lodging the present . .
CitedGentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
CitedRegina v North Humberside and Scunthorpe Coroner ex parte Jamieson CA 27-Apr-1994
The deceased prisoner had hanged himself. He had been a known suicide risk, and his brother said that the authorities being so aware, the death resulted from their lack of care. The inquest heard in full the circumstannces leading up to the death, . .
CitedMcCann and Others v The United Kingdom ECHR 6-Oct-1995
mccann_ukECHR1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
CitedMiddleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
CitedIsayeva, Yusupova And Bazayeva v Russia ECHR 24-Feb-2005
ECHR Judgment (Merits and Just Satisfaction). The court considered the duties of a signatory state under article 2 when taking substantial military actions against insurgents. . .
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 . .
CitedSacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
CitedNachova and Others v Bulgaria ECHR 6-Jul-2005
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel) ; Violation of Art. 2 with regard to deaths ; Violation of Art. 2 with regard to lack of effective investigation ; Not . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedCaledonian Railway Co v Walker’s Trustees 1882
The court considered the extent of the duty to compensate for disturbance of a business when land was compulsorily purchased. Lord Selborne LC said: ‘The obstruction by the execution of the work, of a man’s direct access to his house or land, . .
CitedClose v Steel Company of Wales Ltd 1962
The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in . .
CitedRamsahai And Others v The Netherlands ECHR 10-Nov-2005
(Grand Chamber) The police had shot someone suspected of stealing a scooter. The family complained that they had not been given full access to the documents seen by the enquiry into his death.
Held: In order to be ‘effective’ as this . .
CitedMedvedyev And Others v France ECHR 29-Mar-2010
(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but . .
CitedCalvin’s case 1606
Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws . .
CitedAlcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
CitedBurmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
CitedNissan v The Attorney General HL 11-Feb-1969
The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United . .
CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
CitedLittrell v Government of the United States of America and Another (No 2) CA 24-Nov-1993
The plaintiff claimed damages for personal injuries arising from medical treatment which he had received at a United States military hospital in the United Kingdom while a serving member of the United States Air Force.
Held: Section 16(2) . .
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 . .
CitedHolland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
CitedMulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
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 . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedJordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
CitedCarson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedMarkovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
CitedIlascu and Others v Moldova and Russia ECHR 8-Jul-2004
(Grand Chamber) The two contracting states disputed the status of secessionist territory in Moldova called the Moldovian Republic of Transdniestria, which had been set up in 1991-2 with the support of the Russian Federation. The question was whether . .
CitedLubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
CitedMenson v United Kingdom ECHR 6-May-2003
There had been a racist attack. The victim was set on fire and killed in the street by assailants. His relatives sought compensation. However the assailants were not agents of the state and they were duly prosecuted, convicted and sentenced. No . .
CitedSalman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .
CitedLondon and Quadrant Housing Trust v Weaver, Regina; Equality and Human Rights Commission intervening CA 18-Jun-2009
The Trust appealed against a finding that in terminating an assured tenancy transferred to it from a local authority, it had acted as a hybrid public authority and was subject to controls under the 1998 Act.
Held: (Rix LJ dissenting). The . .
CitedAssanidze v Georgia ECHR 8-Apr-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of Art. 5-1 with regard to unlawfull detention ; Not necessary to examine Art. 5-1 . .
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 . .
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 . .
CitedByrzykowski v Poland ECHR 27-Jun-2006
. .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
CitedAkdogdu v Turkey ECHR 18-Oct-2005
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 2; Violation of Art. 3; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses . .

Cited by:
CitedZagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedSmith and Others v Ministry of Defence QBD 30-Jun-2011
Claims were made after the deaths of British troops on active service in Iraq. In one case the deaths were from detonations of improvised explosive devices, and on others as a result of friendly fire. It was said that there had been a foreseeable . .
CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedSmith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
CitedLong, 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 . .
CitedBirks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
CitedLetts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedSandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
CitedSandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
CitedTyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .
CitedCommissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Coroners, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.420019

Tabernacle v Secretary of State for Defence: Admn 6 Mar 2008

The court considered the validity of bye-laws used to exclude protesters from land near a military base at Aldermarston.
Held: The byelaw which banned an ‘camp’ was sufficiently certain, but not that part which sought to ban any person who wished to ‘attach anything to, or place any thing over any wall, fence, structure or other surface;’ ‘the words used in Byelaw 7(2)(g) prohibit a visitor from sitting on a fixed bench and placing a pullover over the seat or the back of the bench, or a hiker from stopping at the monument and placing a rucksack on a convenient surface at the base of the structure. There would need to be strong justification for a ban on such apparently innocuous activities. ‘ That restriction was too wide to be justifiable.

Maurice Kay LJ, Walker J
[2008] EWHC 416 (Admin), Times 09-Apr-2008
Bailii
Military Lands Act 1892 14(1), Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007, European Convention on Human Rights 10(1)
England and Wales
Citing:
CitedStaden v Tarjanyi 1980
The court considered the validity of a byelaw. Lord Lane CJ said: ‘to be valid, a byelaw, carrying as this one does penalties for infringement, must be certain and clear in the sense that anyone engaged upon the otherwise lawful pursuit . . must . .
CitedPercy and Another v Hall and Others QBD 31-May-1996
There was no wrongful arrest where the bylaw under which it was made was invalid. The question is the belief of the arresting officers. The effect of retrospective legislation is not always fully worked through. English law provides no cause of . .
CitedTod-Heatley v Benham 1888
What was ‘annoyance’ between neighbours
The court considered how to construe a covenant in a lease ‘nor do or wittingly or willingly cause or suffer to be done any act, matter, or thing in or upon or about the said premises, which shall or may be or grow to the annoyance, nuisance, . .
CitedLaporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
CitedNash v Finlay 1902
The court considered the validity a byelaw. It was challenged for being unclear. It provided that: ‘No person shall wilfully annoy passengers in the streets.’ Other byelaws in the same instrument proscribed more specific forms of ‘annoyance’.
CitedStaden v Tarjanyi 1980
The court considered the validity of a byelaw. Lord Lane CJ said: ‘to be valid, a byelaw, carrying as this one does penalties for infringement, must be certain and clear in the sense that anyone engaged upon the otherwise lawful pursuit . . must . .
CitedZiliberberg v Moldova ECHR 1-Feb-2005
The court observed that: ‘the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society.’ it is possible to distinguish between interferences . .
CitedGaweda v Poland ECHR 14-Mar-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Pecuniary damage – financial award; Costs and expenses partial award
The court considerd the meaning of the phrase ‘prescribed by law’: . .
CitedChorherr v Austria ECHR 25-Aug-1993
The applicant was one of two arrested demonstrating against the Austrian armed forces at a military parade. They had rucksacks on their backs, with slogans on them. The rucksacks were so large that they blocked other spectators’ view of the parade. . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .

Cited by:
Appeal fromTabernacle v Secretary of State for Defence CA 5-Feb-2009
The claimant sought judicial review to test the validity of the bye-laws which prohibited them from camping on public land to support their demonstration.
Held: The bye-laws violated the claimant’s right to freedom of assembly and of . .

Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces

Updated: 02 November 2021; Ref: scu.266109

Limbu 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 substantially similar to those applied to other commonwealth citizens retring from the armed forces. However the examples set out as the basis for the exercise of the decision were so restrictive as to be irrational and did not reflect the policy as expressed. The instructions given to the entry clearance officers were unlawful and needed urgent revisiting.

Blake J
[2008] EWHC 2261 (Admin), Times 07-Oct-2008
Bailii
England and Wales
Citing:
See AlsoGurung, 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 . .
See AlsoRegina (Purja) v Ministry of Defence; Regina (Lama) v Same Admn 21-Feb-2003
The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and . .
See AlsoGurung and Shrestha, Regina (on the Application of) v Secretary of State for Defence Admn 2-Jul-2008
Second challenge to the lawfulness of the Terms and Conditions of Service and the pension arrangements of the Gurkha soldier retired from the British Army. . .
See AlsoPurja and others v Ministry of Defence CA 9-Oct-2003
The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Immigration

Updated: 02 November 2021; Ref: scu.276535

Commodore 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 freedom of conscience when he was obliged, on pain of disciplinary action, to remain present and doff his cap during Christian prayers at ceremonial parades and at morning and evening colours. This was a sufficiently active participation to hinder the claimant in the enjoyment of his conscientious beliefs. Nor had any justification been shown for it: ‘The Board has no doubt that Mr Laramore was ‘hindered in the enjoyment of his freedom of conscience’ in the present case. His conscience told him that he should not be taking part in the prayers which were part of regular colours parades. He made this point after he had converted to the Muslim religion in 1993, and he pursued it after the 2006 Memorandum reversed the dispensation introduced in 1993. The effect of the 2006 Memorandum was that he was no longer able to enjoy or give effect to his freedom of conscience by falling out during prayers.’
Nor was the interference justified in the circumstances.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed. Lord Hughes
[2017] UKPC 13, [2017] 1 WLR 2752, [2017] WLR(D) 334
Bailii, WLRD
Commonwealth
Citing:
CitedThe Honourable Dr. Paul Borg Oliver and Another v The Honourable Dr. Anton Buttigieg PC 19-Apr-1966
The Archbishop of Malta had declared it a mortal sin to print, write, sell, buy, distribute or read a left-wing weekly newspaper, the Voice of Malta. The Maltese Medical and Health Department had followed this up by prohibiting all its 2,660 . .
CitedBanton v Alcoa Minerals of Jamaica Inc 1971
. .
CitedHope v New Guyana Ltd 1979
. .
CitedAttorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
CitedRegina v Big M Drug Mart 1985
Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a . .
ApprovedScott 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 . .

Cited by:
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Constitutional, Human Rights

Updated: 02 November 2021; Ref: scu.582134

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.’

Burnett LJ, Irwin J
[2015] EWHC 1953 (Admin), [2015] WLR(D) 297
Bailii, WLRD
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: 02 November 2021; Ref: scu.550020

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

engel_netherlandsECHR1976

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
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
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 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons, Armed Forces

Leading Case

Updated: 01 November 2021; Ref: scu.164879

Hassan v The United Kingdom (LS): ECHR 16 Sep 2014

ECHR Grand Chamber – Article 5-1
Lawful arrest or detention
Internment in Iraq under Third and Fourth Geneva Conventions: no violation
Article 1
Jurisdiction of states
Responsibility of states
Territorial jurisdiction in relation to detention of Iraqi national by coalition of armed forces in Iraq
Facts – In March 2003 a coalition of armed forces led by the United States of America invaded Iraq. After occupying the region of Basrah, the British army started arresting high-ranking members of the ruling Ba’ath Party and the applicant, a senior member of the party, went into hiding leaving his brother Tarek behind to protect the family home in Umm Qasr. On the morning of 23 April 2003 a British Army unit came to the house hoping to arrest the applicant.
According to their records, they found Tarek Hassan in the house armed with an AK-47 machine gun and arrested him on suspicion of being a combatant or a civilian posing a threat to security. He was taken later that day to Camp Bucca, a detention facility in Iraq operated by the United States. Parts of the camp were also used by the United Kingdom to detain and interrogate detainees. Following interrogation by both United States and United Kingdom authorities, Tarek Hassan was deemed to be of no intelligence value and, according to the records, was released on or around 2 May 2003 at a drop-off point in Umm Qasr. His body was discovered, bearing marks of torture and execution, some 700 kilometres away in early September 2003.
In 2007 the applicant brought proceedings in the English administrative court, but these were dismissed on the grounds that Camp Bucca was a United States rather than a United Kingdom military establishment.
In his application to the European Court, the applicant alleged that his brother was arrested and detained by British forces in Iraq and subsequently found dead in unexplained circumstances. He complained under Article 5 — 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities had failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Law – Articles 2 and 3: There was no evidence to suggest that Tarek Hassan had been ill-treated while in detention such as to give rise to an obligation under Article 3 to carry out an official investigation. Nor was there any evidence that the United Kingdom authorities were responsible in any way, directly or indirectly, for his death, which had occurred some four months after his release from Camp Bucca, in a distant part of the country not controlled by United Kingdom forces. In the absence of any evidence of the involvement of United Kingdom State agents in the death, or even of any evidence that the death occurred within territory controlled by the United Kingdom, no obligation to investigate under Article 2 could arise.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 — 1, 2, 3 and 4
(a) Jurisdiction
(i) Period between capture by British troops and admission to Camp Bucca: Tarek Hassan was within the physical power and control of the United Kingdom soldiers and therefore fell within United Kingdom jurisdiction. The Court rejected the Government’s argument that jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State were operating in territory of which they were not the occupying power, and where the conduct of the State should instead be subject to the requirements of international humanitarian law. In the Court’s view, such a conclusion was inconsistent with its own case-law and with the case-law of the International Court of Justice holding that international human rights law and international humanitarian law could apply concurrently.*
(ii) Period after admission to Camp Bucca: The Court did not accept the Government’s argument that jurisdiction should be excluded for the period following Tarek Hassan’s admission to Camp Bucca as it involved a transfer of custody from the United Kingdom to the United States. Tarek Hassan was admitted to the Camp as a United Kingdom prisoner. Shortly after his admission, he was taken to a compound entirely controlled by United Kingdom forces. Under the Memorandum of Understanding between the United Kingdom, United States and Australian Governments relating to the transfer of custody of detainees it was the United Kingdom which had responsibility for the classification of United Kingdom detainees under the Third and Fourth Geneva Conventions and for deciding whether they should be released. While it was true that certain operational aspects relating to Tarek Hassan’s detention at Camp Bucca were transferred to United States forces (such as escorting him to and from the compound and guarding him elsewhere in the camp) the United Kingdom had retained authority and control over all aspects of the detention relevant to the applicant’s complaints under Article 5.
Tarek Hassan had thus been within the jurisdiction of the United Kingdom from the moment of his capture on 23 April 2003 until his release, most probably at Umm Qasr on 2 May 2003.
Conclusion: within the jurisdiction (unanimously).
(b) Merits: There were important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict. Detention under the powers provided for in the Third and Fourth Geneva Conventions was not congruent with any of the permitted grounds of deprivation of liberty set out in subparagraphs (a) to (f) of Article 5-1.
The United Kingdom had not lodged any formal request under Article 15 of the Convention (derogation in time of emergency) allowing it to derogate from its obligations under Article 5 in respect of its operations in Iraq. Instead, the Government had in their submissions requested the Court to disapply United Kingdom’s obligations under Article 5 or in some other way interpret them in the light of the powers of detention available to it under international humanitarian law.
The starting point for the Court’s examination was its constant practice of interpreting the Convention in the light of the 1969 Vienna Convention on the Law of Treaties, Article 31-3 of which made it necessary when interpreting a treaty to take into account (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions, (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and (c) any relevant rules of international law applicable in the relations between the parties.
As to Article 31-3 (a), there had been no subsequent agreement between the Contracting States as to the interpretation of Article 5 in situations of international armed conflict. However, as regards Article 31-3(b), the Court had previously stated that a consistent practice on the part of the Contracting States, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention. The practice of the Contracting States was not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. That practice was mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights.
As to the criterion contained in Article 31-3(c), the Court reiterated that the Convention had to be interpreted in harmony with other rules of international law, including the rules of international humanitarian law. The Court had to endeavour to interpret and apply the Convention in a manner which was consistent with the framework under international law delineated by the International Court of Justice. Accordingly, the lack of a formal derogation under Article 15 of the Convention did not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in the applicant’s case.
Nonetheless, even in situations of international armed conflict, the safeguards under the Convention continued to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out under subparagraphs (a) to (f) should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court was mindful of the fact that internment in peacetime did not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15. It could only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security were accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers.
As with the grounds of permitted detention set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law had to be ‘lawful’ to preclude a violation of Article 5-1. That meant that detention had to comply with the rules of international humanitarian law, and most importantly, that it should be in keeping with the fundamental purpose of Article 5-1, which was to protect the individual from arbitrariness.
As regards procedural safeguards, the Court considered that, in relation to detention taking place during an international armed conflict, Article 5-2 and 4 must also be interpreted in a manner which took into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provided that internment ‘shall be subject to periodical review, if possible every six months, by a competent body’. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent ‘court’ in the sense generally required by Article 5-4, nonetheless, if the Contracting State is to comply with its obligations under Article 5-4 in this context, the ‘competent body’ should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. Article 5-3, however, had no application in the present case since Tarek Hassan was not detained in accordance with the provisions of paragraph 1(c) of Article 5.
Turning to the facts of the applicant’s case, the Court considered that the United Kingdom authorities had had reason to believe that Tarek Hassan, who was found by British troops armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved, might be either a person who should be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention under the Third and Fourth Geneva Conventions. Almost immediately following his admission to Camp Bucca, he had been subject to a screening process in the form of two interviews by United States and United Kingdom military intelligence officers, which had led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security. The evidence pointed to his having been physically released from the Camp shortly thereafter.
Against this background, it would appear that Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and was not arbitrary. Moreover, in the light of his clearance for release and physical release within a few days of being brought to the Camp, it was unnecessary for the Court to examine whether the screening process constituted an adequate safeguard to protect against arbitrary detention. Finally, it would appear from the context and the questions that Tarek Hassan was asked during the two screening interviews that the reason for his detention would have been apparent to him.
Conclusion: no violation (thirteen votes to four).

29750/09 – Legal Summary, [2014] ECHR 1145
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Armed Forces

Updated: 01 November 2021; Ref: scu.537995

Ayling v Summers and Others: ChD 14 Sep 2009

Letters of administration had been taken out, but it was subsequently discovered that the deceased, a seamen, may have made a nuncupative will which would be valid if made at sea. He had said: ‘You listen to me. If anything happens to me, I want everything to go to Auntie Anne.’ and later ‘What I told you before still applies. If anything happens to me, if I snuff it, I want everything to go to Auntie Anne.’ It was submitted that the ability to make a privileged will was restricted to seamen on British registered ships.
Held: The oral will was upheld. The restrictive construction of the Act proposed was not accepted: ‘I am faced with four very ordinary words, ‘a mariner or seaman’, which are easily understood and which, on their plain meaning, apply to all mariners and seamen.’ There was no mention of national service in the section. The court had no doubt that the deceased was to be understood to be ‘at sea’ when the words were spoken, since all his actions at that time were as to his return to sea under orders. He was contemplating the voyage and preparing for it.

Peter Langan J
[2009] WTLR 1657, [2010] 1 All ER 410, [2009] EWHC 3168 (Ch)
Bailii
Wills Act 1837 11, Wills (Soldiers and Sailors) Act 1918
England and Wales
Citing:
CitedBilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
CitedRe Stable, deceased. Dalrymple v Campbell 1918
It is not necessary for the validity of a privileged (nuncupative) will that the testator knew that he was making a will: what is required is that he ‘intended deliberately to give expression to his wishes as to what should be done with his property . .
CitedIn the Goods of Sarah Hale 1915
The deceased was a typist employed by the Cunard Steamship Company. Her permanent assignment was as a typist on board the Lusitania but, when not working on the ship, she worked in the company’s offices in Liverpool. She made her will while working . .
CitedIn The Goods Of Hugh Donaldson Donaldson, M D 1-May-1840
Sir Herbert Jenner said that: ‘The deceased must be considered to have been a surgeon in the East India Company’s service; his being in charge of recruits for royal regiments, which was no part of his regimental duty, would not constitute him a . .
CitedRe Beech 1923
Provided the words of a will have been read and accepted by a testator, they take effect even if the legal effect was not understood: ‘The contention is that if a will does not have the effect intended the testator cannot be said to have known and . .
CitedIn the Goods of Newland, deceased 1952
The judge upheld the nuncupative will of an apprentice in the merchant navy while on shore leave (which was, at longest, from 4 July to 1 August 1944) from the troopship on which he was employed. . .
CitedIn the Goods of Wilson, Wilson v Coleclough ChD 1952
The deceased had been a chief officer employed by an oil company. He came ashore in England from one vessel on 10 January 1946, and was on leave until 16 April. On 25 April he received instructions to join another ship on 30 April, and on 27 April . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Armed Forces, Transport

Updated: 01 November 2021; Ref: scu.375618

Secretary 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 jurisdiction whilst not on a British base in Iraq. The deceased’s family argued that the jurisdiction was not merely geographical, but was also personal.
Held: Human rights law is focused on the status of the potential victim and his relationship with the state. ‘the right to life of a soldier in combat is different from that of a soldier not in combat, but the question here is whether there should be a distinction between the rights of a soldier at a base and when he leaves the base. The answer to that question is not in our view affected by the existence or application of the principle that his rights cannot be ‘divided or tailored’. The Minister’s appeal failed.

Sir Anthony Clarke MR, Keene LJ, Dyson LJ
[2009] EWCA Civ 441, [2009] 4 All ER 985, [2009] 3 WLR 1099, [2009] UKHRR 1139, 27 BHRC 89, [2009] ACD 54
Bailii, Times
European Convention on Human Rights 2
England and Wales
Citing:
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 . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedCyprus v Turkey ECHR 26-May-1975
ECHR (Commission) Article 24 of the Convention : Case referred to the Commission by a Contracting Party.
(a) The applicant Government, as constituted at and since the time of lodging the present . .
CitedAl-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 . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
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 . .
CitedIssa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Appeal fromSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .

Cited by:
Appeal FromSmith, 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.
Armed Forces, Human Rights, Coroners

Updated: 02 November 2021; Ref: scu.346156

Williams 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. On her failing to appeal internally in time, the complaint was treated as withdrawn and the Employment Tribunal correctly held it had no jurisdiction. There was no breach of Art 6 ECHR or EU obligations to provide an effective remedy.
A new point was not allowed to be argued. Celtec applied.

McMullen QC J
[2012] UKEAT 0163 – 12 – 0709
Bailii
England and Wales
Citing:
CitedMolaudi 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 . .
CitedMolaudi v Ministry of Defence CA 21-Mar-2012
Affirmed . .

Lists of cited by and citing cases may be incomplete.

Employment, Armed Forces

Updated: 01 November 2021; Ref: scu.465541

Gentle, 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 appeal was dismissed. The right to an inquiry was procedural and depended first on the claimants establishing an arguable case that the substantive right was infringed. There would be no ability at common law to require such and inquiry, and no obligation was to be created through human rights law.
The issue was however justiciable. Baroness Hale said: ‘it is now common ground that if a Convention right requires the court to examine and adjudicate upon matters which were previously regarded as non-justiciable, then adjudicate we must.’
Lord Bingham of Cornhill observed: ‘issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the claimants have a legal right the courts cannot decide it. The defendants accept that if the claimants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance
[2008] UKHL 20, Times 10-Apr-2008, [2008] 2 WLR 879, [2008] 1 AC 1356, [2008] UKHRR 822, [2008] HRLR 27, [2008] 3 All ER 1
Bailii, HL
European Convention on Human Rights 2 3
England and Wales
Citing:
CitedJordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
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 . .
CitedEdwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
CitedMiddleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
At first instanceGentle and Others, Regina (on the Application of) v the Prime Minister and others Admn 20-Dec-2005
The applicants sought leave to bring judicial review of the decisions which led to the invasion of Iraq. They were relatives of servicemen who had died there.
Held: The court’s only duty at this stage was to ask whether there was an arguable . .
Appeal fromRegina (on the appication of Gentle and Clarke) v The Prime Minister; Secretary of Sate for Defence; Attornery General CA 12-Dec-2006
The mothers of two servicemen who had died whilst on service in the war in Iraq challenged refusal to hold an independent inquiry into the circumstances leading to the invasion of Iraq.
Held: The appeal failed. . .
CitedButtes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
CitedCouncil of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
CitedRegina v Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
CitedRegina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London Admn 16-Dec-2004
A patient suffering schizophrenia had been a voluntary patient. He was allowed to visit another unit within the hospital grounds, but then left altogether and was next found preparing to jump from Tower Bridge. He was taken by ambulance to Hospital . .
CitedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedCampaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
CitedBubbins v United Kingdom ECHR 17-Mar-2005
The deceased had returned home drunk, and climbed in through a window. His girlfriend saw only his legs and reported an intruder to the police. He refused to identify himself when challenged by the police and on pointing a gun from the window he was . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
engel_netherlandsECHR1976
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 . .
CitedTaylor v United Kingdom ECHR 1994
. .
CitedBanks v United Kingdom ECHR 6-Feb-2007
The applicants complained of maltreatment by prison officers in breach of article 3. The matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants . .
CitedScholes v Secretary of State for the Home Department CA 17-Oct-2006
The deceased had committed suicide whilst in prison. The judge had requested that prison should be told of the risk of self harm. The mother appealed refusal of the judge to grant a judicial review of the Home Secretary’s refusal to grant, as . .
CitedMcShane v The United Kingdom ECHR 28-May-2002
HER Judgment (Merits and just satisfaction) Violation of Art. 2; No violation of Art. 6-1; No violation of Art. 14; No violation of Art. 13; Failure to comply with obligations under Article 34
The deceased . .
CitedGrigoriades v Greece ECHR 25-Nov-1997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; No violation of Art. 7; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings . .
CitedMcBride v United Kingdom ECHR 2006
. .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .

Cited by:
CitedSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedCorner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
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 . .
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.
CitedSmith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
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 . .
CitedShergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
CitedLetts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
CitedTyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Coroners, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.266539

Rayment v Ministry of Defence: QBD 18 Feb 2010

The claimant sought damages alleging harassment by officers employed by the defendant. An internal investigation had revealed considerable poor behaviour by the senior officers, and that was followed by hostile behaviour. The defendant had put up pornographic pictures in the room only used by the claimant, and they were directed at her.
Held: The claim for damages succeeded. The behaviour of the officer amounted to harassment, the defendant knew of it and it was not controlled or stopped.

Nicola Davies J
[2010] EWHC 218 (QB)
Bailii
Protection from Harassment Act 1997
England and Wales
Citing:
CitedJohnstone v Bloomsbury Health Authority CA 1991
A junior doctor sought an injunction against the defendant health authority from being required to work excessive hours despite the terms of his contract. He had become ill as a result of inadequate sleep and sought damages in that respect. Implied . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedVeakins v Kier Islington Ltd CA 2-Dec-2009
The claimant alleged that her manager at work had harassed her. The court, applying Conn, had found that none of the acts complained of were sufficiently serious to amount to criminal conduct, and had rejected the claim.
Held: The claimant’s . .
CitedFerguson v British Gas Trading Ltd CA 10-Feb-2009
Harassment to Criminal Level needed to Convict
The claimant had been a customer of the defendant, but had moved to another supplier. She was then subjected to a constant stream of threatening letters which she could not stop despite re-assurances and complaints. The defendant now appealed . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedHammond v International Network Services (UK) Ltd and Another CA 15-Sep-2005
Leave application . .
AdoptedHammond v International Network Services UK Ltd QBD 1-Nov-2007
Peter Coulson QC J said that in order to establish harassment under the 1997 Act, there must be conduct:
i) which occurs on at least two occasions;
ii) which is targeted at the claimant;
iii) which is calculated in an objective sense . .
CitedHelen Green v DB Group Services (UK) Ltd QBD 1-Aug-2006
The claimant sought damages from her former employers, asserting that workplace bullying and harassment had caused injury to her health. She had had a long term history of depression after being abused as a child, and the evidence was conflicting, . .
CitedSutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Armed Forces

Updated: 01 November 2021; Ref: scu.401651

Hassan v The United Kingdom (GC): ECHR 16 Sep 2014

Grand Chamber – The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5-1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death.
Held: ‘the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Government as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 – 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to ‘[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’. By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate understanding of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War.’

Dean Spielmann, P
29750/09 – Grand Chamber Judgment, [2014] ECHR 936, [2014] ECHR 1162
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Coroners, Armed Forces, News

Updated: 01 November 2021; Ref: scu.536666

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

army_anderson1991

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
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: 01 November 2021; Ref: scu.539816

Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith: HL 12 Jul 1990

Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when seeking to sever the valid from the invalid where part of subordinate legislation, the RAF Greenham Common Byelaws, was held to be ultra vires the enabling statute.
The fact that the invalid feature of the byelaw could not be excised with a blue pen did not preclude severance. What precluded it was that, if the byelaw was so construed as to allow the 62 commoners to enter the land, the legislative purpose behind it would be undermined.
The House set out a test of ‘substantial severability’ which the byelaws failed. Lord Bridge said: ‘When a legislative instrument made by a law-maker with limited powers is challenged, the only function of the court is to determine whether there has been a valid exercise of that limited legislative power in relation to the matter which is the subject of disputed enforcement. If a law-maker has validly exercised his power, the court may give effect to the law validly made. But if the court sees only an invalid law made in excess of the law-maker’s power, it has no jurisdiction to modify or adapt the law to bring it within the scope of the law-maker’s power. These, I believe, are the basic principles which have always to be borne in mind in deciding whether legislative provisions which on their face exceed the law-maker’s power may be severed so as to be upheld and enforced in part.
The application of these principles leads naturally and logically to what has traditionally been regarded as the test of severability. It is often referred to inelegantly as the ‘blue pencil’ test. Taking the simplest case of a single legislative instrument containing a number of separate clauses of which one exceeds the law-maker’s power, if the remaining clauses enact free-standing provisions which were intended to operate and are capable of operating independently of the offending clause, there is no reason why those clauses should not be upheld and enforced. The law-maker has validly exercised his power by making the valid clauses. The invalid clause may be disregarded as unrelated to, and having no effect upon, the operation of the valid clauses, which accordingly may be allowed to take effect without the necessity of any modification or adaptation by the court. What is involved is in truth a double test. I shall refer to the two aspects of the test as textual severability and substantial severability. A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker’s power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in legislative purpose, operation and effect. ‘ and ‘The test of textual severability has the great merit of simplicity and certainty. When it is satisfied the court can readily see whether the omission from the legislative text of so much as exceeds the law-maker’s power leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text. But I have reached the conclusion, though not without hesitation, that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases . . have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker’s power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. It is important, however, that in all cases an appropriate test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court may then uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision.’

Lord Bridge, Lord Griffiths, Lord Oliver and Lord Goff
[1990] 2 AC 783, Times 13-Jul-1990, [1988] UKHL 11
Bailii
Military Lands Act 1892
England and Wales
Citing:
CitedRex v Company of Fishermen of Faversham 1799
Lord Kenyon CJ discussed the validity of a byelaw: ‘With regard to the form of the byelaw indeed, though a byelaw may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other.’ . .
CitedRex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
CitedThe Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
CitedIllinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .
CitedStrickland v Hayes CA 12-Feb-1896
A by-law made by a county council under s 16 of the 1888 Act, was in the following terms: ‘No person shall in any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad, or use any profane or . .
CitedRegina v Lundie QBD 1862
A byelaw provided: ‘if any person shall stock or depasture, inter alia, a vicious horse on any part of the common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock and cattle, shall . .

Cited by:
CitedPilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
CitedCommissioner of Police v Davis PC 1994
(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This . .
CitedOakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
CitedNational Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
CitedRegina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
CitedFutter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedHemming (T/A Simply Pleasure) and Others, Regina (on The Application of) v Westminster City Council SC 19-Jul-2017
The claimant challenged fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the council’s costs of enforcing the . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional, Armed Forces

Leading Case

Updated: 01 November 2021; Ref: scu.187749

Times Newspapers Ltd and others v Regina and others: CMAC 24 Oct 2008

Anonymity not to be by secret trial

The newspaper appealed against an order for the defendant soldiers’ trial to be held in camera.
Held: Section 94(2) could not be used to provide anonymity. The court relied on its common law powers under which: ‘for us to be entitled to make any order for anonymity for all or any of the soldiers we must be satisfied either that the administration of justice would be seriously affected were we not to grant anonymity, or that there is a ‘real and immediate’ risk to the life of any of the soldiers were anonymity not granted. ‘ It was correct for the names of all but one of the soldiers to be withheld.

Latham LJ, Mackay J, King J
[2008] EWCA Crim 2396, [2009] 1 WLR 1015
Bailii
Army Act 1955 94(2) 103(2)(nn), Contempt of Court Act 1981 11
England and Wales
Citing:
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedRegina v Evesham Justices, ex parte McDonnagh QBD 1988
The court considered the existence of a power in the magistrates court to order a hearing to be held in camera and referred to section 11 of the 1981 Act. Watkins LJ said: ‘However, I am bound to say that I am impressed with the argument that the . .
CitedTrinity Mirror and Others, Regina (on the Application Of) v Croydon Crown Court CACD 1-Feb-2008
The defendant had pleaded guilty in the Crown Court to 20 counts of making or possessing child pornography. No direction was made for withholding the defendant’s identity in court, but the Crown Court made an order in the interest of the defendant’s . .
CitedIn re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .
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 . .
CitedRegina v Reigate Justices ex parte Argus Newspapers and Larcombe 1983
The court considered an application by the defendant, a ‘supergrass’ for his trial to be held in camera.
Held: Such an order was possible but should only be made if it was the only way of protecting the defendant. . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Armed Forces, Media

Updated: 01 November 2021; Ref: scu.277149

Nicholas 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 infringed her human rights because of the lack of security of tenure. Schedule 1 of the 1988 Act excluded such arrangements from becoming assured tenancies.
Held: The claimant’s apppeal failed. The MoD could justify disadvantageous treatment on the basis that security of tenure for service personnel would interfere with military effectiveness (especially if it prevented rapid redeployment of personnel); would inhibit the MoD in its function of providing housing for service personnel; and would require it to rent accommodation locally from the private sector, which would be an unnecessary drain on the public purse.

Lord Dyson MR, Pitchford, Lewison LJJ
[2015] EWCA Civ 53, [2015] 1 WLR 2116, [2015] HLR 25
Bailii
European Convention on Human Rights 8 14, Housing Act 1988
England and Wales
Citing:
CitedRelating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
CitedLarkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedSecretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .
CitedChester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Appeal fromNiholas 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 . .

Cited by:
See AlsoSecretary 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. . .
CitedWatts v Stewart and Others CA 8-Dec-2016
The court considered the status of residents of almshouses, and in particular whether they were licensees or tenants with associated security.
Held: The occupier’s appeal failed: ‘We do not accept the proposition that, if and insofar as Mrs . .

Lists of cited by and citing cases may be incomplete.

Housing, Armed Forces, Human Rights, Discrimination

Updated: 01 November 2021; Ref: scu.542247

Hottak 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. The Divisional Court’s decision to do no more than grant declaratory relief was an exercise of the court’s discretion which could not be faulted. Section 39(2) of the 2010 Act could not be extended in its ambit to cover the employment of the claimants.

Arden, David Richards LJJ, Sir Colin Rimer
[2016] EWCA Civ 438, [2016] WLR(D) 243
Bailii, WLRD
Equality Act 2010 39(2)
England and Wales
Citing:
Appeal fromHottak 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. . .

Lists of cited by and citing cases may be incomplete.

Immigration, Armed Forces, Discrimination

Updated: 01 November 2021; Ref: scu.563251

Kilinc And Others v Turkey: ECHR 7 Jun 2005

kilinc_turkeyECHR05

A state authority may have a positive obligation to prevent foreseeable suicides amongst conscripts to its armed forces.

40145/98, [2005] ECHR 367
Worldlii, Bailii
European Convention on Human Rights 2
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 . .
CitedRabone and Another v Pennine Care NHS Foundation SC 8-Feb-2012
The claimant’s daughter had committed suicide whilst on home leave from a hospital where she had stayed as a voluntary patient with depression. Her admission had followed a suicide attempt. The hospital admitted negligence but denied that it owed . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 01 November 2021; Ref: scu.227279

Regina 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 court martial an offence committed in the UK or abroad.
Held: The law laid down no rules to settle where a serviceman should be tried, but those involving service property or personnel would normally be dealt with by a courts martial, and where no such interests were involved, by a civil court. This was not unfair. The Presidents of the courts martial were senior officers reaching the end of their career. They had permanent positions, and sought no further advancement. They were independent. The lesser duties of lower court officers meant that the court could properly rely upon them to fulfil their oaths, and they were impartial. The system had been substantially improved, and was now compliant.
Lord Bingham of Cornhill observed: ‘Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.’

Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Scott of Foscote and Lord Rodger of Earlsferry
Times 19-Jul-2002, Gazette 19-Sep-2002, [2002] UKHL 31, [2003] 1 AC 734, [2002] 3 All ER 1074, [2002] ACD 97, [2002] HRLR 40, [2002] 3 WLR 437, [2002] HRLR 43, [2003] 1 Cr App R 1
House of Lords, Bailii
Army Act 1955 70, Air Force Act 1955 70, European Convention on Human Rights, Courts-Martial (Army) Rules 1997 (SI 1997/169)
England and Wales
Citing:
CitedMorris v The United Kingdom ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. . .
ApprovedFindlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .
Appeal fromRegina 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 . .

Cited by:
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
Appealed toRegina 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 . .
CitedRegina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
CitedKay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
CitedAppleyard, Regina v CACD 17-Oct-2005
Resumed hearing of appeal against conviction at a court martial – suggestions that directions given by the judge advocate on duress were defective rejected. Now consideration on words used to jury as to attempts to reach a unanimous verdict.
Crime, Armed Forces, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.174397

Marshall and Others v Deputy Governor of Bermuda and Others: PC 24 May 2010

marshall_dgPC10

(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of woment should be considered before conscription was applied.
Held: The appeals failed. The Regiment did accept women volunteers. The statute requiring non-discrimination should not be read to treat the offer of employment as a detriment. It had already been found as a fact twice that the Governor had taken reasonable steps to recruit volunteers, and the Board would not normally provide a third consideration of a factual issue, but the claimant said that these decisions had been made against a lack of candour by the respondent with the courts. In these circumstances where a review had not called for any action from the respondent, the duty of candour would not be created unless the claimant had satisfied its own evidential burden. The duty of candour could not be used to transfer the burden of proof where a claimant could itself satisfy that duty.

Lord Phillips, Lord Saville, Lady Hale, Lord Brown, Lord Mance
[2010] UKPC 9, [2010] WLR (D) 133
Bailii, WLRD
Citing:
CitedMinister of Home Affairs v Fisher PC 1979
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
CitedReyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
CitedRegina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .
CitedSrimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others PC 30-Jul-1946
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity . .
CitedThe Prime Minister of Belize, The Attorney General of Belize v Vellos, Dawson and Others PC 24-Mar-2010
(Belize) Challenge was made to an Act removing certain constititutional rights which Act was passed without a referendum. The Act amending the constitution to require further amendments to follow a referendum did not itself follow the constitutional . .
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 . .
CitedThompson Ltd and Another v The Bermuda Dental Board PC 9-Jun-2008
(Bermuda) . .
CitedDirector of Public Prosecutions v Hurnam PC 25-Apr-2007
(Mauritius) The Board will not consider a challenge to a finding of fact which has already been tested in two courts below. . .
CitedPilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Armed Forces

Updated: 31 October 2021; Ref: scu.416032

Jordan v United Kingdom; McKerr v United Kingdom; similar: ECHR 4 May 2001

Proper Investigation of Deaths with Army or Police

Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the circumstances of the deaths had not been subject to cross examination.
Held: The right to life is the most fundamental of human rights, and no derogation is to be allowed outside times of war. Where the circumstances of a death are exclusively within the power of the authorities, the burden of proof could be regarded as falling on the authorities. The right could be infringed by a failure to investigate such deaths properly. The inadequacies were such as to lead the court to conclude that that the right to life had been infringed. ‘there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.’

Times 18-May-2001, 24746/94, 37715/97, 30054/96, [2001] 11 BHRC 1, [2001] 37 EHRR 52, 28883/95, (2002) 34 EHRR 20, [2001] ECHR 323, [2001] ECHR 324, [2001] ECHR 325, [2001] ECHR 327, [2001] ECHR 328, [2001] ECHR 329, [2001] ECHR 330
Worldlii, Worldlii, Worldlii, Bailii, Bailii, Bailii, Bailii
European Convention on Human Rights 2
Human Rights
Citing:
See alsoIn 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 . .

Cited by:
CitedRegina (Amin) v Secretary of State for the Home Department QBD 5-Oct-2001
An Asian youth was placed in a cell with another who was well known to be violent and racist. He was bludgeoned to death. The family sought a public investigation into how he came to be placed in such a position. An investigation had been refused by . .
CitedKhan, Regina (on the Application of) v Secretary of State for Health CA 10-Oct-2003
The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There . .
CitedAmin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
CitedRegina (Wright) v Secretary of State for the Home Department Admn 2001
A serving prisoner suffered a severe asthmatic attack in his cell and died. An inquest was held at which the family of the deceased were present, but unrepresented for want of legal aid. There was no inquiry into the quality of the medical treatment . .
See AlsoIn 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 . .
CitedMiddleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
CitedMullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
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: . .
CitedD, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
CitedTakoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
CitedD, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
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 . .
CitedSmith v The Assistant Deputy Coroner for Oxfordshire Admn 11-Apr-2008
The claimant’s son had died of hyperthermia whilst serving in the army in Iraq. The parties requested a new inquisition after the coroner had rules that human rights law did not apply to servicemen serving outside Europe. Reports had been prepared . .
CitedJL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
CitedMorrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
See AlsoMcKerr v United Kingdom; Action of the Security Forces in Northern Ireland ECHR 17-Apr-2009
. .
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.
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedTyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Coroners, Armed Forces

Leading Case

Updated: 31 October 2021; Ref: scu.166103

Smith and Others v The Ministry of Defence: SC 19 Jun 2013

The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the soldiers had been found to be outwith the jurisdiction, and by the respondent that it owed a duty of care within a battlefield situation.
Held: The soldiers were within the jurisdiction, and the duty of care was owed. The cases could proceed to trial.
Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Carnwath
[2013] UKSC 41, [2013] WLR(D) 239, [2014] AC 52, [2013] 4 All ER 794, [2014] 1 AC 52, [2013] 3 WLR 69, [2013] HRLR 27, [2014] PIQR P2
Bailii, Bailii Summary, SC, SC Summary, WLRD
European Convention on Human Rights 2, Armed Forces Act 2006 367(1)
England and Wales
Citing:
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 . .
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedIssa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
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.
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedWM v Denmark ECHR 14-Oct-1992
(Commission) The applicant lived in the German Democratic Republic (‘DDR’). He wished to move to the Federal Republic of Germany, but the DDR authorities refused him permission. At 1115 on 9 September 1988, together with 17 other DDR citizens, he . .
CitedGentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
CitedAndrejeva v Latvia ECHR 18-Feb-2009
(Grand Chamber) The concept of jurisdiction for the purposes of article 1 reflects that term’s meaning in public international law and is closely linked to the international responsibility of the state concerned. . .
CitedHirsi Jamaa v Italy ECHR 23-Feb-2012
The court was asked whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag.
Held: The court need not concern itself with the question whether the state is in a position . .
CitedEdwards and Others v The Attorney General of Canada PC 18-Oct-1929
(Canada) A constitutional Act act should not be interpreted narrowly or technically. Rights in conventions, treaties and like instruments are interpreted like a ‘living tree capable of growth and expansion within its natural limits.’ (Lord Sankey . .
CitedW v Ireland ECHR 28-Feb-1983
Admissibility – Commission – Article 1 of the Convention : The High Contracting Parties are bound to guarantee the rights and freedoms set forth in the Convention in connection with all acts or omissions of their agents, even where such public . .
CitedVearncombe v Germany and United Kingdom ECHR 1989
. .
CitedLoizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .

Cited by:
CitedKennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
CitedRobinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.510917

Armstrong, Regina v: CACD 1 Feb 2012

(Courts Martial Appeal Court) If in the military courts a judge did not approve of a course that a military prosecutor intended to take the proper course for the judge was to ask for the matter to be referred either to the Director of Service Prosecutions or to the Attorney General, as might be appropriate.
Sir John Thomas P, Griffith Williams, Openshaw JJ
[2012] EWCA Crim 83, [2012] WLR(D) 22
Bailii, WLRD
England and Wales

Updated: 25 October 2021; Ref: scu.450557

Al-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 infringement of rights and freedoms set forth in the Convention. The Chamber divided the general principles relevant to jurisdiction into three distinct categories: state agent authority and control; effective control over an area; and the Convention legal space.
Held: , Jurisdiction under article 1 is ‘primarily territorial’, but there are certain recognised exceptions one of which is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction ‘when these agents exert authority and control over others’
‘. . it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others (Bankoviae, cited above, paragraph 73; see also X v Federal Republic of Germany, No. 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v the United Kingdom, no. 7547/76, Commission decision of 15 December 1977; WM v Denmark, no. 17392/90, Commission decision of 14 October 1993).’
Jean-Paul Costa, P
55721/07, [2011] ECHR 1093, 30 BHRC 561, (2011) 53 EHRR 18
Bailii
European Convention on Human Rights
Human Rights
Citing:
At AdmnAl Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
At CARegina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
At HLSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
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 . .

Cited by:
CitedSmith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
CitedLong, 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 . .
CitedSandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 4-Feb-2013
The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by . .
CitedSandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
CitedSandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
CitedIsmail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
CitedPrivacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.441608

Coyne v The United Kingdom: ECHR 24 Sep 1997

The Court Martial court system was unfair, because the convening officer fulfilled too many roles in the process to allow a fair trial.
Hudoc 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
Times 24-Oct-1997, 25942/94, [1997] ECHR 73
Worldlii, Bailii
Armed Forces Act 1996
Human Rights

Updated: 09 September 2021; Ref: scu.165543

Secretary of State for Defence v Hulme: CA 19 Nov 2003

The dispute arose from the treatment of a claim by the respondent, a service widow, for an Attributable Family Pension under the Armed Forces Pension Scheme. AFPS evolved as an occupational pension scheme for the benefit of the armed forces generally, with provisions for age-related retirement pensions, as well as for attributable and non-attributable invaliding and death benefits.
This case turns on the interpretation of the relevant provisions of a prerogative instrument, the Queen’s Regulations for the Royal Air Force (the QR-RAF), which relate to the determination of the issue whether the death or injury, in respect of which a pension is claimed, was ‘attributable to service.’ Similar provisions are contained in other prerogative instruments for each of the other two branches of the armed forces.
Lord Justice Mummery Lord Justice Sedley Mr Justice Munby
[2003] EWCA Civ 1611
Bailii
England and Wales

Updated: 29 August 2021; Ref: scu.188106

Secretary of State for Defence v Pensions Ombudsman: CA 19 Nov 2003

A member of the Armed Forces had died whilst mountaineering. The Department of Social Security had decided that the death was attributable to his service for the purposes of the war pension scheme. The Ombudsman had held himself bound by that decision in the context also of entitlement to a family pension under the armed forces pension scheme.
Held: It was a condition of the exercise of the Defence Council panel, that a decision had been made by the Secretary of State for Social Services. It was neither necessary nor permissible for the panel to repeat the exercise.
Mummery, Sedley, LJJ, Munby J
Times 27-Nov-2003, Gazette 22-Jan-2003
Queen’s Regulations for the Royal Air Force 3090(1)
England and Wales
Citing:
Appeal fromSecretary of State for Defence v Pensions Ombudsman and another ChD 4-Apr-2003
A member of the armed forces had died. The Department of Social Services had decided that his death was attributable to service for the purposes of the War Pension Scheme. The Defence Council sought to determine again whether his widow was entitled . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.188379

Keyu 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 Selangor.
Held: A requirement for a public or other inquiry was not imposed. (Baroness Hale of Richmond DPSC dissenting).
In the case of a death before the date on which the relevant state contracted to the Convention, two criteria must be satisfied before the article 2 investigation duty can arise, namely (i) relevant ‘acts or omissions’ after the critical date, and (ii) a ‘genuine connection’ between the death and the critical date. However the second criterion may be finessed where it is necessary to underpin ‘the underlying values of the Convention’. The evens had taken place before the Convention and there was no supervening event to create any obligation after the Convention came into effect. Customary International law had not developed to impose such an obligation, and even if it had, that could not be incorporated into our common law so as to displace clear statute obligations.
The Court considered the incorporation of customary international law into our own law: ‘Even if this conclusion turned out to be wrong, and it is now a principle of customary international law that a state must investigate deaths such as the Killings, even though they occurred as long ago as 1948, it would not be right to incorporate that principle into the common law. Parliament has expressly provided for investigations into deaths (i) through the coroners’ courts in the Coroners and Justices Act 2009, and its predecessors, and (ii) through inquiries in the 2005 Act, and its subject-specific predecessor statutes. It has also effectively legislated in relation to investigations into suspicious deaths through the incorporation of article 2 in the 1998 Act. In those circumstances, it appears to be quite inappropriate for the courts to take it onto themselves, through the guise of developing the common law, to impose a further duty to hold an inquiry, particularly when it would be a duty which has such potentially wide and uncertain ramifications, given that it would appear to apply to deaths which had occurred many decades – even possibly centuries – ago.’
An inquiry into the proportionality of a decision should not be confused with a full merits review: ‘a review based on proportionality is not one in which the reviewer substitutes his or her opinion for that of the decision-maker. At its heart, proportionality review requires of the person or agency that seeks to defend a decision that they show that it was proportionate to meet the aim that it professes to achieve. It does not demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Hughes
[2015] UKSC 69, [2016] AC 1355, [2015] 3 WLR 1665, [2015] WLR(D) 487, 40 BHRC 228, [2016] HRLR 2, UKSC 2014/0203
Bailii, WLRD, Bailii Summary, SC, SC Summary
European Convention on Human Rights 2, Inquiries Act 2005 1, Human Rights Act 1998, Coroners and Justices Act 2009
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 . .
At first instanceKeyu 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 . .
Appeal fromKeyu 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 . .
CitedMcCaughey and Another, Re Application forJudicial Review SC 18-May-2011
The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. . .
CitedSilih v Slovenia ECHR 9-Apr-2009
(Grand Chamber) Article 2 imposes, in certain circumstances, a freestanding obligation in relation to the investigation of a death which applied even where the death itself had occurred before the member state ratified the Convention.: ”The court . .
CitedJanowiec And Others v Russia ECHR 21-Oct-2013
ECHR Grand Chamber – Article 3
Inhuman treatment
Positive obligations
Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyn in 1940: no . .
CitedBlecic v Croatia ECHR 8-Mar-2006
The applicant alleged that her rights to respect for her home and to peaceful enjoyment of her possessions had been violated on account of the termination of her specially protected tenancy.
Held: Ratione temporis, the court had had no . .
CitedBrecknell v The United Kingdom ECHR 27-Nov-2007
Allegations had been made about police collusion with killings in Northern Ireland.
Held: Where there was credible information as to a possible perpetrator of an unlawful killing, there was a duty to investigate that evidence. Here the . .
CitedVarnava And Others v Turkey ECHR 18-Sep-2009
(Grand Chamber0 Turkey had failed to investigate the disappearance of individuals in Northern Cyprus in 1974. Turkey had ratified the Convention in 1954, but had only recognised the right of petition in 1987.
Held: (Grand Chamber) ‘the court . .
CitedHalide Cakir And Others v Cyprus ECHR 29-Apr-2010
Admissibility. It was said of the events in Cyprus in 1974 there had been a failure by the state to investigate unlawful killings. The court repeated the Grand Chamber’s formulation of the relevant law in Silih and Varnava, and then pointed out that . .
CitedAntonio Gutierrez Dorado and Carmen Dorado Ortiz v Spain ECHR 27-Mar-2012
. .
CitedJelic v Croatia ECHR 12-Jun-2014
ECHR Article 2-1
Effective investigation
Prosecution of officer with command responsibility, but not of direct perpetrators of killing: violation
Facts – In November 1991 the applicant’s . .

Cited by:
CitedAl Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
CitedYoussef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
CitedPoshteh v Royal Borough of Kensington and Chelsea SC 10-May-2017
The appellant, applying for housing as a homeless person, had rejected the final property offered on the basis that its resemblance to the conditions of incarceration in Iran, from which she had fled, would continue and indeed the mental . .
CitedMichalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
CitedBashir and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2018
(Interim Judgment) The respondent asylum seekers had been rescued in the Mediterranean and taken to an RAF base in Akrotiri on Cyprus, a sovereign base area. The court was now asked whether they were entitled, or should be permitted, to be resettled . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.554900

Reprieve and Others, Regina (on The Application of) v The Prime Minister: CA 30 Jun 2021

Challenge to the decision of the Prime Minister not to hold a public inquiry into alleged complicity of British state agents in the unlawful rendition, detention and mistreatment of individuals by other states in the years following the attack on New York in September 2001. The Divisional Court (Dame Victoria Sharp P and Farbey J) determined two preliminary issues against the claimants. The claimants appeal against that determination. The issues are:
a) Does article 6(1) of the European Convention on Human Rights apply to the claim for judicial review? and, if it does,
b) Are the claimants entitled to disclosure in accordance with the standard set in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269 (‘AF (No 3)’)?
The Divisional Court answered ‘no’ to each question.
Lord Burnett of Maldon CJ
[2021] EWCA Civ 972, [2021] WLR(D) 365
Bailii, WLRD
European Convention on Human Rights 6(1)
England and Wales

Updated: 06 August 2021; Ref: scu.663471

Mousa and Others v Secretary of State for Defence and Another: Admn 16 Jul 2010

The claimants sought judicial review of the respondent in respect of alleged mistreatment when detained in Iraq. They sought a judicial inquiry.
[2010] EWHC 1823 (Admin), [2010] HRLR 33
Bailii
European Convention on Human Rights 3
England and Wales
Citing:
CitedEdwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
CitedAmin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.420807

Bowles v Jackson: 28 Apr 1854

A soldier under orders to proceed from his station in one Indian presidency to take part in the war going on in another; and making his will only two clays before he commenced the march, is not entitled to the privilege of a military testament.
[1854] EngR 432, (1854) 1 Sp Ecc and Ad 294, (1854) 164 ER 170
Commonlii
England and Wales

Updated: 03 June 2021; Ref: scu.293289

Barrett v Ministry of Defence: CA 3 Jan 1995

The deceased was an off-duty naval airman. The claim was based upon the alleged negligent failure of the defendant to enforce disciplinary regulations against drunkenness so as to protect the deceased against his own known proclivity for alcohol abuse.
Held: The Ministry of Defence has no duty to prevent a forces member from the abuse of drink. It was not liable, even though the death from drunkenness was contributed to by an officer’s encouragement. The Ministry was liable on the basis that, following his collapse, service personnel voluntarily assumed a duty of care by acting as the deceased’s quasi-rescuer and were negligent in that capacity. In relation to the original drunkenness of the deceased, the court emphasised that foresight of harm alone was not sufficient to create a duty to guard him against his own folly.
Beldam LJ said: ‘The plaintiff argued for the extension of a duty to take care for the safety of the deceased from analogous categories of relationship in which an obligation to use reasonable care already existed. For example, employer and employee, pupil and schoolmaster, and occupier and visitor. It was said that the defendant’s control over the environment in which the deceased was serving and the provision of duty-free liquor coupled with a failure to enforce disciplinary rules and orders were sufficient factors to render it fair just and reasonable to extend the duty to take reasonable care found in the analogous circumstances. The characteristic which distinguishes those relationships is reliance expressed or implied in the relationship which the party to whom the duty is owed is entitled to place on the other party to make provision for his safety. I can see no reason why it should not be fair just and reasonable for the law to leave the responsible adult to assume responsibility of his own actions in consuming alcoholic drink … . To dilute self-responsibility and to blame one adult for another’s lack of self-control is neither just nor reasonable and in the development of the law of negligence an increment too far.’
As to the context of the armed forces and its regulations: ‘In my view the judge was wrong to equate Queen’s Regulations and Standing Orders with guidance give in the Highway Code or in pamphlets relating to safety in factories. The purpose of Queen’s Regulations and Standing Orders is to preserve good order and discipline in the Service and to ensure that personnel remain fit for duty and, while on duty, obey commands and, off duty, do not misbehave, bringing the service into disrepute. All regulations which encourage self-discipline, if obeyed, will incidentally encourage service personnel to take greater pride in their own behaviour but in no sense are the Regulations and Orders intended to lay down standards or to give advice in the exercise of reasonable care for the safety of men when off duty drinking in bars. . .’
Beldam LJ
Times 13-Jan-1995, Independent 03-Jan-1995, [1995] 1 WLR 1217, [1994] EWCA Civ 7, [1995] 3 All ER 87
Bailii
Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Citing:
Appeal fromBarrett v Ministry of Defence QBD 3-Jun-1993
The MOD was liable in negligence for an airman’s death due to its breach of duty if regulations were not kept to. . .

Cited by:
CitedJebson v Ministry of Defence CA 28-Jun-2000
The claimant was a guardsman travelling in the rear of a service lorry. He fell from the tailgate suffering severe injury. He was drunk after a social trip.
Held: Though a person could normally expect to be responsible himself for incidents . .
CitedCalvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
AppliedMichael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated CA 19-Dec-2000
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation . .
CitedGeary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.78255

Rahmatullah and Another v The Ministry of Defence and Another: QBD 10 Mar 2020

(Open judgment agreed after hearing using closed material) The claimants in this case are Pakistani nationals both of whom allege that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States’ control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.
The case against the defendants is based upon three broad categories of allegation:
i. mistreatment by UK personnel upon arrest and before the claimants were transferred to United States’ control;
ii. transfer to United States’ control; and
iii. failures thereafter to intervene to bring the claimants’ detention to an end and/or stop the United States’ authorities from further mistreating them (‘the return claim’)
The claims are strenuously denied.
This hearing considered the issue of disclosure.
Turner J
[2019] EWHC 3849 (QB)
Bailii
England and Wales

Updated: 01 June 2021; Ref: scu.652256

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 . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.522605

Clan 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 that the collision arose as a consequence of that warlike operation. The Orlock Head was carrying steel bars for munitions to France and was following a course set by the Admiralty.
Held: The court considered the significance which can flow from merchant vessels having travelled in convoy.
Atkinson J: ‘The conclusion at which I have arrived from a careful examination of the authorities to which I have referred is this, that a warlike operation is one which forms part of an actual or intended belligerent act or series of acts by combatant forces; that part may be performed preparatory to the actual act or acts of belligerency, or it may be performed after the actual acts or acts of belligerency, but there must be a connection sufficiently close between the act in question and the belligerent act or acts to enable a tribunal to say, with at least some modicum of Lord Dunedin’s common sense, that it formed part of acts of belligerency. If military equipment is being taken in a ship to a place behind the fighting front from which the forces engaged, or about to be engaged on that front, may be supplied, that ship may beyond question be said to be taking part in a warlike operation. If a ship is bringing home such equipment after it has been employed on a fighting front, or has been lying available for and at the service of a fighting front, again beyond question in view of the decisions she is taking part in military operation; but to hold that to carry steel rounds on behalf of the French Armament Mission from Manchester to a port mainly used for commercial purposes, albeit also used at times for receiving supplies of munitions of war, for the purpose of carriage to some factory or factories doubtless to be chosen because of their distance from the fighting front, is a warlike operation would be to hold something which, in my judgment, would be completely out of harmony with the substance of everything said since Britain Steamship Company, Ltd. v. The King, sup. The cargo of the Orlock Head was not yet military equipment. I do not say that that is in itself conclusive. It is unnecessary so to decide. Army workshops may, for all I know, have to handle much material not yet in its final usable form, but this cargo was not destined for a force in the field, but only for a factory; it was not being carried to a place where it would be available for an army in the field; that is, an army engaged in or about to engage in acts of belligerency; it was not connected with any belligerent act or acts of an army in being; and, in my judgment, it is outside everything indicated in the cases to which I have referred. It is quite true that odd sentences here and there may be found in the judgments and opinions given in the cases which, taken by themselves, may seem to go beyond the view which I think the cases present; for example, a passage much stressed by Mr. Hodgson: ‘The real point to my mind …. is whether the ship in question was engaged on a war errand, so that she was engaged in a warlike operation at the moment when the collision occurred,’ language used by Lord Wrenbury in Liverpool and London War Risks Insurance Association, Ltd v Marine Underwriters of s.s. Richard de Larrinaga, but if the context is examined it will be seen that he was speaking, not of a commercial ship, but of a warship where different considerations apply. If there is to be a further development in the application of the words ‘warlike operation’ it must come from a higher tribunal than a judge of first instance. In my judgment, therefore, the collision was not a consequence of hostilities or of a warlike operation, and the claim fails’.
Atkinson J
[1942] 73 Ll L Rep 165
England and Wales
Citing:
AppliedBritain 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 . .

Cited by:
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 . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.237693

Bunce, Regina (on the Application of) v Pensions Appeal Tribunal: CA 7 Apr 2009

The claimant renewed his application for leave to appeal against refusal of a judicial review of a decision of the Pensions Appeal Tribunal. He was injured in a motorcycle accident whilst on National Service in 1951. He challenged a decision to reduce his disability pension from 70 to 30 per cent. The appeal tribunal had declined jurisdiction.
Held: The Pensions Appeal Tribunal had acted beyond its powers. The appeal was allowed. In case of an appeal under section 5(1) of the 1943 Act on the issue of assessment only, the tribunal must start upon the basis of the minister’s acceptance that there was a disability within article 41(1) of the 2006 Order. In this case there was no difficulty in differentiating between the assessment of the extent of disability and whether there was a disability in the first place. This was a decision as to extent, and the tribunal should have allowed the claimant to present his appeal.
Lord Justice Laws, Lord Justice Wall and Lord Justice Aikens
[2009] EWCA Civ 451, Times 15-Apr-2009
Bailii
Pensions Appeal Tribunals Act 1943 5(1), Naval, Military and Air Forces, Etc (Disablement and Death) Service Pensions Order 2006 (SI 2006 No 606)
England and Wales
Citing:
Appeal FromBunce, Regina (on the Application of) v Pensions Appeal Tribunal Admn 5-Mar-2008
. .
AppliedScanlon, Regina (on the Application of) v Pensions Appeal Tribunals and Another Admn 31-Jan-2007
Where there was an appeal under section 5(1) of the 1943 Act on the issue of assessment only, the tribunal must start upon the basis of the minister’s acceptance that there was a disability within article 41(1) of the 2006 Order. . .

These lists may be incomplete.
Updated: 20 May 2021; Ref: scu.330949

Defence Estates v JL and Another: Admn 5 May 2009

The claimant, which is responsible for managing property belonging to the Ministry of Defence (including residential property), to house members of the Armed Forces and their families, seeks possession of premises in Leeds in which the defendant and members of her family are living, and the claimant also seeks damages for use and occupation.
[2009] EWHC 1049 (Admin)
Bailii
England and Wales

Updated: 20 May 2021; Ref: scu.346707

Derry 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.
Times 30-Mar-1999, Gazette 21-Apr-1999, [1999] EWCA Civ 1016, [1999] PIQR P204
Crown Proceedings Act 1947 10
England and Wales
Citing:
Appeal fromDerry 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 . .

Cited by:
CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .

These lists may be incomplete.
Updated: 19 May 2021; Ref: scu.145931

Regina 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 hesitant the court must necessarily be in holding a decision to be irrational. Where decisions of a policy-laden, esoteric or security-based nature are in issue even greater caution than normal must be shown in applying the test, but the test itself is sufficiently flexible to cover all situations. ‘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.’ Profound cultural changes do take time, but ‘A belief which represented unquestioned orthodoxy in year X may have become questionable by year Y and unsustainable by year Z.’
Sir Thomas Bingham MR
Times 06-Nov-1995, [1996] QB 517
England and Wales
Citing:
Appeal fromRegina 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 . .
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:
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Appeal fromSmith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
CitedBennett v Officers A and B and Commissioner of Police for the Metropolis CA 2-Nov-2004
Police Officers had been involved in a shooting in which a man died. They were granted anonymity before the coroner’s court, on evidence suggesting they might be at risk. The family of the deceased appealed.
Held: The coroner misdirected . .
CitedA 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 . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.87689

Regina v Genereux: 1992

(Canada) The court discussed the human rights compliance of the courts martial system, and whether the trial of a soldier on a criminal charge by a General Court Martial met the requirements of s 11(d) of the Charter. L’Heureux-Dubee J said: ‘When measuring the General Court Martial against the requirements of the Charter, certain considerations must be kept in mind. Among those considerations are that the armed forces depend upon the strictest discipline in order to function effectively and that alleged instances of non-adherence to rules of the military need to be tried within the chain of command’.
Lamer CJC said: ‘The essential conditions of independence, or basic mechanisms by which independence can be achieved, were discussed by Le Dain J. in Valente. He emphasized that a flexible standard must be applied under s. 11(d). Since s. 11(d) must be applied to a variety of tribunals, it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal. Mechanisms that are suitable and necessary to achieve the independence of the superior courts, for example, may be highly inappropriate in the context of a different tribunal. For this reason, the court chose to define three essential conditions of independence that can be applied flexibly, being capable of attainment by a variety of legislative schemes or formulas . . Similarly, s. 11(d) of the Charter requires that a decision-maker have a basic degree of financial security. The substance of this condition is as follows . . `The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.’
Within the limits of this requirement, however, the federal and provincial governments must retain the authority to design specific plans of remuneration that are appropriate to different types of tribunals. Consequently, a variety of schemes may equally satisfy the requirement of financial security, provided that the essence of the condition is protected.’
Lamer CJC also said: ‘I emphasize that an individual who wishes to challenge the independence of a tribunal for the purposes of s. 11(d) need not prove an actual lack of independence. Instead, the test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent.’
L’Heureux-Dubee J, Lamer CJC
(1992) 88 DLR (4th) 110
Canada

Updated: 09 May 2021; Ref: scu.420998

Secretary of State for Defence v Pensions Ombudsman and another: ChD 4 Apr 2003

A member of the armed forces had died. The Department of Social Services had decided that his death was attributable to service for the purposes of the War Pension Scheme. The Defence Council sought to determine again whether his widow was entitled to a family pension under the Armed Forces Pension Scheme.
Held: The decision of the Social Service department was binding on the Secretary of State. Construing the regulation so as to require a second determination of substantially the same question was not intended, and the Defence Council was not in a position itself to make such an inquiry.
Neuberger J
Times 25-Apr-2003
Queens Regulations for the Royal Air Force 3090(1)
England and Wales
Cited by:
Appeal fromSecretary of State for Defence v Pensions Ombudsman CA 19-Nov-2003
A member of the Armed Forces had died whilst mountaineering. The Department of Social Security had decided that the death was attributable to his service for the purposes of the war pension scheme. The Ombudsman had held himself bound by that . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.181853

Morris v The United Kingdom: ECHR 26 Feb 2002

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. 6-3-c; Non-pecuniary damage – finding of violation sufficient; Costs and expenses partial award – Convention proceedings
The factor which gave rise to an allegation of bias is that the members of a court-martial are subject in general to ‘the risk of outside pressure .. and that there was no statutory or other bar to their being made subject to external Army influence when sitting on the case’ The risk of perceived bias was because of pressure on the decision-maker not to make a decision of which his employer would disapprove.
38784/97, (2002) 34 EHRR 1253, [2002] ECHR 162
Bailii, Bailii
Human Rights
Cited by:
CitedRegina 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 . .
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
CitedHaase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .

These lists may be incomplete.
Updated: 06 May 2021; Ref: scu.167676

Reading v Attorney General: HL 1 Mar 1951

The applicant had been a sergeant in the army. He had misused army property and his uniform to assist in smuggling operations. After serving his sentence he now sought repayment of the money he had earned.
Held: His claim failed. The money had been earned by his msuse of his official position, and therefore his employer was entitled to keep the money even though it had been earned unlawfully. The soldier owed a fiduciary duty to the Crown, which was an additional ground on which he lost his claim.
Viscount Jowitt LC, Lord Porter, Lord Normand, Lord Oaksey
[1951] AC 507, [1951] UKHL 1, [1951] 1 All ER 617, [1951] 1 TLR 480, 95 Sol Jo 155
Bailii
England and Wales
Cited by:
CitedWalsh (as executrix of the estate of David G Walsh) and Others v Deloitte & Touche Inc , Trustee of the estate of Bre-X Minerals Limited , a bankrupt PC 17-Dec-2001
(Bahamas) Shares were sold in a mining company whose prices had been buoyed by rumour, but where disclosure of difficulties had not been made, and eventually it became clear that samples had bee fraudulently salted. The company became insolvent, and . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.180655

Bell, Multiple claimants v Ministry of Defence (1) and (2): QBD 21 May 2003

The claimants sought damages for psychiatric injury for stress and anxiety in being engaged on the behalf of the respondent in the course of combat.
Held: The defendant had no duty to maintain a safe system of work for military personnel during combat operations. The term ‘combat’ must be given a wide meaning. The immunity was not limited to accasions when an enemy was present, but extended to all activities directed against an enemy where the service personnel were at risk of attack themselves.
Owen J
Times 29-May-2003, [2003] EWHC 1134 (QB)
Bailii, Bailii
Crown Proceedings Act 1947
England and Wales
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 . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.182727

Fogg 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 though in a convoy.
Held: The Secretary of State argued for a narrow meaning of the phrase ‘in service’. Under the 1866 Act a officer on board a convoy ship was subject to military discipline. The British Steamship case was directly appicable. The judge’s order was correct; the Secretary of State’s interpretation of the 1986 Act was too narrow.
Sir Anthony Clarke, Rix LJ, Longmore LJ
[2006] EWCA Civ 1270, Times 10-Oct-2006, [2007] QB 96, [2006] 3 WLR 931
Bailii
Military Remains Act 1986, Naval Discipline Act 1866 31
England and Wales
Citing:
AppliedBritain 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 . .
ApprovedBritain 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 . .
Appeal fromFogg 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 . .

These lists may be incomplete.
Updated: 03 May 2021; Ref: scu.245188

Mohammed, Regina (on the Application of) v Secretary of State for Defence: Admn 11 Aug 2006

Claim for payment under ex gratia compensation scheme for service members imprisoned during second world war.
[2006] EWHC 2098 (Admin)
Bailii
England and Wales
Cited by:
Appeal fromMohammed, 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 . .

These lists may be incomplete.
Updated: 02 May 2021; Ref: scu.245125

Mohammed, 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 captured and became a prisoner of war of the Japanese. He accepted that he did not meet the criteria in the statement, but submitted that the criteria in that policy were racially discriminatory.
Held: The relevant question was what was the ground upon which the distinction was made in the scheme. The judge was right to conclude that the distinction made in the present case was ‘on the grounds of’ nationality and not race. The claim failed.
Ward LJ, Latham LJ, Sir Peter Gibson
[2007] EWCA Civ 1023
Bailii
England and Wales
Citing:
CitedThe Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
CitedElias, Regina (on the Application of) v Secretary of State for Defence and Another Admn 7-Jul-2005
. .
CitedGurung, 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 . .
CitedRegina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
CitedHampson v Department of Education and Science HL 7-Jun-1990
A teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to . .
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
CitedJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
CitedChief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Appeal fromMohammed, Regina (on the Application of) v Secretary of State for Defence Admn 11-Aug-2006
Claim for payment under ex gratia compensation scheme for service members imprisoned during second world war. . .

These lists may be incomplete.
Updated: 02 May 2021; Ref: scu.251576

Rogers v The Deputy Commander and Another: EAT 1 Feb 2013

EAT UNFAIR DISMISSAL – Exclusions including worker/jurisdiction
An Employment Tribunal was entitled to find that section 94(1) did not apply to the wife of a serving soldier who was employed to manage a children’s play area in what was generally a NAAFI complex in Germany, where she was herself a German national, engaged to work wholly in Germany under an (oral) contract made in Germany for a trust which though linked to the Armed Forces operated wholly in Germany. Such a case should be approached as a matter of principle, and not by extrapolation from the facts of decided cases from categories such as set out in Burke. A decision of an ET which correctly set out the principles, and exercised its judgment as to whether the connection of the employee and employment outside the UK with Great Britain and British employment law was one of those exceptional cases in which it was sufficiently close, deserved considerable respect. The ET was entitled in the present case to reach the view it did.
Langstaff P J
[2013] UKEAT 0455 – 12 – 0102
Bailii
England and Wales

Updated: 30 April 2021; Ref: scu.471563