A 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 appealed against a decision saying that the High Court had jurisdiction also.
Held: The appeal succeeded (Rix LJ dissenting)

Judges:

Laws and Dyson LJJ, Rix LJ dissenting

Citations:

[2009] EWCA Civ 24, [2009] 3 WLR 717, [2009] 3 All ER 416, [2009] ACD 39

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromA 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 . .

Cited by:

Appeal fromA, 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.

Human Rights, Media, Armed Forces

Updated: 23 July 2022; Ref: scu.293905

Tabernacle 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 expression. The respondent’s objections to the camp were insubstantial and could not justify the interference. The camp had existed for 23 years. Demonstrations were in their nature unruly and inconvenient.
Laws LJ said: ‘As I have said it is plain in this case that the Secretary of State has not sought to impose anything approaching a blanket ban on AWPC’s rights of protest. They may protest as much as they like: all they are stopped from doing is camping in the Controlled Areas. In that sense it may be said that paragraph 7(2)(f) of the 2007 Byelaws only goes to the manner and form of the exercise of the appellant’s rights under ECHR Article 10. It is not on its face directed towards the suppression of free speech, on the part of the AWPC or anyone else. It merely prohibits camping, which happens to be the mode or setting chosen by the AWPC for its protest.
But this ‘manner and form’ may constitute the actual nature and quality of the protest; it may have acquired a symbolic force inseparable from the protestors’ message; it may be the very witness of their beliefs.’ and ‘Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them. Sometimes they are wrong-headed and misconceived. Sometimes they betray a kind of arrogance: an arrogance which assumes that spreading the word is always more important than the mess which, often literally, the exercise leaves behind. In that case, firm but balanced regulation may well be justified.’

Judges:

Laws LJ, Wall LJ, Stanley Burnton LJ

Citations:

[2009] EWCA Civ 23, [2009] WLR (D) 35

Links:

Bailii, Times, WLRD

Statutes:

Atomic Weapons Establishment (AWE) Aldermaston Byelaws 2007, European Convention on Human Rights 10 11

Jurisdiction:

England and Wales

Citing:

Appeal fromTabernacle 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 . .

Cited by:

CitedHall and Others v Mayor of London (on Behalf of The Greater London Authority) CA 16-Jul-2010
The appellants sought leave to appeal against an order for possession of Parliament Square on which the claimants had been conducting a demonstration (‘the Democracy Village’).
Held: Leave was refused save for two appellants whose cases were . .
CitedHowarth v Commissioner of Police of The Metropolis QBD 3-Nov-2011
The claimant sought judicial review of a decision to search him whilst travelling to a public protest in London. A previous demonstration involving this group had resulted in criminal damage, but neither the claimant nor his companions were found to . .
CitedCity of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .
ApprovedThe Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
CitedLord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Human Rights

Updated: 22 July 2022; Ref: scu.280444

Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence: CA 21 Jan 2009

The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if convicted they might face the death penalty.
Held: The claimants were not under the jurisdiction of the UK for human rights law purposes. The operation of the Convention was essentially territorial, with possible ‘outposts’ which might be within the jurisdiction. The scope of the Convention had no clear edge, but the court identified four propositions for such extra-territorial outposts. It was an exceptional jurisdiction; it was to be ascertained in harmony with other applicable norms of international law; it reflected the regional nature of the Convention rights; and it reflected the indivisible nature of the Convention rights. In this case, the UK was acting at all times only as agent of the Iraqi court. The espace juridique of the Convention was not extended, and the Convention did not apply.

Judges:

Lord Justice Waller, Lord Justice Laws and Lord Justice Jacob

Citations:

[2009] EWCA Civ 7, [2009] WLR (D) 17, [2009] UKHRR 638

Links:

Bailii, Times, WLRD

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

See AlsoAl-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
Appeal fromAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
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 . .
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 . .

Cited by:

Appeal fromAl-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 . .
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 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.

Human Rights, Crime, Armed Forces, International

Updated: 22 July 2022; Ref: scu.280067

AK and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another: Admn 10 Sep 2008

Related applications for permission to move for judicial review, in order to challenge an ex gratia scheme concerning locally employed staff who had worked for the British armed forces and civilian missions in Iraq.

Judges:

Blake J

Citations:

[2008] EWHC 2227 (Admin)

Links:

Bailii

Armed Forces

Updated: 19 July 2022; Ref: scu.276994

Secretary of State for Defence, Regina (on the Application of) v Pensions Appeal Tribunal: Admn 14 Jul 2008

Judges:

Underhill J

Citations:

[2008] EWHC 2168 (Admin)

Links:

Bailii

Statutes:

Naval, Military and Air Forces Etc (Disablement and Death) Services Pensions Order 1983

Jurisdiction:

England and Wales

Armed Forces, Financial Services

Updated: 19 July 2022; Ref: scu.276243

Bailey v The Ministry of Defence and Another: CA 29 Jul 2008

The claimant had suffered brain damage following cardiac arrest after inhaling vomit. She had inhaled her vomit because she was in a very weakened state. Two causes had contributed to her weakness, one tortious, the other not. The judge below held that the tortious cause had made a material contribution to the weakness and the claimant succeeded in full. The employer appealed.
Held: The appeal failed. It was not possible to say with any confidence whether, without the tortious contribution, the claimant would have been so weak as to inhale her vomit. It was not suggested either in this court or below that the damages should be apportioned.
Waller LJ said: ‘I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.’

Judges:

Lord Justice Waller, Lord Justice Sedley and Lady Justice Smith

Citations:

[2008] EWCA Civ 883, Times 26-Aug-2008, [2009] 1 WLR 1052

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedDickins v O2 Plc CA 16-Oct-2008
The employer appealed against a finding that it was responsible for the personal injury of the claimant in the form of psychiatric injury resulting from stress suffered working for them. She had told her employers that she was at the end of her . .
CitedLeigh v London Ambulance Service NHS Trust QBD 20-Feb-2014
The claimant was injured, and an ambulance was called. There was an unnecessary and neligent delay. The claimant suffered post-traumatic stress and now sought to recover damages from the trust.
Held: The claimant had unfortunately suffered a . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Professional Negligence, Personal Injury

Updated: 18 July 2022; Ref: scu.271219

Gurung 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.

Judges:

Ousely J

Citations:

[2008] EWHC 1496 (Admin)

Links:

Bailii

Cited by:

See AlsoLimbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Discrimination

Updated: 17 July 2022; Ref: scu.270620

Regina (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.

Judges:

Sir Anthony Clarke MR, Sir Igor Judfe P, Dyson LJ

Citations:

[2006] EWCA Civ 1689, [2007] 2 WLR 195, [2007] QB 689, [2007] HRLR 10

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromGentle 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 . .

Cited by:

Appeal fromGentle, 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 . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Coroners, Human Rights

Updated: 14 July 2022; Ref: scu.267534

Officer L and Others, Re Application for Judicial Review: QBNI 3 Nov 2006

Police officers called to appear at a public inquiry objected to a decision against allowing them to do so anonymously.

Citations:

[2006] NIQB 75

Links:

Bailii

Jurisdiction:

Northern Ireland

Cited by:

Appeal fromOfficer L, Re Application for Judicial Review CANI 5-Feb-2007
Police officers were to give evidence before the Hamill Inquiry into events in Northern Ireland, but feared that if they were assiociated through the inquiry with the events, they would be under a threat of terrorist reprisal. They therefore sought . .
At first InstanceIn 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 . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Armed Forces, Litigation Practice

Updated: 14 July 2022; Ref: scu.246254

Boyle v United Kingdom: ECHR 8 Jan 2008

The applicant was in the army. He complained that, having been accused of a rape, he was ordered by his commanding officer to be detained on remand pending trial.
Held: There had been a breach of Article 5.3 which required that anyone arrested should be taken before a court or other proper officer exercising judicial power. The commanding officer, as part of the prosecution machinery, could not be that officer.

Citations:

Times 15-Jan-2008, 55434/00, [2008] ECHR 15, [2011] ECHR 2269

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights 5.3

Human Rights, Crime, Armed Forces

Updated: 12 July 2022; Ref: scu.263630

Shuttlewood, Regina (on The Application of) v Ministry of Defence: Admn 28 Mar 2019

Application for permission to apply for judicial review to challenge the decision of the defendant, the Ministry of Defence, to try him by way of court martial proceedings in reliance upon a decision of the Solicitor General to extend the statutory time limit within the Armed Forces Act 2006 to prosecute him.

Judges:

Supperstone J

Citations:

[2019] EWHC 1209 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Armed Forces, Criminal Practice

Updated: 12 July 2022; Ref: scu.639223

Regina v Ministry of Defence ex parte Smith; ex parte Grady: CA 3 Nov 1995

Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to introduce it.
Sir Thomas Bingham MR said: ‘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.’

Judges:

Sir Thomas Bingham MR, Henry LJ, Thorpe LJ

Citations:

[1995] EWCA Civ 22, [1996] 2 WLR 305, [1996] QB 517, [1996] IRLR 100, [1996] ICR 740, [1996] 1 All ER 257

Links:

Bailii

Jurisdiction:

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 . .

Cited by:

CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
CitedSK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
CitedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedRe E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
CitedPearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
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 . .
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 . .
CitedBancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Lists of cited by and citing cases may be incomplete.

Employment, Armed Forces, Administrative, Human Rights

Updated: 11 July 2022; Ref: scu.259362

Dost Mohammed, Regina (on the Application of) v Secretary of State for Defence: CA 1 May 2007

The applicant was a Pakistani national who had been in the Indian army during the secind world war, and had been imprisoned by the Japanese. The defendant had set up a system of ex gratia payments to five classes of beneficiary, but the claimant fell outside those classes because of his nationality. He claimed race discrimination.
Held: Discrimination on the basis of nationality was not necessarily race discrimination.

Judges:

Ward LJ, Latham LJ, Sir Peter Gibson

Citations:

[2007] EWCA Civ 983, Times

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Armed Forces

Updated: 11 July 2022; Ref: scu.251774

(Un-named) (Armed Forces Pension): SSCS 20 Oct 2006

Whether a person in a marriage-like relationship with a former member of the armed forces whose death is due to service is entitled to a pension under the Naval, Military and Air Force Etc (Disablement and Death) Service Pensions Order 1983 although she does not meet the conditions of Article 29 (pensions to widows and widowers) or Article 30 (pensions to certain unmarried dependants who lived as spouses). The argument for entitlement is based on interpreting those provisions so as not to contravene the European Convention on Human Rights (ECHR) and in particular Article 14 on discrimination.

Citations:

[2006] UKSSCSC CAF – 52 – 2006

Links:

Bailii

Jurisdiction:

England and Wales

Armed Forces, Benefits

Updated: 10 July 2022; Ref: scu.249711

In the Matter of Captain Christopher John Kelly: Admn 14 Jun 1996

The deceased was killed by ‘friendly fire’ during a night exercise in Kenya. A verdict of accidental death was returned, and a fresh inquest was sought particularly in the light of a statement from a fellow officer.
Held: The emergence of fresh evidence, even if it is in part evidence which should have disclosed to the Coroner at the inquest, is not determinative of the question whether there should be another inquest. The court was not persuaded that the interests of justice called for a fresh inquest.

Judges:

Lord Justice Pil,l Mr Justice Newman

Citations:

[1996] EWHC Admin 15

Statutes:

Coroners Act 1988 8(3)(d)

Jurisdiction:

England and Wales

Citing:

CitedRegina v West London Coroner ex parte Gray CA 1988
Before a coroner’s jury could reach a verdict of unlawful killing, it had to be satisfied ‘that the act or omission of a single person must amount to unlawful conduct which was a substantial cause of death’, although Rule 42 of the Coroners Rules . .
CitedRegina v South London Coroner ex parte Thompson 8-Jul-1982
The court discussed the function of the coroner and his inquest.
Lord Lane CJ said: ‘The coroner’s task in a case such as this is a formidable one, and no one would dispute that; that is quite apart from the difficulties which inevitably arise . .
CitedIn re Rapier (Deceased) QBD 1988
A young prisoner had been found dead in his cell hanging. A report suggested that he may have been sniffing solvents. The coroner himself initiated proceedings both under the Coroners’ Act and for judicial review to quash the inquisition over which . .
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, . .

Cited by:

CitedRegina on the Application of Mullholland v HM Coroner for St Pancras QBD 7-Nov-2003
The applicant sought to re-open a coroner’s inquest. The deceased had been drunk, slipped banged his head and fallen to the ground. Police and ambulance were called. The ambulance worker was not told he had been unconscious, and he was taken to the . .
Lists of cited by and citing cases may be incomplete.

Coroners, Armed Forces

Updated: 10 July 2022; Ref: scu.136563

Regina (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 question amounted to whether the officers acted under State Agent Authority within the convention despite their operation outside Europe.
Held: The appeals failed. ‘The Act reaches the same parts of the body politic as the Convention. For my part I also see good grounds of principle and of substantive law for holding that, at least where the right to life is involved, these parts extend beyond the walls of the British military prison and include the streets patrolled by British troops. ‘

Judges:

Lord Justice Sedley Lord Justice Brooke Vice-President of the Court of Appeal (Civil Division) Lord Justice Richards

Citations:

[2005] EWCA Civ 1609, Times 06-Jan-2006, [2007] QB 140

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromAl 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 . .
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 . .
CitedSerco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
CitedTomalin v S Pearson and Son Ltd CA 1909
A widow claimed compensation for her husband’s death overseas.
Held: The Act did not provide for compensation to be payable. ‘What is the widow’s claim here ? She is claiming, not as a party to the contract, not as claiming any rights under a . .
CitedCyprus v Turkey 1-May-1975
(Commission) Turkey argued that she had not extended her jurisdiction to the island of Cyprus because she had neither annexed a part of the island nor established a military or civil government there. She maintained that the administration of the . .
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 . .
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: . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
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 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 . .
CitedHess v United Kingdom ECHR 28-May-1975
(Commission) The Commission looked to the admissibiliity of a complaint by Rudoph Hess who was incarcerated by the respondent state in Spandau prison. The prison was in the British sector in Berlin under the control of the four WWII Allied powers. . .
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’ . .
CitedRegina v Hammersmith and Fulham London Borough Council, ex parte M; Regina v Similar Ex Parte P etc QBD 8-Oct-1996
Destitute asylum seekers who were not entitled to welfare benefits could be in need of care and attention within the meaning of section 21 of the 1948 Act although they were no longer entitled to housing assistance or other social security benefits . .
CitedChrystostomos and Others v Turkey ECHR 1991
(Commission – Admissibility) There were three applications, including one by Titina Loizidou. She complained that she had been denied access to her property in north Cyprus by the activities of Turkish forces and persons acting under their . .
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 . .
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 . .
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 . .
CitedFreda v Italy ECHR 7-Oct-1980
(Commission) An Italian citizen had been handed over by the authorities in Costa Rica to Italian police who obliged him to go on board an Italian Air Force plane.
Held: The Commission was satisfied that he was under the authority of the . .
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 . .
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 . .
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 . .
CitedIllich Sanchez Ramirez v France ECHR 24-Jun-1996
The applicant was arrested in Khartoum by Sudanese security forces and handed over to French police officers who escorted him to France in a French military aircraft. The ECommHR was willing to accept that he was effectively under the authority, and . .
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 . .
CitedTyrer v The United Kingdom ECHR 25-Apr-1978
Three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered.
Preliminary objection rejected (disappearance of object of . .
CitedAhmet Ozkan and Others v Turkey ECHR 6-Apr-2004
Turkish military forces attacked a village with rifles and heavy weapons. During this operation they burned a number of houses, and a bomb was thrown into one house, with the result that a girl of six suffered severe intestinal injuries. When the . .
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 . .
CitedGulec v Turkey ECHR 1995
A 15-year old boy was killed during the course of incidents in a Turkish city which involved demonstrations, shop closures and attacks on public buildings. The government maintained that he had been hit by a bullet fired by armed demonstrators at . .
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 . .
CitedOgur v Turkey ECHR 20-May-1999
A nightwatchman at a mining site, the claimant’s son, was killed one morning by Turkish security forces when he was coming off duty. The Government said that the scene of the incident had been used as a shelter by terrorists. The applicant claimed . .
CitedDunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
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 . .
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 . .
CitedHackett v United Kingdom ECHR 2005
. .
CitedTeresa Kelly, Re an Application for Judicial Review QBNI 19-Nov-2004
. .
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 . .

Cited by:

CitedAl-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 . .
Appeal fromSecretary 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 . .
At CAAl-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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Armed Forces

Updated: 04 July 2022; Ref: scu.237432

AB and Others v Ministry of Defence: QBD 5 Jun 2009

Former members of the armed forces and others claimed damages for personal injuries, claiming that they had been obliged to expose themselves to the effects of atomic bomb explosions in the 1950s. The defendant argued that the claims were now out of time.
Held: New scientific evidence had become available to support the claim, and to restart the limitation period.

Judges:

Foskett J

Citations:

[2009] EWHC 1225 (QB), Times 09-Jun-2009

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

CitedLoveday v Renton and Wellcome Foundation Ltd 1990
Stuart-Smith LJ said that there is no ‘generally accepted standard of scientific proof.’ The court rejected epidemiological evidence presented to it. . .
CitedA and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
CitedHughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
CitedLoveday v Renton and Wellcome Foundation Ltd 1990
Stuart-Smith LJ said that there is no ‘generally accepted standard of scientific proof.’ The court rejected epidemiological evidence presented to it. . .
CitedNash v Eli Lilly and Co QBD 1991
The court discussed the relevance of knowledge obtainable by the plaintiff’s solicitor for limitation purposes.
Held: Hidden J said ‘My conclusion is therefore that there is no binding authority on whether facts ascertainable by a plaintiff . .

Cited by:

See AlsoAB and Others v Ministry Of Defence QBD 19-Jun-2009
. .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Limitation, Personal Injury

Updated: 01 July 2022; Ref: scu.346753

Jordan, 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.

Judges:

Kerr J

Citations:

[2002] NIQB 7, [2002] NI 151

Jurisdiction:

Northern Ireland

Cited by:

See AlsoJordan 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 . .
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. . .
See AlsoStephen Jordan (No 2) v The United Kingdom ECHR 10-Dec-2002
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 . .
See AlsoJordan, Re an Application for Judicial Review QBNI 12-Jan-2004
. .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Coroners, Human Rights

Updated: 01 July 2022; Ref: scu.272804

Isayeva, 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.

Citations:

57949/00, [2005] ECHR 129, 57947/00, 57948/00, (2005) 41 EHRR 39

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Cited by:

CitedSmith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 01 July 2022; Ref: scu.227547

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

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).’

Citations:

49771/99, (2003) 37 EHRR 2, [2002] ECHR 797, [2002] ECHR 803, [2001] Inquest LR 101, (2001) 11 BHRC 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

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: 01 July 2022; Ref: scu.178422

Melbourne v Ministry of Defence: CA 26 Apr 2002

Renewed application for permission to appeal from a ruling of the Employment Appeal Tribunal.

Judges:

Buxton LJ, Jackson J

Citations:

[2002] EWCA Civ 754

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedJ L Melbourne v Ministry of Defence EAT 26-Nov-2001
EAT Race Discrimination – Direct . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Armed Forces

Updated: 23 June 2022; Ref: scu.217070

Sirdar v Ministry of Defence: EAT 15 Sep 1995

The claimant had brought a sex discrimination claim, saying that she had bee refused opportunity to work as a chef with the Royal Marines. She and the defendants had had sought an adjournment of the claim, but this had been refused.
Held: Appeal allowed.

Judges:

Hicks QC HHJ

Citations:

[1995] UKEAT 978 – 95 – 1509

Links:

Bailii

Statutes:

Sex Discrimination Act 1975

Cited by:

See AlsoSirdar v Army Board and Another ECFI 27-Oct-1999
It was possible for the Royal Marine unit to exclude the employment of a woman as a chef. The requirement not to discriminate was overriding save where the nature of the work makes the sex of the worker a determining factor. The nature and rules of . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Armed Forces

Updated: 18 June 2022; Ref: scu.209310

Deakin v Secretary of State for Defence: CA 4 Apr 2019

The court was asked whether the respondent was entitled to a restored war widow’s pension from the date when she first notified her application for such a pension or from the date when, as is agreed, she actually became entitled to such a pension?

Citations:

[2019] EWCA Civ 571

Links:

Bailii

Statutes:

Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006

Jurisdiction:

England and Wales

Armed Forces, Benefits

Updated: 17 June 2022; Ref: scu.635643

Al-Saadoon and Others v The Secretary of State for Defence and Others: CA 9 Sep 2016

Citations:

[2016] EWCA Civ 811

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoAl-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
See AlsoAl-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 . .
Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 14 June 2022; Ref: scu.569139

Al-Waheed v Ministry of Defence: SC 17 Jan 2017

‘These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non-Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes, Lord Toulson, Lord Hodge

Citations:

[2017] UKSC 2, [2017] 3 All ER 215, 43 BHRC 137, [2017] AC 821, [2017] 2 WLR 327, [2017] WLR(D) 50, [2017] HRLR 1, UKSC 2014/0219

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC Summary video

Statutes:

European Convention on Human Rights 5(1) 5(4), Human Rights Act 1998

Jurisdiction:

England and Wales

Cited by:

See AlsoBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See AlsoRahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Torts – Other, Human Rights

Updated: 14 June 2022; Ref: scu.573212

Al-Saadoon and Others v Secretary of State for Defence: Admn 7 Apr 2016

The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the Secretary of State for Defence is required by law to establish an inquiry into the death of a civilian in five particular cases; ii) Whether, in four test cases, claims that the Secretary of State has a duty to investigate deaths or allegations of ill-treatment are barred by delay; and iii) Whether the court should give any further directions or guidance in relation to the investigation of cases.

Judges:

Leggatt J

Citations:

[2016] EWHC 773 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
CitedAl-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .

Cited by:

See AlsoAl-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights, Torts – Other

Updated: 14 June 2022; Ref: scu.561688

Al-Saadoon and Others v Secretary of State for Defence: Admn 26 Jun 2015

Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European Convention on Human Rights (the ‘Convention’), incorporated into English law by the Human Rights Act 1998, to investigate allegations of unlawful killing and ill-treatment made by claimants in these proceedings.

Judges:

Leggatt J

Citations:

[2015] EWHC 1769 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

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, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
CitedAl-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .

Cited by:

See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 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.

Human Rights, Armed Forces

Updated: 14 June 2022; Ref: scu.549477

Khan v Royal Air Force Summary Appeal Court: Admn 7 Oct 2004

The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was no procedure to make his objection known, the failure to do so might be taken account of, but here such a procedure did exist. For article 9, ”law’ (i) must have the status of law, (ii) must be adequately accessible, (iii) must be of sufficient precision to be foreseeable, and (iv) must be compatible with the rule of law. ‘ Although the appellant’s recall papers did not expressly refer to conscientious objection as a ground for claiming exemption, it did sufficiently identify a relevant ground, namely ‘any other grounds . . for compassionate reasons’. Nevertheless there was no relevant manifestation of conscientious objection and no interference with any such manifestation by reason of the appellant’s recall, arrest, prosecution or conviction.

Judges:

Mr Justice Forbes Lord Justice Rix

Citations:

[2004] EWHC 2230 (Admin), Times 28-Oct-2004

Links:

Bailii

Statutes:

European Convention on Human Rights 9.1, Air Force Act 1955, The Reserve Forces (Call Out and Recall) (Exemption Etc) Regulations 1997 (SI 1997 No 307)

Jurisdiction:

England and Wales

Citing:

CitedGaygusuz v Austria ECHR 16-Sep-1996
The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was . .
CitedCarson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
CitedSepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
CitedThlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The applicant was a Jehovah’s Witness who had been convicted of insubordination under the Military Criminal Code for refusing to wear a military uniform at a time of general mobilisation. He was subsequently refused appointment as a . .
CitedX v Federal Republic of Germany ECHR 5-Jul-1977
(Commission) A complaint was brought by a Jehovah’s witness who objected not only to military service but also to compulsory civilian substitute service.
Held: The complaint was inadmissible. The Commission referred to article 4(3)(b) and . .
CitedLeyla Sahin v Turkey ECHR 29-Jun-2004
(Grand Chamber) The applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the . .
CitedJohansen v Norway ECHR 14-Oct-1985
(Commission) A pacifist objected to civilian substitute service on the ground that it tended to uphold respect for military service.
Held: The complaint was inadmissible. Referring to article 4(3)(b): ‘The Convention does not prevent a state . .
CitedRegina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .
CitedKalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .
CitedKrotov v Secretary of State for the Home Department CA 11-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Crime, Human Rights

Updated: 13 June 2022; Ref: scu.215931

Saggar v Ministry of Defence: EAT 25 May 2004

Three Defence employees sought to bring claims of variously race and sex discrimination against the Ministry. In each case their services were provided almost entirely abroad, and the defendant argued that there was no jurisdiction to hear the case, and that jurisdiction was not created by minimal presence here.
Held: The provisions as to jurisdiction in the two Acts are identical. The jurisdiction had to be founded at the date of the hearing. A minimal presence in the United Kingdom could not be used to found jurisdiction.

Judges:

The Honourable Mr Justice Burton

Citations:

UKEAT/1385/01, [2004] UKEAT 1385 – 01 – 1006

Links:

Bailii

Statutes:

Race Relations Act 1976, Sex Discrimination Act 1975

Citing:

CitedCarver (Nee Mascarenhas) v Saudi Arabian Airlines CA 17-Mar-1999
The applicant was recruited in Saudi Arabia in 1986 as a flight attendant under a contract expressed to be subject to Saudi Arabian law. After being trained in Jeddah, and then employed in India for four years, she was transferred to be based in . .
CitedHaughton v Olau Line (UK) Ltd CA 1986
The applicant was a cashier on a ship. She made a complaint of sex harassment and discrimination. The defendant denied that the court had jurisdiction because she worked abroad.
Held: Her work was done mainly outside Great Britain.
Neill . .
CitedCarter (Formerly McDonagh (General Secretary of, and on Behalf the Labour Party v Ahsan EAT 11-Feb-2004
EAT Practice and Procedure – Appellate jurisdiction . .
CitedFairchild v Glenhaven Funeral Services Ltd and Others, Dyson and Another v Leeds City Counci CA 11-Dec-2001
Where a claimant suffered mesothelioma, contracted whilst working with asbestos, but the disease may have been contracted from inhalation at different times, and with different employers, his claim must fail since it was not possible to identify . .
CitedDuke v GEC Reliance Systems Limited CA 16-Feb-1987
The court was said to have failed to have proper regard to a European Directive.
The court discussed the meaning of the phrase ‘per incuriam’: ‘I have always understood that the doctrine of per incuriam only applies where another division of . .
CitedRegina v Immigration Appeal Tribunal, Ex parte Kassam CA 1980
Discrimination was alleged against the immigration authorities.
Held: In dealing with people coming in under the immigration rules, the immigration authorities were not providing ‘services’ within the meaning of the Act. The words the . .
CitedSavjani v Inland Revenue Commissioners CA 1981
The question arose as whether the Inland Revenue were concerned with the provision of services in their activities relating to the adminsitration of the taxation system, so as to bring them within section 20 of the 1976 Act.
Held: They were . .
CitedRegina v Entry Clearance Officer, Bombay, Ex parte Amin HL 1983
The House was asked whether the grant of special vouchers under the special voucher scheme introduced came within section 29 of the 1975 Act. Acts performed pursuant to a government function did not come within the meaning of service. Discrimination . .
CitedThe Confederation of Passenger Transport UK v The Humber Bridge Board and the Secretary of State for Transport Local Government and the Regions CA 25-Jun-2003
Regulations specifying the tolls for the Humber Bridge did not mention a charge for large buses.
Held: The same rules had to be applied in construing statutory instruments as applied in construing statutes. The explanatory note issued with the . .
CitedRelaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
CitedGeneral Council of British Shipping v Deria and Others 1985
Where an Industrial Tribunal’s decision could not be reviewed because under the rules, the new evidence had been available, a review based on the new evidence should only be granted where there existed some mitigation causing the failure to bring . .
CitedHIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .

Cited by:

Appeal fromSaggar v Ministry of Defence CA 27-Apr-2005
The claimant sought to bring an action for race discrimination. The defendant argued that the alleged acts of discrimination took place whilst he was on a posting abroad in Cyprus after serving 16 years in England, and that therefore the tribunal . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Armed Forces

Updated: 11 June 2022; Ref: scu.198441

Thompson v The United Kingdom: ECHR 15 Jun 2004

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

Citations:

36256/97, [2004] ECHR 267, [2004] ECHR 267

Links:

Worldlii, Bailii

Cited by:

CitedMistry v Thakor and others CA 5-Jul-2005
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Criminal Practice

Updated: 11 June 2022; Ref: scu.198174

Secretary of State for Defence v Reid: Admn 28 May 2004

The claimant served in the armed forces. He claimed for the failure of the respondent to give him fair notice of the availablity of benefits. Omission of appellant causing delay in making of claim under regulations.
Held: Providing information about the scheme was reasonably part of the duty of its proper administration. The respondent had failed in that duty, and the Pensions Appeal Tribunal had been correct in allowing the claimant to backdate his claim.

Judges:

Newman J

Citations:

[2004] EWHC 1271 (Admin), Times 07-Jul-2004

Links:

Bailii

Statutes:

Naval, Military and Air Forces Etc. (Disablement and Death) Services Pensions Order 1983

Jurisdiction:

England and Wales

Armed Forces

Updated: 11 June 2022; Ref: scu.197838

Regina v Williams; Regina v Saunby; Regina v Ashby; Regina v Schofield; Regina v Marsh, Regina v Webb; Regina v Leese; Regina v Dodds; Regina v Clarkson; Regina v English: CMAC 30 Jul 2001

The appellants variously claimed their convictions should be set aside because the court which had heard their cases was not independent and impartial. They alleged in particular that questions of military discipline and morale would affect the court process making it unfair. The merits of the decision to prosecute were outside the ambit of article 6, and, even if it were not, there was no vice in those considerations affecting the decision.

Judges:

Laws LJ, Turners and McCombe JJ

Citations:

Gazette 04-Oct-2001, Times 08-Oct-2001

Jurisdiction:

England and Wales

Citing:

CitedFindlay 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 . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights

Updated: 10 June 2022; Ref: scu.166230

Regina 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 independent tribunal could be shown, a trial could not normally be shown to be fair. There was no criticism of the judge advocate, but the trial was unfair as a matter of principle and authority. Other appeals out of time might not be allowed.

Judges:

Mr Justice Douglas Brown Mr Justice Newman Lord Justice Rose VP

Citations:

Times 18-Mar-2004, [2004] EWCA Crim 621

Links:

Bailii

Statutes:

Naval Discipline Act 1957 11

Jurisdiction:

England and Wales

Citing:

CitedGrieves v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He . .
CitedMillar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
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 . .
AppliedRegina v Hawkins (Paul) CACD 2-Aug-1996
The defendant sought leave to appeal out of time after a guilty plea.
Held: Leave was not granted despite a subsequent ruling on the Theft Act, which showed the basis of the original plea to have been wrong in law. No injustice had been shown, . .

Cited by:

CitedRegina v Khan and Hanif CACD 14-Mar-2008
Each defendant appealed against his conviction saying that the presence on the jury of certain people involved in the law gave the appearance of bias.
Held: The court should be made aware if any potential juror either is or has been a police . .
CitedDowsett v Criminal Cases Review Commission Admn 8-Jun-2007
The claimant had been convicted in 1993 of involvement in a murder. He had complained that the police had failed to disclose material which would have been of assistance to him. He had requested the Commission to take examine and pursue his appeal. . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Criminal Practice, Human Rights

Updated: 10 June 2022; Ref: scu.194575

Secretary of State for Defence v President of the Pension Appeal Tribunals (England and Wales): QBD 4 Feb 2004

The secretary appealed a decision of the Pensions Appeal Tribunal to set aside a decision of the Pensions Tribunal. The applicant had been awarded a service pension.
Held: The PAT had no general power to set aside a decision of the tribunal for an irregularity. The rules provided for a right of appeal to the High Court, and therefore no great hardship resulted. The PAT should have remitted the case for directions.

Judges:

The Honourable Mr Justice Newman

Citations:

[2004] EWHC 141 (Admin), Times 27-Feb-2004

Links:

Bailii

Statutes:

Pensions Appeal Tribunals Act 1943

Jurisdiction:

England and Wales

Armed Forces, Benefits

Updated: 09 June 2022; Ref: scu.192631

Cooper v The United Kingdom: ECHR 16 Dec 2003

Hudoc Judgment (Merits and just satisfaction)
The claimant had been dismissed from the RAF after a court martial. He complained that the tribunal was not independent, and that his trial was unfair.
Held: The court rejected the submission that no court martial could act independently. There was sufficient separation between the various roles and the chain of command, and the claimant’s rights were not infringed.

Citations:

48843/99, Times 12-Jan-2004, (2004) 39 EHRR 171, [2003] ECHR 686

Links:

Bailii

Statutes:

European Convention on Human Rights 6.1

Jurisdiction:

Human Rights

Citing:

CitedFindlay 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 . .
CitedEzeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 08 June 2022; Ref: scu.190176

Grieves v The United Kingdom: ECHR 16 Dec 2003

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He complained that the tribunal did not have sufficient independence.
Held: The claimant’s rights were infringed. Though there was facility to appoint a prosecutor from outside the chain of command, that had not happened in the applicant’s case, and he was part of the prosecuting authority. The use of a civilian to administer the procedure helped. There was no permanence to the position of president of the court martial. The judge advocates were serving officers carrying out regular naval duties.

Citations:

57067/00, Times 12-Jan-2004, ECHR 2003-XII, (2004) 39 EHRR 51, [2003] ECHR 688

Links:

Bailii

Statutes:

European Convention on Human Rights 6.1, Naval Discipline Act 1957

Jurisdiction:

Human Rights

Citing:

CitedFindlay 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 . .
CitedEzeh and Connors v The United Kingdom ECHR 9-Oct-2003
The applicants were prisoners subject to disciplinary proceedings. The offences were equivalent to criminal charges in domestic law. They were refused legal assistance, and had additional terms added to their sentences.
Held: The charges . .

Cited by:

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 . .
AppliedG.W. v The United Kingdom ECHR 15-Jun-2004
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 . .
AppliedLe Petit v The United Kingdom ECHR 15-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces

Updated: 08 June 2022; Ref: scu.190177

Purja 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 discrimination on the grounds of national or social origin.
Held: In isolation, these soldiers were treated differently and worse. Howeevr the greater cost of living in Britain rather than Nepal justified that difference. There were also other additional benefits for Gurkhas, including longer leave periods. The two groups were not in a comparable position. Rix LJ, dissenting, the restriction which did not allow more than 25% of Gurkha soldiers to have their wives accompany them was discriminatory.

Judges:

Lord Justice Chadwick Lord Justice Rix Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 1345, Times 16-Oct-2003, Gazette 16-Oct-2003, [2004] 1 WLR 289

Links:

Bailii

Statutes:

European Convention on Human Rights 14

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina (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 . .

Cited by:

See AlsoLimbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others Admn 30-Sep-2008
The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Armed Forces, Human Rights

Updated: 08 June 2022; Ref: scu.186637

Secretary of State for Defence v Shaun Francis Rusling: QBD 13 Jun 2003

The applicant sought a war pension, saying he had been affected by ‘Gulf War Syndrome.’ The Pensions Appeal Tribunal had found the condition to be capable of justifying a pension. The Secretary said the matter had been resolved.
Held: The Tribunal had a duty before accepting that a matter was concluded, to ensure that all the issues had been resolved. To do that it was necessary for the Secretary of State to put before the tribunal all relevant material and the full terms of the subsequent decision.

Judges:

The Honourable Mr Justice Newman

Citations:

[2003] EWHC 1359 (QB), Times 17-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Administrative, Armed Forces

Updated: 07 June 2022; Ref: scu.184645

R v Her Majesty’s Attorney-General for England and Wales: PC 17 Mar 2003

PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R signed, but alleged this had been under duress and without resource to independent advice.
Held: The finding that the contract was an agreement which anyone who wished to serve or continue serving in the SAS could reasonably have been required to sign was fatal to any suggestion of undue influence or duress. It was a matter for regret that members of SAS were not told explicitly that arrangements could be made for them to obtain legal advice. However, R did not allege that he did not understand the implications of what he was being asked to do. The contract was in simple terms and the explanatory memorandum even plainer. Consideration had been given in not returning R to his base unit. Appeal dismissed. Lord Scott dissenting on undue influence: ‘the relationship between the appellant and his senior officers and the circumstances, as found by the judge, in which the contract came to be signed by the appellant produced a classic ‘relationship’ case in which undue influence should be presumed.’

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett, Lord Scott of Foscote

Citations:

[2003] UKPC 22, [2003] EMLR 24

Links:

PC, Bailii, PC

Jurisdiction:

England and Wales

Citing:

CitedRoyal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
CitedUniverse Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
CitedThorne v Motor Trade Association HL 1937
The House confirmed a declaration granted as to validity of a rule of association notwithstanding the absence of any dispute. The House considered the nature of the threat required to establish a defence of duress.
Lord Wright observed that the . .
CitedAlliance Bank Ltd v Broom 1864
The bank demanded security for its loan in circumstances in which it would otherwise have enforced payment. It made no promise not to demand payment but: ‘the [bank] did in effect give, and the defendant received, the benefit of some degree of . .
CitedBarton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
CitedDunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd HL 1-Jul-1914
The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .
CitedRegina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
Lists of cited by and citing cases may be incomplete.

Armed Forces

Updated: 07 June 2022; Ref: scu.179985

Matthews 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 section, but a substantive one which delimited the rights and liabilities arising under civil law. Accordingly, human right slaw did not apply. The Commission on human rights was wrong to suggest that such rights might be affected.

Judges:

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Mummery and Lady Justice Hale

Citations:

[2002] 1 WLR 2621, Times 31-May-2002, Gazette 04-Jul-2002, [2002] EWCA Civ 773

Links:

Bailii

Statutes:

Crown Proceedings Act 1947 10, European Convention on Human Rights 6.1

Jurisdiction:

England and Wales

Citing:

CitedPinder v United Kingdom ECHR 1984
(Commission) ‘The Commission . . recalls that the concept of ‘civil rights’ is autonomous. Thus, irrespective of whether a right is in domestic law labelled ‘public’, ‘private’, ‘civil’ or something else, it is ultimately for the Convention organs . .
CitedDyer v United Kingdom ECHR 1985
. .
Appealed toMatthews 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 . .
Appeal fromMatthews v The Ministry of Defence QBD 22-Jan-2002
The claimant sought damages for asbestos related diseases, incurred whilst working as an engineer in the Royal Navy. He claimed that the bar on claiming against the Crown infringed his rights to a remedy. The 1987 Act removed the bar to a claim, but . .

Cited by:

Appeal fromMatthews 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 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Armed Forces, Human Rights

Updated: 06 June 2022; Ref: scu.171334

Matthews v The Ministry of Defence: QBD 22 Jan 2002

The claimant sought damages for asbestos related diseases, incurred whilst working as an engineer in the Royal Navy. He claimed that the bar on claiming against the Crown infringed his rights to a remedy. The 1987 Act removed the bar to a claim, but not retrospectively. Section 10 of the 1947 Act created a new immunity. Actions against a State are not barred in limine. The Secretary of State may allow an action to proceed, but has the right to prevent an action. Some claims made by persons employed by the State have not been treated as involving the determination of civil rights. The Pellegrin case had now set the test for determining whether an action involved the determination of civil rights, and the test involved looking at the nature of the duties undertaken. The claim also had to relate to et applicant’s conditions of service. This is a claim in tort. Despite the existence of an alternative means of compensation, the clause failed the proportionality test. It is not possible to read the Act in a way which would make it compatible with the Convention, and a declaration of incompatibility was made.

Judges:

The Honourable Mr Justice Keith

Citations:

Times 30-Jan-2002, [2002] EWHC 13 (QB)

Links:

Bailii

Statutes:

Crown Proceedings Act 1947 10, European Convention on Human Rights 6(1) 2(1), Crown Proceedings (Armed Forces) Act 1987

Citing:

CitedPellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Personal Injury

Updated: 05 June 2022; Ref: scu.167423

Dory v Federal Republic of Germany: ECJ 24 Oct 2001

ECJ Inapplicability of Community law to compulsory military service – Equal treatment of men and women – Article 2 of Directive 76/207/EEC – Compulsory military service in Germany limited to men only – Directive not applicable

Citations:

C-186/01, [2003] EUECJ C-186/01, [2003] ECR I-2479

Links:

Bailii

Jurisdiction:

European

Armed Forces

Updated: 04 June 2022; Ref: scu.166771

Al 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 the hands of British troops in a war situation. One death however had occurred whist the deceased was in the custody of the British Forces whilst they were the occupying power. Here sufficient jurisdiction and duties of care arose, and the family were entitled to a proper investigation of the circumstances of the death.

Judges:

Mr Justice Forbes Lord Justice Rix

Citations:

[2004] EWHC 2911 (Admin), Times 20-Dec-2004, [2007] QB 140, [2005] 2 WLR 1401, [2005] HRLR 3, [2005] UKHRR 427, [2005] ACD 51

Links:

Bailii

Statutes:

European Convention of Human Rights

Jurisdiction:

England and Wales

Citing:

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 . .

Cited by:

CitedAl-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 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 . .
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 . .
At First InstanceSecretary 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 . .
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.
At AdmnAl-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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Armed Forces, Jurisdiction, Coroners

Updated: 04 June 2022; Ref: scu.220287

Rahmatullah 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.

Judges:

Lord Neuberger MR, Maurice Kay LJ VP, Sullivan LJ

Citations:

[2011] EWCA Civ 1540, [2012] 1 All ER 1290, [2012] HRLR 9

Links:

Bailii

Statutes:

Geneva Conventions Act 1957 1(1)

Jurisdiction:

England and Wales

Citing:

Appeal fromRahmatullah v Secretary of State for Foreign Affairs and Another Admn 29-Jul-2011
The claimant, a Pakistani national, detained by US Armed forces in Bagram in Afghanistan, sought a writ of habeas corpus. He had been first captured by British forces in Iraq in 2004, and transferred to US military under a Memorandum of . .

Cited by:

See AlsoRahmatullah v Secretary of State for Foreign and Commonwealth Affairs and Another (No 2) CA 23-Feb-2012
The claimant had been arrested by UK armed forces in Iraq, and pased to the US against an agreement as to his treatment. He had been taken instead.
Held: The UK needed to have in place an agreement which it could point to as showing that it . .
Appeal fromSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Human Rights

Updated: 02 June 2022; Ref: scu.450054

Regina v Ministry of Defence, ex parte Walker: HL 6 Apr 2000

The Ministry of Defence operated a scheme for compensating soldiers serving abroad who were injured as a result of criminal activity. The claimant, whilst serving on a peace-keeping mission in Bosnia, was injured when a hut was hit by a shell fired from a Serbian tank. The scheme refused compensation. There is no necessary incompatibility between activities which were military and ones which were in breach of international law. The scheme could properly exclude injuries resulting from military activity.

Citations:

Times 07-Apr-2000, Gazette 11-May-2000, [2000] UKHL 22, [2000] 2 All ER 917

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

At AdmnRegina v Ministry of Defence ex parte Walker Admn 9-Feb-1998
The court dismissed the plaintiff’s request for judicial review of the refusal of the Criminal Injuries Compensation (Overseas) Scheme. He was injured serving as a United Nations Peacekeeper in Bosnia, from a single round fired into the block by a . .
Appeal fromRegina v Ministry of Defence, Ex Parte Walker CA 5-Feb-1999
The scheme provided by the Ministry of Defence to compensate soldiers for being injured by criminal acts did not cover a wound inflicted by a shell fired from a tank whilst on peacekeeping duties. This was akin to a war injury.
Auld LJ said: . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Armed Forces

Updated: 31 May 2022; Ref: scu.159056

Ahmed v Director General of Security Service and Others: QBD 16 Dec 2020

The claimant, serving prison sentences for terrorism related offences sought damages from the defendant services, saying that they were responsible in law for his severe maltreatment in the custody of the Pakistani Inter-Services Intelligence Agency in Pakistan, having connived with them for his arrest and interrogation.

Judges:

Mr Justice Garnham

Citations:

[2020] EWHC 3458 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction, Torts – Other, Armed Forces, Police

Updated: 30 May 2022; Ref: scu.656923

Bell 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 on active duty.
Held: The Secretary was entitled to issue the certificate of entitlement even though at the time no-one was entitled to receive an award, and the only effect was to achieve immunity from suit. However the action which caused the injury was the failure to communicate the deceased’s condition, which happened at the civilian hospital and not on Crown Land, and therefore the section did not give immunity.

Citations:

[1986] QB 322, [1985] 3 All ER 661

Statutes:

Crown Proceedings Act 1947 10(1)(a)(b)

Jurisdiction:

England and Wales

Citing:

ApprovedAdams v War Office QBD 1955
The fact that the Secretary of State has issued a certificate under section 10(1)(b) is no guarantee that the person in respect of whose case it is issued will be awarded a pension. . .

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 . .
Lists of cited by and citing cases may be incomplete.

Negligence, Constitutional, Armed Forces

Updated: 29 May 2022; Ref: scu.179733

Regina v District Court Martial Sitting at RAF Lyneham (ex parte SAC Wayne Robert James Stoodley): Admn 20 May 1998

The defendant sought certiorari of a refusal of an adjournment of his hearing by the respondent. His defence team had requested an adjournment for a psychiatric report. The court had said such a report would not go as to mens rea.
Held: The divisional court did have power to review a decision of the court to refuse an adjournment. The court should generally complete a hearing after an application is refused, and the defendant should then pursue an appeal. The context of an armed service where the defendant may be posted anywhere at short notice increases the need to avoid adjournments. Nevertheless, and allowing also for the absence of a power of a court martial to grant bail pending an appeal, the submission that the court should in principle be more lothe to interfere in relation to a decision to refuse an adjournment however illegal made by a Court Martial rather than any other legal tribunal, fails.

Citations:

[1998] EWHC Admin 567, [1998] EWHC Admin 568

Links:

Bailii, Bailii

Statutes:

Air Force Act 1955 69

Citing:

CitedRegina v Hereford Magistrates’ Court (ex parte Rowlands, Ingram); Regina v Harrow Youth Court (ex parte Prussia) Admn 10-Feb-1997
The power to adjourn a trial is conferred upon Justices by statute. The divisional court will intervene where defendants have been deprived of a fair opportunity to present their case. The decision whether to grant an adjournment is not a mechanical . .
CitedGovernment of America v Bowe PC 1990
Where a magistrates or similar court refuse a defence application for an adjournment, generally speaking, the entire case, including all the evidence which the parties wish to adduce, should be presented to the Magistrate before either side applies . .
CitedIn re Smalley HL 1985
Challenge by a surety to an estreatment of his recognizance was not a matter relating to a trial on indictment for the purpose of section 29(3) because it did not affect the conduct of the trial. A sensible legislative purpose can be seen for . .
CitedRegina v Birmingham City Council ex parte Ferrero Ltd CA 1993
The case concerned the prohibition in respect of chocolate eggs containing plastic toys one of which had been swallowed by and choked to death a small boy, and a power in the interests of public safety to prohibit the sale of particular goods, which . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Judicial Review

Updated: 27 May 2022; Ref: scu.138688

Regina v Ministry of Defence ex parte Walker: Admn 9 Feb 1998

The court dismissed the plaintiff’s request for judicial review of the refusal of the Criminal Injuries Compensation (Overseas) Scheme. He was injured serving as a United Nations Peacekeeper in Bosnia, from a single round fired into the block by a Serbian tank. It is not known whether the tank aimed its fire at the accommodation block or whether it was an accident while it was shooting at something else. However, nearby British and Canadian forces immediately responded with rocket and high explosive fire, clearly treating it as a warlike act. For the purpose of this appeal the Ministry has regarded it as a deliberately aimed shot at the peacekeeping unit’s base.
Held: The court rejecte dthe proposed argument distinguishing between war operations or military activity by warring factions on the one hand and an international crime on the other.
Latham J said: ‘The Scheme only has application where a crime has been committed. The question which has to be answered is whether the actions which constituted the crime amounted to ‘military activity’ in the ordinary sense of that phrase. I readily accept that the mere fact that, for example, a member of one of the warring factions in uniform shot at and killed or injured a peacekeeping soldier would not of itself lead to the inference that that person was engaged in ‘military activity’. An individual act of violence may not, without more, have the necessary qualities of planning or cohesive action which would justify that description. But it seems to me that an attack by a tank on an observation post and accommodation such as the attack on the Maglaj School in the present case, does have those qualities. It follows that the Respondent was, in my judgment, entitled to conclude that the injuries sustained by the Applicant, albeit that they were sustained as a result of a crime of violence, fell within the exception set out in the policy.’

Judges:

Latham J

Citations:

[1998] EWHC Admin 157

Links:

Bailii

Cited by:

Appeal fromRegina v Ministry of Defence, Ex Parte Walker CA 5-Feb-1999
The scheme provided by the Ministry of Defence to compensate soldiers for being injured by criminal acts did not cover a wound inflicted by a shell fired from a tank whilst on peacekeeping duties. This was akin to a war injury.
Auld LJ said: . .
At AdmnRegina v Ministry of Defence, ex parte Walker HL 6-Apr-2000
The Ministry of Defence operated a scheme for compensating soldiers serving abroad who were injured as a result of criminal activity. The claimant, whilst serving on a peace-keeping mission in Bosnia, was injured when a hut was hit by a shell fired . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Armed Forces

Updated: 27 May 2022; Ref: scu.138278

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

Judges:

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

Citations:

[1999] EWHC Admin 747

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Administrative, Armed Forces

Updated: 23 May 2022; Ref: scu.135821

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

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

Citations:

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

Links:

Bailii

Statutes:

Human Rights Act 1998

Citing:

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

Cited by:

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

Criminal Practice, Human Rights, Armed Forces

Updated: 23 May 2022; Ref: scu.135616

Murray v The United Kingdom: ECHR 28 Oct 1994

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

Judges:

Ryssdal, President

Citations:

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

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

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

Human Rights, Northern Ireland, Armed Forces, Human Rights

Updated: 22 May 2022; Ref: scu.165336

Cox v Army Council: PC 1963

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

Judges:

Viscount Simonds, Lord Reid

Citations:

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

Cited by:

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

Crime, Armed Forces, Commonwealth

Updated: 20 May 2022; Ref: scu.373404

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

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

Judges:

Lord Bingham of Cornhill LCJ, Hooper J

Citations:

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

Links:

Bailii

Statutes:

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

Citing:

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

Human Rights, Natural Justice, Armed Forces

Updated: 19 May 2022; Ref: scu.87364

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

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

Citations:

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

Links:

Bailii

Criminal Sentencing, Armed Forces

Updated: 19 May 2022; Ref: scu.86689

Regina v Clegg: HL 25 Jan 1995

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

Judges:

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

Citations:

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

Links:

Bailii

Statutes:

Criminal Law Act (Northern Ireland) 1967

Jurisdiction:

Northern Ireland

Citing:

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

Crime, Armed Forces

Updated: 19 May 2022; Ref: scu.86397

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

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

Judges:

Auld, Chadwick LJJ, Sir Christoper Staunton

Citations:

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

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Personal Injury, Armed Forces

Updated: 19 May 2022; Ref: scu.85413

Cable et Al v United Kingdom: ECHR 18 Feb 1999

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

Judges:

L Wildhaber P

Citations:

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

Links:

Bailii

Statutes:

European Convention on Human Rights

Human Rights, Armed Forces, Criminal Practice

Updated: 19 May 2022; Ref: scu.78815

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

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

Judges:

Simon Brown LJ and Curtis J

Citations:

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

Statutes:

European Convention on Human Rights 8

Citing:

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

Cited by:

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

Employment, Administrative, Human Rights, Discrimination, Armed Forces

Updated: 17 May 2022; Ref: scu.87365

Derry v Ministry of Defence: QBD 8 Jun 1998

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

Citations:

Times 08-Jun-1998

Statutes:

Crown Proceedings Act 1947

Cited by:

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

Professional Negligence, Health Professions, Armed Forces

Updated: 15 May 2022; Ref: scu.79928

Secretary of State for Defence v Warn: HL 1970

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

Citations:

[1970] AC 394

Jurisdiction:

England and Wales

Cited by:

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

Armed Forces, Criminal Practice

Updated: 14 May 2022; Ref: scu.254622

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

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

Judges:

Lord Atkinson, Lord Wright, Viscount Cave, Lord Shaw

Citations:

[1921] 1 AC 99

Statutes:

Naval Discipline Act 1866 30

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Armed Forces, Transport

Updated: 14 May 2022; Ref: scu.237694

Re Clifford and O’Sullivan: HL 1921

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

Citations:

[1921] AC 570

Jurisdiction:

England and Wales

Cited by:

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

Extradition, Armed Forces

Updated: 12 May 2022; Ref: scu.183548

China Navigation Co Ltd v Attorney General: CA 1932

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

Judges:

Lawrence LJ

Citations:

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

Cited by:

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

Constitutional, Armed Forces

Updated: 11 May 2022; Ref: scu.554757

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

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

Judges:

Underhill J

Citations:

[2009] EWHC 397 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Torts – Other, Armed Forces

Updated: 11 May 2022; Ref: scu.320870

Adams v War Office: QBD 1955

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

Citations:

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

Statutes:

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

Cited by:

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

Armed Forces, Personal Injury, Vicarious Liability

Updated: 09 May 2022; Ref: scu.194881

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

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

Citations:

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

Cited by:

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

Criminal Practice, Armed Forces

Updated: 08 May 2022; Ref: scu.86043

Molaudi v Ministry of Defence: CA 21 Mar 2012

Affirmed

Judges:

Hooper LJ

Citations:

[2012] EWCA Civ 576

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Employment, Armed Forces

Updated: 08 May 2022; Ref: scu.470921

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

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

Judges:

Lord Justice Tomlinson

Citations:

[2012] EWCA Civ 58

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Armed Forces

Updated: 08 May 2022; Ref: scu.450535

Regina v Arnold: CMAC 16 May 2008

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

Judges:

Lord Justice Hughes, Mr Justice Treacy and Sir Peter Cresswell

Citations:

Times 13-Jun-2008

Statutes:

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

Jurisdiction:

England and Wales

Armed Forces, Criminal Practice

Updated: 07 May 2022; Ref: scu.277727

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

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

Judges:

Hollis J

Citations:

[1990] Fam 182

Jurisdiction:

England and Wales

Cited by:

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

Children, Armed Forces

Updated: 06 May 2022; Ref: scu.588168

Scott v Regina: 2004

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

Citations:

[2004] 123 CRR (2d) 371

Jurisdiction:

Canada

Cited by:

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

Constitutional, Armed Forces

Updated: 06 May 2022; Ref: scu.582140

In Re Mansergh: 11 Jun 1861

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

Citations:

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

Links:

Commonlii

Armed Forces, Jurisdiction

Updated: 05 May 2022; Ref: scu.284472

Astley v Ray And Others: 28 Nov 1809

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Armed Forces

Updated: 02 May 2022; Ref: scu.335139