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|Judgments - Al-Skeini and others (Respondents)
Secretary of State for Defence (Appellant)
Al-Skeini and others (Appellants)
Secretary of State for Defence (Respondent)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant)
Al-Skeini and others (Appellants) v. Secretary of State for Defence (Respondent)
 UKHL 26
LORD BINGHAM OF CORNHILL
1. These proceedings arise from the deaths of six Iraqi civilians, and the brutal maltreatment of one of them causing his death, in Basra. Each of the deceased was killed (or, in one case, is said to have been killed) and the maltreatment was inflicted by a member or members of the British armed forces. In each case a close relative of the deceased has applied in the High Court in London for an order of judicial review against the Secretary of State for Defence, seeking to challenge his refusal (by a letter of 26 March 2004) to order an independent enquiry into the circumstances of this maltreatment and these deaths, and his rejection of liability to afford the claimants redress for causing them. These six cases have been selected as test cases from a much larger number of claims in order, at this stage, to resolve certain important and far-reaching issues of legal principle.
2. The claimants found their claims in the English court on the Human Rights Act 1998 ("the HRA" or "the Act"). To succeed each claimant must show that a public authority has acted unlawfully, that is, incompatibly with a Convention right of the claimant or the deceased (section 6(1) of the Act). A Convention right means a right set out in one of the articles of the European Convention on Human Rights reproduced in Schedule 1 to the Act (sections 1(1), 1(3) and 21(1)). The claimant must also show that he or the deceased is a victim of the unlawful act (section 7(1), (3)), a requirement which gives rise to no issue in this case and may be set on one side. For present purposes it may be said that a claimant seeking to establish a claim under the Act has three substantial conditions to meet.
3. First, the claimant must show that his complaint falls within the scope of the Convention. This is an essential step, since it is clear that a claim cannot fall within the HRA if it does not fall within the Convention. In the ordinary run of claims under the Act, this condition gives rise to no difficulty: the claim relates to conduct within the borders of a contracting state such as the United Kingdom, and the question is whether a claimant's Convention right has been violated and if so by whom. But here the substantial violations alleged did not take place within the borders of a contracting state. They took place in Iraq, which is not part of the UK and not a contracting state. This is an important fact, since the focus of the Convention is primarily on what is done or not done within the borders of contracting states and not outside. To this rule, however, there are certain limited exceptions, recognised in the jurisprudence of the European Court of Human Rights in Strasbourg, the court vested by the Convention with the duty of interpreting and applying it. The claimants say that in each of their cases, because of the special circumstances in which British troops were operating in Basra, the conduct complained of, although taking place outside the borders of the UK (and, for that matter, any other contracting state), falls within the exceptions recognised by the Strasbourg jurisprudence, which the English court must take into account (section 2(1) of the Act). The Secretary of State originally contended in these proceedings that none of the claimants' complaints fell within the limited extra-territorial exceptions recognised by the Strasbourg court. But the Queen's Bench Divisional Court (Rix LJ and Forbes J,  EWHC 2911 (Admin),  QB 140) held that although the first five of the present claims fell outside the scope of the Convention the sixth, that of Colonel Mousa, did not. That is a ruling which the Secretary of State now accepts. So the first major issue between the parties is whether, as the first five claimants (strongly supported by the Interveners) contend, and the Secretary of State denies, their claims (or, at the very least, some of them) fall within the scope of the Convention. If the Secretary of State is right, their claims must fail. The Court of Appeal (Brooke, Sedley and Richards LJJ,  EWCA Civ 1609,  QB 140) held, although on grounds somewhat differing from those of the Divisional Court, that the first five claims do fall outside the scope of the Convention, accepting that the sixth falls within it. The Secretary of State supports that conclusion, although criticising the basis upon which the Court of Appeal held the sixth case to fall within the Convention.
4. Even if the claimants succeed on that first issue, they must satisfy a second condition: of showing that their claims, although falling within the scope of the Convention, also fall within the scope of the HRA. This again is an essential condition, for while a claim cannot succeed under the Act unless it falls within the scope of the Convention the converse is not true: a claim may in some circumstances fall within the scope of the Convention but not within the scope of the Act. Here the parties are in radical disagreement. The Secretary of State contends that the HRA has no application to acts of public authorities outside the borders of the UK. The Act has, in legal parlance, no extra-territorial application. Therefore, he submits, the claim of Colonel Mousa in the sixth case, and those of the other five claimants, cannot succeed under the Act. The claimants say that the Act does extend to cover the conduct of the British forces in Basra, given the special circumstances in which they were operating and what they did. Neither of the courts below accepted the full breadth of either party's submissions. They both held that Colonel Mousa's claim falls within the scope of the Act, a conclusion which the Secretary of State challenges. They both held that the first five claims fall outside the scope of the Act, a conclusion which those claimants challenge. If the claimants are wholly correct on the first issue (paragraph 3 above) but the Secretary of State is wholly correct on this issue, the claimants may have a claim which would succeed against the UK at Strasbourg but they have none against the Secretary of State under the Act.
5. If, and to the extent that, the claimants can satisfy these first two conditions, the success of their claims depends on their satisfying a third condition: that a Convention right has, in each case, been violated. The violation alleged consists primarily of a failure to investigate a violent death caused, or allegedly caused, by agents of the state, as the Convention has been held to require. The Divisional Court found such a violation in the case of Mr Mousa and would have found violations in the other five cases had they fallen within the scope of the Convention and the Act. The Court of Appeal agreed with the latter conclusion. But in Mr Mousa's case there had been factual developments of potential significance since the date of the Divisional Court's judgment, and the Court of Appeal concluded that this question should, in his case, be remitted to the Divisional Court. It is common ground that that order should stand, if the first two issues are resolved in Colonel Mousa's favour. But the Secretary of State resists the finding of violation, provisional though it has so far been, in the first five cases. Thus claimants 1-5 appeal against the dismissal of their claims and the Secretary of State cross-appeals against the ruling that Mr Mousa's case falls within the scope of the HRA.
6. The facts of the six cases, so far as they are now known, are rehearsed at some length in the judgments of the Divisional Court (paragraphs 56-89) and the Court of Appeal (paragraphs 22-29), to which reference may be made. The barest summary will suffice for present purposes.
Mr Hazim Jum'aa Gatteh Al-Skeini was shot dead on 4 August 2003 by a member of a British military patrol in Basra. The claimant is his brother. Very different accounts of the incident have been given by the claimant and his witnesses on one side and British military witnesses on the other.
Mr Muhammad Abdul Ridha Salim was fatally wounded on 6 November 2003 when British troops raided a house in Basra where he was. He received medical attention but died on 7 November 2003. The claimant is his widow. There is again a radical divergence between the respective parties' accounts of this incident.
Mrs Hannan Mahaibas Sadde Shmailawi was shot and fatally wounded on 10 November 2003 in the Institute of Education in Basra. On the British military account she was shot unintentionally during an exchange of fire between a British patrol and a number of gunmen. The claimant is the widower of the deceased, who accepts that the shooting of his wife was not intentional. It appears that she may have been a very unfortunate bystander, and the Secretary of State does not accept that the fatal shot was fired by a British soldier rather than a gunman.Case 4
Mr Waleed Sayay Muzban was shot and fatally injured on the night of 24 August 2003 in Basra. He was driving a people-carrier when he was shot, and he died the next day. The shooting occurred when a British military patrol was, on its account, carrying out a perimeter check and the vehicle, having initially stopped, was driven away and appeared to present a threat. The claimant is the brother of the deceased.
Mr Raid Hadi Sabir Al Musawi was shot and fatally wounded by a member of a British military patrol in Basra on 26 August 2003. He died nine weeks later, on 6 November 2003. The claimant is his mother. The parties' respective accounts of what happened, as in the first case (which, on the facts, it resembles), are radically divergent.
Mr Baha Mousa was employed as a receptionist at a hotel in Basra and was working there on the morning of 14 September 2003 when British troops entered the hotel. He was seized and detained and taken to a British military base in Basra. At the base he was brutally beaten by British troops. He died of the injuries so inflicted during the night of 15 September 2003. The claimant is the father of the deceased, and is a colonel in the Basra police. This deceased, unlike the others, was killed by British troops when held as a prisoner in a British military detention unit. This is the limited basis upon which the Divisional Court held that this case falls within the scope of the Convention, and this is the basis upon which the Secretary of State accepts that finding.
7. It is convenient to consider first the second of the three issues outlined above, that summarised in paragraph 4.
A. Does the HRA apply to acts done outside the territory of the UK?
8. The HRA is a statute enacted by Parliament. Where an issue arises as to its meaning, it must be construed. This is a task which only a UK court can perform. The court in Strasbourg is the ultimate authority on interpretation of the European Convention, but it cannot rule on the interpretation of a domestic statute. That is the task which the House is now called upon to perform.
9. In carrying out that task the House must employ the familiar tools of statutory interpretation. The starting point is the language of the Act, from which the court seeks to derive the meaning of what Parliament has enacted. Significance may be attached not only to what Parliament has said but also, on occasion, to what it has not said. Attention may be paid to presumptions applicable to the drafting of statutes, since these are rules which expert professional draftsmen may ordinarily be expected to follow in the absence of reason to conclude that they may not have done so or an indication in the statute that they have not done so. While the express terms of a statute are always crucial, the courts will eschew an overly literal construction, taking account of the purpose of the statute, the mischief sought to be remedied and other circumstances relevant to interpretation. It is of course very relevant that the HRA is directed to the protection of human rights, with particular reference to the European Convention, which the UK ratified on 8 March 1951 and which came into force on 3 September 1953 when Luxembourg became the tenth contracting state to ratify.
10. Since 3 September 1953 the UK has been bound in international law to comply with the obligations undertaken in the Convention, and in later protocols to the Convention which it has formally ratified. But for upwards of 40 years the UK took no step to give domestic legal effect to these international obligations. The object of the HRA was to do so. This object could have been achieved by a simple incorporation of the Convention (or some or all of its articles) into domestic law. But this is not what was done, as clearly explained by my noble and learned friends Lord Nicholls of Birkenhead and Lord Hoffmann in In re McKerr  UKHL 12,  1 WLR 807, paragraphs 25 and 62-65, and by Lord Hoffmann in R v Lyons  UKHL 44,  1 AC 976, paragraph 27. The technique adopted, briefly summarised in paragraph 2 above, was to provide in section 6(1) that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". A "Convention right", by section 1, meant a right or fundamental freedom set out in articles 2 to 12 and 14 of the Convention, articles 1 to 3 of the First Protocol and articles 1 and 2 of the Sixth Protocol, as read with articles 16 to 18 of the Convention, subject to any designated derogation or reservation. The listed articles were set out in Schedule 1 to the Act. "The Convention" was defined in section 21(1) of the Act to mean the Convention agreed by the Council of Europe at Rome on 4 November 1950 "as it has effect for the time being in relation to the United Kingdom". Thus, as Lord Nicholls pointed out in McKerr, above, paragraph 25, there is a distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference to the Convention:
The focus of this opinion, at this stage of the enquiry, is on the extent of the rights arising under the Act, not those arising under the Convention. Hence the need for careful consideration, in the first instance, of the Act.
11. In resisting the interpretation, upheld by the courts below, that the HRA has extra-territorial application, the Secretary of State places heavy reliance on what he describes as "a general and well established principle of statutory construction". This is (see Bennion, Statutory Interpretation, 4th ed (2002), p 282, section 106) that
In section 128 of the same work, p 306, the learned author adds:
In Tomalin v S Pearson & Son Limited  2 KB 61, Cozens-Hardy MR, with the concurrence of Fletcher Moulton and Farwell LJJ, endorsed a statement to similar effect in Maxwell on The Interpretation of Statutes, pp 212-213:
Earlier authority for that proposition was to be found in cases such as Ex p Blain (1879) 12 Ch D 522, 526, per James LJ, and R v Jameson  2 QB 425, 430, per Lord Russell of Killowen CJ. Later authority is plentiful: see, for example, Attorney-General for Alberta v Huggard Assets Limited  AC 420, 441, per Lord Asquith of Bishopstone for the Privy Council; Clark (Inspector of Taxes) v Oceanic Contractors Inc  2 AC 130, 145, per Lord Scarman; Al Sabah v Grupo Torras SA  UKPC 1,  2 AC 333, para 13, per Lord Walker of Gestingthorpe for the Privy Council; Lawson v Serco Limited  UKHL 3,  ICR 250, para 6, per Lord Hoffmann; Agassi v Robinson (Inspector of Taxes)  UKHL 23,  1 WLR 1380, paras 16, 20, per Lord Scott of Foscote and Lord Walker of Gestingthorpe. That there is such a presumption is not, I think, in doubt. It appears (per Lord Walker in Al Sabah, above) to have become stronger over the years.
12. In argument before the courts below, the claimants relied on another presumption of statutory interpretation: that, as put by the Divisional Court in paragraph 301 of its judgment, "a domestic statute enacting international treaty obligations will be compatible with those obligations". The Divisional Court appears to have given some weight to this presumption, and in the Court of Appeal Sedley LJ appears to have accepted (paragraph 186) that "absent some clear indication to the contrary, domestic legislation is to be taken to have been intended to cohere with the state's international obligations". The classic exposition of the presumption in question is, however, that given by Diplock LJ in Salomon v Commissioners of Customs and Excise  2 QB 116, 143-144:
In the present case, the Secretary of State contends that the meaning of the HRA is clear and that its terms are not reasonably capable of more than one meaning. But even if he is wrong, this presumption gives the claimants little if any help since the UK undertook no international law obligation to incorporate the Convention into domestic law. It was so held by the Strasbourg court in James v United Kingdom (1987) 8 EHRR 123, para 84, Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, para 76, and McCann v United Kingdom (1995) 21 EHRR 97, para 153. It was also recognised by Brooke LJ in the Court of Appeal (paragraph 144) when he acknowledged that the UK was not obliged to incorporate the Convention into its national law, either in whole or in part. This is, I think, correct. The UK was not in breach of any obligation binding in international law when it omitted, from 1953 to 1998, to give the Convention any direct effect in domestic law. In 1997-1998 it had a policy choice, whether to give effect to the Convention in domestic law at all, and if so to what extent. A decision to give no directly enforceable domestic right to persons claiming to be victims of violations of Convention rights by UK authorities outside the UK, leaving such persons to pursue any such claim against the UK in Strasbourg, would have involved no breach of any obligation binding on the UK in international law. In argument before the House, the claimants did not seek to attach great weight to this presumption.
13. The Secretary of State points, in support of his submission, to the absence from the HRA of any of the forms of words used where Parliament intends a provision to have extra-territorial application. Examples were given in argument: "who commits, in a foreign country" (Criminal Justice Act 1948, s 31(1)); "whether in the United Kingdom or elsewhere" (Army Act 1955, s 70(1)); "whether in or outside the United Kingdom" (Geneva Conventions Act 1957, s 1(1)); "acts committed outside the United Kingdom by a United Kingdom national, a United Kingdom resident or a person subject to UK service jurisdiction" (International Criminal Court Act 2001, s 51(2)). There is, I think, force in this point, unless a clear inference of extra-territorial application can otherwise be drawn from the terms of the Act. It cannot be doubted that, if Parliament had intended the Act to have extra-territorial application, words could very readily have been found to express that intention.
14. The Convention provides in article 1 that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention". The Secretary of State points out that article 1 is not one of the articles to which domestic effect is given by section 1 of and Schedule 1 to the HRA. Therefore, he argues, the scope of the Act is to be found in construction of the Act and not construction of article 1 of the Convention. The claimants reject this argument, pointing out that article 1 confers and defines no right, like the other articles specified in section 1 of the Act and the Schedule. Article 1 of the Convention is omitted because, like article 13 (also omitted), it is provided for in the Act. I would for my part accept that Parliament intended the effect of the Act to be governed by its terms and not, save by reference, the Convention, consistently with the scheme described in paragraph 10 above. Thus there was no need to include article 1 in section 1 of the Act and the Schedule, nor article 13 since the Act contains its own provisions as to remedies in sections 4 and 8. But it is not strictly correct that only articles defining or conferring rights are included in section 1 and the Schedule, since articles 16 to 18 are referred to and included, and they define and confer no right. Had article 1 been included in section 1 and the Schedule, this would have assisted the claimants, since by 1997-1998 the Strasbourg jurisprudence had recognised some limited exceptions to the territorial focus of the Convention, and it could have been said that Parliament intended the territorial scope of the Act to be subject to the same limited exceptions. As it is, the omission of any reference to article 1 is of some negative assistance to the Secretary of State.