Al-Waheed v Ministry of Defence [2014] EWHC 2714 (QB)

[2014] EWHC 2714 (QB)Case No HQ13X01906
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2014
Before
MR JUSTICE LEGGATT
Between
Abd Ali Hameed Ali Al-WaheedClaimantThe Ministry of DefenceDefendant
Richard Hermer QC & Alison Pickup (instructed by Leigh Day) for ClaimantDerek Sweeting QC (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 12 June 2014
JudgmentMr Justice Leggatt :Introduction
[1]Several hundred claims have been brought in the High Court in which Iraqi civilians are seeking damages from the Ministry of Defence (“MoD”) for their allegedly unlawful detention and/or unlawful treatment by British armed forces on various dates during the period when British armed forces were present in Iraq. That period began on 20 March 2003, when a coalition of armed forces led by the United States and including a large contingent from the UK invaded Iraq, and ended on 31 December 2008. The claims are made under the Human Rights Act 1998. In particular, those claimants who allege that they were unlawfully detained contend that they were deprived of their liberty in violation of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and are accordingly entitled to compensation under Article 5(5) of the Convention and section 8 of the Human Rights Act.[2]More than 200 of these claims concern detention which occurred after 8 June 2004, when United Nations Security Council Resolution (“UNSCR”) 1546 entered into force. It is common ground that on the present state of the law this court is bound to follow the decision of the House of Lords in R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332 and to dismiss these claims, notwithstanding the subsequent decision of the Grand Chamber of the European Court of Human Rights in Al-Jedda v United Kingdom (2011) 53 EHRR 23.[3]At a pre-trial review in the litigation held on 12 June 2014 the claimants applied to the court to dismiss one or more of the claims and to grant a ‘leapfrog’ certificate under section 12 of the Administration of Justice Act 1969 to enable an appeal to proceed directly to the Supreme Court. The matter has since been further addressed by the parties in written submissions and the MoD has consented to this course. I consider that this is a proper case in which to grant such a certificate and this judgment gives my reasons.

The present case

[4]The case in which I am granting the certificate is a typical example of the relevant group of claims. Mr Al-Waheed was arrested by British soldiers on 11 February 2007 and detained until 28 March 2007, when he was released. He alleges that his detention was unlawful and violated Article 5 of the Convention, and also that he was assaulted while in custody. The MoD in its defence admits that Mr Al-Waheed’s internment was attributable to the United Kingdom and that during his internment he fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention. However, the MoD contends (among other defences) that Mr Al-Waheed’s detention was authorised by UNSCR 1546 which displaced the obligation of the UK to secure Mr Al-Waheed’s rights under Article 5 of the Convention.[5]The basis for this contention is the decision of the House of Lords in Al-Jedda v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332.

The Al-Jedda case: the House of Lords

[6]By the time of his appeal to the House of Lords, Mr Al-Jedda had been detained by UK armed forces at detention facilities in Iraq for over three years (since October 2004). He was suspected of being a member of a terrorist group, but had not been charged with any offence, and no charge or trial was in prospect. He sought judicial review of his detention on the ground that it was contrary to Article 5 of the Convention. His claim failed on the basis that his rights under Article 5 were displaced by an obligation on the UK to detain him pursuant to UNSCR 1546.[7]UNSCR 1546 authorised a multi-national force (“MNF”) under unified command to “take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution …” The letters annexed to the resolution were two letters both dated 5 June 2004 to the President of the Security Council written by, respectively, the Prime Minister of the Interim Government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell). The letter from Dr Allawi sought a new resolution of the Security Council to authorise the MNF to contribute to maintaining security in Iraq, “including through the tasks and arrangements set out in the letter from [Mr Powell]”. The letter from Mr Powell confirmed that the MNF was prepared to continue to contribute to the maintenance of security in Iraq and stated:
“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. …”
[emphasis added][8]The mandate for the MNF conferred by UNSCR 1546 was extended by three subsequent Security Council resolutions: UNSCR 1637 of 8 November 2005, which extended the authorisation of the MNF until 31 December 2006; UNSCR 1723 of 28 November 2006, which extended the authorisation until 31 December 2007; and UNSCR 1790 of 18 December 2007, which extended the authorisation until 31 December 2008.[9]The argument advanced by the Secretary of State to justify Mr Al-Jedda’s detention was founded on Article 103 of the UN Charter, which states:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
The Secretary of State argued that UNSCR 1546 imposed an obligation on the UK to detain Mr Al-Jedda which conflicted with and prevailed over the UK’s obligation to secure to him the rights defined in Article 5 of the Convention.[10]This argument was successful before the Divisional Court, the Court of Appeal and the House of Lords.[11]The reasoning of the House of Lords appears from the judgment of Lord Bingham (with whom all the other members of the appellate committee agreed on this issue). In summary, he held that: i) Mr Al-Jedda’s detention was necessary for imperative reasons of security and was therefore authorised by UNSCR 1546. ii) Although UNSCR 1546 used the language of authorisation, it should be interpreted as imposing a legal obligation on the UK, and not just a power, to detain where this was necessary for imperative reasons of security; and iii) By reason of Article 103 of the UN Charter, that obligation prevailed over the UK’s obligation to secure Mr Al-Jedda’s rights under Article 5 of the Convention.

The Al-Jedda case: the European Court of Human Rights

[12]After losing his case in the English courts, Mr Al-Jedda sought just satisfaction in Strasbourg. The decision of the Grand Chamber was given on 7 July 2011: see Al-Jedda v United Kingdom (2011) 35 EHRR 23. The Court held that there had been a violation by the UK of Article 5(1) of the Convention and rejected the argument which had succeeded in the English courts that Article 5 was overridden by UNSCR 1546.[13]The Court approached the case by considering the purposes for which the United Nations was created and noted (as had Lord Bingham) that, as well as the purpose of maintaining international peace and security, these purposes include under Article 1 of the UN Charter “promoting and encouraging respect for human rights and fundamental freedoms”. In addition, Article 24(2) of the Charter requires the Security Council, in discharging its responsibility for the maintenance of international peace and security, to “act in accordance with the Purposes and Principles of the United Nations”. Against this background, the Court found (at para 102) that:
“... in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council Resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend states to take particular measures which would conflict with their obligations under international human rights law.”
[14]Applying this presumption, the Court did not consider that the language used in UNSCR 1546 indicated unambiguously that the Security Council intended to place member states within the MNF “under an obligation to use measures of indefinite internment without charge and without judicial guarantees, in breach of their undertakings under international human rights instruments including the Convention.” In the Court’s view, although internment was specifically referred to in the letter from Mr Powell annexed to the Resolution as one of the “broad range of tasks” which the MNF stood ready to undertake, “the terminology of the Resolution appears to leave the choice of the means to achieve this end to the Member States within the [MNF]”. In those circumstances the Court applied the presumption that the Security Council intended member states to contribute towards the maintenance of security in Iraq whilst complying with their obligations under international human rights law.[15]The Court concluded (at para 109) that neither UNSCR 1546 nor any other UNSCR imposed an obligation on the UK to detain an individual considered to constitute a risk to the security of Iraq indefinitely without charge. In those circumstances there was no conflict between the UK’s obligations under the UN Charter and its obligations under Article 5(1) of the Convention.

The binding status of the decision of the House of Lords

[16]In Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) at paras 208-212, I expressed the view, applying the principles stated in Kay v Lambeth LBC [2006] 2 AC 465 at paras 40-45, that this court, and indeed the Court of Appeal, is bound by the decision of the House of Lords in the Al-Jedda case, notwithstanding that the decision conflicts with the subsequent decision of the European Court. In this litigation it is common ground between the parties that this is so. It follows that the present claim (and all similar claims pending in the High Court) fall to be dismissed.

The requirements for a ‘leapfrog’ certificate

[17]The claimants have submitted, however, that this is an appropriate case in which to grant a certificate enabling an appeal to proceed straight to the Supreme Court and to ‘leapfrog’ the Court of Appeal. Pursuant to section 12 of the Administration of Justice Act 1969, a judge of the High Court may grant such a certificate in civil proceedings if the judge is satisfied: i) that a point of law of general public importance is involved which is one in respect of which the judge is bound by a decision of the Court of Appeal or of the Supreme Court Although section 12 was amended by the Constitutional Reform Act 2005, Sch 9 para 20(3), with effect from 1 October 2009 to substitute “Supreme Court” for “House of Lords”, it must be taken still to encompass binding decisions of the House of Lords. in previous proceedings, and which was fully considered in the judgments given by the Court of Appeal or the Supreme Court (as the case may be) in those previous proceedings; ii) that a sufficient case for an appeal to the Supreme Court has been made out to justify an application for leave to bring such an appeal; and iii) that all the parties to the proceedings consent to the grant of a certificate.[18]In addition, the court must be satisfied that, if no certificate was granted, the case would be a proper one for granting permission to appeal to the Court of Appeal: see section 15(3).[19]I am satisfied that all these conditions are met in this case. In particular: i) The point of law involved as to whether Article 5 of the Convention is overridden by UNSCR 1546 is plainly one of general public importance. It must have been so regarded by the House of Lords when leave to appeal was given in the Al-Jedda case. Its importance has not subsequently diminished, not least in view of the number of claims now pending in the High Court in which the point arises. ii) As already indicated, the point was fully considered by the House of Lords in the Al-Jedda case which is binding on this court and on the Court of Appeal. iii) The fact that the Grand Chamber of the European Court of Human Rights subsequently reached a different decision in the same case is clearly a matter which the Supreme Court would wish to take into account and is sufficient to justify an application for leave to appeal to the Supreme Court. iv) Furthermore, the MoD agrees that the appropriate course is for the court to dismiss the claim and to grant a certificate under section 12 of the Administration of Justice Act 1969. Thus, all the parties have consented to the grant of a certificate. v) If the power to grant such a certificate had not been available, the case would certainly have been a proper one in which to give permission to appeal to the Court of Appeal.

Conclusion

[20]Accordingly, I have made an order dismissing the claim and granting the application for a certificate under section 12 of the Administration of Justice Act 1969.

Cited in 3 later judgments