Al Skeini & Ors, R (on the application of) v Secretary of State for Defence

Article 1 of the Convention is essentially territorial. Exceptional jurisdiction may arise where a state exercises authority from a discrete quasi-territorial location abroad, such as a prison operated with the territorial state’s consent. The broader effective-control-of-an-area exception applies only within the Convention’s regional sphere and did not extend to Iraq. The Human Rights Act 1998 is construed consistently with that jurisdictional scope. A state must conduct an official, timely, independent, open and effective investigation into a death or serious ill-treatment engaging articles 2 or 3. Where a person dies in the custody of state agents, the state bears a particularly stringent burden to explain the death. Difficult operational conditions do not excuse an investigation that lacks independence, openness or effectiveness.

Six relatives of Iraqi civilians sought judicial review of the Secretary of State for Defence’s alleged failure to conduct adequate investigations into deaths occurring in Iraq between 1 May 2003 and 28 June 2004, when the United Kingdom was an occupying power. Five deaths resulted from shootings during military operations. The sixth, Baha Mousa, died in custody at a British military facility after arrest.

Following an order made by Collins J on 11 May 2004, the Divisional Court determined two preliminary issues: whether the Convention and the Human Rights Act 1998 applied, and whether the procedural investigative duties under articles 2 and 3 had been breached.

1. Jurisdiction. Article 1 jurisdiction is primarily territorial. The Convention’s regional character, its travaux préparatoires, international law and article 56 all support that conclusion. The exceptional effective-control-of-an-area doctrine developed in the northern Cyprus and Moldova cases did not extend to Iraq, which was outside the Convention’s regional sphere.
2. The separate extra-territorial exception is narrow. It covers recognised international-law situations such as embassies, consulates, vessels, aircraft and comparable locations where state authority has a discrete quasi-territorial quality. It does not extend to deaths caused by military operations in the field. The first five claims therefore fell outside the United Kingdom’s Convention jurisdiction.
3. Baha Mousa’s case was different. He was arrested and held in a British military prison in Iraq, operating with the consent of the Iraqi authorities. That custody brought him within the United Kingdom’s exceptional jurisdiction. The same result followed under the Human Rights Act 1998, which had to be construed, so far as possible, consistently with the Convention.
4. The procedural obligations under articles 2 and 3 require an investigation which is official, timely, independent both institutionally and practically, open to sufficient public scrutiny and effective in securing accountability. The next of kin must be involved to the extent necessary to protect their legitimate interests. Where death occurs in custody, the state bears a particularly stringent burden to provide a satisfactory and convincing explanation. The investigative duty is not displaced by security difficulties.
5. The investigation into Baha Mousa’s death was not shown to be timely, open or effective. Its outcome was unknown, the family had not been adequately involved, and there had been no public accountability. The court therefore held that articles 2 and 3 had been breached. On the hypothesis that the first five claims were within the jurisdiction, their investigations would also have failed the requirements of independence and effectiveness.

Collins J granted permission on 11 May 2004 for the preliminary jurisdictional and investigative issues to be determined and stayed the remainder of the judicial review claim. The Divisional Court then determined those preliminary issues.