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

Article 1 jurisdiction under the European Convention on Human Rights is essentially territorial. It may exceptionally arise where a state exercises effective control of a foreign area or authority and control over a person through its agents abroad. Military occupation under humanitarian law does not itself establish effective control for Convention purposes.

A person deliberately deprived of liberty by British forces abroad may fall within United Kingdom jurisdiction. Merely being affected or killed by military action does not establish personal jurisdiction. Where state-agent authority establishes Convention jurisdiction, sections 6 and 7 of the Human Rights Act 1998 provide a domestic remedy. Whether an Article 2 investigation is effective should ordinarily be determined after the relevant proceedings have concluded and the investigative history can be assessed as a whole.

The relatives of five Iraqi civilians killed during British military patrols in Basrah appealed from the Divisional Court’s decision, [2004] EWHC 2911 (Admin), that neither the European Convention on Human Rights nor the Human Rights Act 1998 applied to their cases. The Secretary of State cross-appealed in the sixth case, concerning Baha Mousa’s ill-treatment and death in British military custody. He accepted that the Convention applied to that case but disputed the application of the Act and the finding that the United Kingdom had breached its procedural duties under Articles 2 and 3.

The central questions were whether the United Kingdom exercised Article 1 jurisdiction through effective control of Basrah or authority and control over the deceased; whether the Act applied extraterritorially; and whether the investigation into Baha Mousa’s death satisfied the Convention.

1. Disposition. The appeal by the first five claimants and the Secretary of State’s cross-appeal were dismissed. The finding that the Human Rights Act 1998 applied to Baha Mousa’s case was upheld. The finding of an established procedural breach of Articles 2 and 3 was set aside as premature, and that issue was remitted to the Administrative Court with a recommendation that it be stayed pending the court-martial proceedings.

2. Brooke LJ, with Richards LJ agreeing, held that Article 1 jurisdiction is essentially territorial but recognises limited exceptions. Jurisdiction may arise through effective control of an area or through authority and control exercised over a person by state agents abroad. The latter exception includes a person deliberately and effectively deprived of liberty by British troops. Baha Mousa was therefore within United Kingdom jurisdiction from his arrest. The first five deceased remained at liberty until they were shot and were not under British authority and control. The fact that state agents caused or affected a death was insufficient by itself.

3. Although the United Kingdom was an occupying power under the Hague Regulations and the Fourth Geneva Convention, it did not exercise the effective control required by Convention jurisprudence. It lacked sufficient troops and had no executive, legislative or judicial authority over Basrah apart from limited military authority. Occupation under humanitarian law and effective control for Article 1 purposes were distinct factual standards. The first five appeals therefore failed.

4. Sections 6 and 7 of the Human Rights Act 1998 have extraterritorial effect in the limited cases where a public authority exercises Convention jurisdiction through state-agent authority. This construction accorded with the Act’s remedial purpose and the persuasive dicta in R (B) and Quark Fishing. The court left open the Act’s application where jurisdiction rests solely on effective control of an area.

5. An effective Article 2 investigation must be independent in law and practice, capable of determining whether force was justified and identifying those responsible, prompt, adequately open to scrutiny, and sufficiently inclusive of the next of kin. It must take reasonable steps to preserve witness, forensic and medical evidence. Brooke LJ considered the investigations into the first five deaths seriously deficient by those standards, but that conclusion did not affect the outcome because Article 1 jurisdiction was absent.

6. Sedley LJ agreed in the result but considered that an occupying power’s assumption of civil authority could require it to do everything reasonably possible to protect essential rights, particularly life. He expressed doubt rather than dissent because that approach was probably incompatible with the central reasoning of Bankovic.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 1609, dismissed the first five claimants’ appeal and the Secretary of State’s cross-appeal. It upheld the application of the Human Rights Act 1998 to Baha Mousa’s case but remitted the alleged procedural breaches of Articles 2 and 3.
2. Administrative Court, Divisional Court: In [2004] EWHC 2911 (Admin), held that the Convention and the Act did not apply to the first five cases. It held that they applied to Baha Mousa’s case and declared that the United Kingdom had violated its procedural duties under Articles 2 and 3.