Al-Skeini and others (Respondents) v. Secretary of State for Defence (Appellant) Al-Skeini and others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals)

The Human Rights Act 1998 applies to acts of a United Kingdom public authority outside national territory when the person affected is within United Kingdom jurisdiction under article 1 of the European Convention on Human Rights. That jurisdiction is primarily territorial. Extra-territorial jurisdiction is exceptional and requires special justification.

Military occupation does not by itself establish Convention jurisdiction. Territory-wide jurisdiction requires stringent effective control, which must be assessed consistently with the restrictive Strasbourg jurisprudence. A person merely affected by soldiers conducting security operations abroad does not thereby enter United Kingdom jurisdiction. A detainee held in a British military prison abroad may, however, fall within the narrow state-authority exception. The domestic procedural duty to investigate a death under article 2 arises only where the underlying death was capable of engaging the Act.

The consolidated claims arose from the deaths of six Iraqi civilians in Basra. Five were shot during British military security operations. Baha Mousa died after being beaten while detained in a British military facility. Their relatives sought judicial review of the Secretary of State's refusal to order independent investigations, relying on article 2 and section 6 of the Human Rights Act 1998.

The Divisional Court, [2004] EWHC 2911 (Admin), held that only the detention case fell within the Convention and the Act. The Court of Appeal, [2005] EWCA Civ 1609, upheld the exclusion of the first five claims and ordered the sixth claim to be remitted.

The questions before the House were whether the Act applied outside United Kingdom territory, whether the deceased were within United Kingdom jurisdiction under article 1 of the Convention, and whether any resulting article 2 investigative duty had been breached.

1. Disposition. By a majority of four to one, the House dismissed the appeals concerning the first five deaths and dismissed the Secretary of State's cross-appeal concerning Baha Mousa. The sixth claim was remitted to the Divisional Court for determination on updated evidence and pleadings. Lord Rodger, Baroness Hale, Lord Carswell and Lord Brown formed the majority. Lord Bingham dissented on the territorial reach of the Human Rights Act 1998.

2. Reach of the Act. Per Lord Rodger, whose conclusion was accepted by Baroness Hale, Lord Carswell and Lord Brown, the distinction between the territory to which an Act extends and the persons or conduct to which it applies is fundamental. Sections 6 and 7 were intended to provide a domestic remedy corresponding to the United Kingdom's Convention responsibility. Section 6 therefore applies to a United Kingdom public authority acting abroad where the affected person is within United Kingdom jurisdiction for article 1 purposes.

3. Convention jurisdiction. Per Lord Rodger and Lord Brown, with Baroness Hale and Lord Carswell agreeing, article 1 embodies an essentially territorial conception of jurisdiction. Extra-territorial jurisdiction is exceptional and requires special justification. National courts should follow the authoritative Strasbourg position without extending the Convention beyond what that jurisprudence clearly requires. The Grand Chamber's reasoning in Bankovic v Belgium (2001) 11 BHRC 435 was preferred to the wider observations in Issa v Turkey (2004) 41 EHRR 567.

4. Application. The United Kingdom did not exercise the stringent degree of effective control over Basra required to bring its inhabitants generally within article 1. Nor did the shootings during security operations themselves create the necessary jurisdictional link. The first five deceased were therefore outside United Kingdom jurisdiction, and no domestic article 2 investigative duty arose in relation to their deaths.

   Baha Mousa was within United Kingdom jurisdiction while detained in a British-controlled military prison. The majority accepted that narrow category without adopting a general rule that every person subject to a British soldier's use of force abroad is within United Kingdom jurisdiction.

5. Dissent. Lord Bingham considered that the statutory presumption against extra-territorial application had not been rebutted. He would have held that no claim based on acts or omissions of British forces abroad lay under the Act, allowed the cross-appeal and dismissed the sixth claim as well.

1. House of Lords: In Al-Skeini and others v Secretary of State for Defence [2007] UKHL 26, the first five appeals and the Secretary of State's cross-appeal were dismissed. The sixth claim was remitted to the Divisional Court.

2. Court of Appeal: In [2005] EWCA Civ 1609, the court held that the first five deaths fell outside the Convention and the Act, accepted that Baha Mousa's case fell within them, and ordered that claim to be remitted.

3. Divisional Court: In [2004] EWHC 2911 (Admin), the court held that the first five claims were outside the Convention and that the sixth fell within the Convention and the Act because the death occurred in a British military detention facility.