R (Al-Skeini) v Secretary of State for Defence

The House considered whether the Human Rights Act 1998 applies to acts of United Kingdom public authorities outside the United Kingdom and, if so, whether six killings in Basra engaged the United Kingdom's jurisdiction under article 1 of the European Convention on Human Rights. The majority held that the Act can apply extra-territorially but only where the United Kingdom has jurisdiction for the purposes of article 1 of the Convention. Applying Strasbourg authority (notably Bankovic) the House concluded that five of the deaths did not fall within United Kingdom jurisdiction and so the claimants' appeals in those five cases failed. The sixth case (Baha Mousa), brought within a British detention facility, fell within article 1 and was remitted for further proceedings. Key legal points included the presumption of territoriality in statutory interpretation, the proper use of section 3 HRA, the relationship between the Act and the Convention (section 1, section 6 and section 21), and the limited exceptional bases for extra-territorial jurisdiction such as effective control of territory or authority and control exercised over persons (as in unlawful rendition or custody).

The claims arose from six deaths (and one fatal maltreatment) in Basra in 2003 allegedly involving British forces. Relatives sought judicial review of the Secretary of State's refusal to order independent inquiries, bringing claims under the Human Rights Act 1998 (primarily invoking article 2 ECHR).

Procedural history: These were selected as test cases; the Divisional Court and Court of Appeal gave conflicting analyses on the Act's territorial scope and on whether the victims were "within the jurisdiction" of the United Kingdom. The cases reached the House of Lords on appeal and cross-appeal.

Issues framed:

• Whether the Human Rights Act 1998 has extra-territorial application to acts of United Kingdom public authorities.
• Whether the victims were within the United Kingdom's jurisdiction for the purposes of article 1 of the Convention such that article 2 procedural obligations to investigate applied.
• Whether, if within jurisdiction and within the Act's scope, a violation of Convention obligations had been established (the House did not finally rule on substantive violations except to remit the detention case).

Court's reasoning: The majority rejected a broad presumption that the Act is confined strictly to the United Kingdom; instead they interpreted section 6 so as to apply where the United Kingdom exercises jurisdiction under article 1, consistent with the Act's purpose of providing domestic remedies where Strasbourg would provide one. The House emphasised that the scope of article 1 is primarily a matter for the Strasbourg court and identified the clear, narrow categories recognised by Strasbourg (effective control of territory, diplomatic/consular or analogous custody/transfer cases, and a limited set of other exceptional circumstances). Applying that jurisprudence (notably Bankovic and related authorities), the House held that five of the killings did not attract United Kingdom jurisdiction and so the domestic Act did not provide a remedy; by contrast, the detention and maltreatment of Baha Mousa occurred in a UK-controlled detention facility and fell within article 1 so his case was remitted for further consideration and the Secretary of State's cross-appeal in relation to him was dismissed.

Appeal dismissed in part. The House held by majority that the Human Rights Act 1998 can have extra-territorial application only where the United Kingdom has jurisdiction under article 1 of the European Convention; applying Strasbourg jurisprudence the first five claimants were not within the United Kingdom's jurisdiction and their appeals were dismissed, but the sixth claimant (Mousa), detained in a British military facility, fell within article 1 and his case was remitted to the Divisional Court. The Secretary of State's cross-appeal in relation to Mousa was dismissed.

On appeal from the Court of Appeal [2005] EWCA Civ 1609 (appeal from the Divisional Court [2004] EWHC 2911 (Admin)). The House heard consolidated appeals and cross-appeals and gave judgment [2007] UKHL 26.