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

An interim court should preserve the practical effectiveness of an appeal where an imminent transfer would otherwise make the appeal rights ineffective. It cannot require the executive to continue detention after the legal basis for detention is expected to end. The appropriate response may be an urgent full hearing, with interim protection limited to the period for which detention can lawfully continue. Counsel’s convenience carries little weight against the risk that the appeal will become futile.

Two Iraqi nationals detained by British forces in Iraq sought judicial review to prevent their transfer to the Iraqi High Tribunal, which sought custody to try alleged war-crime offences. The Divisional Court dismissed the claim but granted permission to appeal and a short interim injunction.

The lower court held that physical custody brought the appellants within United Kingdom jurisdiction under Article 1 of the European Convention on Human Rights and the Human Rights Act 1998, but that Convention rights were qualified by international-law obligations arising from Iraqi territorial sovereignty. It found a real risk of death sentences but rejected the claim on that basis. The appeal concerned whether interim protection should continue, particularly because the United Nations mandate was due to expire and transfer could make the appeal ineffective.

Appeal allowed. The interim injunction was extended until 4.30pm on 30 December 2008. The substantive appeal was ordered to be heard urgently on 29 and 30 December by a full constitution of three Lords Justices.

1. The United Nations mandate authorising the presence of British forces in Iraq was due to expire on 31 December. On the evidence available, it was most unlikely that any subsequent agreement with Iraq would authorise continued detention of the appellants. The Secretary of State would therefore appear to lack legal authority to detain them from 1 January. The court could not order detention without a lawful basis and would not extend the injunction beyond the period compatible with that limitation.
2. The court did not finally determine whether United Kingdom jurisdiction under Article 1 of the European Convention on Human Rights would continue after the change in the status of British forces, or how the substantive transfer issues should be resolved. Those matters were left to the full court after full argument, including the territorial-sovereignty principle described by reference to R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643.
3. Transfer before the appeal was heard would probably make the appeal rights ineffective. The right to an effective remedy under Article 13 therefore supported an urgent merits hearing before 1 January, rather than an injunction that might require unlawful continued detention. A later decision that the transfer had been improper would provide inadequate practical relief.
4. Counsel’s convenience was not a material consideration against the urgent need to protect the practical efficacy of the appeal. Any question of further interim relief pending a further appeal was left for the full court.

• Divisional Court of the Administrative Court: On 19 December 2008, Richards LJ and Silber J dismissed the judicial review claim, granted permission to appeal, and granted an interim injunction until 4pm on 22 December 2008.
• Court of Appeal (Civil Division): On 22 December 2008, the appeal was allowed. The injunction was extended to 4.30pm on 30 December 2008 and the substantive appeal was expedited for hearing on 29 and 30 December.