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

A claim concerning the proposed transfer of detainees to foreign criminal authorities is arguable where the transfer may expose them to Convention breaches, including ill-treatment, an unfair trial or capital punishment. The court must consider the applicability of the Human Rights Act 1998, the relevant Convention standard, and any obligations arising under international law. The existence of foreign sovereignty or an asserted duty to surrender does not itself resolve whether the transfer is lawful. At the permission and directions stage, delay may remain open where the claim raises an important human-rights issue and the adequacy of assurances has only recently been determined.

The claimants, two Iraqi nationals detained by British forces in Iraq, faced transfer to the Iraqi authorities for prosecution for alleged murders treated as war crimes. Proceedings before the Iraqi High Tribunal could involve a discretionary death penalty, and the claimants relied on concerns about fair-trial guarantees and ill-treatment in Iraqi detention facilities.

The Secretary of State contended that the claimants were already within the Iraqi criminal-justice system, that the British authorities had no legal power to refuse surrender, and that satisfactory assurances had been obtained. The claimants sought to challenge the lawfulness of transfer, relying principally on the Human Rights Act 1998, the European Convention on Human Rights and other international obligations. The central issue was whether transfer to the Iraqi authorities would be lawful.

1. Permission and procedure. The claim was arguable and was ordered to proceed as a rolled-up hearing. The delay issue was left open so that the defendant could argue it fully without relying on section 31(6) of the Supreme Court Act 1981 as stated in the judgment.
2. The substantive issue was confined to whether transfer to the Iraqi authorities would be lawful. The court identified three questions: whether the Human Rights Act 1998 applied to the British detention arrangements; whether a different Convention standard might apply because of Iraqi sovereignty; and whether the Convention against torture or other international obligations independently required refusal of transfer.
3. The claimants’ case that the Act applied to the detention centre was arguable. If the Act applied, transferring a detainee to a real risk of ill-treatment could engage Article 3. The possible existence of an unfair trial and the risk of capital punishment were also material considerations.
4. The court noted the Secretary of State’s reliance on R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643. That decision’s observations concerning diplomatic asylum and sovereignty raised a possible issue whether the applicable standard differed from the standard developed in the Strasbourg authorities, but the point was not decided at this stage.
5. The evidence did not establish a guarantee that the death penalty would not be imposed. Nor did it eliminate the arguable risk of Article 3 ill-treatment. Delay was unlikely, in the judge’s provisional view, to defeat the claim, but the issue remained available for argument.
6. The unlawful-detention issue was not dealt with separately because its practical significance depended on the legality of transfer. Directions were given for further evidence, skeleton arguments and a three-day hearing before a Divisional Court in the week commencing 17 November 2008.