Hassan, R (on the application of) v Secretary of State for Defence

Article 1 of the European Convention on Human Rights is primarily territorial. Extraterritorial jurisdiction is exceptional and requires special justification. Mere authority or physical control over an individual abroad is insufficient.

For jurisdiction to arise through effective control, the state must possess legal powers enabling it to perform substantial governmental functions and secure the Convention rights. A detention facility remains under the control of the accepting power where responsibility for safeguarding, accountability and post-transfer jurisdiction has been transferred to that power.

The claimant sought judicial review concerning the detention and subsequent death of his brother, who had been captured by UK forces in Iraq and transferred to Camp Bucca. The claim depended on the application of the European Convention on Human Rights, although the events occurred outside the United Kingdom and Iraq was not a Convention state.

The Secretary of State argued that the Convention did not apply because the events fell outside the United Kingdom’s territorial jurisdiction. The central issue was whether the claimant’s brother came within UK jurisdiction under article 1 during his capture or detention at Camp Bucca.

1. Permission to apply for judicial review was granted, but the claim was dismissed.

2. Article 1 jurisdiction is primarily territorial. The exceptional categories identified in R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, applying Bankovic v Belgium and others (2001) 11 BHRC 435, required more than the mere exercise of authority or control over an individual.

3. The analysis in Al-Skeini was reinforced by R (Gentle) v Prime Minister [2008] 1 AC 1356 and R (Al-Saadoon) v Secretary of State for Defence [2009] EWCA Civ 7. The relevant question was whether the United Kingdom possessed effective legal control enabling it to secure the full range of Convention rights, rather than merely factual control.

4. The claimant could not invoke the Convention in relation to events before detention at Camp Bucca. During detention, the Memorandum of Understanding made the United Kingdom the detaining power but made the United States the accepting power. The accepting power was responsible for maintaining and safeguarding transferred detainees, accurate accountability, and primary jurisdiction over post-transfer disciplinary and judicial offences.

5. Those arrangements meant that the United Kingdom lacked substantial control over the detainee’s day-to-day living conditions. Camp Bucca therefore could not be treated as a UK military establishment or as equivalent to an embassy, ship or aircraft. The presence of UK personnel did not alter its legal status.

6. The United Kingdom did not exercise such effective control over the relevant territory or person as to bring the events within article 1 jurisdiction. It was unnecessary to decide the remaining issues.