Al Jedda v Secretary of State for Defence

Under Articles 15 and 37(1)(B) of the Iraqi Constitution, read with Article 46, the essence of protection against detention is an objective, independent and legally informed assessment of whether detention remains justified. It does not invariably require a decision by a professional judge.

A multi-member review process may preserve that essence where it provides genuine consideration of the available material, regular review and an assessment of whether imperative security reasons continue. The procedures under CPA Memorandum No 3 met that minimum standard. The continued internment was therefore lawful under Iraqi law.

The appellant, a British and Iraqi national, sought damages for false imprisonment arising from detention by British forces in Iraq. The claim concerned the period from the adoption of the Iraqi Constitution in May 2006 until his release in December 2007.

Underhill J dismissed the claim. Earlier proceedings had established that Iraqi law governed the tort claim and that a claim under the Human Rights Act 1998 was displaced to the extent required by the United Kingdom’s obligations under the United Nations Charter: Al Jedda 1, [2008] 1 AC 332.

The central issue was whether the review arrangements under CPA Memorandum No 3 were incompatible with Articles 15 and 37(1)(B) of the Iraqi Constitution, notwithstanding Article 46.

1. Appeal dismissed. Sir John Dyson JSC and Elias LJ held that the appellant’s continued detention after 20 May 2006 was not unlawful under Iraqi law. That conclusion was sufficient to dispose of the appeal.

2. The majority held that Article 46 of the Iraqi Constitution permitted a limitation imposed by law which did not violate the essence of the relevant right. The essence of Articles 15 and 37(1)(B) was not the formal involvement of a professional judge. It was an independent, objective and legally competent assessment of the evidence against the applicable security criterion.

3. The review arrangements under section 6 of CPA Memorandum No 3 met that standard. They required regular review by bodies which considered the available intelligence, representations and whether imperative reasons of security continued. The procedures fell short of full judicial independence, but they sufficiently protected the core safeguards required by the Constitution in the prevailing security context.

4. Arden LJ dissented on that issue. In her view, the constitutional requirement of a judicial decision required an independent judge and a fair judicial process. The military and governmental review bodies did not meet that requirement. She would nevertheless have dismissed the appeal because the act of state defence applied to internment undertaken pursuant to the United Nations mandate.

5. The majority did not need to decide the remaining grounds. Elias LJ’s conclusions on CPA 17, public policy, justiciability and act of state were therefore alternative observations. Sir John Dyson JSC expressly reserved his position on act of state.

• Court of Appeal (Civil Division): dismissed the appeal: [2010] EWCA Civ 758 .
• High Court of Justice (Queen’s Bench Division): Underhill J dismissed the false-imprisonment claim on 5 March 2009.