Al-Waheed v Ministry of Defence

A High Court judge is bound by a binding decision of the House of Lords, even where the European Court of Human Rights has subsequently reached a different conclusion in the same case. Where that issue is one of general public importance, has been fully considered by the binding appellate court, and the statutory requirements are met, the High Court may grant a certificate enabling a direct appeal to the Supreme Court. The parties’ consent is required, and the court must also be satisfied that the case would otherwise be suitable for permission to appeal to the Court of Appeal.

The claimant alleged that British forces unlawfully detained and assaulted him in Iraq, contrary to Article 5 of the Convention. The Ministry of Defence relied on the House of Lords decision in Al-Jedda v Secretary of State for Defence, which held that the relevant Security Council resolution displaced the United Kingdom’s Article 5 obligation. Although the Grand Chamber of the European Court of Human Rights later reached a different conclusion, the High Court considered itself bound by the House of Lords decision. The claimant sought dismissal of the claim and a certificate under section 12 of the Administration of Justice Act 1969 permitting a leapfrog appeal to the Supreme Court.

1. The claim was dismissed. The court held that it was bound by the House of Lords decision in R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58; [2008] 1 AC 332, notwithstanding the subsequent Grand Chamber judgment in Al-Jedda v United Kingdom (2011) 35 EHRR 23.
2. Following Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) and the principles stated in Kay v Lambeth LBC [2006] 2 AC 465, a lower court cannot depart from a binding House of Lords decision because a later Strasbourg decision is inconsistent with it.
3. Section 12 of the Administration of Justice Act 1969 permits a High Court judge to grant a leapfrog certificate where a point of law of general public importance is involved, the point was fully considered in a binding Court of Appeal or Supreme Court decision, a sufficient case for a Supreme Court appeal is shown, and all parties consent. Under section 15(3), the court must also be satisfied that the case would otherwise be a proper one for permission to appeal to the Court of Appeal.
4. Those requirements were satisfied. The conflict between the House of Lords and Strasbourg decisions, the number of similar pending claims, the full consideration of the issue in Al-Jedda, and the parties’ consent justified a direct appeal. An order was made dismissing the claim and granting the certificate.

• House of Lords: In R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58; [2008] 1 AC 332, the House of Lords held that the relevant Security Council resolution displaced the Article 5 obligation.
• Grand Chamber of the European Court of Human Rights: In Al-Jedda v United Kingdom (2011) 35 EHRR 23, the court reached the opposite conclusion.
• High Court (Queen’s Bench Division): The present claim was dismissed, and a certificate was granted under section 12 of the Administration of Justice Act 1969 for a direct appeal to the Supreme Court.