Alseran & Ors v Ministry of Defence

The Crown act of state doctrine applies only to acts authorised or ratified by a lawful exercise of the Crown’s powers. It does not protect torture, maltreatment or detention outside the scope of the authority conferred by the Crown. In armed conflict, detention must comply with international humanitarian law and the minimum procedural safeguards required by article 5 of the European Convention.

Hooding prisoners with sandbags, unjustified sensory deprivation, harsh interrogation and deliberate sleep deprivation may constitute degrading or inhuman treatment contrary to article 3. A review process must provide an impartial and fair assessment without undue delay. Iraqi limitation rules applied to the tort claims, but the court extended time for the Human Rights Act claims.

Four Iraqi civilians brought lead claims against the Ministry of Defence arising from capture, detention and alleged ill-treatment by British forces in Iraq. The claims were advanced in tort under Iraqi law and under the Human Rights Act 1998 for alleged breaches of articles 3 and 5 of the European Convention.

The court determined responsibility for the claimants’ detention, the legality of detention during the invasion, occupation and later non-international armed conflict, the adequacy of detention reviews, the operation of Crown act of state, limitation, and damages.

1. Crown act of state. The doctrine requires an exercise of sovereign power, inherently governmental in nature, done outside the United Kingdom, with the authority or ratification of the Crown and in the conduct of the Crown’s relations with other states or their subjects. The authority relied on must itself be a lawful exercise of executive power. Detention contrary to international humanitarian law or article 5 of the Convention was outside the scope of the authority conferred by the Crown.
2. International humanitarian law and article 5. During the invasion, British forces could remove and temporarily detain persons found in a combat zone where there was a reasonable security suspicion. That did not authorise internment at Camp Bucca without a lawful basis. A review was required shortly after detention, followed by regular reviews, by an impartial body applying a fair procedure. Ten days was the maximum reasonable period for an initial review in the circumstances.
3. Screening process. The Camp Bucca screening methodology wrongly treated any doubt about civilian status as requiring continued detention. The article 5 presumption in Geneva III applied only where the detainee had committed a belligerent act or taken part in hostilities. The process therefore rendered continued detention arbitrary.
4. Article 3. Running over prisoners’ backs, hooding with sandbags, beating, harsh interrogation, unjustified complete sensory deprivation and deliberate sleep deprivation constituted inhuman or degrading treatment. Substandard Camp Bucca conditions breached provisions of the Geneva Conventions but, assessed overall in context, did not themselves cross the article 3 threshold.
5. Mr Al-Waheed. His initial arrest and detention were lawful because there were reasonable grounds for suspicion. After the review committee decided to release him on 22 February 2007, continued detention until 28 March 2007 lacked lawful justification and breached article 5. The review process also breached article 5(4) because it lacked independence and gave him no meaningful opportunity to participate.
6. Limitation and remedy. The tort claims were time-barred under Iraqi law. It was equitable under section 7(5)(b) of the Human Rights Act to extend time. Damages were awarded under section 8 for proven Convention violations: £12,700 to Mr Alseran, £28,040 to MRE, £10,600 to KSU and £33,300 to Mr Al-Waheed.

First instance decision in four lead claims. The judgment records earlier appellate decisions relevant to the legal framework, including [2017] UKSC 1 and [2017] UKSC 2.