Detention by British forces in Iraq did not breach constitutional rights

13 July 2010 by Isabel McArdle

Al Jedda V Secretary Of State For Defence [2010] EWCA Civ 758 – Read judgment

The Court of Appeal has found that there was no breach of the “essence” of a right guaranteed under the Iraqi Constitution to have a prisoner’s detention reviewed by a judicial authority when the reviewing authorities were not judges, but had the necessary judicial qualities.

Mr Al Jedda was detained in Iraq in 2004 by British forces on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007 in Iraq but was at no time charged with any offence.

The case has had an interesting route through the courts which is worth summarising briefly. It has already been held that he is unable to bring any claim to test the lawfulness of his detention under the HRA (R (on the application of Al Jedda ) v Secretary of State for Defence [2007] UKHL 58), although, following the dismissal of that claim by the House of Lords, Mr Al Jedda made an application to the European Court of Human Rights. His case is joined with and often referred to as Al Skeini, and concerns the issue of extra-territorial jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights. The Grand Chamber of the Strasbourg court heard the case on 9 June 2010, and judgment is pending.

Damages for unlawful imprisonment

In this action, Mr Al Jedda has had to rely on a breach of Iraqi law rather than the Human Rights Act. He appealed against a decision dismissing his claim for damages for unlawful imprisonment between 20 May 2006, when the new Constitution of Iraq was constituted, and 30 December 2007 when he was released.

There were review mechanisms in place for his detention, with review at specified intervals and decisions being made by bodies including representatives of the Multinational Force (‘MNF’), the Iraqi government and the detaining state, procedures which were Geneva Convention compliant. However, articles 15 and 37(1)b of the Iraqi Constitution provided that no person could be deprived of liberty except by virtue of a judicial authority’s decision. At the centre of this appeal was the question of whether the review process in place breached these rights.

There were five questions to be answered in this appeal, explained at paragraph 21 by Arden LJ:

i)               Was the detention of Mr Al Jedda from 20 May 2006 unlawful under Iraqi law by reason of the operation or effect of the Iraqi Constitution?

ii)              In so far as Mr Al Jedda’s claim raises any issue as to the meaning or effect of provisions of the Iraqi Constitution, is the issue justiciable in an English court?

iii)            If Mr Al Jedda’s detention from 20 May 2006 was unlawful under Iraqi law, should the relevant provisions in Iraqi law be disapplied on the basis that they are inconsistent with the requirements of international law and their enforcement would accordingly be contrary to public policy pursuant to section 14(3) of the Private International Law (Miscellaneous Provisions) Act 1995 (‘PILA’)?

iv)             Does the immunity conferred on British forces operating in Iraq by Coalition Provisional Authority (‘CPA’) 17 have the effect that Mr Al Jedda’s claim discloses no actionable tort for the purposes of section 9 (4) of PILA?

v)              Is the Secretary of State entitled to rely on the defence of act of state?

On the first and most important question, whether the detention was unlawful under the Iraqi Constitution, Arden LJ dissented. She and the other LJJ found that,

A distinction can in such cases be drawn between the essence of a right and the remainder of the right.. The concept of the essence of a right means that the right has a core which is constant and constitutes a norm which prevails in all circumstances. (Paragraphs 56, 61)

In other words, the constitutional right in question had an essential part which was to be upheld at all times, whereas there may be less important rights which it conferred in ordinary circumstances which could be taken away when exceptional circumstances required this. She considered the essence of the right to be “(1) authorisation by judicial officer and (2) regular review” (Paragraph 59). She found that the essence of Mr Al Jedda ’s right in question had been breached by the detention and review process:

…As I see it, the decision must be taken by a judge who has judicial independence …the judiciary must be independent of the parties and of the state, in addition to having an independent frame of mind. They must have the constitutional guarantees necessary for them to reach an independent conclusion and those do not exist where the tribunal is composed of officers of the MNF, or representatives of the government of Iraq or of the United Kingdom and United States. In addition, what is also required is “a judicial decision”. That must mean a decision which follows a judicial process, that is, a process which is fair and gives the internee a hearing and the possibility of examining the evidence against him…The process of review in the present case, while it satisfied Geneva 4, did not constitute an independent process or indeed a judicial process. A judge also has to have certain qualities. I agree with Sir John Dyson SCJ that these qualities include impartiality and competence in legal matters… Moreover, for a decision to be a “judicial decision”, the decision must also be that of a judge, and thus it may well not be enough that the decision is made by a panel of persons, one of whom happens to be a judge.” (Paragraph 67)

The majority of the Court did not consider that Iraqi law was breached. Sir John Dyson SCJ concluded that,

In my judgment, it is the right to have the decision made by a person with judicial qualities rather than his or her status as a judge which is the essence of the protected right. The essence of the qualities of a judge is that he is independent, has the necessary intellectual skills to be able to decide what he has to decide in accordance with the law and, as is stated in the judicial oath which is sworn by judges when they take office in England and Wales, determines the issues that he has to resolve “without fear or favour, affection or ill-will”. (Paragraph 113)

He went on to consider that “It is not only a professional judge appointed as such who has these qualities. There is no reason in principle why a rigorous, suitably qualified and independently-minded assessor should not have all the essential qualities of a judge.” (Paragraph 114). Both he and Elias LJ considered that the decision makers involved in the review process had the necessary qualities to satisfy the elements of the essence of the right.

Elias LJ considered that, “the central core is an independent and genuine assessment by someone other than the initial decision maker” (Paragraph 156). Rather than focussing on the status of the decision maker, he considered the test to be focussed upon “what judicial oversight is designed to achieve” (Paragraphs 148,149). He found the procedures involved were sufficiently independent and impartial to meet the criteria. For instance, the decisions were made by people with access to written submissions by detainees and their representatives and some of those involved were not the original decision makes who opted for Mr Al Jedda ’s detention in the first place. He was influenced by considerations of what those who drafted the Constitution would have envisioned the essence of the right to amount to, given the serious security situation in Iraq at that time.

In relation to the second issue, the question of justiciability, the meaning of the parts of the Iraqi Constitution in question were justiciable by the Court, because “The issues in this action do not involve a challenge to the validity of the Constitution of Iraq.  This court would only be reaching conclusions as to the meaning of the Iraqi Constitution for the purposes of this private law claim in damages.” (Per Arden LJ, Paragraph 74). This is a matter the courts of this jurisdiction are perfectly capable of deciding.

On the third issue, the question of disapplication of Iraqi law due to public policy concerns, both Arden and Elias LJJ considered that the public policy exception should not apply here. Arden LJ explained, “That exception falls to be applied if the relevant law of Iraq is in some way in itself offensive or objectionable…There is nothing inherently offensive or objectionable about the Iraqi law on which Mr Al Jedda relies.” (Paragraph 86).

Regarding the fourth issue, CPA 17 only prevents those mentioned in it from being sued in Iraq. It does not prevent a claim based on Iraqi law being brought in a foreign court. Elias LJ stated, “CPA 17 is merely determining which system of courts is to determine the legal issues in question; it is not intended to defeat the right to bring a claim in any court” (Paragraph 170).

As for the fifth issue, the question of the defence of act of state, the Court did not come to a concluded view as it was not essential to the majority decision. The defence applies where the Crown can demonstrate that the act complained about was the exercise of a prerogative power overseas, that is an act which it is the Crown’s sole power to decide upon and perform and in relation to which the courts have no jurisdiction to consider legality. An example would be acts of war. It is unclear from authority whether the defence is available against a British national whose interests overseas happen to be harmed.

Sir John Dyson SCJ did not give a view on this question, but Arden LJ considered that the defence did bar a claim by Mr Al Jedda . She considered that,

…in my judgment, Al Jedda 1 established that the United Kingdom was entitled and bound under its obligations under Article 103 of the UN Charter to intern persons where this was necessary for the internal security of Iraq. Internment for this purpose would clearly qualify as an act of state…If courts hold states liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood is that states will be less ready to assist the UN achieve its role in this regard, and this would be detrimental to the long-term interests of the states. The individual is sufficiently protected in this situation by compliance with Geneva 4. (Paragraph 108).

She saw Mr Al Jedda’s British nationality (he had joint Iraqi-British nationality) as no bar to raising the defence in this case: “In my judgment, a British national is entitled not to have the defence of act of state raised against him by the British government where he both owes an obligation of allegiance and is constitutionally entitled to be protected against the type of act of which he complains. However, the actions of the British forces in that situation do not infringe any domestic constitutional protection available to Mr Al Jedda as a British national because the act had a legal basis in the overarching provisions of Article 103 of the UN Charter and Geneva 4.” (Paragraph 109).

Elias LJ came to only tentative conclusions on this issue, as it was not essential to his decision. He considered that the defence did not apply to an act of this type:

…The basis for [this deference to the Crown] appears to be a recognition that where the state through the executive government asserts that its actions are intended to protect interests of state, and the court accepts that this is so, the courts ought not thereafter to undermine that executive action by questioning further its legality…

Whatever the merits of that principle in a case where the act in question is a high act of policy, I do not think that it ought to carry much weight in a case where the act in question is specifically directed at a particular individual and deprives him of his liberty… A vital role of the courts has been to protect the individual against the state… at the very least it seems to me that the courts ought to scrutinise the act to ensure that the rights of the individual have been properly protected.(Paragraphs 212,213).

Accordingly, he did not consider that the defence applied here.

Judgment of the European Court still to come

The appeal was dismissed by the Court of Appeal, although the majority came to this decision for reasons other than Arden LJ. This was not the final throw of the dice for Mr Al Jedda, however, as the highly anticipated judgment of the European Court of Human Rights on whether the Human Rights Act applied in this context is still to come.