How often must we investigate torture?

Al-Saadoon & Ors v. Secretary of State for Defence [2016] EWCA Civ 811, 9 September 2016 – read judgment.

This is the third in a series of posts on the Court of Appeal’s recent judgment. The full background to the case can be found in my earlier post here, with David Hart QC’s analysis of the ECHR jurisdiction aspect here, and Alistair Henderson’s analysis of whether the UN Convention Against Torture (CAT) could be relied upon in domestic law proceedings here.

This post concerns the extent of any obligations imposed on the UK to investigate violations of non-refoulement (under Article 3, ECHR) and arbitrary deprivation of liberty (Article 5, ECHR). The non-refoulement issue arose from two individuals whom had been captured by British forces in Iraq claimed they were transferred to American custody and subsequently ill-treated. The Article 5 issue arose from the detention by British forces in Iraq of  several individuals who claimed to have had their Article 5 rights violated whilst in British custody.

Article 3

The Court considered the application of the investigative obligation derived by implication from Article 3. This obligation was described by the ECtHR in Soering as “a decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”

Lord Justice Lloyd Jones observed that the Soering obligation directly concerned a risk arising outside the territory of a contracting state and it therefore added very significantly to the protection afforded by Article 3.

The Claimants argued that there was a duty to investigate any arguable breach of Article 3. Accordingly an investigative duty arises in all Soering–type cases where there was an arguable claim that the person transferred to the custody of another State faced a real risk of torture or serious mistreatment.

Leggatt J. below had held that the submission that an investigative obligation arises in all such cases was inconsistent with principle and with authority. He had concluded, that there were two situations in which, in principle, a violation of a Soering obligation under Article 3 could give rise to a duty to investigate: (1) cases in which a contracting state perpetrated mistreatment and (2) cases in which a contracting state aided or assisted mistreatment.

Lord Justice Lloyd Jones referred to the ECtHR cases regarding: the right to an effective remedy under Article 13;  where an investigative obligation had been found within Article 3 itself; and where ill treatment on the part of non state agent third parties had grounded such an obligation.

He made several observations:

  • There was a difference between the duty to investigate alleged ill treatment arising out of the positive obligation of a contracting state to protect those within its jurisdiction from treatment prohibited by Article 3 (which might require the state to investigate a credible complaint of such ill-treatment with a view, inter alia, to identifying and punishing those responsible); and the duty to investigate the conduct of state officials in exposing individuals to the risk of ill-treatment. An investigative duty in conjunction with the positive duty of protection under Article 3 arises only where the prohibited ill-treatment has occurred. §119
  • No case had been cited in which the Strasbourg court, let alone any domestic court, had said that there was a duty to investigate not just an allegation of ill-treatment committed by state agents but an allegation that state agents had exposed an individual to a risk of ill-treatment by others.§120
  • There no reason in principle why such a broad investigative obligation should be considered necessary in order to give effect to the prohibitions imposed by Article 3. §131

Lord Justice Lloyd Jones agreed with Leggatt J. that there were three important differences in principle between the infliction of torture or inhuman or degrading treatment and a breach of the Soering obligation:

(1) In terms of harm, exposing someone to a risk of ill treatment cannot reasonably be equated with actually subjecting a person to such treatment. 

(2) In terms of culpability, a breach of the Soering obligation can be committed without any mens rea or personal liability on the part of any state official. A breach may be established simply by showing the existence of substantial grounds for believing that the individual in question would face a real risk of being subjected to treatment contrary to Article 3 if sent to the receiving state. There is no requirement that state officials should have knowledge of the risk.

(3) Whereas subjecting a person to torture or other inhuman or degrading treatment is contrary to the criminal laws of civilised societies, the same cannot be said of a breach of the Soering obligation.”

He concluded at §136 neither on the authorities nor in principle was there to be found any support for the proposition that there is an investigative obligation which arises in all Soering-type cases where there was an arguable breach of the principle that detainees will not be transferred if, at the time of transfer, there was a real risk of torture or serious mistreatment.

However, Lord Justice Lloyd Jones also agreed with Leggatt J. that there were two potential situations where a violation of Article 3 in a Soering – type case could impose an investigative obligation.

The first is a situation in which an individual is handed over by a contracting state to agents of another state who torture or mistreat him under the direction or at the instigation of the contracting state. In such circumstances the contracting state which instructs or procures such treatment should be responsible in the same way as the state which carries it out.” §137

The second situation… is one in which it cannot be said that the contracting state which handed over the detainee continues to exercise control over him but there is nevertheless a sufficient level of involvement in torture or other serious mistreatment to which the detainee is subsequently subjected to amount to complicity in such treatment on the part of the contracting state.  §137

Article 5

The Court also considered the circumstances in which there might be a duty to investigate alleged violations of Article 5.

Lord Justice Lloyd Jones stated at §147 that it was common ground that a procedural duty to investigate arose under Article 5 in cases where there was an arguable claim that a person within the jurisdiction of a Contracting State had been the subject of enforced disappearance.

The Claimants argued that the circumstances in which a duty to investigate an alleged violation of Article 5 arises were not limited to cases of enforced disappearance, but that an investigative duty arose in all cases where detention takes place beyond the reach of the courts, even if such detention was not secret or unacknowledged. An investigative duty arose where detention arrangements were implemented by the State authorities with the result that detention took place beyond the reach of the courts, even if such detention was not secret or unacknowledged.

Lord Justice Lloyd Jones held that “While I readily accept the fundamental importance of the guarantees provided by Article 5, it does not follow that Article 5 must be equated for all purposes with Articles 2, 3 and 4… In the present state of the Strasbourg jurisprudence, enforced disappearance cases are acknowledged to give rise to an investigative obligation because where agents of the State have assumed control over an individual it is incumbent on the authorities to account for his or her whereabouts…I can see no reason in principle why it should be extended to all cases in which a person has been detained in the absence of judicial scrutiny or control, even if the detention is not secret or unacknowledged. In such cases where the detention has not been concealed or wilfully denied by the State, the procedures under Article 5(4) and (5) will normally provide a suitable remedy“.

Comment

The investigation by the UK into alleged abuses committed by its forces over the last fifteen years of expeditionary warfare and the murky world of the War on Terror has come under increasing media and political comment and criticism. This judgment may be therefore be another indication of the domestic court’s unwillingness to extend the parasitic investigative obligations under the ECHR beyond what they see as grounded in both the broad thrust of ECtHR jurisprudence and in principle.

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