How often must we investigate torture?

20 September 2016 by

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: