Media By: Dominic Ruck Keene


The long arm of the law: Belhaj and Rahmatullah (No.1)

20 January 2017 by

aeroplaneThis blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3   involved the alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault.

The Supreme Court unanimously dismissed the Government’s appeals and ruled that the doctrine of state immunity was no bar to the claims, and that the Government and the various officials sued had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state so as to defeat the claims brought against them.

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Hot Water for Baroness Hale

17 November 2016 by

After the lynch mob of outrage stirred up by the recent Divisional Court ruling on Article 50, it is a brave judge indeed who would say anything in public about the question of whether and how Parliament (i.e. the legislature) needs to approve the notification of the European Council under Article 50 of the UK’s intention to leave the EU.

Baroness Hale was therefore perhaps pushing the envelope of bold courage to make a speech in Malaysia on 7 November and refer to that precise issue before the Supreme Court have heard the case.

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Parliament prevails

3 November 2016 by

Image result for uk parliament

In R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court, in a masterly exposition of the principles of constitutional law and statutory interpretation, held that the Secretary of State did not have the power under the Crown’s prerogative to give notice under Article 50 and thereby begin the process under which the United Kingdom will leave the European Union.

Sir Oliver Cromwell said in 1644 “We study the glory of God, and the honour and liberty of parliament, for which we unanimously fight, without seeking our own interests… I profess I could never satisfy myself on the justness of this war, but from the authority of the parliament to maintain itself in its rights; and in this cause I hope to prove myself an honest man and single-hearted.” I suspect that Cromwell will be reading the judgment delivered today and chuckling (if he ever would do something so frivolous) with pleasure at the sight of the High Court roundly defending the sovereignty of Parliament.
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Duplication in inquests

7 October 2016 by

The Divisional Court in R(Secretary of State) v Her Majesty’s Chief Coroner for Norfolk (British Airline Pilots intervening) – read judgment here – made some potentially noteworthy comments regarding the coronial role and the need to avoid duplicating previous investigations.

The case was largely about whether a Coroner could order disclosure of the transcript and/or recording from a cockpit flight recorder by virtue of her powers under the Coroners and Justice Act 2009. HM Senior Coroner for Norfolk was investigating the deaths of four men in a helicopter crash that had previously been investigated by the Air Accidents Investigation Branch (the AAIB).

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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.

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The Chilcot Report – an Illegal War?

7 July 2016 by

More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC’s ). The report’s executive summary, in particular the key findings section, is also well worth a read.  The intention is to cover in this and subsequent posts some of the key legal issues raised by the report.  This post considers the relevance of the Chilcot report’s findings to the broader issue of whether Britain’s intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry.
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Another door closes for the Chagossians

6 July 2016 by

In R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs  [2016] UKSC 35, the Supreme Court last week dismissed the attempt to set aside the House of Lord’s controversial 2008 decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61. The challenge was grounded in the disclosure of documents in the parallel proceedings of Bancoult No 3 relating to the reliability of a feasibility study into the long term viability of settlement in Chagos Islands.

Read More.

The Chagos Saga

Those who have followed David Hart and Rosalind English’s posts on the long running saga of the Chagossians will be familiar with the extremely unedifying tale of the British Government’s removal and resettlement between 1968 and 1973 of the Chagossians from their homes in the British Indian Ocean Territories in order to enable the construction of the key US base of Diego Garcia. In 2000 the Divisional Court upheld a challenge to the original statutory ordinance prohibiting the Chagossians from entering or being resident in the BIOT on the grounds that the Commissioner for the BIOT’s power to legislate for the peace, order and good government of the BIOT did not include a power to expel its inhabitants. However, following the completion of a feasibility study into the resettlement of the Chagossians a new statutory order was enacted in 2004 again prohibiting them from living in the islands. The 2008 decision rejected a challenge to the rationality, legality and procedural fairness of that order.

The present claim sought to overturn the 2008 decision on the basis that (1) the Foreign Secretary failed in breach of his duty of candour in public law proceedings to disclose relevant documents containing documents that would have been likely to affect the factual basis on which the House of Lords made its decision; and (2) there was new material that undermined that factual basis. Specifically, further documents had been disclosed that cast significant doubt on the conclusions of the feasibility study that any long term resettlement on the Chagos Islands was infeasible except at prohibitive cost. Accordingly, the Claimant would have been in a position to challenge the reliability of those conclusions, it was highly likely that the challenged would have succeeded, and that if the 2008 judgment was set aside, a new hearing would reach a different conclusion.

The judgments

Lord Mance gave the leading judgment for the majority. He began by addressing the alleged breach of duty of candour, and emphasised that a party’s failure to disclose relevant documentary information was clearly capable of subjecting another party to an unfair procedure. However, when considering whether to re-open an appeal it had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. Similarly, where fresh evidence has been discovered after a judgment that could not be appealed, then there had to be a powerful probability that an erroneous result was reached in the earlier proceedings.

Lord Mance analysed the 2008 judgment and set out citations from it that showed that the conclusions of the feasibility study had been given significant (perhaps even conclusive) weight by the majority. He summarised the issue as to whether it was probable or likely (he did not need to decide which it should be) that the material now available would have led the House of Lords to conclude that it was irrational and unjustified for the Foreign Secretary to accept and act on the feasibility study’s conclusions.

Lord Mance then turned to the feasibility study and to the documents disclosed that shed additional light on the degree to which the content of its ultimate conclusions had been influenced by pressure from the government and/or had not be based on sound science. Lord Mance noted that the critical conclusions had remained unchanged from the draft written by the consultancy who authored the report and the final version produced following comment and input from the FCO.  Accordingly he held that there was no probability, likelihood or even possibility that the court would have seen anything in the new material that would or should have caused the Foreign Sectary to doubt the report’s conclusions, or made it irrational or otherwise unjustifiable to act on them in June 2004. The issue was whether the Foreign Secretary was justified in acting as he did on the material that was or should have been available to him, not whether his decision could be justified on a revisiting of the whole issue of resettlement in the light of any other material which either party could adduce in 2016.

Lord Mance went on to hold that even if the threshold test for setting aside the House of Lords’ decision had been met, it would have been decisive that a new 2015 feasibility study has found that there is scope for settled resettlement. According “in practical terms., the background has shifted, and logically the constitutional ban needs to be revisited… it is open to any Chagossian now or in the future to challenge the future to abrogate the 2004 orders in light of all the information now available.

Lord Kerr’s powerful dissent (with which Baroness Hale agreed) is worth reading. He began by stating that if the decision on the feasibility of resettlement was reached on information that was plainly wrong, or was open to serious challenge, and it was at least distinctly possible that a different decision would have been formed if the full picture had been known, then the rationality of the 2004 Order should be re-examined.

Lord Kerr identified that in light of the Divisional Court holding that the government was no legal obligation to fund a resettlement, the feasibility study’s conclusions had to be capable of sustaining the Foreign Secretary’s decision that the risk of the government coming under pressure to meet the cost of, and to permit the resettlement of the Chagossians was such that they had to refused the right to return to their homes. That was the decision whose rationality was being challenged. Accordingly he held that “any reservations about the veracity of the claims made in the report assume an unmistakable significance. Unless the report was compelling and irrefutable in its conclusions, its capacity to act as the sole justification for the denial of such an important right was, at least, suspect.” Lord Kerr also analysed the study, and the light shed by the new documents on how it had reached its final form. However, unlike Lord Mance, he concluded that there were questions raised about the validity of its conclusions. Therefore it was at least questionable that the majority of the House of Lords would have placed such heavy reliance on its conclusions, and a distinct possibility that there would have been different outcome. The appeal should therefore be re-opened.

The most trenchant part of Lord Kerr’s dissent is his categorical (and in my opinion compelling) argument that there was no possible juridical basis to deny a remedy solely because the Chagossians might be allowed to resettle in entirely different circumstances and for completely different reasons as underlay the original decision.

Where next?

It should be noted that the Supreme Court has given permission to appeal in Bancoult No 3 – in a challenge surrounding whether the Marine Protection Zone created around the Chagos Islands was created for the improper purpose of ensuring that the Chagossians would not be able to return. One day the Chagossians may yet be vindicated in their search for justice.

On another note – for those interested in the duty of candour see also a recent judgment of Sir Kenneth Parker in R (Biffa Waste Management Services Ltd) v the Commissioners for Her Majesty’s Revenue and Customs [2016] EWHC 1444 (Admin).

Censorship or justified Concern?

24 May 2016 by

Southampton_1912501bIR(Ben-Dor & Ors) v The University of Southampton [2016] EWHC 953 (Admin) (read judgment)

Mrs Justice Whipple dismissed one claim for judicial review, and refused permission to bring a further claim, in respect of decisions made by Southampton University regarding a proposed conference on the legality of the existence of Israel under international law. She held that the University had lawfully withdrawn its permission to hold the conference in April 2015, and refused permission to challenge the University’s subsequent decision to require the conference organisers to meet the conference’s security costs as a condition of allowing the conference to take place at a later date. The conference organisers had claimed that both decisions represented an unlawful interference with their Article 10 right to free expression and Article 11 right to free assembly.
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Free to light up… for a little longer

15 March 2016 by

Photo credit: The Guardian

In Secretary of State for Justice v Paul Black [2016] EWCA Civ 125 (read judgment) the Court of Appeal ruled that the Crown was not bound by Part 1 of the Health Act 2006 to ban smoking inside public prisons.

Paul Black, an inmate at HMP Wymott in Lancashire, complained that prison smoking rules were being flouted and should be made legally enforceable under Part 1. His lawyers told the hearings he suffered from a range of health problems due to frequent exposure to second-hand smoke, in particular on prison landings, in laundry rooms and in healthcare waiting rooms.

The Master of the Rolls, Lord Dyson, gave the only judgment. He identified the relevant issue as whether Part I of the Health Act 2006  applied to Crown premises, and in particular whether it applies to HMP Wymott. Part 1 made provision for the prohibition of smoking in certain defined ‘smoke-free’ premises and places, as well as for exceptions to the general prohibition. Section 3(2) enables ministers to make a special exemption for prisons.
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Litvinenko – When real life is more fantastic than fiction

25 January 2016 by

LitvinenkoNeil Garnham QC (now Mr Justice Garnham) and Robert Wastell of 1COR acted for the Secretary of State for the Home Department at the Litvinenko Inquiry. David Evans QC and Alasdair Henderson acted for AWE Plc. None was involved in preparing this post.

The publication on Thursday of the long awaited report by Sir Robert Owen into the circumstances of the death of Alexander Litivenko from polonium poisoning on 23 November 2006 has (unsurprisingly) resulted in bitter criticism by the Russian Government of the Inquiry’s conclusions that the poisoning was probably directed by the Russian Federal Security Service, and probably approved by President Putin. The report is long (246 pages not including Appendices), but in page after page of readable and measured prose Sir Robert Owen tells the extraordinary story of Alexander Litvinenko’s death and the subsequent 9 year investigation into it.
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The dark face of our imperial past

30 November 2015 by

malaya-007R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 – read judgment  

The Supreme Court has ruled that the United Kingdom was not obliged to hold a public inquiry into the shooting in December 1948 during the Malayan Emergency  by British troops of 24 unarmed civilians at Batang Kali. The Court held that (1) the lapse of time meant that there was no Article 2 requirement to hold an inquiry; (2) a duty to hold an inquiry could not be implied into common law under the principles of customary international law; and (3) the decision not to hold an inquiry under the Inquiries Act 2005  was not open to challenge on ordinary judicial review principles. However, the Supreme Court did hold that the deaths were within the United Kingdom’s jurisdiction for the purposes of the application of the ECHR.

The shootings had originally been described by the Army in 1948 as resulting from an attempted mass escape by ‘bandits.’ Limited contemporaneous investigations were conducted following a growing public outcry in Malaya into the deaths of the unarmed men at Batang Kali. Their approach and conclusions was summed up in a written answer to a Parliamentary Question about the incident given by the then Colonial Secretary in January 1949. This stated:

The Chinese in question were detained for interrogation under powers conferred by the Emergency Regulations. An inquiry into this incident was made by the civil authorities and, after careful consideration of the evidence and a personal visit to the place concerned, the Attorney General was satisfied that, had the Security Forces not opened fire, the suspect Chinese would have made good an attempt at escape which had been obviously pre-arranged.

After newspaper interviews in 1970 were given by some of the soldiers involved in which the shootings were described as cold blooded murder, the Metropolitan Police was ordered by the DPP to investigate the incident.  Four soldiers stated under caution that they had been ordered to shoot the men, who had not been attempting to escape, as suspected bandits or sympathisers. However, the Police inquiry was terminated by the DPP before it had been able to make any investigations in Malaysia, on the basis that it was unlikely that sufficient evidence would be obtained to support a prosecution.
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The legal fog of war among the people

5 August 2015 by

NDS_2387497bSerdar Mohammed and Others v Secretary of State for Defence [2015] EWCA Civ 843 – read judgment

The Court of Appeal has held that UK armed forces breached both Afghan law and Article 5 of the ECHR by detaining a suspected Taliban commander for longer than the 96 hours permitted by ISAF policy.

The MOD was therefore potentially liable at both public and private law for the failures to make arrangements for extended detention and to put in place such procedural safeguards as were required by international human rights law. Moreover, the defence of ‘act of state’ was not available against either the public or private law claims.
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The Long Shadow of the Troubles

7 July 2015 by

Photo: The Guardian

Photo: The Guardian

In Finucane’s (Geraldine) Application [2015] NIQB 57 the Northern Ireland High Court  dismissed a challenge to the decision by the British Government to carry out a ‘review’ by Sir Desmond Da Silva rather than a public inquiry into the murder of Belfast solicitor Pat Finucane on 12 February 1989.

Mr Finucane, a Belfast solicitor who had represented a number of high profile IRA and INLA members including Bobby Sands, was murdered in front of his family by loyalist paramilitaries in one of the most notorious killings of the Troubles. His death was mired in controversy due to the collusion between the security forces and his killers. Mr Justice Stephens stated at the outset of his judgment that

It is hard to express in forceful enough terms the appropriate response to the murder, the collusion associated with it, the failure to prevent the murder and the obstruction of some of the investigations into it. Individually and collectively they were abominations which amounted to the most conspicuously bad, glaring and flagrant breach of the obligation of the state to protect the life of its citizen and to ensure the rule of law. There is and can be no attempt at justification.

 

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War inside the court room

29 March 2015 by

iraqAl-Saadoon & Ors v Secretary of State for Defence [2015] EWHC 715 – read judgment

The High Court has ruled that the ECHR applies to situations where Iraqi civilians were shot during security operations conducted by British soldiers. When taken together with the parallel cases being brought against the MOD for breach of its Article 2 obligations towards its own soldiers, it appears increasingly likely that any operation undertaken by the British Army in the future will lead to legal challenges being brought against almost every aspect of its actions pre, during and post any use of military force.

Mr Justice Leggatt was asked to consider the scope of the UK’s duty under the ECHR to investigation allegations of wrongdoing by British Forces in Iraq. The Secretary of State accepted that anyone taken into custody by British Forces did have certain rights under the ECHR, in particular the right to life and the right not to be tortured. However, the one of two key areas of controversy were whether non detainee civilians who were killed outside the period when the UK was an ‘occupying power’ (1 May 2003 – 28 June 2004), were within the jurisdiction of the UK for the purposes of Article 1 of the ECHR.
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Public protest, private rights

6 March 2015 by

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John Catt. Photo credit: The Guardian

R (Catt) and R (T) v Commissioner of Police of the Metropolis [2015] UKSC 9

A majority of the Supreme Court has held that the retention by police of information on the Domestic Extremism Database about a 91 year-old activist’s presence at political protests was (1) in accordance with the law and (2) a proportionate interference with his right to a private life under Article 8(1) of the ECHR.

However, Lord Toulson’s dissent noted that the information was retained for many years after Mr Catt had attended these mainstream political events, and the police had concluded that he was not known to have acted violently. Accordingly, he thought its retention was unnecessary and disproportionate.

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