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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2008] EWCA Civ 1528

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Neutral Citation Number: [2008] EWCA Civ 1528
Case No: C4/2008/3083


Royal Courts of Justice
Strand, London, WC2A 2LL
22nd December 2008

B e f o r e :




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Ms K Monaghan QC and Ms H Law (instructed by Public Interest Lawyers) appeared on behalf of the Appellants.
Mr J Howell QC and Mr S Wordsworth (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.



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    Lord Justice Keene:

    1. Today's hearing has arisen out of a Divisional Court decision handed down last Friday 19 December 2008 in judicial review proceedings brought by the appellants against the Secretary of State for Defence. The Divisional Court, consisting of Richards LJ and Silber J, dismissed the claim but granted permission to appeal without defining particularly clearly the precise grounds upon which permission has been granted. It also granted interim relief in the shape of an interim injunction restraining the Secretary of State from transferring the appellants into the custody of the Iraqi court or outside British custody before 4pm today, Monday 22 December. The issue being raised before us today has been whether to continue that injunction and, if so, for what period.

    2. The appellants are two Iraqi nationals who are now being held under an arrest warrant issued under the Iraqi penal code because they are suspected of involvement in the murder of two British servicemen. The history of this matter is fully set out in the Divisional Court decision and we need merely record that the appellants have been produced before an Iraqi court which has ordered their continuing detention. Currently they are being held by British forces in Iraq at the Divisional Internment Facility at Basra.

    3. The Iraqi High Tribunal has assumed jurisdiction over the alleged offences on the basis that those offences constitute war crimes. It has requested the transfer of the appellants into its custody with a view to them being tried on such charges. The respondent Secretary of State proposes to transfer the appellants unless he is restrained from so doing.

    4. Since 28 June 2004 the multi-national force of which the British troops form part has remained in Iraq under the authority of United Nations Security Council Resolutions and pursuant to requests by the Iraqi government. However, and of some importance, the UN mandate for the presence of those forces is due to expire on 31 December this year, some nine days hence.

    5. The appellants seek to prevent their transfer to the custody of the Iraqi court. Their judicial review claim was based in particular on the contention that for the United Kingdom to transfer them would involve a breach of a number of their rights under the European Convention on Human Rights (ECHR). The Divisional Court held that because the appellants were in the physical custody of the British forces in Iraq, who were lawfully present in that country under the UN mandate, they fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the ECHR and the Human Rights Act 1998. However, it also held that the ECHR was qualified in its application by the United Kingdom's obligation under public international law to comply with the requests of the Iraqi court to transfer the appellants into its custody. That reflected the principle that Iraq was and is entitled to exercise sovereignty in its own territory in relation to its own nationals, so that a failure to transfer as requested would amount to an interference with Iraq's sovereign authority. The Divisional Court referred to and relied upon the decision of this court in R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643 where Lord Phillips of Worth Matravers, then Master of the Rolls, referred at paragraph 88 to the basic principle that the authorities of the state can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction and that normally the ECHR could not override that. However, there was an exception identified in the case of B to that principle derived from territorial sovereignty, and that was where the individual would, if handed over, be subject to treatment amounting to a crime against humanity or to the immediate likelihood of serious injury. The Divisional Court in the present case examined the application of that exception to the facts of this case, and indeed did so on the somewhat wider and more generous basis of whether the appellants, if transferred, would be exposed to treatment contrary to internationally accepted norms. In fact the Divisional Court rejected all the alleged breaches of the ECHR save in one respect, namely in relation to Protocol 13 of the Convention which prohibits the use of the death penalty. It found that there were substantial grounds for believing that there is a real risk of the appellants, if convicted, being sentenced to death in Iraq and executed. However, the Divisional Court also held that the death penalty is not yet contrary to internationally accepted norms, at least where it is imposed for serious crimes after a fair trial. It is not therefore contrary, it said, to international law and the existence of the risk of the death penalty did not relieve the United Kingdom of its obligation under international law to transfer the appellants as requested.

    6. One notes that the Divisional Court was concerned about this outcome and was prepared therefore to grant permission to appeal to this court, which it did. It recognised that normally it would have sought to preserve the status quo pending the hearing of the appeal to this court. But it saw itself as faced with a grave difficulty, as is clear from the transcript of the argument and ruling which took place on Friday about interim relief. There is no doubt that the authorisation for the presence of British troops in Iraq as derived from United Nations Security Council Resolutions will cease on 31 December this year. There was evidence put before the court from Peter Derek Watkins, a senior officer in the Ministry of Defence who is directly involved in the negotiations with the Iraqi Government as to the legal basis for the temporary presence of United Kingdom forces in Iraq beyond the end of this year, that any agreement which is reached will not empower this country to continue to detain the appellants. The Divisional Court consequently took the view that as from 1 January 2009 there would be no legal basis upon which the British forces could continue to hold the appellants. Indeed, Richards LJ went on to note his concern as to whether UK jurisdiction under Article 1 of the ECHR would continue to exist from that date, since the British forces would no longer have an autonomous status independent of the Iraqi state. That was why the court was only prepared to grant an interim injunction of very short duration, expiring at 4pm today.

    7. That is the background against which the matter now comes before us today. We have read the skeleton arguments on both sides. In essence, Ms Monaghan QC on behalf of the appellants emphasises the right which is enshrined in Article 13 of the ECHR to an effective remedy. She makes the point that to transfer the appellants would in practice extinguish their right of appeal to this court. The Secretary of State in his skeleton argument emphasises the inability, as it is said, of the United Kingdom to flout the territorial sovereignty of the Iraqi government once the United Nations mandate has expired on 31 December. For my part, I cannot see that it would be right for this court to extend the existing interim injunction beyond 31 December 2008. With the ending of the United Nations mandate for the presence of British and other forces in Iraq as part of the multi-national force, the only basis upon which British forces would remain in that country would be by agreement with the Iraqi government. The evidence of Mr Watkins makes it clear to my mind that it is most unlikely that there will be any agreement to the British forces continuing to detain the appellants after that date. Consequently it seems to me that there will no longer be any legal basis on which the United Kingdom forces could properly continue to hold the appellants after that date, though clearly this is a matter upon which the full court will in due course want to arrive at its own view, having heard a full argument, which we have not heard.

    8. The Secretary of State, however, it seems to me, would have no legal authority to detain these appellants from 1 January onwards and this court cannot therefore order him to do so. This is the added dimension which was only dealt with in the oral ruling of the Divisional Court on Friday. This additional matter may have wider repercussions. On the face of it, this changed status of the United Kingdom forces may well undermine the Divisional Court's reasoning at paragraph 79 of its judgment as to the autonomous status of the national contingents in Iraq and as to the Article 1 jurisdiction of the United Kingdom in respect of the appellants once one gets to 1 January. Having said that, one recognises at the same time that, if the appellants are transferred to the custody of the Iraqi court before their appeal to this court is heard, then their appeal rights are likely to prove ineffective. It will be scant comfort to the appellants to learn subsequently that they should not have been transferred, were that to be the eventual decision of this court. The only solution, as it seems to me, is to bring this matter on for hearing as a matter of urgency so that it can be dealt with before 1 January 2009. This court, having made enquiries, is able to make suitable arrangements for so doing. Counsel's convenience, even in a complex matter like this, cannot be a consideration of any real weight since the plight of these two men requires an urgent decision.

    9. That is the proposition which we have put this morning in the course of argument to counsel for both sides and, while some problem has been raised by Ms Monaghan about a further appeal to the House of Lords, it seems to us that that does not amount to a real significant objection to the course we are contemplating taking. If and insofar there are problems about a further appeal to the House of Lords, that is something which will have to be canvassed with the full court in a week's time, and that court will have to make up its own mind about whether or not any further interim relief would have to be granted pending such a further appeal. This court is able to make a full constitution of three Lords Justices available to sit on 29 and 30 of this month to deal with this matter. We will in a moment give directions for further skeleton arguments and for lists of potential reading, which are clearly going to be required in this case. But it seems to us that to order that such a hearing takes place on 29 and 30 and to extend the interim injunction which is already in being until 4.30pm on 30 December is the only sensible solution in the difficult position which has arisen in this case. That is the order which I would make.

    Lord Justice Rimer:

    10. I agree.

    Order: Appeal allowed

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