England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		29th August 2008

1. MR JUSTICE COLLINS: As I have indicated, in my view this claim is arguable and normally I would therefore have granted permission, but because of a delay argument I have decided to order a rolled-up hearing. That is purely so that the defendant can, if he so wishes, maintain an argument based on delay without needing to depend upon the provisions of section 31(6) of the Supreme Court Act 1989.
2. This claim arises at the instance of two Iraqi nationals, who were fairly important officials in the Ba'ath Party before the downfall of Saddam Hussein. After the intervention of the American and British forces in 2003, two soldiers were murdered and it is alleged that the two claimants were involved in those murders. Each was detained in April 2003 in one case and in November 2003 in the other case, and they were held — and it is not necessary for me for the purposes of this judgment to go into any detail — as security risks under the provisions that from time to time were in place.
3. However, in 2006 a formal complaint was laid before the Iraq criminal court that had jurisdiction, by an officer of the British forces, that the two were guilty of murder and the Iraq criminal court assumed jurisdiction.
4. The base in which they were held was a detention centre, as I recall it, which was run by the British authorities. There was a memorandum of understanding which was issued between the Iraqi government and the British government, in which the British government agreed that at the request of the Iraqi criminal authorities they would make available detention facilities in circumstances such as this, although they retained a discretion not to agree in any particular case to accept that responsibility.
5. There was also included in the memorandum an agreement by the Iraqi authorities that they would, putting it broadly, not ill-treat any individual in terms that would otherwise be a breach of Article 3 of the European Convention on Human Rights. Having said that, that does not imply that the Convention was believed to be applicable, merely that the conduct in question was equivalent to that which would fall within Article 3.
6. Originally, the Iraqi criminal court assumed jurisdiction. However, the decision was made that the murders with which the claimants were involved were war crimes. Indeed, it is clear from what I have seen that prima facie they fall within the definition of such crimes. The appropriate court to deal with such war crimes was not the ordinary criminal court in Iraq, but a special tribunal which is known as the IHT. That is of considerable concern to the claimants, because they have asserted that it is likely to bring a political element into the proceedings and they are concerned in those circumstances that will be unable to obtain a fair trial.
7. The other relevant factor is that both crimes of murder and war crimes involving killing (as these allegedly do) carry a death penalty. It is not as I understand it a mandatory death penalty, but a discretionary one. As is well known, HM Government is a signatory to the relevant protocol, I think it is Protocol 13, to the European Convention which effectively bars capital punishment. Again, to use an analogy, in extradition cases the government will always insist on an undertaking which it regards as binding that the death penalty will not be imposed if someone is to be extradited. That is normally an undertaking by the relevant administrative body concerned with the investigation that they will not seek a death penalty, but the effect is no death penalty.
8. Negotiations have been held with the Iraqi authorities. No undertaking has been obtained that there will be no death penalty, but there is evidence from a relevant official that the negotiations have resulted in a situation where it is unlikely that the death penalty will result because at least one of the victim's family have indicated that they do not seek that there should be such a penalty. Apparently that is something which is likely to carry considerable weight with the Iraqi authorities. But I make it clear that there is no guarantee that there will be no death penalty.
9. There is material which needs to be built on, if possible, that indicates that there have been concerns about what goes on in some detention facilities run by the Iraqis and that there has been a pattern in some cases of ill-treatment that would amount to such as would contravene Article 3 were Article 3 to be applicable. Accordingly, the submission is that it is arguable that there is a real risk on the evidence put before the court that there might be such treatment, quite apart from the problems in relation to the death penalty.
10. The defence contention is, as indeed is the case, that the claimants are detained by the British authorities because the British authorities have agreed to make the facilities for which they are responsible available for the use of the Iraqi criminal justice system. Therefore the claimants are already within that system and, although the memorandum of understanding exists, there is in reality no power in the British government to refuse to permit the Iraqi judicial system to operate, and therefore to hand the two over to that system on request. It would be contrary, it is submitted, both to international law and would be a breach of the sovereignty of the State of Iraq were the government to refuse. In fact the government has been seeking the necessary assurances and it was not until recently, I think in August, that the final decision was made that the assurances that were obtained were considered to be sufficient to satisfy the government that it was appropriate to hand over.
11. Nonetheless, Mr Eicke submits that that was something which, although as a matter of policy our government decided was necessary, as a matter of law if it came to the crunch, as it were, they would not have been able to justify a refusal to handover, whether or not such satisfactory assurances were obtained.
12. The claimants' case is that the Human Rights Act is arguably applicable. It is submitted that if the authorities at the detention centre run by the British were to act in such a way as breached Article 2 or Article 3 in relation to a detainee, that detainee would have rights arising under the Human Rights Act because, following the decision of the House of Lords in Al-Skeini, it is the sort of situation where the Act would apply.
13. If that is right, then it is submitted that it is all or nothing, as it were, and so a breach of Article 3 by removing an individual from the care of the British authorities to the risk of ill-treatment by the Iraqi authorities would be a breach of Article 3. That is applying the law as developed from Chahal in Strasbourg, and as confirmed by the more recent case of Saadi v Italy.
14. The defendant contends that the Act does not apply. Reliance is particularly placed upon a decision of the Court of Appeal in R (B) v Secretary of State for Foreign and Commonwealth Affairs [2005] QB 643. That was the case where would-be asylum seekers in Australia were complaining that the conditions in the detention centre there were such as breached Article 3 and sought protection in the British Consulate in Melbourne. The question arose as to whether it was in the circumstances necessary for the British authorities to maintain protection and refuse to hand over the claimants to the Australian authorities.
15. The claim failed on its facts, but there were observations of the court which are material in relation to, in particular, the standard which had to be met in order to justify diplomatic asylum. It may be that from that it is possible to say that if the Human Rights Act applies, the standard required is not the lower standard developed in Chahal and Saadi, but a higher standard because of the issues of the sovereignty of Iraq. Whether that is the case or not is not for me to decide.
16. It seems to me that in all the circumstances, the question as to whether the two claimants are entitled to a protection so that they cannot be handed over by the British government or whether there is no power in the British government to refuse to hand over even if there are real fears of the lack of a fair trial or some other breach of the Convention, is an issue of some importance and an issue which needs to be properly and fully considered by the court.
17. There was a further basis asserted — and this came before me as well — for relief in relation to the decision to transfer, namely that the detention was and is unlawful. However, Ms Monaghan has accepted, as a result I think of observations by me, that that is not an issue which it would be helpful or necessary to deal with as a separate issue in the hearing. The reason for that is perhaps a fairly obvious one: if the claimants fail to persuade the court that it would be contrary to law to hand them over to the Iraqi authorities, then they will be handed over and the detention will not continue, and therefore whether or not it is lawful becomes immaterial. If on the other hand the decision of the court is that it would be unlawful for the British authorities to hand them over, then the result of that will have to be carefully considered. I say that because by 31st December the remit (if that is right word) of the British authorities in relation to their presence and the maintenance of facilities such as we are concerned with will come to the end, unless there is a request by the Iraqi government that the period be extended. In the light of what we know about the situation, that seems improbable.
18. Accordingly, as Mr Eicke indicates, if a decision was made that the detention was unlawful it would have to come to an end. If it would have to come to an end, the result would be that they would be released and would probably be arrested immediately and detained by the Iraqi authorities. Accordingly, the court is going to have to consider what is the upshot of any decision it reaches in relation to the future dealings with the claimants. What does the government have to do if they cannot lawfully hand them over? The court is bound to take that into account. As I say, the problem is the end of the year, being the deadline. But since, as I said, in my view this matter is of such importance that it needs a proper and full consideration, the reality is that, assuming an appeal process, the likelihood of the whole matter being disposed of before the end of the year is perhaps remote. Therefore the court would have to consider, assuming it was in the claimants' favour, the result of that and what should be done in the circumstances.
19. Accordingly, the issue that will have to be dealt with is limited to the question whether the transfer to the Iraqi authorities would be lawful. As I say, that turns into a question, first of all, of the applicability of the Human Rights Act and, secondly, whether there is any difference in the standard of proof applicable if the Act is applicable and, thirdly, even if it is not applicable, whether there are obligations resulting, for example, from the Convention against torture or any other international obligations of the government to refuse to transfer.
20. There is an issue of delay. It is said that in particular from 18th May 2006 it has been known that the situation was that they were held on behalf of the relevant Iraqi criminal court. It is said that this claim should have been brought long ago. There are two possible answers to that as I see it. First, it was not until August that it was finally decided that the assurances were sufficient and therefore any action before then would arguably have been premature and, secondly, if the Human Rights Act applies, then the court as a public body has an obligation not to do anything which breaches an individual's human rights. In those circumstances it may be arguable that even if there has been delay, unless there is a very good reason to say that that delay is such as must mean that there is such prejudice to the defendant that it would be quite unfair and wrong to allow the claim to proceed, it ought to be allowed to proceed.
21. I am bound to say that my view is that delay would not be an answer to this claim. However, I have not heard and have not considered any detailed argument, and accordingly I am prepared to leave the matter open and to allow the question of delay to be argued. That is the only reason why this is a rolled-up hearing as opposed to a hearing following grant of permission. But it must be assumed, as it were, that permission is granted and the obligations that arise following permission will be the obligations that are material for preparation for the hearing.
22. There is obviously a need for expedition. I have considered the question of directions. Ms Monaghan makes the point that there are real difficulties in the path of her solicitor in obtaining necessary evidence and so on. That is perhaps obvious. She has asked me for six weeks to enable the extra material to be obtained. I am prepared to grant that, which takes us until 10th October, but with the proviso that any evidence that is obtained and is going to be relied on must be served when it is obtained, i.e. there should be piecemeal service and 10th October is the last possible day to serve anything. Obviously if everything is obtained before then, then so much the better. As I understand it, the claimants are content that the order should be in those terms.
23. The defendant will operate on the same basis, in so far as anything extra independently of what might come from the claimants' side is concerned, and they have some indication, as the result of a question I asked this afternoon, of the sort of material that Mr Shiner hopes to obtain from an expert. Mr Eicke recognises, sensibly, that it would be a good idea for them to tee up at least the possibility of their own expert if in due course they regard that as necessary. So it is not a case of going to someone and saying, "I want your opinion within a week." There must be co-operation between the parties in so far as that is possible, in order to ensure that there is a proper hearing in the week of 17th November, which is when I propose to direct that it be heard, with a time estimate of three days. It seems to me that this is the sort of case that should be heard by a Divisional Court. Again, that is the direction that I propose to make.
24. Is there anything else? Have I covered everything? I think I have.
25. MS MONAGHAN: Certainly from our point of view.
26. MR JUSTICE COLLINS: Anything else you think I have omitted?
27. MR EICKE: No, we take the direction as to skeletons as taken from the --
28. MR JUSTICE COLLINS: Yes, I am grateful. So far as skeleton arguments are concerned, what I direct is that the claimants' skeleton is served by close of business on Monday the 10th, which I take as 4.00pm on Monday the 10th; the defendant's reply two days later, Wednesday the 12th, and of course serve the court as well. Also, please, the parties must prepare a core bundle because some of the material here relates to another issue which I am not dealing with and which is part of a claim, namely an allegation (a) that detention was unlawful, and (b) that there was relevant ill-treatment by the British authorities while they were detained in Iraq. But those are matters which are not urgent and which I would have thought would more sensibly await the outcome of these proceedings. Is there any need to proceed further with those at the moment?
29. MS MONAGHAN: No, my Lord. Just one thing that has occurred to us that we have not made provision for. We have made provision for the core bundle but not the authorities bundle. Maybe we could say the 13th.
30. MR JUSTICE COLLINS: Again, if you would liaise on that --
31. MS MONAGHAN: My Lord, yes.
32. MR JUSTICE COLLINS: -- because that is an added irritation. We receive two authorities bundles which have the same authorities, or at least much the same with perhaps one or two extra. Yes, please, liaise with that. I say nothing about past correspondence. I only hope that future correspondence does not reach the depths that I understand past correspondence may have reached.
33. MS MONAGHAN: My Lord, yes.
34. MR JUSTICE COLLINS: Thank you both. Can I ask you both to agree the precise terms of the order, so that you can pass it up to the associate in due course.
35. MS MONAGHAN: Certainly.
36. MR JUSTICE COLLINS: If you are able to do it in manuscript this afternoon and give it to the associate so much the better.
37. MS MONAGHAN: My Lord.
38. MR JUSTICE COLLINS: Shall I return all this stuff to you? I do not think is necessary for the court to keep it, is it, at the moment?
39. MS MONAGHAN: I do not think so, my Lord, no.
40. MR JUSTICE COLLINS: I leave it to you to decide who will take it back, but I leave it on the desk here.
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