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
		25/02/2009

Mr Justice Walker :

Introduction

1. The main question in this case is about the geographical scope of the European Convention on Human Rights ("ECHR"). In late April 2003 Tarek Resaan Hassan, whom I shall call "Tarek", was detained by UK military personnel in Iraq. He was taken to Camp Bucca, which at that stage was described as a "US facility." In May 2003 he was released. However the claimant, who is Tarek's brother, has described how in early September 2003 his family learnt that Tarek's dead body had been found in the countryside. The claimant and another brother went to the morgue and viewed the body. Tarek's hands were tied with plastic wire. His body had many bruises. In his chest there were 8 bullet wounds, along with Kalashnikov bullets.
2. Mr Rabinder Singh QC and Ms Jessica Simor appeared on behalf of the claimant. They acknowledge that legal remedies not based on the ECHR may be available to Tarek's family if the necessary evidence can be assembled. They say, however, that in the present state of the evidence it is only under the ECHR that the claimant can seek the remedies he wants. The principal remedy sought is an inquiry into Tarek's death, and if there is such an inquiry this may well enable Tarek's family to seek other legal remedies.
3. All the events complained of took place in Iraq, which is not a signatory to the ECHR. The defendant Secretary of State has responsibility for UK military personnel. He does not accept that the ECHR – if it applied – would entitle the claimant to the relief he seeks. However the defendant also has a territorial answer to the claim. Here he says that the claim concerns events which are outside the geographical scope of the ECHR. He relies on a general principle that the UK, like other states which are party to the ECHR, is only responsible under the ECHR for events within its territorial jurisdiction. Mr Pushpinder Saini QC and Mr Parishil Patel appear on behalf of the defendant. They submit that there are only limited exceptions to that principle, and that this case is not one of them.
4. The territorial answer, if right, would make it pointless to inquire further into the claim. It is for that reason that I have used the expression "the main question" to describe the issue whether the defendant's territorial answer is legally valid.
5. My conclusion is that I am compelled to hold that the defendant's territorial answer is legally valid. In the remainder of this judgment I explain why that is so. I start by summarising factual aspects relevant to the main question, before turning to the procedural history of the present claim and the question of grant of permission to apply for judicial review. I then analyse the arguments on legal principles and apply my analysis to the facts, before turning to deal with remaining matters and setting out my conclusion.

Factual aspects relevant to the main question

6. Military action was taken against Iraq in March 2003 by a coalition of the US, the UK, Australia and other countries ("the Coalition"). Um Qasr, to the south of Basra, was an initial target of that military action. Close to Um Qasr a detention facility was built by UK forces and was known as "Camp Freddie." It was then handed over to US forces and was known as "Camp Bucca."
7. It is common ground that during the main hostilities phase of this military action Tarek was captured by UK forces. The claimant says the capture occurred in the early morning of 22 April 2003 when Tarek was sleeping at the claimant's house in Basra. The claimant had by this time moved out of the house for security reasons. The defendant says the capture occurred on 23 April 2003 in Um Qasr.
8. It is also common ground that Tarek was taken by UK forces to Camp Bucca, was there issued with a UK Internment Serial Number, was also issued with a US identity tag, and while there was guarded by US forces. The claimant says that US forces guarded Tarek as agents for the UK, while the defendant says that US forces had custody and control of Tarek. In this regard both sides refer to what was described in the proceedings as a Memorandum of Understanding "the MOU." Under the MOU during Tarek's period in Camp Bucca, which ended no later than 17 May 2003, the UK was Tarek's "Detaining Power" and the US was Tarek's "Accepting Power."
9. The full text of the MOU was as follows:

This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq. The Parties undertake as follows:

1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law.

2. US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power.

3. Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees.

4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power.

5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.

6. The Detaining Power will return full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.

7. The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over.

8. The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement.

9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power.

10. Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined.

11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction.

12. Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power.

13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement.

14. At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.

10. There is little evidence about what actually happened to Tarek while he was at Camp Bucca. The claimant has produced documentary evidence about what generally happened at Camp Bucca. Not all of this is accepted by the defendant. Among other things the claimant asserts, and the defendant denies, that as at May 2003, the UK still had an Officer in Command, a Commanding Officer and a senior team at the facility.

Procedural history and grant of permission

11. The claimant's application for permission to apply for judicial review was lodged on 19 July 2007. It was accompanied by an application for expedition, which was refused. After the defendant had filed an Acknowledgement of Service the application for permission came before Collins J on the papers. He noted that the defendant had concerns about delay, and directed a "rolled-up" hearing – that is, a hearing where the court may, if permission is granted, deal with the substantive judicial review application at the same time. Collins J expressed the view that it would not be right to regard delay as an absolute bar, but explained that he had directed a rolled-up hearing so that the defendant could argue that permission should be refused on account of delay.
12. The claimant has explained the personal circumstances that made it impossible for him to bring these proceedings promptly. It is accepted on his behalf that grant of permission will not prevent the defendant from asserting that the effect of delay should lead the court to decline relief as a matter of discretion. It is plain that Collins J declined to grant permission only because he thought that the defendant should have the opportunity to oppose permission on grounds of delay. I am satisfied by the claimant's explanation of the delay, which was not seriously contested by the defendant, and in these circumstances I think it right to grant permission to apply for judicial review.

Argument and analysis of the legal principles

13. This is not the first occasion on which a court in the UK has had to consider whether the ECHR applies in relation to UK military action in Iraq. That question has come before the House of Lords in two cases in the last two years. The first case was R (Al-Skeini) v. Secretary of State for Defence [2008] 1 AC 153 ("Al-Skeini"). The second was R (Gentle) v. Prime Minister [2008] 1 AC 1356 ("Gentle"). It has also been considered very recently by the Court of Appeal in R (Al-Saadoon) v. Secretary of State for Defence [2009] EWCA Civ 7 ("Al-Saadoon").
14. In Al-Skeini the majority of the House of Lords held that where the Human Rights Act 1998 gave an entitlement to rely on the ECHR that entitlement was not necessarily limited to matters falling with the UK's territorial jurisdiction. It would extend beyond UK territorial jurisdiction if, but only if, under article 1 of the ECHR, applying relevant jurisprudence of the European Court of Human Rights ("ECtHR"), the matter fell within UK "jurisdiction." That decision by the majority made it necessary for them to examine relevant jurisprudence of the ECtHR. Lord Bingham dissented on the territorial scope of the Human Rights Act and did not find it necessary to deal with other questions.
15. The first five claimants brought claims relating to fatalities that occurred while British troops were patrolling the streets of Basra City. The defendant accepted that all five individuals were (or in one case may have been) shot by British troops. The sixth claimant's son, Mr Mousa, died while in a British military base called Darul Dhyafa. The Divisional Court held that in this latter case the matter fell within UK jurisdiction. It was conceded by the defendant in the House of Lords that the Divisional Court had been right in this regard.
16. The House of Lords identified divergences in the ECtHR jurisprudence on article 1. It concluded that the principles identified in a Grand Chamber decision, Bankovic v Belgium and others (2001) 11 BHRC 435 ("Bankovic") were those which – in preference to the approach taken in Issa v Turkey (unreported) 30 May 2000 (Admissibility); 41 EHRR 567 (Merits) – should be applied by UK courts. It was held in Bankovic that "jurisdiction" under article 1 is primarily territorial, other bases for jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. The House of Lords examined what was said about exceptional bases for jurisdiction in Bankovic and held that the first five cases before it did not fall within any exceptional basis for jurisdiction.
17. Mr Singh accepted that I am bound by the analysis of Bankovic in Al-Skeini, at least in so far as that analysis formed part of the ratio for the decision. He noted that at paras 109 and 120 of his speech in Al-Skeini Lord Brown described recognised instances of the exceptional extra-territorial exercise of jurisdiction set out in Bankovic as including:

(i) where the State, through effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of the territory, exercises all or some of the public powers normally exercised by the government of that territory;

(ii) cases involving the activities of its consular agents abroad and on board craft and vessels registered in, or flying the flag of that state [where] customary international law and treaty provisions have recognized the extra-territorial exercise of jurisdiction;

(iii) certain other cases where a state's responsibility "could in principle be engaged because of acts…which produced effects or were performed outside their territory.

18. It was Mr Singh himself who had been lead advocate for the claimants in Al-Skeini. Before me he explained that his main contention in the House of Lords had been that the United Kingdom exercised effective control over the territory of Southern Iraq such that the first five claimants' relatives fell within jurisdiction of the UK for the purposes of article 1. Thus the issue was whether the facts fell within category (i) of exceptional jurisdiction. The House of Lords held that the UK did not have effective control over the territory of Southern Iraq (and therefore did not have 'territorial jurisdiction') such that an individual within that territory did not fall within the jurisdiction of the United Kingdom unless that individual fell within another exceptional category.
19. It was submitted by Mr Singh that Mr Mousa was found to fall within another exceptional category because he was detained by British forces and therefore was under UK authority and control. In this regard Mr Singh observed that the defendant's concession in relation to Mr Mousa had been made on the basis that the events occurred within a British base. However there was no need, submitted Mr Singh, for an extension of territorial jurisdiction to be established. In accordance with the established case law of the Court, provided legal jurisdiction was exercised over him, by virtue of the exercise of authority and control, he fell within an exceptional category of extra-territorial jurisdiction for the purposes of Article 1, namely the exercise by agents of the United Kingdom of effective control and authority over an individual in a foreign territory. The arrest and detention of an individual by one Contracting State outside its territory would constitute the exercise of jurisdiction by that Contracting State over that individual without there having necessarily therefore been an extension of jurisdiction over a particular territory or part of it. What distinguished the present case from the cases of the first five claimants in Al-Skeini was that those five cases had not involved arrest or detention.
20. The next stage of the claimant's submissions was an analysis of cases in which the ECtHR, or the Commission, had considered jurisdiction under article 1. I was taken to Cyprus v Turkey 2 DR 125 (Admissibility); (1976) 4 EHRR 482 (Merits), X and Y v Switzerland 9 DR 57, Freda v Italy (1980) 21 DR 250, Drozd and Janousek v France and Spain 14 EHRR 745, M v Denmark (1992) 73 DR 193, Issa v Turkey (unreported) 30 May 2000 (Admissibility); 41 EHRR 567 (Merits), Öcalan v Turkey (Application No 46221/99) (unreported) 14 December 2000 (Admissibility); (2005) 41 EHRR 45, and to Bankovic itself.
21. Turning to Al-Skeini, Mr Singh noted that in the Court of Appeal Brooke LJ stated at para 110 that if troops deliberately and effectively restrict someone's liberty he is under their control. That statement was expressly adopted by Lord Rodgers at para 82. Lady Hale at para 90 agreed with the reasoning of Lord Rodgers, as did Lord Carswell at paras 96 and 97. This had been ignored by the defendant, who had confused the possible extension of "territorial jurisdiction" with the exceptional category of the exercise of authority and control over an individual.
22. At first I was attracted by these submissions. On reflection, however, I am persuaded by Mr Saini that they cannot succeed, for on a proper analysis of Al-Skeini they are inconsistent with it. There are two key points. The first is that in relation to Mr Mousa the concession by Mr Greenwood QC on behalf of the government, as recorded in the report of oral submissions, was that Mr Mousa fell into category (ii) – the military base at Darul Dhyafa had similar characteristics to those of an embassy. The second is that the House of Lords rejected Mr Singh's arguments in Al-Skeini because the mere exercise of authority and control was insufficient.
23. Lord Rodger at paras 71 and 76 to 79 said:

71. The decision in Bankovic shows, accordingly, that an act which would engage the Convention if committed on the territory of a contracting state does not ipso facto engage the Convention if carried out by that contracting state on the territory of another state outside the Council of Europe. The necessary jurisdictional link is present in the one case, but not in the other.

…

76 Another major unresolved difficulty with the decision in Issa is that it is hard to reconcile with the European court's description of the vocation of the Convention as being "essentially regional" and of the Convention operating "in an essentially regional context and notably in the legal space (espace juridique) of the contracting states": Bankovic, … para 80. The Convention, the court continued, was not designed to be applied throughout the world, even in respect of the conduct of contracting states. In Issa, as the court records in paras 56 and 57 of its judgment, the Turkish government had advanced an argument based on precisely this aspect of the decision in Bankovic.

77 The European court rejected that argument … There is, of course, no difficulty in seeing that Iraq does not fall within the legal space of the contracting states. It follows that application of the Convention in any area of Iraq controlled by Turkey could not be justified by the need to avoid a gap or vacuum ("lacunas or solutions of continuity" in the French text) in the protection of human rights in a territory which, but for the specific circumstances, would normally be covered by the Convention: Bankovic, … para 80. But in Issa the European court did not say that it was taking that protection a stage further. The difficulty therefore is in seeing how the deceased would have fallen within the legal space of the contracting states if, as was certainly indicated in Bankovic, the Convention was meant to operate in an essentially regional context and not throughout the world, "even in respect of the conduct of contracting states".

78 The essentially regional nature of the Convention is relevant to the way that the court operates. It has judges elected from all the contracting states, not from anywhere else. The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. This is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovic, … para 80, the court had "so far" recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism.

79 The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic. In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in section 1 of the Convention. So the applicants had to argue that it was enough that the respondents were in a position to secure the victims' rights under articles 2, 10 and 13 of the Convention. In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothing—to adopt the words of Sedley LJ [2007] QB 140, 300, para 197. The European court quite specifically rejected that line of argument. The court held, [in] para 75, that the obligation in article 1 could not be "divided and tailored in accordance with the particular circumstances of the extraterritorial act in question". In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention.

24. To my mind this analysis leaves no room for Mr Singh's contentions. Lord Rodger analyses Bankovic in a way which stresses both that the ECtHR had "so far" recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention, and that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention.
25. Lord Brown at para 129 gave a detailed analysis reaching a similar conclusion:

The point is this: except where a state really does have effective control of the territory, it cannot hope to secure the Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes farther than that. During the period in question here it is common ground that the UK was an occupying power in Southern Iraq and bound as such by Geneva IV and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant 'shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.' The appellants argue that occupation within the meaning of the Hague regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants' obligation is to respect 'the laws in force', not to introduce laws and the means to enforce them … such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied.

26. Moreover Lord Brown in para 109 when describing category (i) said in parenthesis that it applied "when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable "to fulfil the obligations it had undertaken under the Convention." When describing category (iii) he commented:

Drozd and Janousek v France and Spain (1992) 14 EHRR 745, at para 91, is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France's jurisdiction.

27. Lady Hale agreed with Lord Rodger and Lord Brown: see paras 90 and 91. So did Lord Carswell at para 97, adding:

I would only observe that any extraterritorial jurisdiction of one state is pro tanto a diminution or invasion of the territorial jurisdiction of another, which must lead one to the conclusion that such extraterritorial jurisdiction should be closely confined. It clearly exists by international customary law in respect of embassies and consulates. It has been conceded by the Secretary of State that it extends to a military prison in Iraq occupied and controlled by agents of the United Kingdom. Once one goes past these categories, it would in my opinion require a high degree of control by the agents of the state of an area in another state before it could be said that that area was within the jurisdiction of the former. The test for establishing that is and should be stringent, and in my judgment the British presence in Iraq falls well short of that degree of control.

28. As part of his submissions in Al-Skeini Mr Singh cited to the House of Lords all the European cases that he went through in his submissions to me: see [2008] 1 AC 153 at p. 160. The passages in Al-Skeini that I have cited above are in my view designed to deal with and reject the arguments based on those cases.
29. This analysis is reinforced by observations in Gentle and Al-Saadoon. I accept that the factual context for those observations was very different from the present case. Nevertheless the observations form part of the reasoning. Lord Bingham in Gentle at paragraph 8(3) stated that jurisdiction under article 1 in relation to the death of a UK soldier in Iraq did not arise merely because that soldier was subject to the authority of the defendant. Further in Al-Saadoon Laws LJ noted a submission by the appellants in that case that in Al-Skeini the House of Lords' acceptance of Article 1 jurisdiction in Mr Mousa's case was essentially based on de facto control over the territory in question. Laws LJ rejected that submission. He said:

With respect this was a misconceived reading of their Lordship's decision. It is impossible to reconcile a test of mere factual control with the limiting effect of the first two propositions I have set out, and indeed, that of the last two, as I shall explain.

… If a State party is to exercise Article 1 jurisdiction outside its own territory, the regional and indivisible nature of Convention rights requires the existence of a regime in which that State enjoys legal powers wide enough to allow its vindication, consistently with its obligations under international law, of the panoply of Convention rights- rights which may, however, in the territory in question, represent an alien political philosophy.

The ECHR's natural setting is the espace juridique of the State Parties; if, exceptionally, its writ is to run elsewhere, this espace juridique must in considerable measure be replicated. In short the State Party must have the legal power to fulfil substantial governmental functions as a sovereign State. It may do so within a narrow scope, as in embassy, consulate, military base or prison; it may, in order to do so, depend on the host State's consent or the mandate of the United Nations; but however precisely exemplified, this is the kind of legal power the State must possess, it must enjoy the discretion to decide questions of a kind which ordinarily fall to a State's executive government. If Article 1 jurisdiction is held to run in other circumstances, the limiting conditions imposed by the four propositions I have set out will be undermined.

Application of my analysis to the facts

30. The result of this analysis is that the claimant in the present case cannot invoke the ECHR in relation to events prior to his being detained in Camp Bucca. As regards his period in Camp Bucca, he can only succeed if Camp Bucca is to be treated as if it were in Lord Brown's category (ii). In reply Mr Singh put forward a submission to the effect that the court would be justified in doing exactly that. That submission seems to me to be inconsistent with the terms of the MOU.
31. To my mind key features of the MOU are:

(1) Under Article 9 the detaining power has sole responsibility for the classification under Articles 4 & 5 of the Geneva Convention relative to the treatment of prisoners of war of potential prisoners of war captured by its forces. In practical terms the detaining power can ensure that its classification is given effect, for under Article 6 it has full rights of access and under Article 4 it can require that the accepting power immediately return the person in question.

(2) However, under Article 2 the accepting power is responsible for maintaining and safeguarding those individuals whose custody has been transferred to them. Under Article 7 it is the accepting power which is responsible for the "accurate accountability" of those transferred. While under Article 8 the detaining powers are to assign liaison officers to the accepting powers, this is only "in order to facilitate the implementation of this arrangement." Article 12 assigns "primary jurisdiction" to the accepting power in relation to "breaches of disciplinary regulations and judicial offenses" allegedly committed after transfer.

32. It is accepted by Mr Saini that the detaining power does not have sole control of the individual in question. To my mind the MOU goes much further than this. It is plain that the detaining power relinquishes, until such time as it requires return of the individual in question, responsibility for maintaining and safeguarding those transferred. Accountability in that regard is the responsibility of the accepting power. As regards adjudications concerning the individual's conduct after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction. Overall this amounts to a legal regime in which the detaining power has no substantial control over the day to day living conditions of the individual in question.
33. Even if while Tarek was at Camp Bucca the UK had there an Officer in Command, a Commanding Officer and a senior team, that would not persuade me that Camp Bucca was a UK military establishment. Under the MOU it remained a US military establishment, and the presence or absence of UK personnel did not affect this. Nor, consistently with Al-Skeini, can Camp Bucca be regarded as akin to a UK embassy or ship or aircraft. The defining feature in each case is that the UK is able to impose its own law, and thus to insist on compliance with ECHR. That feature is not present in Camp Bucca.
34. Accordingly I conclude that the UK role in Camp Bucca at the relevant time did not involve "such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention."
35. Thus in my view the analysis adopted by the House of Lords in Al-Skeini has the inevitable consequence that the claimant fails on the main question.

Remaining matters

36. In these circumstances I do not examine questions which would have arisen if this case fell within article 1. It is unnecessary to do so.

Conclusion

37. I grant permission to apply for judicial review. However for the reasons I have given the application for judicial review must be dismissed.