Hassan, R (on the application of) v Secretary of State for Defence, Court of Appeal - Administrative Court, February 25, 2009, [2009] EWHC 309 (Admin)

Resolution Date:February 25, 2009
Issuing Organization:Administrative Court
Actores:Hassan, R (on the application of) v Secretary of State for Defence

Neutral Citation Number: [2009] EWHC 309 (Admin)Case No: CO/6119/2007 IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONADMINISTRATIVE COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 25/02/2009Before :MR JUSTICE WALKER- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Rabinder Singh QC and Ms Jessica Simor (instructed by Public Interest Lawyers, Birmingham) for the ClaimantMr Pushpinder Saini QC and Mr Parishil Patel (instructed by the Treasury Solicitor) for the DefendantHearing dates: 19 & 20 January 2009- - - - - - - - - - - - - - - - - - - - -Judgment - 2 -Mr Justice Walker : Introduction1. 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 question6. 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...

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