Al-Skeini & Ors, R (on the application of) v Secretary of State for Defence

Al-Skeini & Ors, R (on the application of) v Secretary of State for Defence

The Court of Appeal held that the ECHR and HRA did not apply to the deaths of the first five claimants, as the UK did not exercise effective control over Basrah City for ECHR purposes, nor were the deceased under the authority and control of British troops at the time of death. In the Mousa case, the ECHR and HRA did apply as the deceased was in UK custody, but it was premature to determine whether there was a breach of procedural obligations under Articles 2 and 3 ECHR; that issue was remitted to the Administrative Court pending the outcome of court-martial proceedings.

Parties
Appellants/claimants: Mazin Mumaa Galteh Al-Skeini and Others; Respondent/defendant: Secretary of State for Defence
Jurisdiction
England and Wales
Judgment Date
21 December 2005
Procedural Posture
Civil Appeal (judicial Review) / Appeal From Divisional Court to Court of Appeal
Outcome
Appeal and cross-appeal dismissed, subject to variation in Mousa case
Legal Topics
Extra Territorial Application of ECHR, Jurisdiction Under Human Rights Act, State Responsibility for Military Actions, Procedural Obligations Under Articles 2 and 3 ECHR
Public Law Human Rights Law International Law Extra Territorial Application of ECHR Jurisdiction Under Human Rights Act State Responsibility for Military Actions Procedural Obligations Under Articles 2 and 3 ECHR

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Parties

Mazin Mumaa Galteh Al-Skeini and Others

Appellants/claimants

Secretary of State for Defence

Respondent/defendant

Procedural Posture

Civil Appeal (judicial Review) / Appeal From Divisional Court to Court of Appeal

Legal Issues

  1. 1 Does the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA) apply to the activities of British troops in south-east Iraq?
  2. 2 Were the claimants entitled to the protection of the ECHR and HRA in the circumstances of the deaths in Basrah City?
  3. 3 Was the United Kingdom in breach of its procedural obligations under Articles 2 and 3 ECHR in the Mousa case?

Ratio Decidendi

The Court of Appeal held that the ECHR and HRA did not apply to the deaths of the first five claimants, as the UK did not exercise effective control over Basrah City for ECHR purposes, nor were the deceased under the authority and control of British troops at the time of death. In the Mousa case, the ECHR and HRA did apply as the deceased was in UK custody, but it was premature to determine whether there was a breach of procedural obligations under Articles 2 and 3 ECHR; that issue was remitted to the Administrative Court pending the outcome of court-martial proceedings.

Court Disposition

Appeal and cross-appeal dismissed, subject to variation in Mousa case

Orders

  • Appeals of the first five claimants dismissed; ECHR and HRA do not apply to their cases.
  • Cross-appeal of the Secretary of State dismissed; ECHR and HRA apply in the Mousa case.