Supreme Court rules on three cases arising from the war on terror

On 17 January the Supreme Court handed down three judgments in cases arising from recent military campaigns. Claims had been brought against the UK Government on matters such as the scope of tort liability and certain Convention rights. The cases focused on the liabilities of the UK government for allegedly tortious acts done either by HM Forces in the course of operations overseas or by foreign governments in which UK officials are alleged to have been complicit.

In the most high profile of the various cases, the Supreme Court upheld a Court of Appeal ruling meaning that former Foreign Secretary Jack Straw faces being sued over allegations of illegal arrest and torture brought by a former Libyan dissident, Abdul-Hakim Belhaj. He alleges that MI6, then under the Ministerial responsibility of Mr Straw, helped the US abduct him in Asia in 2004 to return him and his wife to Tripoli. The BBC reported the outcome under the headline Libyan wins right to sue ex-Foreign Secretary Jack Straw

Other cases may have brought slightly better news for current and former Ministers. The Supreme Court dismissed the appeal in Abd Ali Hameed Al-Waheed v MOD. The appellant had been captured by British forces in Basra in 2007 at his wife’s home. The Government contended that weaponry material for explosives was found on the premises. He was held at a British army detention centre for six and a half weeks, and was then released after an internal review had concluded that a successful prosecution would be unlikely. The Supreme Court also allowed, in part, the Government’s appeal in Serdar Mohammed v MOD. Although the court accepted that British forces had power to take and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, it found that the procedures for doing so did not comply with article 5(4) of the European Convention on Human Rights. The flaw was that they did not afford prisoners an effective right to challenge their detention. Furthermore, the internal review procedures were inadequate because the same senior officer authorising the detention also reviewed it.

The remaining joined cases concerned the nature and content of the doctrine of Crown Act of State in Rahmatullah v MOD and Mohammed v MOD.  The proceedings were brought against the MOD by people claiming to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. Insofar as the proceedings includes claims based on the Iraqi or Afghan law of tort, the UK Government (along with other defences) raised the doctrine of Crown act of state, which in essence affords the Crown protection against tort claims on the grounds that the actions complained of were an Act of State. The question of whether what seems quite an anachronistic doctrine applied to these cases was taken as a preliminary issue. The Supreme Court unanimously allowed the Government’s appeals on the point, holding that insofar as the tort claims were based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown Acts of State for which the Government could not be liable in tort.

So, a mixed bag of rulings and some interesting preliminary points. Equally, some important clarification about issues related to capture and detention which may be of some comfort to the Ministry of Defence.

Jef Mitchell, consultant, BLM


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