Supreme Court rules in Leigh Day vs Ministry of Defence human rights showdown

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By Katie King on

Mixed results, but Twitter particularly excited Lady Hale gave judgment with her handbag on her desk

sc leigh day

The Supreme Court has had its say on a number of appeals stemming from claims made by law firm Leigh Day against the Ministry of Defence (MoD).

Controversial human rights outfit Leigh Day — a firm which has been referred to the Solicitors Disciplinary Tribunal and which has been accused by right-wing media of “hounding” British troops — represented parties in three of the four cases ruled on this morning.

These cases were grouped together to form three appeals on three different issues. They all concern the human rights of people detained by armed forces in Iraq, Afghanistan and Libya respectively.

The first case is that of Rahmatullah, a respondent detained by UK armed forces in Iraq in 2004. He was later detained in US custody for more than ten years without charge or trial and was allegedly subjected to torture.

Seven judges were asked to consider whether his claims in tort against the MoD in respect of the allegations against US personnel are barred by principles of international law. These principles state courts cannot rule on the actions of another sovereign state’s government if these acts are done within the sovereign state’s own territory.

They considered this issue alongside the case of Mohammed, the facts of which are best explained in a Legal Cheek Journal piece written by Joshua Rozenberg QC:

Serdar Mohammed is an Afghan national who was captured by British troops in Afghanistan on 7 April 2010. The soldiers believed he was a senior Taliban commander who posed a threat to their safety. After his arrest, he was detained at British military bases in Afghanistan until 25 July 2010. He was then transferred to a prison controlled by the Afghan authorities. Later, an Afghan court sentenced him to ten years in prison — though he appears to have been released in June 2014. Was his detention by British forces a breach of his human rights?

The justices unanimously allowed the government’s appeal. They decided the respondents’ tort claims were Crown acts of state for which the UK government could not be liable in tort. This was summarised by law student favourite Lady Hale today, who addressed the court with a black and gold handbag on her desk.

Another issue the court ruled on today is article 5 of the European Convention on Human Rights and whether it is modified by international humanitarian law in non-international armed conflict. It did so in a joint ruling in Mohammed (explained above) and Abd Ali Hameed Al-Waheed, a case about an Iraqi citizen who was detained without charge by the respondent from 11 February to 28 March 2007.

Lord Sumption read out a summary of the justices’ judgment, explaining they had “partially overruled” the courts below.

More specifically, the Supreme Court dismissed Al-Waheed’s appeal and allowed the government’s Mohammed appeal in part. By a majority of seven to two, the court ruled that British forces had failed to comply with the procedural requirements contained in article 5, namely that it was prescribed by law and able to be challenged by the detainee.

Lord Sumption pictured with Lady Hale's bag
Lord Sumption pictured with Lady Hale’s bag

On the first of these, Sumption said the court had “no doubt” the detention was authorised by law: troops have the power to detain prisoners for more than 96 hours if this is necessary for imperative reasons of security. But, on the latter, he said the arrangements in Afghanistan for review of detention were not adequate. That said, the majority of the court agreed — despite the procedural defects of the system — the detainees will not necessarily be entitled to damages. The present appeal was allowed in part, and the outstanding issues mean the case will go back to the High Court.

The final appeal was Belhaj, judgment on which was delivered jointly with Rahmatullah.

In the case of Belhaj, the respondents allege they were abducted and unlawfully taken to Libya in February 2004, where they were both detained and tortured. Though the second respondent was released in June 2004, the first respondent was detained until March 2010. He claims he was tortured and sentenced to death following an unfair trial during this time.

The issue for the court to consider was whether the claims should be barred under the doctrine of “foreign act of state” (i.e. courts will not intervene in acts of a foreign state where the legality of those acts is challenged) or whether the claims could proceed.

Lord Mance
Lord Mance

On this, the Supreme Court unanimously dismissed the government’s appeals. Lord Mance said in court today that the pleas of state immunity failed and that the appellants, the MoD and former Foreign Secretary Jack Straw, had not shown any entitlement to rely on the doctrine of foreign act of state here. This means the cases may proceed to trial.

As Rozenberg noted, these rulings will be of “immense importance to the British armed forces”.

You can read the full judgments on all these cases here.

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