In Al Saadoon and others v Secretary of State for Defence  EWHC 715 (Admin), the High Court decided various preliminary issues in test cases arising out of the operations of UK Armed Forces in Iraq during the invasion, occupation and post-occupation periods. Leggatt J made four key findings:
- Individuals allegedly shot by British forces were within the UK’s jurisdiction because (a) the shootings occurred in the course of security operations in which British forces were exercising public powers and (b) through shooting, the UK had exercised physical power over those individuals.
- An allegation that UK agents breached the non-refoulement obligation does not trigger a duty to investigate under Article 3 (save if there is a credible allegation that the UK agents were complicit in the alleged torture or serious mistreatment such as to commit a substantive breach of Article 3 themselves).
- There is no duty to investigate cases of detention which are arguably in breach of Article 5 (with the exception of cases of enforced disappearance). In any event, Article 5 must be interpreted consistently with IHL.
- UNCAT does not give rise to domestically enforceable legal rights either directly or via customary international law. Thus, UNCAT has no direct effect on the scope of any investigative obligation which arises under Article 3 ECHR.
Karen Steyn QC represented the Secretary of State.