XX and others (Respondents) v Ministry of Defence and another (Appellants) [2017] UKSC 1
- 2017
- United Kingdom
Topics
Public securityLegal bases
European Convention on Human Rights United Kingdom: Human Rights Act 1998 United Kingdom: Crown Act of StateCourts
The Supreme Court (UKSC), United KingdomLaws
Right to LibertyFacts
Mr. XX is an Afghan national who was captured during a planned International Security Assistance Force (ISAF) operation targeting a senior Taliban commander in April 2010. The applicant was detained by British troops until July 2010 when he was transferred into Afghan custody. The applicant was tried, convicted and sentenced to ten years imprisonment for offences related to the insurgency in Afghanistan. Mr. XX claimed that his detention was unlawful both under Afghan law of tort and the UK Human Rights Act 1998. The United Kingdom Government countered this claim, concluding that Mr. XXs detention was not in breach of Article 5 of the ECHR as the article was modified under the resolutions of the United Nations Security Council and International Humanitarian Law to permit the detention of individuals during armed conflict. Mr. XX appealed on the grounds that the Crown act of state is a narrow rule of non-justiciability for acts of high policy in the conduct of foreign relations which does not extend to the detention or transfer of particular individuals. The Court of Appeal allowed the respondents appeals on the grounds that the defence of the tort could only be applied when the Government could establish that there were compelling grounds of public policy to refuse to give effect to the local tort law- which no grounds arose in the case of Mr. XX. The Government appealed this conclusion to the Supreme Court.
Legal grounds
Human Rights Act 1998, Crown Act of State (the act of state in the field of international affairs performed by the Crown in the course of its relationship with another state or its subject); Article 5 of the ECHR.
Findings
The Supreme Court unanimously allowed the Government’s appeal on the basis that the respondent's tort claims are based on acts of foreign military operations by the Crown, of which these were Crown acts of state for which the Government cannot be liable in tort.