I wanted to update your Committee following the Court of Appeal’s judgment on 9 September in the Al Saadoon case, given its clear relevance to the Committee’s report and the Government’s response (sent on 7 September before the judgment was handed down). As a result of the Court of Appeal’s judgment, the legal context has moved on since the Committee produced its report–in particular as regards the jurisdiction of the UK for the purposes of the European Convention on Human Rights (ECHR).
As you know, the Government had appealed the High Court judgment in Al Saadoon and the hearing was in May this year. Our position, as set out in our response to your report, was that the ECHR does not automatically apply extra-territorially when military force is used abroad; and that the use of force of this kind is not sufficient of itself to bring a person within the jurisdiction of the United Kingdom.
The Court of Appeal’s judgment has supported the position of the Government, by ruling that a person does not fall within the jurisdiction of the UK for the purposes of the ECHR on the basis simply that force, including lethal force, is used. There needs to be control of the individual prior to the use of lethal force for jurisdiction to apply.
It is clear, therefore, that the use of lethal force of the kind the report considered - outside the espace juridique of the Convention and absent any effective control of an area or assumption of public powers - would fall outside the reach of the ECHR. The result is that Article 2 does not apply to such use whether within or outside an existing armed conflict.
23 September 2016
18 October 2016