Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence  EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.
The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.