Starmer worked on second ECHR case that ‘undermined’ British troops
The Prime Minister helped sue the MoD, leading to a ruling that critics say hampered the Armed Forces
Sir Keir Starmer worked with Phil Shiner, the disgraced lawyer, on a second case that used the European Convention on Human Rights (ECHR) to target British troops in Iraq.
The Prime Minister represented an Iraqi who sued the Ministry of Defence (MoD) for jailing him in Basra, prompting a ruling critics say has harmed the Armed Forces ever since.
It is the second example unearthed by The Telegraph of Shiner, Sir Keir and Lord Hermer working on a case that laid the groundwork for British troops to be prosecuted.
Court documents show that while working as a human rights lawyer, Sir Keir accepted the case alongside Lord Hermer, now the Attorney General, and Shiner, who was later jailed for presenting falsified evidence against British troops.
Sir Keir represented Hilal al-Jedda, who was jailed without charge in occupied Iraq for three years on suspicion of terrorist activity, and claimed his human rights had been breached.
The case resulted in a ruling by the European Court of Human Rights that has encouraged British troops not to detain potential enemy combatants. Critics say it has cost lives and made the Armed Forces “hyper-cautious and risk-averse”.
Earlier this week, The Telegraph revealed that Shiner, Sir Keir and Lord Hermer were involved in a separate 2007 case that ultimately led the MoD to order inquiries into deaths in Iraq.
This triggered years of criminal investigations of soldiers who had been wrongly accused, at an enormous cost to the taxpayer.
Tom Tugendhat, the former Conservative cabinet minister who served in Iraq and Afghanistan, said Sir Keir’s work had turned British troops into “whipping boys for the courts” and left senior officers “paralysed by potential litigation”.
Both the Conservatives and Reform have pledged to leave the ECHR if they win the next election.
Critics claim the advantage of leaving for the UK would be to take back control over human rights law, after several cases highlighted by The Telegraph where killers, sex offenders and rejected asylum seekers have used Article 8 of the ECHR, the right to family life, to block their deportations.
Sir Keir has repeatedly rejected calls to leave the convention but said last month that it must be reformed to help combat illegal migration.
The Jedda ruling has since been cited by military experts and legal scholars as an example of the “lawfare” facing British troops operating overseas and vexatious war-crime allegations against them.
James Cartlidge, the shadow defence secretary, said Sir Keir’s involvement in the case was “completely extraordinary” and had led to a “whole series of vexatious prosecutions against British troops who served on operations in Iraq”.
He said: “The Prime Minister has a moral duty to explain to Parliament, and especially those veterans who were wrongfully pursued, exactly what he did and why.”
Court documents show that Sir Keir represented Mr Jedda. He was captured by American forces in October 2004, then held by British troops in Basra for three years without charge, while suspected of being a member of a terrorist group responsible for attacks on Western forces.
In the case, Sir Keir argued that European human rights law applied to areas of Iraq occupied by Western coalition troops, and that Mr Jedda’s ECHR right to freedom from arbitrary detention had been breached.
The House of Lords dismissed the appeal, arguing that the ECHR was superseded by a United Nations Security Council resolution.
Downing Street said on Wednesday night that Sir Keir had “represented people whose views he disagrees with” because of the “cab rank” rule that requires barristers to take any case they are offered.
However, an article by Sir Keir in the Socialist Lawyer magazine suggests he personally agreed with Mr Jedda’s case at the time, arguing that the decision to reject the appeal showed an “alarming approach” from the law lords.
He also cited the case in a chapter he worked on for a book, edited by Shiner, which argued in favour of the use of international human rights law in war zones controlled by British forces.
Four years later, Shiner brought the case back for a further appeal to the European Court of Human Rights in Strasbourg, where Mr Jedda won. Sir Keir did not represent him at the European appeal.
The successful appeal established in law that the right to freedom from arbitrary detention in European law applied even in conflict zones in the Middle East, controlled by Western forces.
Lord Brown, a former justice of the Supreme Court, singled out the case in 2016 as one of several judgments that have “all tended rather to undermine our military capability and to lead to our Armed Forces becoming hyper-cautious and risk-averse”.
He told the House of Lords that the “particular consequence of the Jedda decision in Strasbourg is that [the Armed Forces] have become unable to detain suspect foreign fighters whom we capture, however dangerous we judge them to be if left at large”.
Mr Jedda, whose case is a key plank of human rights law in conflict zones, was stripped of his British citizenship in 2007, shortly before his release from the prison in Basra.
After a High Court appeal in 2010, this decision was overturned, and his citizenship was reinstated.
Lord Hermer once again acted for Mr Jedda in the 2010 case, though Sir Keir did not as he had since become director of public prosecutions.
After a Supreme Court judgment in 2013, Mr Jedda was once again stripped of his British citizenship.
A Downing Street spokesman said: “Everybody is entitled to legal representation in this country, which means the Prime Minister has represented people whose views he disagrees with.
“But he was not involved in the case heard in the European Court of Human Rights that led to the relevant judgment.
“As our country’s chief prosecutor, the Prime Minister protected Britain’s national security by locking up 150 terrorists, including the first conviction of an al-Qaeda ringleader and the ‘liquid bomb plotters’ who tried to carry out a British 9/11.”
