Decisions of British Courts During 2013 Involving Questions of Public International Law

The British Yearbook of International Law � The Author 2014. Published by Oxford UniversityPress. Available online at www.bybil.oxfordjournals.orgdoi:10.1093/bybil/bru001Advance Access published on 14 August 2014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DECISIONS OF BRITISH COURTS DURING 2013

INVOLVING QUESTIONS OF PUBLIC OR

PRIVATE INTERNATIONAL LAW

A. PUBLIC INTERNATIONAL LAW

By ANDREW SANGER*

1. Apex Global Management Ltd v Fi Call Ltd and others, 11 June 2013,

[2013] EWCA Civ 642, [2013] 4 All ER 216, [2014] 1 WLR 492

(CA(Civ))

4

Diplomatic immunity — Diplomatic Privileges Act, Schedule 1,

article 31 — State Immunity Act 1978, section 20 meaning of

‘members of family forming part of household’ — whether adult

family member of foreign monarch part of household — whether

meaning applicable to head of State immunity is wider than that

applicable to diplomatic immunity — whether wider meaning than

spouse, civil partner and dependents

2. Smith and others v Ministry of Defence, 19 June 2013, [2013] UKSC

41, [2014] AC 52, [2013] 4 All ER 794, [2013] 3 WLR 69 (SC)

15

European Convention for the Protection of Human Rights and

Fundamental Freedoms 1950 — ‘jurisdiction’ within meaning of

ECHR, article 1 — whether soldiers on active service abroad within

the scope of United Kingdom’s ECHR jurisdiction — Human

Rights Act 1998, Sch 1, Pt I, article 2 — whether article 2 ECHR

right to life extended to soldiers on active service outside British

territory — positive obligation to safeguard life — whether State

owes duty of care to serving soldiers when providing equipment

subsequently used in conflict — whether claim relating to procure-

ment of equipment and adequacy of training justiciable — whether

fair, just and reasonable to impose a duty on Ministry of Defence —

whether defense of combat immunity available

* Volterra Fietta Junior Research Lecturer at Newnham College and the Lauterpacht Centre forInternational Law, Cambridge, [email protected].

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The British Yearbook of International Law (2014), Vol. 84 No. 1, 395–484

http://bybil.oxfordjournals.org/

3. AA-R (IRAN) v Secretary of State for the Home Department, 12

July 2013, [2013] EWCA Civ 835, unreported (CA(Civ))

34

Convention relating to the Status of Refugees 1951, article 1F(a) —

status as a refugee — exceptions to refugee status — crimes against

humanity — whether appellant complicit in crimes against humanity

and excluded from refugee status — whether tribunal erred in

finding appellant complicit in actions of Iranian paramilitary group

4. Ford v Malaysian Airline Systems Berhad, 27 September 2013,

[2013] EWCA Civ 1163, [2014] 1 Lloyd’s Rep 301 (CA(Civ))

39

Montreal Convention for the Unification of Certain Rules for

International Carriage by Air 1999, article 17(1) — scope of the term

‘accident’ — whether the act of giving a passenger an injection in the

course of an international commercial flight, which exacerbated the

passenger’s physical discomfort, constituted ‘an accident’ for the

purposes of article 17(1) of the Montreal Convention

5. Al-Malki and another v Reyes and another, 4 October 2013, UKEAT/

0403/12/GE, [2014] ICR 135 (Langstaff J)

42

Diplomatic immunity — Vienna Convention on Diplomatic

Relations 1961, article 31(1) and article 3(1) — Diplomatic Privileges

Act 1964 — employment of domestic servant by member of a mis-

sion — whether employment claim by domestic servant against

member of the mission and his wife barred by diplomatic immunity

— whether immunity constitutes a violation of the appellant’s right

to a fair trial under article 6 of the European Convention on Human

Rights — UN Convention on Jurisdictional Immunities of States

and their Property 2004

6. Benkharbouche v Embassy of the Republic of Sudan and Janah v

Embassy of the Republic of Libya, 4 October 2013, UKEAT/0401/12/

GE, UKEAT/0020/13/GE, [2014] 1 CMLR 40, [2014] ICR 169,

[2013] IRLR 918 (Langstaff J)

50

State immunity — State Immunity Act 1978, sections 4 and 16 —

Human Rights Act 1998— European Convention on Human Rights,

article 6 — Charter of Fundamental Rights of the European Union,

article 47 — right to a fair trial — employment contracts exception to

immunity – employment of a domestic servant by member of a

mission — whether immunity violates the appellants’ right to a fair

trial — whether State Immunity Act 1978 capable of being set aside

— whether State Immunity Act 1978 capable of being interpreted

compatibly with article 6 of the European Convention on Human

Rights

7. Regina v Gul (Mohammed), 23 October 2013, [2013] UKSC 64,

[2013] 3 WLR 1207, [2014] 1 Cr App R 14 (SC(E))

57

Terrorism Act 2000, section 1 (as amended by Terrorism Act 2006,

section 34 and Counter-Terrorism Act, section 75(2)(a)) — defini-

tion of ‘terrorism’ — Terrorism Act 2006, section 2 — disseminating

terrorist publications — whether international law characterises

396 DECISIONS OF BRITISH COURTS DURING 2013


attacks by those engaged in armed struggle against coalition forces in

Iraq and Afghanistan as ‘terrorism’ — whether domestic and/or

international law requires domestic definition of terrorism to be read

down

8. Youssef v Secretary of State for Foreign and Commonwealth Affairs,

29 October 2013, [2013] EWCA Civ 1302 (CA(Civ))

70

United Nations Security Council sanctions — judicial review of the

Foreign Secretary’s decision to left hold on claimant’s inclusion in

United Nations Security Council’s list of persons associated with

terrorist organisation — whether a full merits review appropriate and

whether decision irrational — test to be applied by Foreign Secretary

for inclusion on list — whether Foreign Secretary required to

maintain hold on listing where designating State relying on foreign

conviction obtained through evidence acquired under torture —

whether Foreign Secretary obliged to support claimant’s removal

from European Union sanctions regime

9. Belhaj and another v Straw and Others, 20 December 2013, [2013]

EWHC 4111 (QB) (Simon J)

78

State immunity — foreign act of State doctrine — territorial lim-

itation of foreign act of State doctrine — public policy exception —

unlawful rendition — whether impleading a foreign State — whether

State immunity applies when a foreign State is not a party to pro-

ceedings or directly impleaded — whether foreign act of State doc-

trine bars claims against UK officials alleging assistance in the

commission of torts by foreign State officials

397A. PUBLIC INTERNATIONAL LAW


1. Apex Global Management Ltd v Fi Call Ltd and others, 11 June2013, [2013] EWCA Civ 642, [2013] 4 All ER 216, [2014] 1 WLR 492(CA(Civ))

Diplomatic immunity — Diplomatic Privileges Act 1964, Schedule 1, article 31 —State Immunity Act 1978, section 20 meaning of ‘members of family forming part ofhousehold’ — whether adult family member of foreign monarch part of household —whether meaning applicable to head of State immunity is wider than that applicableto diplomatic immunity — whether wider meaning than spouse, civil partner anddependents

Article 37 of the Vienna Convention on Diplomatic Relations (VCDR)1

provides that:

The members of the family of a diplomatic agent forming part of his householdshall, if they are not nationals of the receiving State, enjoy the privileges andimmunities specified in Articles 29 to 36 [which provide for the immunity ofdiplomatic agents].

Section 20(1) of the State Immunity Act 1978 (SIA) reads in relevant part:

Subject to the provisions of this section and to any necessary modifications, theDiplomatic Privileges Act 1964 shall apply to—

(a) a sovereign or other head of State;(b) members of his family forming part of his household; and(c) his private servants,

as it applies to the head of a diplomatic mission, to members of his familyforming part of his household and to his private servants.

Article 31(1)(c) reads in relevant part:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of thereceiving State. He shall also enjoy immunity from its civil and administrativejurisdiction, except in the case of:

[. . .]

(c) an action relating to any professional or commercial activity exercised by thediplomatic agent in the receiving State outside his official functions.

The Diplomatic Privileges Act 1964 (DPA) gives effect in English law tothe VCDR and incorporates provisions of that Convention in Schedule 1to the Act.Apex Global Management Limited brought claims against the appel-

lants in an unfair prejudice petition under section 994 of the CompaniesAct 2006 in relation to the affairs of Fi Call Limited, an English

1 Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, 500 UNTS 95.



corporation.2 The appellants, who are Saudi Arabian Princes and mem-bers of the King of Saudi Arabia’s family, argued that they are immunefrom the jurisdiction of the UK courts by virtue of section 20(1)(b) of theSIA. Vos J of the Chancery Division of the High Court rejected theirplea on the basis that the phrase ‘members of his family forming part ofhis household’ in section 20(1)(b) does not include independent familymembers who live apart from the sovereign or head of State and who arenot undertaking the sovereign or head of State’s duties.3 The appellantsappealed, arguing that (1) Vos J was wrong in law and in fact to decidethat they were not members of the King of Saudi Arabia’s household; (2)that, contrary to the obiter conclusion reached by Vos J in his judgment,the SIA does not contain an exception to the personal immunity of thehead of State for commercial activities undertaken anywhere in theworld; and (3) that, in light of the fact that the Secretary of State haddeclined to issue a certificate under section 4 of the DPA4 on the basis ofinsufficient material, as a matter of law, Vos J should have treated a letterfrom the ambassador of Saudi Arabia stating that the appellants formedpart of the King of Saudi Arabia’s household as conclusive of that fact.Briggs J gave the judgment for the Court of Appeal, with which RichardsLJ and Maurice Kay LJ agreed.5

The principal issue in this case was whether the appellants, as adultchildren of the King of Saudi Arabia, could be considered ‘members ofhis family forming part of his household’ for the purposes of section20(1)(b) SIA. Section 20(1) extends immunity conferred on diplomatsby the VCDR and given effect in English law by the DPA to heads ofStates and members of their households. Briggs J observed that an ear-lier draft of the Act originally only extended diplomatic immunity tovisiting heads of State at the invitation or with the consent of the UKGovernment, but it was later changed to avoid ‘an unsatisfactory doubtabout the position of heads of state that are not in the United Kingdom.’6

In anticipation of the potential difficulties of simply applying the DPA toheads of State, the text ‘subject to any necessary modifications’ wasadded to section 20(1).7

2 Section 994 of the Companies Act 2006 provides that ‘A member of a company may apply to thecourt by petition for an order . . . on the ground—(a) that the company’s affairs are being or havebeen conducted in a manner that is unfairly prejudicial to the interests of members generally or ofsome part of its members (including at least himself), or (b) that an actual or proposed act oromission of the company (including an act or omission on its behalf) is or would be so prejudicial.’

3 Apex Global Management Ltd v Fi Call Ltd [2013] EWHC 587 (Ch) (Vos J).4 Section 4 reads: ‘If in any proceedings any question arises whether or not any person is entitled

to any privilege or immunity under this Act a certificate issued by or under the authority of theSecretary of State stating any fact relating to that question shall be conclusive evidence of that fact.’

5 [2013] 4 All ER 216, 236, paras 74-5.6 [2013] 4 All ER 216, 222, para 13, citing R v Bow Street Metropolitan Stipendiary Magistrate, ex

parte Pinochet Ugarate (No 3) [2000] 1 AC 147, 203 (Lord Brown Wilkinson).7 In Pinochet, which is the only case in which a court has made a ‘necessary modification’ to

section 20 of the SIA, the House of Lords modified the effect of Article 39(2) of the VCDR byfinding that, unlike the personal immunity of diplomats, the personal immunity of the head of Stateended when he left office, not when he left the country.



Briggs J rejected the appellant’s argument that the phrase ‘members ofhis family forming part of his household’ in section 20(1)(b) SIA had awider reading for heads of State, including, in addition to family depend-ents living in the same house, members of the family undertaking dutiesfor the sovereign or head of State.First, he concluded that at time the SIA was drafted and enacted, the

phrase already had a settled meaning. The rationale for extending theimmunity of diplomats to members of his or her household was thatthese individuals were ‘extensions of the person of the diplomat, andtheir protection was equally necessary in order to ensure his independ-ence’.8 The VCDR reflects this rationale by extending the diplomat’simmunity to those members ‘forming part of this household’. Attemptsduring negotiations of the Convention to agree a specific definition ofthis phrase were unsuccessful,9 but Denza has observed that generalState practice has broadly followed the American proposal, which was‘widely supported but not in the event adopted’, namely that:

A member of the family is the spouse of a member of the mission, any minorchild or any other unmarried child who is a full-time student and any such othermembers of the immediate family of a member of the mission as may be agreedupon between the receiving and the sending states. [. . .]

What appears to have happened is that the United States’ proposal, havingfailed to be formally included in the Convention, has been accepted in generalstate practice. The spouse of a diplomat not legally separate from him orher . . . is universally accepted as a member of the family, as are children belowthe age of majority. Beyond this, each receiving state applies its own rules withsome degree of flexibility, and unusual cases are settled in negotiation at thetime of notification rather than left to any kind of arbitration or adjudication inthe context of legal proceedings.10

The practice of the UK Government, which the Foreign andCommonwealth Office Minister announced to the House of Lords inJune 1978,11 includes in the ‘household’, the ‘spouse, civil partner andminor children of the diplomat and, in exceptional circumstances, olderchildren resident with and financially dependent on the diplomat, whilein full-time education, and a dependent parent of a diplomat normallyresident with him or her.’12 This position, focusing as it does on ‘de-pendence’ rather than ‘performance by any such persons of diplomatic

8 [2013] 4 All ER 216, 224, para 19, citing E Denza, Diplomatic Law (3rd edn, Oxford UniversityPress, 2008), 391–392.

9 [2013] 4 All ER 216, 224, para 20.10 Denza, Diplomatic Law, 393, cited [2013] 4 All ER 216, 224, para 21.11 With the exception of the introduction of ‘civil partners’ pursuant to the Civil Partnership Act

2004 c. 33, which came into force in 2005.12 [2013] 4 All ER 216, 225, para 22, with reference to Denza, Diplomatic Law, 394.



duties or functions on the diplomat’s behalf’,13 is congruent with thepractice of other states.14

According to Briggs J, there is nothing to suggest that Parliament wasnot aware and did not intend for the phrase ‘members of his familyforming part of his household’ in section 20(1)(b) to reflect the practiceof the United Kingdom at that time. The SIA uses the phrase twice –first in sub-section (b) and then again in the words that follow sub-sec-tion (c):

There is no hint of a suggestion that the functional basis for either the immunityitself, or its limited extension to persons other than the head of state, was in-tended to be any different than it had been understood to be in connection withdiplomats and their families. There is in particular no indication that the use ofthe same phrase was, for the first time, intended to accommodate the notion thatclose members of a head of state’s family deserved head of state immunity forthe better performance of their own royal, governmental or constitutionalduties.15

Second, Briggs J noted that when Parliament decided that the SIAshould provide for the continuous personal immunity of heads of Stateand not just immunity when a head of State visits the UK, ‘there was noconsideration by Parliament whether this necessitated a broader ap-proach to the meaning of household, as applied to heads of state.’16

Third, it is clear that the UK Government does not define ‘membersof the household’ more broadly in other contexts. The UK BorderAgency’s ‘UK Immigration Directorate’s Instructions’, which provideinternal guidance on immigration for the Agency,17 explain that the fol-lowing individuals may be considered a member of the household for thepurpose of section 20(3) of the SIA:

Under Section 20(3) of the [SIA], Heads of State, members of their familiesforming part of their household and their private servants enjoy total exemptionfrom control unless otherwise directed by the Secretary of State.

. spouses (except common law spouses or same sex partners);

. dependent offspring under 18;

. dependent offspring over 18 who are still in full time education;

. dependent relatives who formed part of the household abroad (e.g. elderlywidowed parent);

. other close relatives who have no one else to look after them (e.g. youngorphaned brothers and sisters);

13 [2013] 4 All ER 216, 225, para 23.14 [2013] 4 All ER 216, 225, para 23: Denza notes similar practice by Canada, Australia, New

Zealand, United States of America, Germany, Belgium and the Council of Europe: Denza,Diplomatic Law, 395-400.

15 [2013] 4 All ER 216, 225, para 24.16 [2013] 4 All ER 216, 229, para 36.17 [2013] 4 All ER 216, 225-6, para 25. Section 20(3) of the SIA provides immunity from im-

migration control to those to whom it is conferred by section 20(1).



. unmarried partners (common law or same sex relationships) where the re-lationship is recognised as durable by the sending State and is one that isakin to marriage and that the parties intend to live together in the UnitedKingdom for the duration of the posting.

Briggs J concluded from this text that the UK Government adopts theconventional understanding of the meaning of ‘members of his familyforming part of his household’ in relation to diplomats, ‘has beenapplied, mutatis mutandis, to head of state immunity by section 20 [ofthe SIA]’.18

Fourth, ‘the sheet anchor of the [appellants] case on head of stateimmunity’19 was the views of Sir Arthur Watts and Sir RobertJennings in Oppenheim’s International Law, and Sir Arthur Watt’s ex-panded position in his Hague Academy lectures.20 In that text, he ex-plains that,

It is however, possible that a reference to a person forming part of someone’s‘household’ does not bear the same meaning in the context of members of aHead of State’s family as it does in relation to members of an ambassador’sfamily. In the circumstances of a diplomatic mission membership of an ambas-sador’s household may be thought to require an element of dependence on theambassador, and residence under the same roof. But a Head of State’s circum-stances may be very different; if a monarch, his household may well be regardedas containing adult members of the immediate Royal family who, althoughliving in a separate establishment from that of the monarch, neverthelessshare in and assist with the exercise of certain Royal constitutional and repre-sentational functions.

These considerations are particularly relevant where a member of the family hasa separate constitutional role closely connected to the office of Head of State.Such may well be the case, for example, in respect of an heir to the throne of amonarchy.21

In reaching his conclusion, Sir Arthur relied on Kilroy v Windsor,22 adecision of the United States District Court for the Northern District ofOhio (Eastern Division), which concerned the question of whether HRHPrince Charles was immune from suit in American courts while presentin America. The case was ultimately decided on the basis that PrinceCharles was on a special mission and therefore immune, but the UScourt noted the opinion of the US Department of Justice that, as heir

18 [2013] 4 All ER 216, 226, para 26.19 A Watts and R Jennings, Oppenheim’s International Law, Vol 1 (9th edn, 1992), 1040. [2013] 4

All ER 216, 227, para 29.20 A Watts, ‘The Legal Position in International Law of Heads of Sates, Heads of Governments

and Foreign Ministers’ in Recueil de Cours, Collected Courses of the Hague Academy of InternationalLaw, vol 247 (1994), 9-130.

21 [2013] 4 All ER 216, 226-7, para 28, citing Watts (ibid).22 Civ No C-78-291 (ND Ohio, 1978); (1990) 81 ILR 605-6.



apparent to the throne, he was also a member of HM the Queen’shousehold.23

Briggs J was not persuaded by the reliance on Sir Arthur’s views or bythe Kilroy case. He considered it to be ‘of high importance’ that therationale for extending the meaning of ‘household’ for heads of Statewas based ‘upon a perception that it would be desirable to extend headof state immunity to those closely assisting the head of state in doing hisjob, for the protection of the dignity and independence of the assistantsthemselves, rather than of the head of state.’24 However, this rationaledid not reflect the fact that ‘the extension of immunity beyond ambas-sadors to close members of their family was never designed for any suchpurpose, nor it is it any part of the functional purpose of head of stateimmunity that it should be.’25

Fifth, Briggs J was concerned that once some extension of the house-hold concept is contemplated, it is difficult, as a matter of interpretationof section 20, to know where the boundary should be set: ‘[t]he inter-preter is cast adrift upon an unchartered sea in which, like the judge, heis forced to make up the rules as he goes along.’26 Moreover, it is difficultto locate an intention in section 20 that there should be an extension ofthe household concept – ‘[t]he only place where it could be found is inthe proviso for “necessary modifications.”, but this is a ‘necessity test’and does not extend to ‘modifications which [are] merely desirable.’27

The only occasion in which a court has modified the application of theVCDR to heads of State under the ‘necessary modifications’ is Pinochet.Article 39 provides that the immunity of a diplomatic agent begins andends when he arrives in, and leaves, the receiving State, subject to a‘grace period’ for leaving the country. The application of Article 38 toheads of State would not have been a problem if Article 20(1)(b) appliedonly to visiting heads of State, but it would nonsensical and plainly in-correct to apply Article 39(2) to heads of State at all times, regardless ofwhether they were present on UK territory. Thus, in Pinochet, the ne-cessary modification was to treat the personal immunity of the head ofState as ending when he left office, not when the left the country. Bycontrast, it is not strictly necessary to find that the household phraseshould extend beyond those understood – in customary law and byParliament at the time at which the SIA was enacted – as being includedwithin that phrase.

23 Kilroy v Windsor (1978) 81 ILR 605 (District Court for the Northern District of Ohio, 1978).24 [2013] 4 All ER 216, 229, para 38.25 [2013] 4 All ER 216, 229, para 38.26 [2013] 4 All ER 216, 229, para 39.27 [2013] 4 All ER 216, 229, para 40.



In the view of Briggs J, any attempt to extend the meaning of thehousehold concept in relation to heads of State along the lines advancedby the appellants and by Sir Arthur Watts, ‘fails that necessity test’:

It may be that a regent is to be regarded as the head of state, but there is no basisfor regarding a regent or an heir to the throne as part of the head of state’shousehold, in particular if he has a household of his own.28

On this conclusion, the appellants, with their own households, livingseparately from the King of Saudi Arabia, and with their own wivesand children, cannot be described as a child of, or a dependent of theKing.29 The fact that one of the appellant is a ‘very senior member of theSaudi Arabian royal family and a close confident of the King, who hasfor many years performed significant royal and constitutional duties,including chairmanship of the Allegiance Council, which elects thenew Crown Prince’, does not make him a member of the King’s house-hold for the purposes of section 20(1) of the SIA.30

It was common ground that the commercial activities of the appellantsfor the purposes of the section 993 petition took place outside of theUnited Kingdom. The commercial exception in Article 31(1)(c) ofthe VCDR, which is confined to commercial activities that take placein the receiving State, therefore did not apply. Vos J, who, having con-cluded that the appellants cannot invoke immunity, nevertheless make anobiter decision on the issue after a full argument by the parties. Heconcluded that it was a ‘necessary modification’ in the conferral of dip-lomatic immunity on heads of states that immunity be excluded for allnon-official commercial activities anywhere in the world, because ‘theapplication of Article 31.1(c) to sovereigns, their families and personalservants makes no sense without it.’31

Briggs J noted that in light of his own interpretation of the householdphrase and the fact that the issue was argued less fully before the Courtof Appeal than before Vos J, he would nevertheless give an opinion be-cause it is ‘a question [that is] likely to be of greater general import thanissues as to the precise meaning of the head of state’s household,’32 thereis a high propensity for ‘disputes about commercial activity to be justi-ciable in the United Kingdom without any of the relevant activitieshaven take place here’, and he was not in agreement with Vos J’s view(although he noted that a binding decision must wait until a case is ac-tually decided on that ground).Vos J’s view was that the rationale for the territorial limitation of

Article 31 of the VCDR was that ‘diplomatic agents in post are unlikelyto be sued whilst they are in post in the UK in respect of foreign

28 [2013] 4 All ER 216, 230, para 41.29 [2013] 4 All ER 216, 230, para 42-3.30 [2013] 4 All ER 216, 230, para 42.31 [2013] 4 All ER 216, 230, para 45; [2013] EWHC 587, para 142 (Ch) (Vos J).32 [2013] 4 All ER 216, 231, para 46.



commercial activity’,33 but section 20 will apply for heads of State andtheir households while they are not in the UK. Consequently, to limitthe effect of the commercial exception ‘to a tiny part of the ambit of theirpersonal immunity would be anomalous’34 and would run counter tosection 3 of the SIA, which provides an exception to State immunityratione materiae in respect of commercial activity anywhere in theworld.35

Briggs J was not persuaded. The considerations noted by Vos J maywell make it ‘logical, desirable and sensible for Parliament to have ex-tended the Article 31 commercial exemption to the commercial activitiesof a head of state anywhere in the world’, but,

the question is whether that modification of Article 31 satisfies the necessitytest. It would do so in my opinion only if the court can be sufficiently sure thatthis must have been Parliament’s intention, as it appears that the judgewas . . .Once satisfied as to Parliament’s intention, then the modificationwould be necessary to give effect to it.

According to Briggs J, he would give more weight to the factors pointingin the direction that Parliament intended heads of State to receive thebenefit of Article 31, with its limited commercial activity exclusion, thandid Vos J. First, as Article 31(1)(c) of the VCDR clearly makes a diplomatimmune from suit in respect of commercial activities outside of the UK,the extension of the commercial exception to activity anywhere in theworld would mean that the head of State has ‘less immunity while visitingthe UK than his ambassador’.36 This is especially important because thepresence of a prospective defendant within the UK’s jurisdiction is, sub-ject to forum non conveniens and the Judgments Regulation, the basis forthe English court’s jurisdiction to adjudicate on disputes concerningactivities abroad. Thus, to remove the territorial limitation would be to

expose a visiting head of state to being served with originating process while inthe UK in respect of his private commercial activity undertaken anywhere in theworld, including in his home state, during the relevant limitation period prior tothe service of proceedings. Those with disputes which they wished to litigateagainst him, including his own subjects, might see his temporary presence in theUK as a heaven-sent opportunity to engage in such litigation, with obviouslyadverse consequences for the dignity of the head of state during his visit, and forthe effective performance of his official functions while in the UK.

The original purpose of section 20 in the State Immunity Bill, before itwas amended and enacted, was specifically to provide for the immunityof heads of State while visiting the UK: ‘that purpose was not itself

33 [2013] 4 All ER 216, 231, para 48.34 [2013] 4 All ER 216, 231, para 48.35 And as a matter of customary international law: Trendtex Trading Corporation v Central Bank

of Nigeria [1977] 1 QB 52.36 [2013] 4 All ER 216, 231, para 50.



removed by the amendment which extended the immunity so as to pro-tect the head of state at all times during his holding of that office.’37

These considerations led Briggs J to conclude that the proposed modi-fication of Article 31(1)(c) failed the necessity test.38 Finally, Briggs Jnoted that,

In so concluding I have not lost sight of the fact that, in the Pinochet case, theHouse of Lords concluded that the private head of state immunity conferred bysection 20 had not been intended to go further than that available previouslyunder customary international law. Counsel was unable to enlighten this courtas to whether the commercial exception to personal head of state immunity hadbecome a principle of customary international law before the enactment of theSIA.39

The respondent argued that the reasoning in Pinochet should support theamendment of Article 31(1)(c) by analogy. Briggs J quickly dispensedwith this hopeless argument. The House of Lords did recognise the needfor a necessary modification of the duration of the immunity conferredby Article 39, but it ‘by no means follows that the extent of the com-mercial exception requires necessary modification’. The two modifica-tions are ‘separate and distinct, and they stand or fall by reference todifferent considerations.’40

Finally, the appellants argued that, as a matter of law, the court shouldhave accepted the Saudi Arabian ambassador’s letter as certifying thematter contained therein, when the UK Government has declined tocertificate under section 4 of the DPA. Counsel for the appellant invokedAhmand and Aswat41 for the proposition that Diplomatic Notes arebinding on the States that issue them,42 but this was futile as the am-bassador’s letter in the present case was ‘issued to a partner in CliffordChance [solicitors for the appellants]’, and ‘[a]lthough printed on theembassy’s headed paper, it is plainly not, nor anything like, aDiplomatic Note.’ The appellants’ case was not helped by the fact that‘the evidence suggested . . . that the ambassador’s letter had been pre-pared on a Clifford Chance word processor using the firm’s in-housestyle, before being submitted to the ambassador for signature.’43

The appellants’ reliance on Khurts Bat44 was equally fanciful, as thatcase was concerned with the grant or withholding of accreditation to adiplomatic mission, which was clearly held to be a matter for the receiv-ing State. The decision says nothing about the weight to be given to a

37 [2013] 4 All ER 216, 232, para 53.38 [2013] 4 All ER 216, 233, para 55.39 [2013] 4 All ER 216, 233, para 56.40 [2013] 4 All ER 216, 233, para 57.41 Ahmad and Aswat v Government of United States of America [2007] HRLR 8.42 [2013] 4 All ER 216, 234, para 62.43 [2013] 4 All ER 216, 234, para 63.44 Khurts Bat v Investigating Judge of the Federal Court of Germany [2011] EWHC 2029 (Admin),

[2012] 3 WLR 180, (2012) 82 BYIL 613-628.



letter from the embassy of a sending State.45 Similarly, the Sultanof Pahang case,46 which concerned the question whether a letter fromthe FCO that certified under section 20(1) of the SIA that the Sultan wasnot the head of State of Malaysia was conclusive, ‘had nothing to do witha statement from the Government of Malaysia itself, and took [the ap-pellants’] argument no further.’47 Finally, the appellants’ invokedextracts from an article by Elizabeth Wilmshurst entitled ‘ExecutiveCertificates in Foreign Affairs: the United Kingdom’,48 but this refer-ence was also irrelevant to the case at hand because it was concerned withthe status and effect in English courts of FCO certificates, and not cer-tificates or statements by ambassadors of foreign State.49

Not only did these authorities fail to support the argument submittedby the appellants, but ‘there is [also] the clearest authority against [theargument].’50 In Aziz v Yemen, Pill LJ explained that,

Whether the issue is as to the status of the entity claimed to be an emanation ofthe state or as to a claimed waiver of immunity, the evidence of the Ambassador,as representative of the state, is important but not necessarily conclusive evi-dence of the relevant matters.51

And in the Trendtex case, Lord Denning MR said:

It is often said that a certificate by the ambassador, saying whether or not anorganisation is a department of state, is of much weight, though notdecisive . . .But even this is not to my mind satisfactory. What is the testwhich the ambassador is to apply?52

On the facts of the present case, Briggs J observed that the ambassadorappeared to be relying on an unspoken assumption that being issued witha diplomatic passport meant that the appellants’ could properly be re-garded as members of the King’s household, despite the fact that ‘severalthousand living male members of the Al Saud family using the stylePrince and that a diplomatic passport would, upon request, be issuedto any of them.’53 Briggs J rightly concluded that ‘[p]lainly the ambas-sador was using a test (or an understanding of the meaning of household)far removed from that which it is the court’s duty to apply in the absenceof a Secretary of State’s certificate under section 4 of the [DPA].’54

45 [2013] 4 All ER 216, 234-5, para 64.46 R (HRH Sultan of Pahang) v Secretary of State of the Home Department [2011] EWCA Civ

616 (CA), (2012) 82 BYIL 587-591.47 [2013] 4 All ER 216, 235, para 65.48 E Wilmshurst, ‘Executive Certificates in Foreign Affairs: The United Kingdom’ (1986) 35

ICLQ 157.49 [2013] 4 All ER 216, 235, para 66.50 [2013] 4 All ER 216, 235, para 67.51 [2005] EWCA Civ 745, [2005] ICR 1391, 1404-5 (Pill LJ).52 [1977] QB 529, 560 (Lord Denning MR).53 [2013] 4 All ER 216, 236, para 70.54 [2013] 4 All ER 216, 236, para 70.



The judgment is irreproachable and provides helpful guidance forfuture cases. It would stretch the concept of ‘household’ too far to in-clude those who are plainly not part of the sovereign or head of State’shousehold, but are independent of the head of State and have homes andfamilies of their own, and there is nothing to suggest that Parliament didnot intend article 31(1)(c) VCDR to apply to heads of State without theterritorial qualification and good reason to suggest that Parliament wouldhave wanted to afford this immunity to sovereigns and heads of State.Finally, the last-ditch argument that a foreign ambassador’s letter shouldbe taken to be conclusive was rightly rejected.



2. Smith and others v Ministry of Defence, 19 June 2013, [2013] UKSC41, [2014] AC 52, [2013] 4 All ER 794, [2013] 3 WLR 69 (SC)

European Convention for the Protection of Human Rights and FundamentalFreedoms 1950 — ‘jurisdiction’ within meaning of ECHR, article 1 — whethersoldiers on active service abroad within the scope of United Kingdom’s ECHRjurisdiction — Human Rights Act 1998, Sch 1, Pt I, article 2 — whether article2 ECHR right to life extended to soldiers on active service outside British territory— positive obligation to safeguard life — whether State owes duty of care to servingsoldiers when providing equipment subsequently used in conflict — whether claimrelating to procurement of equipment and adequacy of training justiciable — whetherfair, just and reasonable to impose a duty on Ministry of Defence — whether defenseof combat immunity available

The Supreme Court was asked to determine whether claims broughtagainst the Ministry of Defence (the MoD) by British soldiers whowere injured, and by families of British soldiers killed, while serving aspart of Operation TELIC in Iraq should be struck out.55 The claimsconcerned two sets of incidents. The Challenger claims concerned thedeath and injury of British soldiers by the friendly fire of another Britishtank during the combat phase of operation TELIC. The claimantsalleged that the MoD breached its common law duty of care by failingto ensure that the tanks were properly equipped and that the soldierswere adequately trained.56 The Snatch Land Rover claims concernedsoldiers that were killed by the detonation of an improvised explosivedevice beside their Land Rover while they were on patrol during thepeace-keeping phase of operation TELIC.57 The claimants alleged thatthe MoD breached article 2 of the European Convention on HumanRights by failing to provide and deploy suitable armoured equipment(including electronic counter-measures fitted with a new equipment partknown as Element A) and thus failing to take reasonable steps to protectthe soldiers’ lives from foreseeable risks.58 One of the Snatch Land Roverclaimants also brought negligence claims at common law, alleging thatthe MoD failed to ensure that the patrols were limited to more robustarmoured vehicles and failing to ensure the vehicles were fitted withtechnology appropriate for the patrol (the ‘Ellis claims’).59

55 Operation TELIC was the codename used by the United Kingdom for its military operationsin Iraq conducted between 19 March 2003 and 22 May 2011. The claims in this present case concernevents that took place between 2003 and 2009.

56 [2014] AC 52, 103, para 9 (Lord Hope JSC).57 [2014] AC 52, 103, para 9 (Lord Hope JSC).58 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222,

Rome, 4 November 1950, entered into force 3 September 1953, Article 2, which reads in relevantpart: ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life inten-tionally save in the execution of a sentence of a court following his conviction of a crime for whichthis penalty is provided by law.’

59 [2014] AC 52, 104, para 12 (Lord Hope JSC). It is alleged that the MoD failed ‘(i) to limit hispatrol to better, medium or heavily armoured vehicles, (ii) to provide any or any sufficient better or



In response to these claims, the MoD submitted that the soldiers killedin the Snatch Land Rover claims were not within the jurisdiction of theUnited Kingdom as that term in article 1 of the ECHR is understood,60

and that it did not owe a duty of care to the soldiers under article 2 at thetime of their deaths.61 In relation to the negligence claims (the Challengerclaims; the Ellis claim), the MoD invoked the doctrine of combat im-munity and submitted that imposing liability would not be just, fair andreasonable.62 Owen J of the Queen’s Bench Division of the High Courtstruck out the Snatch Land Rover claims on the basis that the soldierswere not within the UK’s jurisdiction, but declined to strike out theChallenger and the Ellis claims in negligence.63 Writing for the Courtof Appeal, Moses LJ (with whom Lord Neuberger MR and Rimer LJagreed) dismissed the appeal by the Snatch Land Rover claimants againstOwen J’s ruling that the soldiers were not within the jurisdiction of theUK for the purposes of article 1 ECHR,64 and dismissed the MoD’sappeal against Owen J’s refusal strike out the Challenger and Ellisclaims in negligence on the ground of combat immunity.65 Moses LJalso allowed a cross-appeal by the Ellis claimants against the striking outby Owen J66 of one of their claims, on the ground that it is arguable thatit would not fall within the scope of combat immunity and it was there-fore premature to strike out the claim at this stage.67

From these claims, the Supreme Court had to address four questions.First, were the soldiers serving outside the United Kingdom’s territoryon conflict and/or peacekeeping missions within the United Kingdom’sjurisdiction under article 1 of the ECHR, as incorporated into UK lawby Schedule 1 of the Human Rights Act 1998? Second, if the soldierswere within the United Kingdom’s jurisdiction, should the article 2claims be struck out on the basis that, in the circumstances of the case,there is no duty to protect life? Third, should the Challenger and the Ellisnegligence claims be struck out on the basis that the MoD has combatimmunity? Finally, should the Challenger and the Ellis claims be struckout on the ground that, in the circumstances of the case, it would not befair, just and reasonable to impose a duty of care to protect against deathand injury? On the first question, Lord Hope JSC, writing for a

armoured vehicle for use by Pte Ellis’s commander which, had they been provided, would or shouldhave been used for his patrol and (iii) to ensure that Element A had been fitted to the ECM on PteEllis’s Snatch Land Rover, without which it should not have been permitted to leave the Camp.’

60 Article 1 reads: ‘The High Contracting Parties shall secure to everyone within their jurisdic-tion the rights and freedoms defined in section 1 of this Convention.’

61 [2014] AC 52, 104, para 13 (Lord Hope JSC).62 [2014] AC 52, 104, para 13 (Lord Hope JSC).63 Smith and others v the Ministry of Defence [2011] EWHC 1676 (QB), [2011] HRLR 35

(Owen J).64 Smith and others v the Ministry of Defence [2012] EWCA Civ 1365, [2013] 1 ALL ER 778, 788,

para 32 (Moses LJ).65 [2012] EWCA Civ 1365, [2013] 1 ALL ER 778, 784-5, para 15 (Moses LJ).66 [2011] EWHC 1676 (QB) (Owen J).67 [2012] EWCA Civ 1365, [2013] 1 ALL ER 778, 794, para 63 (Moses LJ).



unanimous Court,68 allowed the appeal and found that the soldiers in theSnatch Land Rover claims were within the United Kingdom’s jurisdic-tion for the purposes of article 1 of the ECHR. On the second, third andfourth questions, Lord Hope JSC, writing for a 4-3 majority (LordWalker JSC, Lady Hale JSC and Lord Kerr JSC), dismissed theMoD’s application to strike out the article 2 and the ECHR claims onthe basis that they should be determined by the trial judge after hearingevidence.69 Lord Mance JSC (with whom Lord Wilson JSC agreed)dissented on the ground that the negligence and article 2 claims arecovered by combat immunity and/or non-justiciable.70 Lord CarnwathJSC dissented on the same grounds, save that he thought the SnatchLand Rover claims should proceed because they occurred during a peace-keeping mission and were therefore not subject to combat immunity.71

On the jurisdictional issue, Lord Hope JSC began by examining therecent case-law of the House of Lords and of the Supreme Court, par-ticularly Al-Skeini,72 Gentle73 and Smith,74 and the relevant Strasbourgjurisprudence, especially Bankovic v United Kingdom75 and Al-Skeini vUnited Kingdom,76 emphasising – as the House of Lords and theSupreme Court did in these cases – that the decision of the Courtmust not go further in its interpretation and/or application ofConvention rights specified in Schedule 1 of the Human Rights Act1998 than the European Court of Human Rights (ECtHR) would in itsinterpretation and/or application of the parallel articles of the ECHR.77

In Al-Skeini, Gentle and in Smith, the Court relied on theStrasbourg’s decision in Bankovic, which, it found, stands for the prop-osition that ‘article 1 reflects the territorial notion of jurisdiction, andthat other bases of jurisdiction are exceptional and require special justi-fication’,78 and that ‘the rights and freedoms defined in the Convention[cannot] be divided and tailored’ to a specific situation in which the Statehas exercised its (extra-territorial) jurisdiction.79 Thus, in Al-Skeini, the

68 [2014] AC 52, 105-117, paras 17-55 (Lord Hope JSC, with whom Lord Walker JSC, LadyHale JSC and Lord Kerr agree JSC), 132, para 102 (Lord Mance JSC, whom Lord Wilson JSCagrees), and 149, para 153 (Lord Carnwath JSC).

69 [2014] AC 52, 105, para 16 (Lord Hope JSC).70 [2014] AC 52, 132-49, paras 102-152 (Lord Mance JSC).71 [2014] AC 52, 149-60, paras 153-88 (Lord Carnwath JSC).72 R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153, (2007) 78

BYIL 529–46 (HL).73 R (Gentle) v Prime Minster and others [2008] UKHL 20, [2008] 1 AC 1356, (2008) 79 BYIL

422-8 (HL).74 R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2011] AC 1, (2010) 81

BYIL 370-8 (SC).75 (2001) 11 BHRC 435.76 (2011) 53 EHRR 589.77 [2014] AC 52, 107, para 22 and 114, para 44 (Lord Hope JSC).78 [2011] AC 1, para 305.79 [2014] AC 52, 106-7, para 21 (Lord Hope JSC), citing R (Al-Skeini) v Secretary of State for

Defence [2007] UKHL 26, [2008] AC 153, para 109 (Lord Brown). See Bankovic v Belgium (2001) 11BHRC 435, para 75.



House of Lords ruled that in order for a State to be acting ‘within itsjurisdiction’ under article 1, it must exercise effective control over for-eign territory and be able to guarantee all of the Convention’s rights andfreedoms.80 In Smith v Oxfordshire Assistant Deputy Corner, theSupreme Court once again relied on the territorial notion of jurisdictionespoused in Bankovic and the limited exceptions to that general rule todismiss a claim brought the mother of a British soldier who died ofhyperthermia in Iraq while carrying out his duties off base. In thatcase, Lord Collins JSC explained that there is no basis in the case-lawof the ECtHR ‘for the proposition that the jurisdiction which states un-doubtedly have over their armed forces abroad both in national law andinternational law means that they are within their jurisdiction for thepurposes of article 1.’81 He also concluded that,

Bankovic made it clear that article 1 was not to be interpreted as a ‘living in-strument’ in accordance with changing conditions: paras 64–65. It is hardlyconceivable that in 1950 the framers of the Convention would have intendedthe Convention to apply to the armed forces of Council of Europe states engagedin operations in the Middle East or elsewhere outside the contracting states.Even the limited exceptions to territoriality recognised by the Strasbourg courtwere plainly not contemplated in the drafting process. [. . .] There is nothing inthe drafting history to give the slightest credence to the proposition that theConvention was to apply to the relations of the state with its armed forcesabroad.

The Strasbourg jurisprudence does not all point in one direction. Thereasoning in some cases, notably Issa v Turkey,82 Cyprus v Turkey,83 andOcalan v Turkey,84 is inconsistent with the emphasis in Bankovic thatjurisdiction in article 1 ECHR means territorial jurisdiction. In Issa, forexample, the Strasbourg court appeared to stray from its position inBankovic, when it stated that the accountability for violation ofConvention rights ‘cannot be interpreted so as to allow a State party toperpetrate violations of the Convention on the territory of another State,which it could not perpetrate on its own territory’.85 Lord Hope JSCnoted that this conclusion ‘appeared to focus on the activity of the con-tracting state, whereas the emphasis in Bankovic was on the requirementthat the victim should be within the jurisdiction.’86 Given the apparentconflict, the House of Lords in Al-Skeini ‘was of the view that it wouldnot be proper to proceed beyond the jurisprudence of the European

80 [2008] 1 AC 153, paras 79 (Lord Roger) and 129 (Lord Brown).81 [2011] AC 1, para 307.82 (2004) 41 EHRR 567, para 71.83 (1976) 4 EHRR 482, para 8.84 (2005) 41 EHRR 985 (ECtHR(GC)).85 (2004) 41 EHRR 567, para 71, cited at [2014] AC 52, 107, para 22 (Lord Hope JSC).86 [2014] AC 52, 107, para 22 (Lord Hope JSC).



court on jurisdiction as analysed and declared by the Grand Chamber inBankovic.’87

By the time the present case was argued before the Supreme Court, theStrasbourg court had decided Al-Skeini v United Kingdom88 and haddeviated from its ruling in Bankovic in several respects. Consequently,the conclusions reached by the House of Lords in Al-Skeini and by theSupreme Court in Smith v Oxfordshire Assistant Deputy Corner, could nolonger be maintained. First, relying on paragraphs 131-2 of Al-Skeini,Lord Hope JSC noted that although jurisdiction in article 1 was primar-ily territorial, the Strasbourg court had now provided guiding principlesto national courts covering a non-exhaustive list of exceptions to thatrule:

131 A state’s jurisdictional competence under article 1 is primarily territorial.Jurisdiction is presumed to be exercised normally throughout the state’s terri-tory. Conversely, acts of the contracting states performed, or producing effects,outside their territories can constitute an exercise of jurisdiction within themeaning of article 1 only in exceptional cases.132 To date, the Court in its case law has recognised a number of exceptionalcircumstances capable of giving rise to the exercise of jurisdiction by a contract-ing state outside its own territorial boundaries. In each case, the questionwhether exceptional circumstances exist which require and justify a findingby the Court that the state was exercising jurisdiction extra-territorially mustbe determined with reference to the particular facts.89

According to Lord Hope JSC, the word ‘exceptional’ is not meant toreflect a high threshold, but simply means an exception to the normalrule that jurisdiction in article 1 is territorial,90 and the words ‘to date’indicate that ‘the list of circumstances which may require and justify afinding that the state was exercising jurisdiction extra-territorially is notclosed.’91 In this light, the view of Lord Collins JSC in Smith vOxfordshire Assistant Deputy Corner that Bankovic made it clear article1 was not to be interpreted as a ‘living instrument’,92 can ‘no longer beregarded as an entirely accurate statement’:93

[t]he general principles are derived from the application to particular facts of therequirement of jurisdictional competence. The particular facts to which thoseprinciples must now be applied may be the product of circumstances that werenot foreseen by the framers of the Convention. But that is no reason to disregard

87 [2014] AC 52, 107, para 22 (Lord Hope JSC).88 Al-Skeini and others v United Kingdom (2011) 53 EHRR 589 (ECtHR(GC)).89 Al-Skeini and others v United Kingdom (2011) 53 EHRR 18, 647, paras 131-2 (ECtHR (GC)).90 [2014] AC 52, 110, para 30 (Lord Hope JSC).91 [2014] AC 52, 110, para 30 (Lord Hope JSC).92 [2011] AC 1, para 303, with reference to paras 64-5 of Bankovic v United Kingdom, (2001) 11

BHRC 435 (ECtHR(GC)).93 [2014] AC 52, 110, para 30 (Lord Hope JSC).



them if they can be shown to fall within the general principles relevant to jur-isdiction under article 1.94

In Al-Skeini v United Kingdom, the Grand Chamber divided the ex-ceptional circumstances recognised by its case-law into general cate-gories: (1) ‘[s]tate agent authority and control’,95 (2) ‘[e]ffective controlover an area’,96 and (3) ‘[t]he Convention legal space’ (the Convention’sespace juridique).97 As the United Kingdom’s presence in Iraq in 2005and 2006 was at the request of the Iraqi Government, and its task was toassist the Government with security and reconstruction, the UK was notoccupying Iraqi territory and the Snatch Rover Claims could only fallwithin the category of State agent authority and control.98 The examplesof this category given by the Grand Chamber – diplomatic or consularagents exerting authority or control over others;99 the exercise of some orall of the public powers exercised by a local government at the request,consent or acquiesce of that government (without any serious explan-ation of what is meant by ‘public powers’);100 or the use of force by aState to bring an individual under the control of that State while on theterritory of another State101 – did not cover the situation in the presentcase, namely, the service of soldiers in a foreign State. Nevertheless, aftersetting out these examples from its jurisprudence, the Grand Chamberexplained that,

136. . . .The Court does not consider that jurisdiction in the above cases arosesolely from the control exercised by the contracting state over the buildings,aircraft or ship in which the individuals were held. What is decisive in such casesis the exercise of physical power and control over the person in question.137. It is clear that, whenever the state through its agents exercises control andauthority over an individual, and thus jurisdiction, the state is under an obliga-tion under article 1 to secure to that individual the rights and freedoms undersection 1 of the Convention that are relevant to the situation of that individual.In this sense, therefore, the Convention rights can be ‘divided and tailored’(compare Bankovic, cited above, x 75).

Lord Hope JSC took the first sentence in paragraph 137 as a summary ofthe exceptional circumstances in which the exercise of State authorityand power is held to constitute an exercise of the State’s jurisdictionunder article 1.102

94 [2014] AC 52, 110, para 30 (Lord Hope JSC).95 (2011) 53 EHRR 589, 647-9, paras 133-7 (ECtHR(GC)).96 (2011) 53 EHRR 589, 649, paras 138-40 (ECtHR(GC)).97 (2011) 53 EHRR 589, 649-50, paras 141-2 (ECtHR(GC)).98 [2014] AC 52, 110, para 31 (Lord Hope JSC).99 [2014] AC 52, 111, para 33 (Lord Hope JSC).100 [2014] AC 52, 111, para 34 (Lord Hope JSC).101 [2014] AC 52, 111, para 35 (Lord Hope JSC).102 [2014] AC 52, 114, para 46 (Lord Hope JSC).



The second element that Lord Hope JSC drew from Al-Skeini was itsresolution of the inconsistency between Issa v Turkey103 with Bankovic,which until now was considered the preferred decision:

We now know that Issa cannot be dismissed as an aberration because, as LordCollins said in Catherine Smith, para 307, it is inconsistent with Bankovic. It isBankovic which can no longer be regarded as authoritative on this point. Thefact that Issa is included in para 136 as one of the examples of cases that fallwithin the general principle of state agent authority and control is particularlynoteworthy. It anchors that case firmly in the mainstream of the Strasbourgcourt’s jurisprudence on this topic.104

Third, Lord Hope JSC observed that the Strasbourg court had departedfrom the proposition that the rights and freedoms in the Convention are‘indivisible and cannot be divided and tailored to the particular circum-stances of the extra-territorial act in question’,105 noting that:

The effect of para 137 of the AlSkeini judgment is that this proposition, whichinformed much of the thinking of the House of Lords in AlSkeini (HL) and ofthe majority in Catherine Smith, that the rights in Section 1 of the Conventionare indivisible, is no longer to be regarded as good law. The extra-territorialobligation of the contracting state is to ensure the observance of the rights andfreedoms that are relevant to the individual who is under its agents’ authorityand control, and it does not need to be more than that.106

[. . .]The concept of dividing and tailoring goes hand in hand with the principle thatextra-territorial jurisdiction can exist whenever a state through its agents exer-cises authority and control over an individual. The court need not now concernitself with the question whether the state is in a position to guaranteeConvention rights to that individual other than those it is said to havebreached . . .107

Finally, Lord Hope JSC recalled that in Cyprus v Turkey,108 theStrasbourg court had concluded that

authorised agents of a state, including diplomatic or consular agents and armedforces, not only remain under its jurisdiction when abroad but bring other per-sons or property ‘within the jurisdiction’ of that state, to the extent that theyexercise authority over such person or property. In so far as, by their acts oromissions, they affect such persons or property, the responsibility of the state isengaged.109

103 Issa v Turkey (2004) 41 EHRR 567 (ECtHR).104 [2014] AC 52, 114-5, para 47 (Lord Hope JSC).105 [2014] AC 52, 115, para 48 (Lord Hope JSC).106 [2014] AC 52, 112, para 38 (Lord Hope JSC).107 [2014] AC 52, 115, para 49 (Lord Hope JSC).108 (1975) 4 EHRR 482.109 (1975) 4 EHRR 482, 483, para 8, cited at [2014] AC 52, 116, para 51 (Lord Hope JSC).



In the light of Al-Skeini, his Lordship found the logic behind thisstatement compelling, and that it followed that the same principleshould apply to the state’s agents:

It is plain, especially when one thinks of the way the armed forces operate, thatauthority and control is exercised by the state throughout the chain of commandfrom the very top all the way down to men and women operating in the frontline. Servicemen and women relinquish almost total control over their lives tothe state. It does not seem possible to separate them, in their capacity as stateagents, from those whom they affect when they are exercising authority andcontrol on the state’s behalf. They are all brought within the state’s article 1jurisdiction by the application of the same general principle.110

Finally his Lordship noted that although the facts of the Snatch LandRover claims do not clearly fall within the examples of State agent au-thority and control found in the Strasbourg court’s jurisprudence, it wasclear from paragraph 132 of Al-Skeini v United Kingdom that this listwas not exclusive, and the words ‘to date’ at the beginning of that para-graph indicated that,

one should not be too troubled by the fact that no case has yet come before theStrasbourg court which required it to consider whether the jurisdiction whichstates undoubtedly have over their armed forces abroad in national and inter-national law means that they are within their jurisdiction for the purposes ofarticle 1 of the Convention.111

Lord Hope JSC thus concluded that,

[R (Smith) v Oxfordshire Assistant Deputy Corner]112 should be departed fromas it is inconsistent with the guidance that the Grand Chamber has now given inits Al-Skeini judgment. I would also hold that the jurisdiction of the UnitedKingdom under article 1 of the Convention extends to securing the protection ofarticle 2 to members of the armed forces when they are serving outside itsterritory and that at the time of their deaths Pte Hewett and Pte Ellis werewithin the jurisdiction of the United Kingdom for the purposes of that article.To do so would not be inconsistent with the general principles of internationallaw, as no other state is claiming jurisdiction over them.113

While Al-Skeini v United Kingdom did not require the Court to concludethat the soldiers were within the jurisdiction of the Convention underarticle 1 ECHR,114 theAl-Skeini judgment had effectively, if not overtly,departed from two important supporting principles in Bankovic, namelythat jurisdiction in article 1 EHCR means ‘territorial jurisdiction’ andthat the Convention rights are invisible, which allowed Lord Hope JSC

110 [2014] AC 52, 116, para 52 and paras 53-4 (Lord Hope JSC).111 [2014] AC 52, 113, para 42 (Lord Hope JSC).112 [2010] UKSC 29, [2011] 1 AC 1 (SC(E)).113 [2014] AC 52, 117, para 55 (Lord Hope JSC).114 [2014] AC 52, 113, para 42 (Lord Hope JSC).



to find that the UK soldiers in the present case were within the personalor ‘state agent authority’ jurisdiction of the Convention and that, inprinciple, their right to life under article 2 was engaged.Lord Hope JSC then turned to claims in Snatch Land Rover and Ellis

that the MoD had breached the substantive obligation in article 2 ECHRnot to take life without justification and to ensure that a structure of lawsand procedures that help to protect life are in place.115 Lord Hope JSCacknowledged that while some issues relating to the conduct of armedhostilities are clearly non-justiciable, ‘finding that in all circumstancesdeaths or injuries in combat that result from the conduct of operations bythe armed forces are outside the scope of article 2 would not besustainable . . . It would amount, in effect, to a derogation from thestate’s substantive obligations under that article.’116 After recalling A vSecretary of State for the Home Department117 and R (Al-Jedda) vSecretary of State for Defence,118 Lord Hope concluded that he did not

think it would be right to assume that concern about the practical consequencesin situations such as those with which we dealing in this case can be answered byexercising the power to derogate. The circumstances in which that power canproperly be exercised are far removed from those where operations are under-taken overseas with a view to eliminating or controlling threats to the nation’ssecurity. The jurisprudence of the Strasbourg court shows that there are otherways in which such concerns may be met.119

In assessing the positive obligations arising from Convention rights, theStrasbourg court has ‘repeatedly emphasised that . . . a fair balance mustbe struck between the competing interests of the individual and of thecommunity as a whole. It has also been recognised that there will usuallybe a wide margin of appreciation if the state is required to strike a bal-ance between private and public interests and Convention rights.’120

After considering Gentle and Smith v Oxfordshire Assistant DeputyCorner, Lord Hope JSC concluded that:

64. The extent to which the application of the substantive obligation underarticle 2 to military operations may be held to be impossible or inappropriatewill, however, vary according to the context. Military operations conducted inthe face of the enemy are inherently unpredictable. There is a fundamentaldifference between manoeuvres conducted under controlled conditions in thetraining area which can be accurately planned for, and what happens whentroops are deployed on active service in situations over which they do nothave complete control. As Lord Rodger observed in Catherine Smith, para

115 [2014] AC 52, 118, para 57 (Lord Hope JSC), referring to R (Middleton) v West SomersetCoroner [2004] UKHL 10, [2004] 2 AC 182 (HL(E)), para 2.

116 [2014] AC 52, 118, para, 58 (Lord Hope JSC).117 [2004] UKHL 56, [2005] 2 AC 68 (HL(E)).118 [2007] UKHL 58, [2008] AC 332 (HL(E)), para 38.119 [2014] AC 52, 118-9, para 60 (Lord Hope JSC).120 [2014] AC 52, 119, para 61 (Lord Hope JSC).



122, the job of members of the armed forces involves their being deployed insituations where, as they well know, opposing forces will be making a deter-mined effort, and using all their resources, to kill and injure them. The best laidplan rarely survives initial contact with the enemy. The best intelligence cannotpredict with complete accuracy how the enemy will behave, or what equipmentwill be needed to meet the tactics and devices that he may use to achieve his ownends. Speed may be essential if the momentum of an attack is to be maintainedor to strengthen a line of defence. But lines of communication may becomestretched. Situations may develop where it is simply not possible to providetroops in time with all they need to conduct operations with the minimum ofcasualties. Things tend to look and feel very different on the battlefield from theway they look on such charts and images as those behind the lines may haveavailable to them. A court should be very slow indeed to question operationaldecisions made on the ground by commanders, whatever their rank or level ofseniority.65. Then there is the issue of procurement. In A v Secretary of State for theHome Department [2005] 2 AC 68, para 29, Lord Bingham said that the morepurely political (in a broad or narrow sense) the question is, the more appro-priate it would be for political resolution, and the less likely it is to be an ap-propriate matter for judicial decision. The allocation of resources to the armedservices and as between the different branches of the services, is also a questionwhich is more appropriate for political resolution than it is by a court. Much ofthe equipment in use by the armed forces today is the product of advancedtechnology, is extremely sophisticated and comes at a very high price.Procurement depends ultimately on the allocation of resources. This may inturn be influenced as much by political judgment as by the judgment ofsenior commanders in Whitehall as to what they need for the operations theyare asked to carry out. It does not follow from the fact that decisions aboutprocurement are taken remote from the battlefield that they will always be ap-propriate for review by the courts.66. This, then, is a field of human activity which the law should enter into withgreat caution. Various international measures, such as those contained in the 3rdGeneva Convention of 1929 to protect prisoners of war, have been entered intoto avoid unnecessary hardship to non-combatants. But subjecting the operationsof the military while on active service to the close scrutiny that may be practic-able and appropriate in the interests of safety in the barrack block or in thetraining area is an entirely different matter. It risks undermining the ability of astate to defend itself, or its interests, at home or abroad. The world is a dan-gerous place, and states cannot disable themselves from meeting its challenges.Ultimately democracy itself may be at risk.

Although Lord Hope JSC noted that the Strasbourg court ‘has nothad occasion to examine the extent to which article 2(1) offers protectionat any level to a State’s armed forces when engaged in operations such asthose that were being conducted in Iraq in 2005 and 2006,’121 he re-viewed Strasbourg decisions on the scope of the positive obligation inarticle 2 to protect life. His Lordship observed that the characteristics of

121 [2014] AC 52, 121, para 69 (Lord Hope JSC).



military life are such that armed forces cannot expect the same standardof protection from article 2(1) as would be afforded to civilians ‘who hadnot undertaken the obligations and risks associated with life in the mili-tary’,122 but ‘[i]t is hard to see why servicemen and women should not, asa general rule, be given the same protection against the risk of death orinjury by the provision of appropriate training and equipment as mem-bers of the police, fire and other emergency services.’123 However, thereis a ‘sharp contrast’ between training and operations undertaken ‘whereit was known or could reasonably have been anticipated that troops wereat risk of attacks from insurgents by unconventional means such as theplanting of IEDs’124 and ‘the national interest requires that the lawshould accord the widest measure of appreciation to commanders onthe ground who have the responsibility of planning or and conductingoperations there.’125 From this review, and relying in part on Stoyanovi vBulgaria126 and Giuliani v Italy,127 Lord Hope JSC concluded that:

76. The guidance which I would draw from the Court’s jurisprudence in thisarea is that the court must avoid imposing positive obligations on the state inconnection with the planning for and conduct of military operations in situ-ations of armed conflict which are unrealistic or disproportionate. But it mustgive effect to those obligations where it would be reasonable to expect the in-dividual to be afforded the protection of the article. It will be easy to find thatallegations are beyond the reach of article 2 if the decisions that were or ought tohave been taken about training, procurement or the conduct of operations wereat a high level of command and closely linked to the exercise of political judg-ment and issues of policy. So too if they relate to things done or not done whenthose who might be thought to be responsible for avoiding the risk of death orinjury to others were actively engaged in direct contact with the enemy. Butfinding whether there is room for claims to be brought in the middle ground, sothat the wide margin of appreciation which must be given to the authorities or tothose actively engaged in armed conflict is fully recognised without deprivingthe article of content, is much more difficult. No hard and fast rules can be laiddown. It will require the exercise of judgment. This can only be done in thelight of the facts of each case.

Thus, between ‘high-level decisions’ and decisions made during armedconflict or in ‘theater’, there exists, according to Lord Hope JSC a‘middle ground’ on which article 2 claims – and, as goes on to say,

122 [2014] AC 52, 122, para 71 (Lord Hope JSC), referring to Engel v The Netherlands (No 1)(1976) 1 EHHR 647 (ECtHR), para 54; S� en v Turkey (Application No 45824/99), 8 July 2003; andGrigoriades v Greece (1997) 27 EHHR 464.

123 [2014] AC 52, 122, para 71 (Lord Hope JSC), referring to Stoyanovi v Bulgaria (ApplicationNo 42980/04), Judgment, 9 November 2010 (unreported) (ECtHR (Fifth Section)), para 59, whichcites Osman v United Kingdom (1998) 29 EHRR 245 (ECtHR (GC)), paras 115-6.

124 [2014] AC 52, 123, para 73 (Lord Hope JSC).125 [2014] AC 52, 122, para 71 (Lord Hope JSC).126 Stoyanovi v Bulgaria (Application No 42980/04), Judgment, 9 November 2010 (unreported)

(ECtHR (Fifth Section)).127 Giuliani and Gaggio v Italy (2011) 54 EHRR 278 (ECtHR(GC)).



common law negligence claims– made be heard.128 Although some of theSnatch Land Rover and Ellis claims appear to relate to operational deci-sions, while others potentially point to systematic failures, he noted thatnone of the claims were yet fully developed; it would be unfair to apply‘too exacting a standard at this stage’.129 As the question of whether anarticle 2 claim can proceed will turn on the facts of each claim, ‘[t]hecircumstances in which the various decisions were made need to beinquired into before it can be determined with complete confidencewhether or not there was a breach of the implied positive obligation.’130

In conclusion,

80. . . .Much will depend on where, when and by whom the operational deci-sions were taken and the choices that were open to them, given the rules andother instructions as to the use of equipment under which at each level of com-mand they were required to operate.131

Consequently, Lord Hope JSC ruled that the claims should not bestruck out at this stage,132 but he put the claimants on notice that estab-lishing their claims will not be a straightforward task:

The claimants are, however, on notice that the trial judge will be expected tofollow the guidance set out in this judgment as to the very wide measure ofdiscretion which must be accorded to those who were responsible on the groundfor the planning and conduct of the operations during which these soldiers losttheir lives and also to the way issues as to procurement too should be ap-proached. It is far from clear that they will be able to show that the impliedpositive obligation under article 2(1) of the Convention to take preventativeoperational measures was breached in either case.133

Given the lack of specific guidance, it is also likely to be a difficult taskfor the trial judge.Finally, Lord Hope JSC turned to the question of combat immunity.

The MoD submitted that the doctrine of combat immunity ‘should begiven a sufficiently broad scope to over all acts or omissions that arealleged to have caused death or injury in the course of combat oper-ations’.134 In other words, the doctrine should be extended ‘fromactual or imminent armed conflict to failures at that earlierstage’.135Although there are only a few cases on the scope of the doc-trine,136 a review of the authorities led Lord Hope JSC to conclude that,

128 [2014] AC 52, 123-4, para 76 (Lord Hope JSC).129 [2014] AC 52, 125, para 79 (Lord Hope JSC).130 [2014] AC 52, 125, para 79 (Lord Hope JSC).131 [2014] AC 52, 125, para 80 (Lord Hope JSC).132 [2014] AC 52, 120, paras 64-65, 123, para 76, and 125, paras 79-81 (Lord Hope JSC).133 [2014] AC 52, 125, para 81 (Lord Hope JSC).134 [2014] AC 52, 126, para 83 (Lord Hope JSC).135 [2014] AC 52, 128-9, para 92 (Lord Hope JSC).136 [2014] AC 52, 126, para 84 and 128, para 89 (Lord Hope JSC).



It is to operations or acts of war only that the doctrine [of combat immunity]extends, on the ground that the armed forces must be free to conduct suchoperations without the control or interference of the courts of law. . . .Toapply the doctrine of combat immunity to these claims [the Challenger andEllis claims] would involve an extension of that doctrine beyond the cases towhich it has previously been applied. That in itself suggests that it should not bepermitted. I can find nothing in these cases to suggest that the doctrine extendsthat far.137

[. . .]95. At the stage when men are being trained, whether pre-deployment or intheatre, or decisions are being made about the fitting of equipment to tanks orother fighting vehicles, there is time to think things through, to plan and toexercise judgment. These activities are sufficiently far removed from the pres-sures and risks of active operations against the enemy for it to not to be unrea-sonable to expect a duty of care to be exercised, so long as the standard of carethat is imposed has regard to the nature of these activities and to theircircumstances.

His Lordship went on to explain that,

98. The closest the cases have come to applying that reasoning to cases involvingmembers of the armed forces is Mulcahy v Ministry of Defence [1996] QB 732,where Neill LJ said, at p 750, that there was no duty on the defendants in battleconditions to maintain a safe system of work and Sir Iain Glidewell said, at p751, that one soldier does not owe to another a duty of care when engaged inbattle conditions. As in the other cases, the question whether a duty should beheld not to exist depends on the circumstances—on who the potential claimantsare and when, where and how they are affected by the defendant’s acts. Thecircumstances in which active operations are undertaken by our armed servicestoday vary greatly from theatre to theatre and from operation to operation. Theycannot all be grouped under a single umbrella as if they were all open to thesame risk, which must of course be avoided, of judicialising warfare. For thesereasons, I think that the question whether the claims in this case fall within theexclusion that was recognised in Mulcahy or any extension of it that can bejustified on grounds of public policy cannot properly be determined withouthearing evidence. In Van Colle, para 58, Lord Bingham of Cornhill said that onewould ordinarily be surprised if conduct which violated a fundamental right orfreedom of the individual under the Convention did not find a reflection in abody of law as sensitive to human needs as the common law. So Lord RodgerJSC’s observation in Catherine Smith, para 126 that there would be reason tobelieve that the military authorities may have failed in their article 2 duty if asoldier dies as a result of friendly fire from other British forces is capable ofbeing read across as indicating that the question in the case of the Challengerclaims is not whether a duty was owed but whether, on the facts, it was brea-ched. Whether the situation in Iraq at the time of the incidents that gave rise tothe Ellis claims was comparable to battle conditions when a nation is at war is amatter that also needs to be investigated.

137 [2014] AC 52, 128, para 91 (Lord Hope JSC).



On this basis, Lord Hope JSC held that the Challenger claims were notwithin the scope of the doctrine and therefore ‘should not be struck outon this ground and that the MOD should not be permitted, in the case ofthese claims, to maintain [its] argument [on combat immunity].’138 TheEllis common law claim is more difficult, as it suggests that ‘some of thefailures alleged may have been due to decisions taken by local com-manders during active operations on the ground.’139 However, withoutsufficient detail and evidence at this stage to make a determination, LordHope JSC decided that it would be premature for the claim to be struckout on the ground of combat immunity, preferring to ‘leave this issueopen to further argument in the light of the evidence.’140

The MOD also submitted that, for reasons of public policy, even if thecourt does find that it has jurisdiction due to the absence of combatcommunity, ‘it would not be fair, just or reasonable to impose a dutyof care on it to protect the soldiers in such circumstances against death orinjury.’141 Lord Hope JSC noted that the same considerations present inthe context of combat immunity also applied in this context, and ‘[g]reatcare needs to be taken not to subject those responsible for decisions atany level that affect what takes place on the battlefield, or in operations ofthe kind that were being conducted in Iraq after the end of hostilities, toduties that are unrealistic or excessively burdensome.’142 After reviewingthe authorities, and tentatively noting the English authorities thatdeclined to impose a duty of care on police officers on the publicpolicy ground that it would affect their job performance, Lord HopeJSC concluded:

100. The sad fact is that, while members of the armed forces on active servicecan be given some measure of protection against death and injury, the nature ofthe job they do means that this can never be complete. They deserve our respectbecause they are willing to face these risks in the national interest, and the lawwill always attach importance to the protection of life and physical safety. But itis of paramount importance that the work that the armed services do in thenational interest should not be impeded by having to prepare for or conductactive operations against the enemy under the threat of litigation if things shouldgo wrong. The court must be especially careful, in their case, to have regard tothe public interest, to the unpredictable nature of armed conflict and to theinevitable risks that it gives rise to when it is striking the balance as to what isfair, just and reasonable.

For Lord Hope JSC, the question of whether the negligence claimswould involve subjected the MoD to duties that are ‘unrealistic or

138 [2014] AC 52, 129-30, para 95 (Lord Hope JSC).139 [2014] AC 52, 130, para 96 (Lord Hope JSC).140 [2014] AC 52, 130, para 96 (Lord Hope JSC).141 [2014] AC 52, 126, para 83 (Lord Hope JSC).142 [2014] AC 52, 131, para 99 (Lord Hope JSC).



excessively burdensome’ can only be determined after hearing the rele-vant evidence.Lord Mance JSC, with whom Lord Wilson JSC agreed, and Lord

Carnwath JSC, dissented from the majority view and would havestruck out the article 2 and negligence claims.143 The dissentingJustices felt that the majority – and ultimately, counsel – had examinedthe issues in the claims in the wrong order. According to Lord ManceJSC, the primary duty of article 2 is that States must ensure that theyhave a ‘legislative and administrative framework appropriately protectiveof life’; consequently, the obligation in article 2 ‘naturally directs atten-tion first to the question whether domestic law provides such a frame-work, ‘including the recourse to compensation for non-pecuniarydamages which the Strasbourg court has indicated should “in principle”be available as part of the range of redress where a state is held respon-sible for a death.’144 Lord Carnwath JSC also considered that the Court’s‘primary responsibility should be for the coherent and principled devel-opment of the common law, which is within our own control.’145

On the question of a common law duty of care, Lord Mance JSC notedthat the claimants in the Challenger and Ellis claims had been careful to‘put their case in a way which relies solely on allegedly negligent conductoccurring prior to and distant from the actual hostilities, and involvingfailures, in Whitehall or elsewhere, properly to equip and train the sol-diers sent to fight in Iraq’, presumably in order to avoid falling withinthe doctrine of combat immunity.146 The question is therefore whetherthe State owes a duty of care in its performance of its responsibility forprocurement and training, which is a question of public policy, and it ‘isnot difficult to identify situations in which the common law has con-cluded on policy grounds that no duty of care should exist.147

Lord Mance JSC also found that there is an ‘inevitable inter-linking ofissues relating to the supply of technology and equipment and to trainingfor active service with decisions taken on the ground during active ser-vice.’148 Whereas Lord Hope JSC recognised the entanglement of issuesbut felt that all of the circumstances must be evaluated with a view tostriking a balance between competing considerations,149 Lord ManceJSC drew the opposite conclusion: the ‘inter-twining of issues of pro-curement and training with issues relating to the causation of injury ordeath on the battlefield seems highly likely to lead to a court undertaking

143 Although Lord Carnwath would have allowed the Snatch Land Rover claims: [2014] AC 52,159, paras 187-8 (Lord Carnwath JSC).

144 [2014] AC 52, 133, para 107 (Lord Mance JSC) and para 156 (Lord Carnwath JSC).145 [2014] AC 52, 149-50, para 156 (Lord Carnwath JSC).146 [2014] AC 52, 135-6, para 117 (Lord Mance JSC).147 [2014] AC 52, 136, para 118 (Lord Mance JSC).148 [2014] AC 52, 138-9, para 125 (Lord Mance JSC).149 [2014] AC 52, 125, para 80, and 119, para 61, 124-5, paras 78-80, and 130-1, paras 98-99

(Lord Hope JSC). Lord Mance JSC refers to Lord Hope JSC’s position at 138-9, para 125 (LordMance JSC).



the trial of “unimaginable” issues as to whether a soldier on the field ofbattle or a sailor on his ship might reasonably have been more careful.’150

Lord Mance JSC also noted that counsel for the Challenger claimantshad accepted that ‘tactical decision, wherever taken, are not actionable’ –but he was not prepared to accept that the question of procurement andtraining was ‘not really a complaint about tactics.’151 Finally, LordMance JSC believed Owen J in the High Court was correct in conclud-ing that the ‘military cannot be constrained by the imposition of civilliability in the planning of and reparation for such operations any morethan in their execution’.152 In other words, unlike Lord Hope JSC, LordMance JSC rejected the possibility of a ‘middle ground’. To support hisposition, he cited jurisprudence in which the police have been found notto owe a duty of care.153 For example, in the well-known case of Hill vChief Constable of West Yorkshire,154 the House of Lords held that thepolice had owed no enforceable duty of care to the last victim ofthe Yorkshire Ripper to properly ‘investigate the crimes committed bythe Yorkshire Ripper before the murder of, and so to save the life of, thelast victim.’155 Lord Mance JSC also noted that ‘the existence of a dutyof care [in these cases] was negatived, although it could not be said thatthe police action or inaction occurred in the heat of the moment and thefailings occurred over considerable periods when the police had the op-portunity to think about and investigate the position and take protectivemeasures.’156 In conclusion,

128. The claims that the Ministry failed to ensure that the army was betterequipped and trained involve policy considerations of the same character asthose which were decisive in Hill, Brooks and Van Colle. They raise issues ofhuge potential width, which would involve courts in examining procurementand training policy and priorities over years, with senior officers, civil servantsand ministers having to be called and to explain their decisions long after theywere made. Policy decisions concerning military procurement and training in-volve predictions as to uncertain future needs, the assessment and balancing ofmultiple risks and the setting of difficult priorities for the often enormous ex-penditure required, to be made out of limited resources. They are often highlycontroversial and not infrequently political in their nature. These may well alsobe influenced by considerations of national security which cannot openly bedisclosed or discussed.

150 [2014] AC 52, 148, para 148 (Lord Mance JSC).151 [2014] AC 52, 139, para 126 (Lord Mance JSC).152 [2014] AC 52, 139, para 127 (Lord Mance JSC).153 Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL(E)), Brooks v Commissioner of

Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489, (HL(E)), Van Colle v Chief Constableof Hertfordshire Police [2008] UKHL 50, [2009] AC 225 (HL(E)).

154 Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL(E)).155 [2014] AC 52, 136, para 119 (Lord Mance JSC). In Hill v Chief Constable of West Yorkshire

[1989] AC 53, in particular 63, (HL(E)).156 [2014] AC 52, 137, para 122 (Lord Mance JSC).



On the question of whether article 2 imposed a duty on the MoD,Lord Mance JSC was critical of the limited Strasbourg jurisprudencethat found States have an operational duty ‘where authorities know orought to know of a real and immediate risk to life, or of a situationinherently dangerous to life’:157

An alternative view might be that it would have been better if the Strasbourgcourt had left the development and application of the law of tort to domesticlegal systems, subject to clearly defined criteria, rather than set about creatingwhat amounts in many respects to an independent substantive law of tort, over-lapping with domestic tort law, but limited to cases involving death or the risk ofdeath.158

The Strasbourg court has stated that this duty ‘does not embrace merecausal acts of negligence’, which, according to Lord Mance JSC, ‘isrelevant to show that liability under article 2 can be tailored and limitedin what the Strasbourg court regards as appropriate circumstances’159 –and

[i]n the present circumstances, the question arises whether that the Strasbourgcourt would regard article 2 in its substantive aspect as making the state liablefor the death in combat of one soldier due to alleged negligence of his com-mander or of another soldier. The prospect of the Strasbourg court reviewingthe conduct of combat operations in this way seems to me sufficiently striking,for it to be impossible to give this question a positive answer. If the Europeancourt considers that the Convention requires it to undertake the retrospectivereview of armed conflicts to adjudicate on the relations between a state and itsown soldiers, without recognising any principle similar to combat immunity,then it seems to me that a domestic court should await clear guidance fromStrasbourg to that effect.160

That leaves for consideration whether the framework duty involves an obliga-tion on the part of the state to exercise due care in the course of planning armedoperations, and in equipping and training its armed forces, so as to reduce orlimit the risks to life involved in such operations. In my opinion it is not possibleto conclude that the Strasbourg court would hold that such matters are justi-ciable under the Convention, any more than they are at common law. I am notover-enamoured of the cautionary warning to this court that the road toStrasbourg is a one-way street, which a claimant can tread if this court hasnot gone far enough, but which the state cannot tread if this court goes toofar. If it is clear from prior authority or this court is otherwise confidentabout what Strasbourg will decide, then we should decide the issue as we believecorrect. But in the present very difficult case, two connected considerations leadme to consider that caution is called for. First, having decided that the common

157 [2014] AC 52, 143, para 138 (Lord Mance JSC), referring to Stoyanovi v Bulgaria(Application No 42980/04), Judgment, 9 November 2010 (unreported) (ECtHR (Fifth Section))and Oneryildiz v Turkey (2004) 41 EHRR 325 (ECtHR (GC)).

158 [2014] AC 52, 145, para 142 (Lord Mance JSC).159 [2014] AC 52, 145, para 142 (Lord Mance JSC).160 [2014] AC 52, 145, para 142 (Lord Mance JSC).



law recognises no such duty of care or claims as the claimants advance, weshould not lightly conclude, in so important and sensitive an area of nationallife, that the Strasbourg court would take a different view. Second, since I haveno confidence about the scope or application of any positive duties which theStrasbourg court might recognise under article 2 in the area, I believe it wouldbe wrong for this court to advance way ahead of anything that it has yet decided.It should be for the Strasbourg court to decide whether it will review the pro-curement and training policy of the British army over recent decades in thecontext of claims under article 2 for compensation arising from deaths of servingsoldiers during active military operations.161

Lord Mance JSC therefore concluded that the Court should ‘proceed onthe basis that the policy considerations which guide its domestic law inthe present area of national interest will find an echo in Strasbourg’,162

and thus on the basis that the ‘outcome in Strasbourg would in the pre-sent areas be no different from the outcome at common law [advanced byLord Mance JSC].’163 In his view, the majority’s approach would ‘makeextensive litigation almost inevitable after, as well as quite possiblyduring and even before, any active service operations undertaken bythe British army. It is likely to lead to the judicialisation of war’.164

Consequently, Lord Mance JSC would have struck out the Challengerclaims, and the Ellis common law claim ‘on the basis that the state owesno such duty of care as alleged with regard to the provision of technol-ogy, equipment or training to avoid death or injury in the course of anactive military operation’, or ‘a fortori, regarding the development onpatrol . . . of the Snatch Land Rovers.’165

Lord Carnwath JSC also examined the jurisprudence relating to theduty of care owned by the police,166 and observed that if limiting anemployer’s enforceable duty of care ‘was an appropriate exercise in re-lation to the purely domestic policy concerns arising from police powersof investigation, how much more so in relation to the issues of vitalnational security raised by the preparation for and conduct of war?’167

In his view, ‘if the problem is a lack of directly relevant guidance fromStrasbourg, it is hard to see how, simply by hearing further evidence orfinding further facts, [the trial judge] will be better able to fill that gap,still less to do so “with complete confidence”.’168 Lord Carnwath JSCdiverged from Lord Mance JSC on only one issue, namely that becausethe deaths in the Snatch Land Rover claims occurred during a

161 [2014] AC 52, 145, para 143 (Lord Mance JSC). Lord Mance JSC found support for thisconclusion in Taylor v United Kingdom (1994) 18 EHRR CD215 and Banks v United Kingdom(2007) 45 EHRR SE2.

162 [2014] AC 52, 146-7, para 146 (Lord Mnace JSC).163 [2014] AC 52, 149, para 151 (Lord Mance JSC).164 [2014] AC 52, 148, para 150 (Lord Mance JSC).165 [2014] AC 52, 142, para 136 (Lord Mance JSC).166 [2014] AC 52, 152-3, paras 167-9 (Lord Carnwath JSC)167 [2014] AC 52, 154, para 170 (Lord Carnwath JSC).168 [2014] AC 52, 149-50, para 156 (Lord Carnwath JSC).



peacekeeping operation and it was alleged that ‘there was an unjustifiedfailure, following earlier incidents to take readily available steps to dealwith a known and preventable risks’, such claims should not be ‘neces-sary excluded as a matter of general policy, either at common law orunder article 2.’169

***

Lord Hope JSC’s detailed reasoning on the jurisdictional question iswithout reproach, and will no doubt greatly assist the Strasbourg courtwhen it once again considers the scope of the term ‘jurisdiction’ in article1, and whether soldiers engaged in armed conflict or a peacekeepingmission abroad are ‘within the jurisdiction’ of the Contracting Statefor the purposes of that article. On the article 2 ECHR and negligenceclaims, the Court was divided along fairly traditional lines, with themajority believing there is potentially a role for the law to impose aduty on the MoD and for the courts to assess that duty, and the minorityfinding that the legal questions are so intrinsically tied up with the pol-itical questions that they are rendered non-justiciable – disentanglingthese issues and the ensuing questions of responsibility and accountabil-ity is a task that is perhaps better left to Parliament.170 There is someforce in the views of the dissenting Justices that the majority did notseriously engage with the common law jurisprudence that declines toimpose a duty of care on police officers on the ground that it will inter-fere with the performance of their job – the majority’s position willsurely lead to further litigation and this could ultimately be factoredinto the MoD’s decision-making. The lack of detailed guidance for thetrial judge who will be tasked with deciding whether the claims fallwithin the ‘middle ground’ between high-level policy and decisions incombat is also problematic,171 but so too is the conclusion that no dutycan ever arise under article 2 ECHR.

169 [2014] AC 52, 159, paras 187-8 (Lord Carnwath JSC).170 See [2014] AC 52, 140, para 129, in which Lord Mance JSC notes that he and Lord Walker

JSC agree with the views of Lord Rodger JSC in R (Smith) v Oxfordshire Assistant Deputy Coroner[2011] 1 AC 1, 113, para 127 (SC), that ‘a curious aspect of counsel’s submissions before this courtwas the complete absence of any reference to Parliament as the forum in which such matters shouldbe raised and debated and in which ministers should be held responsible. Of course, in consequenceof pressure brought to bear by Parliament, the government might set up an independent inquirywith wide terms of reference to look into all aspects of a situation, including the political aspects.’

171 See [2014] AC 52, 149, para 154 (Lord Carnwath JSC).



3. AA-R (IRAN) v Secretary of State for the Home Department, 12 July2013, [2013] EWCA Civ 835, unreported (CA(Civ))

Convention relating to the Status of Refugees 1951, article 1F(a) — status as arefugee — exceptions to refugee status — crimes against humanity — whether ap-pellant complicit in crimes against humanity and excluded from refugee status —whether tribunal erred in finding appellant complicit in actions of Iranian para-military group

Article 1F(a) of the Convention relating to the Status of Refugees 1951(Refugee Convention), which excludes persons who may otherwise sat-isfy the Convention’s definition of a refugee, provides that:

F. The provisions of this Convention shall not apply to any person with respectto whom there are serious reasons for considering that:(a) he has committed a crime against peace, a war crime, or a crime againsthumanity, as defined in the international instruments drawn up to make provi-sion in respect of such crimes [. . .]172

The starting point for considering whether an individual falls withinArticle 1F(a) is the Rome Statute of the International Criminal Court1998.173 Article 7(1) reads:

1. For the purpose of this Statute, ‘crime against humanity’ means any of thefollowing acts when committed as part of a widespread or systematic attackdirected against any civilian population, with knowledge of the attack:

(a) Murder;(b) Extermination;(c) Enslavement;(d) Deportation or forcible transfer of population;(e) Imprisonment or other severe deprivation of physical liberty in violation of

fundamental rules of international law;(f) Torture;(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity;(h) Persecution against any identifiable group or collectivity on political, racial,

national, ethnic, cultural, religious, gender [. . .], or other grounds that areuniversally recognized as impermissible under international law [. . .];

(i) Enforced disappearance of persons;(j) The crime of apartheid;(k) Other inhumane acts of a similar character intentionally causing great suf-

fering, or serious injury to body or to mental or physical health.

172 22 April 1954, 189 UNTS 137, as amended by Protocol relating to the Status of Refugees, 31January 1967, 606 UNTS 267.

173 2187 UNTS 3, 17 July 1998.



Article 25(3) of the Rome Statute provides that an individual may bepersonally responsible for a crime against humanity falling within Article7, if that person:

(c) For the purpose of facilitating the commission of such a crime, aids, abets orotherwise assists in its commission or its attempted commission, including pro-viding the means for its commission;(d) In any other way contributes to the commission or attempted commission ofsuch a crime by a group of persons acting with a common purpose. Such con-tribution shall be intentional and shall either:

i) Be made with the aim of furthering the criminal activity or criminalpurpose of the group, where such activity or purpose involves the com-mission of a crime within the jurisdiction of the Court; or

ii) Be made in the knowledge of the intention of the group to commit thecrime; [. . .]

Article 1F(a) of the Refugee Convention is reproduced in Article 12(2)(a)of Council Directive 2004/83/EC of 29 April 2004 on minimum stand-ards for the qualification and status of third country nationals or statelesspersons as refugees or as persons who otherwise need international pro-tection and the content of the protection granted (the ‘QualificationDirective’),174 which is implemented in the law of England and Walesby Regulation 7, paragraph 1 of the Refugee or Person in Need ofInternational Protection (Qualification) Regulations 2006.175 Article12(3) of the Qualification Directive provides that Article 12(2)(a) appliesto those ‘who instigate or otherwise participate in the commission of[crimes against humanity]’, which is implemented in the law ofEngland and Wales by Regulation 7, paragraph 3, of the(Qualification) Regulations, which states that ‘Article 1F(a) . . . of the[Refugee] Convention shall apply to a person who instigates or otherwiseparticipates in the commission of the crimes or acts specified in thoseprovisions.’176

As Lord Brown observed in the leading UK case on Article 1F(a) ofthe Refugee Convention, R (JS(Sri Lanka)) v Secretary of State for theHome Department, ‘[t]he language of all these provisions is notably wide,appreciably wider than any recognised basis for joint enterprise criminalliability under domestic law.’177 His Lordship further explained that:

35. . . . [A]rticle 1F disqualifies those who make “a substantial contribution to”the crime, knowing that their acts or omissions will facilitate it. . . .[R]esponsibility will attach to anyone . . . contributing to the commission of

174 OJ L304, 30.9.2004, 12.175 SI 2006/2525. Regulation 7, paragraph 1 states: ‘[a] person is not a refugee if he falls within

the scope of Article 1D, 1E or 1F of the [Refugee] Convention’.176 SI 2006/2525. Regulation 7, paragraph 3.177 [2011] 1 AC 184, para 34.



such crimes “by substantially assisting the organisation to continue to functioneffectively in pursuance of its aims”.178

As to the mental element, Lord Brown noted that:

36. . . . [A]s article 30 of the ICC Statute makes plain, if a person is aware that inthe ordinary course of events a particular consequence will follow from hisactions, he is taken to have acted with both knowledge and intent. . . .37. Similarly, and I think consistently with this, the ICTY Chamber in Tadicdefines mens rea in a way which recognises that, when the accused is participat-ing in (in the sense of assisting in or contributing to) a common plan or purpose,not necessarily to commit any specific or identifiable crime but to further theorganisation’s aims by committing article 1F crimes generally, no more need beestablished than that the accused had personal knowledge of such aims andintended to contribute to their commission.179

The appellant’s application for asylum in the UK was rejected on thebasis that he was complicit in acts amounting to crimes against humanityunder Article 7(1)(k) of the Rome Statute and he was therefore, pursuantto Article 1F(a) of the Refugee Convention, excluded from the protectiongranted by that Convention. The appellant was a member of the Iranianparamilitary group ‘Basij’, which enforces ‘ideological and what it con-siders to be Islamic values in Iran.’180 Over time he became a well-known and respected member of the group, eventually achieving thestatus of ‘commander’ in his village.181 He was not involved in militarymatters, but was instead in charge of propaganda; ‘[h]e was well knownand respected in his village where no violence occurred under his com-mand and . . . [h]is primary concern was to organise social, sports andreligious events.’182Although he was not involved in violence againstIranian citizens, during his patrols outside the village and while manningcheckpoints in the border town, he witnessed acts of violence by thegroup, to which he ‘closed his eyes’, and he ‘reluctantly’ handed indi-viduals to colleagues who would subject them to lashings and beatingswith batons and sticks.183

The Asylum and Immigration Tribunal and the Upper Tribunal(Asylum and Immigration Chamber) had both dismissed his appealfrom the Secretary of State’s decision on the basis that there are seriousreasons for considering that he was complicit in crimes against humanityas defined in Article 7(1)(k) of the Rome Statute. The First-tier Tribunalfound that the Appellant’s own evidence demonstrated that the violentactivities of the Basij formed part of a ‘widespread or systematic attack

178 [2011] 1 AC 184.179 [2011] 1 AC 184.180 [2013] EWCA Civ 835, para 4.181 [2013] EWCA Civ 835, paras 18-20.182 [2013] EWCA Civ 835, para 18.183 [2013] EWCA Civ 835, para 20.



designed to maintain control over the Iranian civilian population gener-ally’,184 and that:

The Appellant was on his own evidence a committed and respected member ofthe Basij of some local rank. He accepts that his participation was on a voluntarybasis. He cannot escape the definitions of complicity . . .by stating that he didnot agree with or actively take part in acts of violence. This is because he never-theless continued to turn up for work, to turn a blind eye to violence and illtreatment that occurred when he was on duty and to command others in hisgroup whom he knew used violence. . . . I find that he did contribute in a sig-nificant way to the Basij’s ability to operate and therefore to pursue its purposeof committing crimes against humanity as defined by the Rome Statute. I alsofind that he must have been well aware that his assistance in the functioning ofthe Basij would further that purpose. He has admitted as much, in saying as partof his case that he began after 2006 to question the choices he had made.185

He appealed again, arguing that (i) the acts of the Basij did not quality ascrimes against humanity under Article 7(1)(k) of the Rome Statute; and(ii) his acts on behalf of the Basij had to be ‘part of’ a crime againsthumanity falling under Article 7(1)(k) of the Rome Statute; on thefacts accepted by both Tribunals, he was not involved in any of theacts that fell within that provision and therefore his actions could notamount to a crime against humanity for the purpose of Article 1F(a) ofthe Refugee Convention.The Court of Appeal (Civil Division) dismissed the appeal on the basis

that the Applicant’s own evidence was sufficient to demonstrate that hewas complicit in crimes against humanity within the meaning of Article7(1)(k) of the Rome Statute. Rafferty LJ, with whom Tomlinson LJ andSir Stanley Burton agreed, delivered the Court’s judgment.Rafferty LJ noted that in the Upper Tribunal there was no challenge

to the factual findings of the First Tier Tribunal, and that the Secretaryof State’s case was that the appellant was responsible for his own actsunder Article 25 of the Rome Statute. Rafferty LJ had no trouble inconcluding that there was nothing in the appellant’s first ground ofappeal – namely, that the Basij’s general acts did not constitute a crimeagainst humanity – and the appellant conceded that the central issue inthis appeal was whether the appellant, in being complicit in the local actsof the group, was complicit in the Basij’s crimes against humanity. Theappellant answered that point by submitting that:

[T]o qualify as crimes against humanity local beatings should have been specif-ically identified and then one by one advanced so as to permit testing of pre-cisely what happened and when. This was important since it would have beennecessary to determine whether, when the Appellant handed people over, the ill

184 [2013] EWCA Civ 835, para 22.185 [2013] EWCA Civ 835, para 22.



treatment they received was sufficiently severe as to be proscribed by Article1(7)(k).186

However, Rafferty LJ found that,

26. . . .The Appellant’s own evidence made out the mental element. He knew ofthe Basij’s activities and intended, even if on his own account unwillingly orwith regret, to contribute to them. These were serious incidents. He had seenvictims unconscious after beatings and torture but continued his practice ofhanding people over for beating. His evidence of events at the checkpoint waswithout more amply to establish complicity.27. If, and I do not, I needed fortification of my view I should find it in ananalysis of the effect of his position. An organisation such as the Basij would beassisted in its purpose of persecuting the civilian population by loyal memberswho would take command responsibilities and turn a blind eye to serious vio-lence. Still more would it be assisted by individuals skilled in budgeting, re-cruitment and propaganda. Those details demonstrate his substantialcontribution to the Basij’s ability to operate.[. . .]30. . . . I struggle to understand how, having conceded all he knew, saw, toleratedand continued to embrace, the Appellant can hope to persuade us that compli-city was not made out. This was a man who watched lashings, beatings, tortureand use of batons, and having watched them sent yet more arrested individualsinto the hands of those who had inflicted those indignities.31. . . .An actus reus need not trouble us since the Appellant made so manyconcessions. Once there is evidence that he made significant contributions to theacts of an organization of whose malign activities he was aware, he is complicit inthose acts.187

The appellant knew of the beatings and the acts of torture, which, be-cause they were practiced on a widespread and systemic basis designed tomaintain control over the Iranian civilian population, constituted a crimeagainst humanity, and he admitted that he intended to contribute tothese acts through his own actions. This led to the evitable conclusionthat, having been complicit in acts that amounted to crimes against hu-manity under Article 7(1)(k) of the Rome Statute, the appellant wasrightly excluded from protection of the Refugee Convention in accord-ance with Article 1F(a) of the Convention, and correspondingly deniedasylum in the UK.Although this was a relatively straightforward and fact-specific case, it

nevertheless confirms that the wide reach of secondary liability in inter-national criminal law applies in determining, for the purposes of domes-tic law, whether an individual falls within the scope of Article 1F(a) ofthe Refuge Convention.

186 [2013] EWCA Civ 835, para 25.187 [2013] EWCA Civ 835, paras 26-31.



4. Ford v Malaysian Airline Systems Berhad, 27 September 2013, [2013]EWCA Civ 1163, [2014] 1 Lloyd’s Rep 301 (CA(Civ))

Montreal Convention for the Unification of Certain Rules for InternationalCarriage by Air 1999, article 17(1) — scope of the term ‘accident’ — whetherthe act of giving a passenger an injunction in the course of an international com-mercial flight, which exacerbated the passenger’s physical discomfort, constituted ‘anaccident’ for the purposes of article 17(1)

Article 17, paragraph 1, of the Montreal Convention for the Unificationof Certain Rules for International Carriage by Air 1999 (‘the MontrealConvention’)188 establishes strict liability for aircraft carriers where pas-sengers are injured or killed as a result of an accident:

The carrier is liable for damage sustained in case of death or bodily injury of apassenger upon condition only that the accident which caused the death orinjury took place on board the aircraft or in the course of any of the operationsof embarking or disembarking.

The Carriage by Air Acts (Implementation of the Montreal Convention1999) Order 2002 incorporated the Montreal Convention into the law ofEngland as Wales as Schedule B to the Carriage by Air Act 1961.189 TheMontreal Convention is the successor to the amended WarsawConvention for the Unification of Certain Rules Relating toInternational Carriage by Air 1929,190 which was given effect in theLaw of England and Wales by the Carriage by Air Act 1961. For thepurposes of this claim, the relevant text of Article 17 of the WarsawConvention is the same as the text in the Montreal Convention.The appellant was a passenger on an international flight from London

Heathrow to Melbourne via Kuala Lumpur. The appellant had a historyof gynecological issues; she had previously suffered from cystitis andpacked ‘over the counter’ medication for this condition in her checkedluggage. During the flight, the appellant experienced difficulty urinat-ing, and a member of the crew asked a passenger, who was a doctor, if hewould consult with the appellant. The doctor gave her an injection of adiuretic to help relieve her symptoms and advised her to drink plenty offluids. The appellant continued to experience fluid retention and signifi-cant discomfort, and she had to receive medical assistance upon landingin Kuala Lumpur. After being catheterised, she continued her journey toAustralia.The appellant’s medical expert submitted that the most likely cause of

her inability to urinate was urethral stenosis and that, in the circum-stances, the administration of a diuretic was an ‘inappropriate’ action.

188 Montreal, 28 May 1999, entered into force 11 April 2003, 2242 UNTS 309.189 Carriage by Air Acts (Implementation of the Montreal Convention 1999) Order 2002, SI

2002/263.190 Warsaw, 12 October 1929, 137 LNTS 11.



Although, he also thought it was highly likely that the appellant wouldhave had an extremely uncomfortable flight even without the diuretic.There was no medical evidence indicating exactly what the precise effectof the injection was, but the appeal nevertheless proceeded on the basisthat there was some bodily injury. Judge Owen QC, sitting in theBirmingham County Court, found that the act of giving the appellantthe injection did not constitute ‘an accident’ for the purposes of Article17(1) of the Montreal Convention. She appealed and the Court of Appeal(Civil Division) dismissed her appeal. Aikens LJ, with whom Levesonand Maurice Kay LJJ agreed, gave the judgment for the Court.The leading case on the definition of an ‘accident’ for Article 17 of the

Warsaw Convention is the US Supreme Court caseAir France v Saks,191

which was adopted by the House of Lords when it was required to in-terpret the Montreal Convention in Re Deep Vein Thrombosis and AirTravel Group Litigation.192 These cases explain that ‘accident’ means an‘unexpected’ or ‘unusual’ event from the victim’s perspective, which isexternal to the victim and which causes the victim’s death or injury.193

The appellant submitted that the circumstances in which the injectionwas given made it ‘unusual’ – even if an injection is not an unusual eventper se – and the injection was clearly external to the appellant.Aikens LJ noted that, on the assumed facts, ‘the immediate cause of

the alleged “bodily injury” was the “peculiar international condition”(i.e. her urethral stenosis) of the appellant,194 but that notwithstanding,if ‘the actual act of giving Mrs Ford an injection of a diuretic in thecircumstances that prevailed can be characterised as an “unusual”event from the perspective of the “victim”, Mrs Ford and the “unusual”nature of the event was “a cause” leading to the “bodily injury” alleged’,then it would amount to an accident as defined for the purpose of theMontreal Convention.195 Aikens LJ found this to be,

a difficult question, which can be easily argued both ways. The administrationof an injection in the course of an international flight by a doctor passenger aftera very brief discussion with the patient when neither previously knew the otheris not part of the usual, normal or expected operation of the aircraft, althoughthe action of the air hostess in asking the doctor passenger if she could helpprobably was. On the other hand, the actual administration of an injection by adoctor, in the hope and expectation that it would relieve the condition com-plained of (cystitis), is quite usual. Therefore, if the act of administering theinjection is to be characterised as “unusual” and this unusual characteristic was acause leading to Mrs Ford’s “bodily injury”, then this must be because the

191 [1985] 470 US 392.192 [2006] 1 ALL ER 786.193 Air France v Saks, [1985] 470 US 392, 406 (‘Any injury is the product of a chain of causes,

and we require only that the passenger be able to prove that some link in the chain was an unusual orunexpected event external to the passenger.’)

194 [2013] EWCA Civ 1163, para 25.195 [2013] EWCA Civ 1163, para 26.



particular circumstances in which the act was performed, viewed from the per-spective of Mrs Ford, make it so, whilst excluding from consideration MrsFord’s actual reaction to the injection, which was the result of her “peculiarinternal condition”.

In his conclusion, Aikens LJ emphasised that the ‘unusual’ event mustbe a cause of the appellant’s bodily injury, which, in this case, it was not:

I have concluded that the circumstances in which the injection was administeredby the doctor cannot be characterised as “unusual” for the purposes of Article17.1. There is no evidence that the actual administration of the injection wasdone in an abnormal way. The only “unusual” aspect of the whole process wasthat it was carried out in the course of an international flight by a passengerdoctor on another passenger (with proper consent) as a result of a request to thedoctor for assistance by a crew member. But the key point is that there is noevidence that any of those characteristics had any causative effect in the chain ofevents that led to Mrs Ford’s “bodily injury”. The same chain of events wouldhave taken place wherever the injection had been administered. It seems to methat the simple fact that the injection was administered in mid-flight rather then[sic] elsewhere cannot provide the circumstances with the necessary “unusual”characteristics so that this event constitutes an “accident” within Article 17.1. Iwould adopt the language quoted by Lord Phillips of Worth Matravers MR inhis judgment in the Deep Vein Thrombosis case: “If the event on board an air-plane is an ordinary, expected and usual occurrence, then it cannot be termed anaccident. To constitute an accident, the occurrence on board the aircraft must beunusual, or unexpected, an unusual or unexpected happening”. The event inthis case is the actual administration of the injection. That, in itself, was notunexpected, or unusual.

The appeal was rightly dismissed. The fact that an event takes place onboard an aircraft does not of itself make the event unusual.



5. Al-Malki and another v Reyes and another, 4 October 2013, UKEAT/0403/12/GE, [2014] ICR 135 (Langstaff J)

Diplomatic immunity — Vienna Convention on Diplomatic Relations 1961, article31(1) and article 3(1) — Diplomatic Privileges Act 1964 — employment of do-mestic servant by member of a mission — whether employment claim by domesticservant against member of the mission and his wife barred by diplomatic immunity— whether immunity constitutes a violation of the appellant’s right to a fair trialunder article 6 of the European Convention on Human Rights — UN Conventionon Jurisdictional Immunities of States and their Property 2004

Section 2(1) (‘Application of Vienna Convention’) of the DiplomaticPrivileges Act 1964 (DPA) enacts into UK law certain provisions ofthe Vienna Convention on Diplomatic Relations (‘VCDR’),196 includingArticle 31(1), which provides in relevant part:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of thereceiving State. He shall also enjoy immunity from its civil and administrativejurisdiction, except in the case of:

(c) an action relating to any professional or commercial activity exercised by

the diplomatic agent in the receiving State outside his official functions.

Article 3(1) of the VCDR reads:

The functions of a diplomatic mission consist, inter alia, in:

(a) representing the sending State in the receiving State;(b) protecting in the receiving State the interests of the sending State and of its

nationals, within the limits permitted by international law;(c) negotiating with the Government of the receiving State;(d) ascertaining by all lawful means conditions and developments in the receiv-

ing State and reporting thereon to the Government of the sending State;(e) promoting friendly relations between the sending State and the receiving

State, and developing their economic, cultural and scientific relations.

The first appellant, an accredited member of the diplomatic staff of theSaudi Arabian mission in London, and his wife, the second appellant,employed the respondents to work in their diplomatic residence. Therespondents brought employment claims against the appellants allegingracial discrimination and harassment, unauthorised deductions fromtheir wages; and, a failure to pay the minimum wage, to pay compensa-tion for accrued but untaken holiday, to provide a statement of particu-lars of employment, and to provide the respondents’ with an itemisedpay statement.197 The appellants claimed immunity as a diplomaticagent under Article 31(1) of the VCDR, incorporated into UK law by

196 Vienna, 18 April 1961, 500 UNTS 95.197 [2014] ICR 135, 137, para 3.



section 2(1) of the DPA, and as a wife of a diplomatic agent forming partof the diplomat’s household.198

The Employment Tribunal Judge (Judge Lewis) rejected the appel-lants’ claim of diplomatic immunity on the basis that, although the em-ployment of domestic staff was not ‘commercial activity’ on a literalreading of that phrase, section 3 of the Human Rights Act 1998199

required the Tribunal to interpret ‘commercial activity’ as includingthe employment of domestic staff, otherwise the grant of immunitywould be a disproportionate interference with the respondents’ right ofaccess to a court, contrary to Article 6 of the ECHR.200 The ET Judgealso found that the respondents’ employment did not fall within the firstappellant’s official functions, and consequently, the appellants’ weredenied immunity in accordance with Article 31(1)(c).The President of the Employment Appeals Tribunal, Langstaff J,

allowed the appeal on the basis that the ET Judge, in relying on juris-prudence that concerned State immunity, not diplomatic immunity, hadfailed to correctly identify the legitimate aim of diplomatic immunity,had incorrectly taken into consideration the seriousness of the claim inconsidering whether the interference with the respondents’ right ofaccess to a court was proportionate to the legitimate aim of diplomaticimmunity, and had consequently erred in rejecting the appellants’ claimof immunity. Langstaff J also rejected a further appeal against the ET’sdecision that the appellants were not served in breach of their inviolabil-ity, and a cross-appeal that, as the respondents’ claims potentially in-volve violations of the Council of Europe Convention on Action againstTrafficking in Human Beings (‘the Anti-Trafficking Convention’),201

upholding the appellants’ immunity would be in breach of the respond-ents’ right of protection from slavery and forced labour guaranteed byArticle 4 ECHR.Counsel for the respondents immediately conceded that a literal inter-

pretation of ‘commercial exception’ in Article 31(1)(c) of the VCDRcannot include employment contracts,202 relying on the statement byLaws J in Propend Finance v Sing that commercial activity refers to‘any activity which might be carried on by the diplomat on his ownaccount for profit.’203 However, because the Employment Judge hadruled that this interpretation should be modified, pursuant to the inter-pretative power in section 3 of the HRA, Langstaff J found it necessaryto consider whether the employment of a domestic worker is within the

198 See Article 37(1) of the VCDR.199 Section 3 of the Human Rights Act 1998 reads in relevant part: ‘[s]o far as it is possible to do

so, primary legislation and subordinate legislation must be read and given effect in a way which iscompatible with the Convention rights.’

200 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS222, Rome, 4 November 1950, entered into force 3 September 1953.

201 CETS No 197, 16 May 2005.202 [2014] ICR 135, 138-9, para 8.203 (1997) 111 ILR 611.



official functions of a diplomat. According to Langstaff J, ‘[i]f the em-ployment of a domestic worker, to serve a diplomat in his own home, isnot only outside the scope of “commercial activity” but is also inside thescope of the diplomat’s “official functions”, the weight pressing in thediplomat’s favour is greater.’204 However, this view belies the real issuein this case, namely that Article 31(1)(c) only applies in respect of pro-fessional or commercial activity; if the diplomat’s conduct does not fallwithin Article 31(1)(a)-(c), then, as a serving diplomat, he is immunenotwithstanding whether his conduct is considered to be an ‘officialfunction’.205 If Langstaff J is suggesting that the definition of ‘commer-cial activity’ could change if upholding diplomatic immunity in this caseis a disproportionate interference with the respondents’ right of access tocourt, and whether the diplomat’s conduct is an ‘official function’ or notassists in determining proportionality, then this would obscure the realissue, which is ultimately whether the grant of immunity by Article 31 isa disproportionate interference with the respondents’ right of access to acourt to resolve employment disputes. Here, the question of whether thefirst appellant’s actions were ‘official functions’ is largely irrelevant asthe legitimate aim of Article 31(1) is to grant immunity to diplomatssubject only to the exceptions listed in (a) to (c) and without the needto demonstrate that his actions are ‘official’.Nevertheless, on the question of whether the first respondent acted

within his official functions by employing the appellants’ to work at hisresidence, the appellants’ relied on Portugal v Goncalves206 and the viewsof Laws J in Propend Finance,207 to argue that the list of functions inArticle 3(1) of the VCDR is not exhaustive and is not meant to provide adefinition of ‘official function’ for the Convention. Rather, the term ‘of-ficial functions’ includes actions that are ‘not the purpose of the missionitself to perform, but which are closely incidental to those purposes.’208

Langstaff J broadly accepted this conclusion. The appellants’ also reliedon Satow’s Diplomatic Practice209 to argue that several provisions of theVCDR treat domestic servants as a special category,210 demonstratingthat the drafters of the Convention anticipated that diplomats were likelyto employ domestic staff. It ‘follows that the employment of privateservants by diplomatic agents is part of, or sufficiently incidental to,

204 [2014] ICR 135, 138-9, para 8.205 Cf the position of a former diplomat claiming immunity under Article 39(2) of the VCDR,

which provides that a former diplomatic agent will continue to be immune after he has left office,‘with respect to acts performed . . . in the exercise of his functions as a member of the [diplomatic]mission.’

206 82 ILR 115.207 Propend Finance Pty Ltd v Sing (1997) 111 ILR 611.208 [2014] ICR 135, 139-40, para 12.209 Sir Ivor Roberts (ed), Satow’s Diplomatic Practice (6th edn, Oxford University Press, 2011).210 [2014] ICR 135, 140, para 13. See Articles 10(1)(c) (arrival and final departure to be notified

to the receiving State), Article 37(4), (freedoms from tax if not nationals of the receiving State),Article 33(2) (social security provisions), and Article 38(2) (jurisdiction over them is to be exercisedin a manner that does not interfere unduly with the performance of the functions of the mission).



the official functions of a diplomat.’211 Langstaff J rejected this argu-ment, finding that it conflated ‘what is normally expected with thatwhich is an official function of a diplomat,’212 but accepted that it‘gives some ground for thinking that the employment of a personal ser-vant may be regarded as an activity which facilitates the performance ofthe diplomat in his mission.’213

The respondents’ relied on Wokuri v Kassam (Newey J)214 and thesubsequent Employment Appeals Tribunal decision of Abusabib and El-Teraifi v Taddese (Langstaff J giving the judgment, with which MrMallender and Ms Tatlow agreed), which ultimately followed the rea-soning in Wokuri v Kassam.215 Although these cases concerned the im-munity of a former diplomat, which continues to subsist under Article39(2) of the VCDR ‘with respect to acts performed . . . in the exercise ofhis functions as a member of the [diplomatic] mission,’216 Langstaff Jfound them to be helpful to the extent that they considered the questionof ‘official functions’.217

In Wokuri, Newey J ‘could not be satisfied’ that the employment of achef and housekeeper for a diplomat’s residence was an act performed inthe exercise of the defendant’s functions as a member of the mission.218

He cited with approval a decision of the Second Circuit of the UnitedStates Court of Appeal that the residual immunity in Article 39(2) ‘doesnot apply to actions that pertain to [a diplomat’s] household or personallife and that may provide, at best, “an indirect” rather than a “dir-ect . . .benefit to” diplomatic functions.’219 In Abusabib, Langstaff Jreferred to a ‘spectrum’ of functions:

In principle, the employment by a diplomat of another to provide personalservice to him whilst engaged in his mission might be regarded as a functionof the mission, since it could be ancillary to important functions, better enablinga diplomat to attend to his central role. The employment of a domestic worker,who performed no task outside the diplomat’s home, had such little connectionwith the functions of the diplomat’s mission (which had to be regarded as closelyrelated or ancillary to those set out at Art. 3) that it would fall at the end of thespectrum which was outside the proper scope of “official functions”, and itfollowed that the act of employing such a person was unlikely to be an actperformed in the exercise of the functions as such. A clear distinction mightfall between that and the case of someone performing such services, and that ofsomeone such as a P.A. whose job in replying to correspondence, both official

211 [2014] ICR 135, 140, para 13.212 [2014] ICR 135, 140, para 14.213 [2014] ICR 135, 140, para 14.214 [2012] EWHC 105 (Ch).215 [2013] ICR 603.216 Article 39(2) VCDR.217 [2014] ICR 135, 141, para 17.218 [2014] ICR 135, 140-1, paras 15-16.219 [2014] ICR 135, 140, para 15, citing [2012] EWHC 105 (Ch), para 25, citing Baoanan v Baja,

627 F Supp 2d 155 and Swarna v Al-Awadi, 622 F 3d 123.



and personal, and managing the diary, travel arrangements and the like of thediplomat would suggest employment toward the opposite end of thespectrum.220

Applying these principles, Langstaff J concluded that ‘had the employ-ment of either [respondent] been regarded as within the scope of “com-mercial activity” that activity would not have been within the scope ofthe [appellants’] official functions as a diplomat.’221

Langstaff J then considered whether the decision to uphold the appel-lants’ immunity violated the respondents’ right of access to a court. Asthe parties had agreed before the Tribunal that diplomatic immunitypursued a legitimate aim,222 the focus of the argument was on the ques-tion of whether the denial of the right of access to a court was propor-tionate to that aim. The Employment Tribunal Judge had relied onFogarty v United Kingdom,223 Cudak v Lithuania,224 and Article 11 ofthe United Nations Convention on Jurisdictional Immunities of Statesand Their Property,225 and on appeal, Langstaff J was referred to SabehEl Leil v France,226 all of which concerned whether, on the relevant facts,State immunity was a disproportionate aim to the denial of the right ofaccess to a court to resolve employment disputes. In Fogarty, theStrasbourg court ruled that the UK had not exceeded its margin of ap-preciation by allowing the United States to claim immunity against a suitbrought by a former administrative assistant in its London embassy. Atthe time of the decision, the UN Convention on Immunity was still atthe drafting stage, and the Court noted that ‘international practice isdivided on the question of whether State immunity continues to applyand, if it does so apply, whether it covers disputes relating to the con-tracts of all staff or only more senior members of the mission.’227 Bycontrast, nearly a decade after Fogarty, the Grand Chamber decidedboth Cudak and Sabeh El Leil on the basis that the UN Convention onImmunity applied to Lithuania and France respectively as customary

220 [2014] ICR 135, 141-2, para 19.221 [2014] ICR 135, 142, para 20.222 [2014] ICR 135, 142, para 22.223 (2002) 34 EHRR 12.224 (2010) 51 EHRR 15.225 New York, 2 December 2004, UN doc A/RES/59/38 (16 December 2004) (not in force).

Article 11 reads in relevant part: ‘Unless otherwise agreed between the States concerned, a Statecannot invoke immunity from jurisdiction before a court of another State which is otherwise com-petent in a proceeding which relates to a contract of employment between the State and an indi-vidual for work performed or to be performed in whole or in part in the territory of that other State.

2. Paragraph 1 does not apply if:

(a) the employee has been recruited to perform particular functions in the exercise of governmental

authority;

(b) the employee is . . .œ(iv) [a] . . .person enjoying diplomatic immunity . . . [. . .](e) the employee is a national of the employer State at the time when the proceeding is instituted,

unless this person has the permanent residence in the State of the forum.’226 (2012) 54 EHRR 14.227 Fogarty v United Kingdom (2001) 34 EHRR 302, para 38 (ECtHR (GC)).



international law, and that the employees in those cases had not beenrecruited to perform ‘particular functions in the exercise of governmen-tal authority.’228 The UN Convention on Immunity only governs Stateimmunity; these decisions, reliant as they are on that Convention, are oflittle assistance in assessing whether a grant of diplomatic immunity is adisproportionate interference with the right of access to a court. Thus,

It was the 2004 Convention which persuaded the European Court of HumanRights to hold that Article 6 had been breached in the State immunity cases ofCudak and Sabeh El Liel; there was no similar development where diplomaticimmunity was concerned, where the Vienna Convention remained unaffected.The principle of Fogarty was that (absent such a development) the aims pursuedby the conferment of State immunity justified a restriction of access to court.229

By not adequately distinguishing these cases, the ET Judge erred inrecognising the legitimate aim of diplomatic immunity, which althoughsimilar, is different to that of diplomatic immunity. By contrast, in deter-mining that aim, Langstaff J relied on Aldona S v Royaume Uni,230 adecision of the Poland Supreme Court, and Empire of Iran,231 a decisionof the German Federal Constitutional Court.232 In Empire of Law, theGerman Constitutional Court, in examining the exemptions to immunityin Article 31 of the VCDR, explained that:

The Article governs the personal immunity of diplomats. The extent of thisimmunity differs from that of State immunity; generally, it extends further. Inprinciple, therefore, the extent of State immunity cannot be determined fromthat of diplomatic immunity.233

Indeed,

[t]he need to protect the special vulnerability of a diplomatic agent when presentin the territory of a receiving State for the purpose of representing the sendingState is a major justification for diplomatic immunity which does not apply inthe case of State immunity – the latter being based on the concept of equalitybetween sovereign states, such that the laws of one cannot hold sway over theother in the absence of agreement.234

The respondents’ submitted that the Employment Tribunal Judge tookinto consideration the difference between State and diplomatic immunitywhen she explained in her judgment that ‘[a]s a loose guide, I have

228Article 11(2) of the UN Convention on Jurisdictional Immunity, New York, 2 December2004, UN doc A/RES/59/38 (16 December 2004) (not in force), applied as customary internationallaw in Sabeh El Leil v France, App No 34869/05, 29 June 2011, para 43 and Cudak v Lithuania, AppNo 15869/02, 23 March 2010, para 69.

229 [2014] ICR 135, 147, para 35.230 JDI 1963, 191.231 45 ILR 57.232 [2014] ICR 135, 146, para 33.233 45 ILR 57, 75.234 [2014] ICR 135, 147, para 34.



considered the sort of factors which the ECtHR took into account onproportionality in Fogarty and Cudak.’235 Langstaff J was not persuaded.He found that the ET Judge did not begin her assessment by identifyingthe underlying principles – and therefore the legitimate aim – of diplo-matic immunity.236 That aim is the need to ensure that there is ‘nohindrance in the way of the serving diplomat being free to perform histasks’.237 The ET Judge also erred by taking into consideration the ser-iousness of the claims in determining whether the respondents’ employ-ment was within the functions of a diplomat, as clearly ‘[t]he egregiousnature of behavior toward someone in employment does not mean that toemploy them at all is not a function of a diplomat.’238

As the appeal succeeded, Langstaff J did not need to consider whether,in applying the interpretative obligation under section 3 of the HRA, itwould have been necessary to interpret ‘commercial activity’ in theVCDR as including the entering into a contract of employment. Hetherefore avoided

the difficult issues which would then have to be resolved since the source of theexception lies in international rather than purely domestic law, and there mightbe arguments favoring an autonomous international as opposed to parochialdomestic interpretation.239

The appellants also appealed the decision of the ET Judge on the basis thatshe erred in finding that the service of proceedings was validly effective,because the diplomat enjoys inviolability and personal service is a ‘mani-festation of the enforcement jurisdiction of the receiving State and there-fore a contravention of personal inviolability . . . . [just as] service of processeven by post on inviolable premises . . . is a breach of their inviolability.’240

The respondents argued that, as service in this case was by post on thesolicitors, who were already acting for the appellants, these rules were notapplicable.241 Langstaff J agreed with the respondents, finding that

[n]o decided case supports the contention that service cannot be effected by poston a diplomatic residence’ Moreover, if the rights secured by Article 6 werebroken by the assertion of diplomatic privilege, the provisions as to serviceshould be applied in a manner which provided effective protection of that right.242

Finally, the respondents cross-appealed on the basis that, because someof their claims involve conduct which also violates the Anti-traffickingConvention, the failure to hear their clams would breach of Article 4 of

235 [2014] ICR 135, 146, para 31.236 [2014] ICR 135, 148, para 40.237 [2014] ICR 135, 148, para 40.238 [2014] ICR 135, 148-9, para 42.239 [2014] ICR 135, 150, para 46.240 [2014] ICR 135, 150, para 47.241 [2014] ICR 135, 150, para 48.242 [2014] ICR 135, 150, para 48.



the ECHR, which requires the UK to take positive steps to protect therespondents.243 There was some ‘factual overlap’ between the employ-ment claims and the treatment prohibited under the Anti-traffickingConvention, but the respondents’ claims were not based expressly onbeing trafficked, and an ‘overlap’ of claims ‘is not the same as a coinci-dence of them’. As Employment Tribunals only have jurisdiction hearemployment claims and not ‘any free-standing complaint that there hasbeen ill-treatment of an employee in some respect which is not germaneto those claims’, there would be no basis to hear ‘[w]ider “trafficking”claims’ in the present case.244 The cross-appeal was dismissed. In hisconclusion, Langstaff J noted that the respondents’ argument based onArticle 4 ECHR does not add any additional weight to their argumentthat diplomatic immunity is a disproportionate interference with therespondents’ Article 6 ECHR right.245

Recognising the lack of authority in this area, Langstaff J granted therespondents permission to appeal his judgment:

Since there is, according to counsel, no authority which yet directly deals withthe question whether a plea of diplomatic (as distinct from State) immunityconstitutes a disproportionate interference with rights otherwise guaranteedby Article 6 ECHR, and there has been a noticeable recent shift in the viewexpressed in case-law as to whether a plea of the latter is proportionate wheresuch as domestic staff are concerned, since I have differed from the view of theEmployment Judge, and because the issue is of some importance, there will bepermission to the Claimants [the respondents] to appeal this judgment.246

There is no reason to question Langstaff’s J decision on ‘commercialactivity’. Neither customary international law nor the VCDR recognisesan ‘employment exception’ to diplomatic immunity, and the argumentthat an employment contract is in fact a ‘commercial activity’ is incon-sistent with both the literal and the well accepted meaning of the phrasefor the law of immunity.247 Although some recent Strasbourg decisionshave found that that immunity violated the right of access to a court foremployees of embassy, as Langstaff J himself noted, these cases con-cerned State immunity and the Strasbourg court’s reasoning relied onthe applicability of provisions of the UN Convention on JurisdictionalImmunity as customary international law.248

243 [2014] ICR 135, 150-1, paras 51-2. See Rantsev v Cyprus and Russia (2010) 51 EHRR 1.244 [2014] ICR 135, 151, para 55.245 [2014] ICR 135, 152, para 57.246 [2014] ICR 135, 152, para 59.247 See E Denza, Diplomatic Law (3rd edn, Oxford University Press, 2008), 301-8.248 See Sabeh El Leil v France, App No 34869/05, 29 June 2011, paras 55-68 and Cudak v

Lithuania, App No 15869/02, 23 March 2010, paras 69-75. See also Benkharbouche v Embassy ofthe Republic of Sudan and Janah v Embassy of the Republic of Libya, 4 October 2013, UKEAT/0401/12/GE, UKEAT/0020/13/GE, [2014] 1 CMLR 40, [2014] ICR 169, [2013] IRLR 918 (Langstaff J),noted in this Yearbook.



6. Benkharbouche v Embassy of the Republic of Sudan and Janah vEmbassy of the Republic of Libya, 4 October 2013, UKEAT/0401/12/GE, UKEAT/0020/13/GE, [2014] 1 CMLR 40, [2014] ICR 169, [2013]IRLR 918 (Langstaff J)

State immunity — State Immunity Act 1978, sections 4 and 16 — Human RightsAct 1998 — European Convention on Human Rights, article 6 — Charter ofFundamental Rights of the European Union, article 47 — right to a fair trial —employment contracts exception to immunity – employment of a domestic servant bymember of a mission— whether immunity violates the appellants’ right to a fair trial— whether State Immunity Act 1978 capable of being set aside — whether StateImmunity Act 1978 capable of being interpreted compatibly with article 6 of theEuropean Convention on Human Rights

Section 4 (‘Contracts of Employment’) of the UK State Immunity Act1978 (‘SIA’) reads in relevant part:

1. A State is not immune as respects proceedings relating to a contract of

employment between the State and an individual where the contract was

made in the United Kingdom or the work is to be wholly or partly per-

formed there.

2. Subject to subsections (3) and (4) below, this section does not apply if—

(a) at the time when the proceedings are brought the individual is anational of the State concerned; or

(b) at the time when the contract was made the individual was neithera national of the United Kingdom nor habitually resident there; or

(c) the parties to the contract have otherwise agreed in writing.

3. Where the work is for an office, agency or establishment maintained by the

State in the United Kingdom for commercial purposes, subsection (2)(a)

and (b) above do not exclude the application of this section unless the in-

dividual was, at the time when the contract was made, habitually resident in

that State.

The relevant part of section 4 above does not apply to proceedings con-cerning the employment of the members of a mission within the meaningof the Vienna Convention on Diplomatic Relations scheduled to theDiplomatic Privileges Act of 1964 (DPA) or of the members of a consularpost within the meaning of the Vienna Convention on ConsularRelations scheduled to the Consular Relations Act of 1968.249

Section 2 (‘Application of the Vienna Convention’) of the DPA pro-vides in relevant part:

1. Subject to section 3 of this Act, the Articles set out in Schedule 1 to this Act(being Articles of the Vienna Convention on Diplomatic Relations signed in1961) shall have the force of law in the United Kingdom and shall for that

249 Section 16(1)(a) of the SIA.



purpose be construed in accordance with the following provisions of thissection.

2. In those Articles—

“agents of the receiving State” shall be construed as including any constable andany person exercising a power of entry to any premises under any enactment(including any enactment of the Parliament of Northern Ireland);“national of the receiving State” shall be construed as meaning citizen of theUnited Kingdom and Colonies;“Ministry for Foreign Affairs or such other ministry as may be agreed” shall beconstrued as meaning the department of the Secretary of State concerned.

Article 1 of the Vienna Convention on Diplomatic Relations (VCDR), asincorporated in Schedule 1 of the DPA provides:

For the purpose of the present Convention, the following expressions shall havethe meanings hereunder assigned to them:

(b) the “members of the mission” are the head of the mission and the members

of the staff of the mission;

(c) the “members of the staff of the mission” are the members of the diplo-

matic staff, of the administrative and technical staff and of the service staff

of the mission; [. . .]

(g) the “members of the service staff” are the members of the staff of the

mission in the domestic service of the mission; [. . .]

Section 1 of the SIA provides that states are immune from the jurisdic-tion of UK courts, but section 4(1) removes that immunity for proceed-ings relating to a contract of employment that is made or is due to beperformed in the UK. Subparagraph 4(2) contains exceptions to theexclusion of immunity in 4(1), including where, if at the time the con-tract was entered into, the employee was neither a national of the UK norhabitually resident in the UK. Section 16(1)(a) SIA also provides thatthe exception to immunity in section 4(1) does not apply to proceedingsconcerning the employment of the members of a diplomatic mission,which is defined by Article 1 of the Vienna Convention on DiplomaticRelations, incorporated into English law by Schedule 1 to the DPA, asincluding the domestic staff of a mission. The first EmploymentTribunal dismissed employment claims brought by Ms Benkhar-bouche,250 who was a cook at the Sudanese embassy in London, onthe basis that she was a member of the domestic staff of a mission forthe purposes of section 16(1)(a) SIA. A second Employment Tribunaldismissed the employment and racial discrimination claims brought by

250 Unfair dismissal, unpaid wages and unpaid holiday pay, failure to pay the National MinimumWage and a breach of the Working Time Directive (Directive 2003/88/EC, OJ [2003] L 299/9)(WTD).



Ms Janah,251 who was a member of the domestic staff at the Libyanembassy in London, on the basis that she fell within both section16(1)(a) and 4(2)(b) of the SIA because, at the time when the contractwas made, she neither a national of the United Kingdom nor habituallyresident in the UK. They appealed to the Employment Appeals Tribu-nal (EAT), arguing that the Employment Tribunals decision to dismisstheir claims on the basis of State immunity violated their right of accessto a court as guaranteed by the European Convention on Human Rights(ECHR)252 and the Charter of Fundamental Rights of the EuropeanUnion (the EU Charter).253 The President of EAT, Langstaff, J, gavethe judgment for the conjoined appeals.Langstaff J found that both of the decisions by the Employment

Tribunal violated the appellants’ right of access to a court as guaranteedby Article 6 of the European Convention on Human Rights.254 In reach-ing this conclusion, he relied on the decisions of the Grand Chamber ofthe European Court of Human Rights in Sabeh El Leil v France,255 andCudak v Lithuania.256 In both of these cases, the Grand Chamber foundthat adherence to the international rules on immunity was a legitimateaim of the State and is proportionate to the restriction on the employees’rights, but a grant of immunity not required by international law was adisproportionate restriction, overstepping the State’s margin of appreci-ation and impairing the essence of the right of access to a court as guar-anteed by Article 6 ECHR. The Grand Chamber had relied on theemployment contract exception in Article 11 of the United NationsConvention on Jurisdictional Immunities of States and Their Propertyon the basis that, while not in force, it reflected customary internationallaw.257 Article 11 (‘Contracts of Employment’) reads in relevant part:

1. Unless otherwise agreed between the States concerned, a State cannotinvoke immunity from jurisdiction before a court of another State whichis otherwise competent in a proceeding which relates to a contract of em-ployment between the State and an individual for work performed or to beperformed, in whole or in part, in the territory of that other State.

251 Unfair dismissal, unpaid wages and unpaid holiday pay, racial discrimination and harassmentamounting to a breach of the Race Discrimination Directive (Directive 2000/43/EC, OJ [2000] L180/22) (RDD), failure to pay the National Minimum Wage and a breach of the Working TimeDirective (Directive 2003/88/EC, OJ [2003] L 299/9) (WTD).

252 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS222, Rome, 4 November 1950, entered into force 3 September 1953.

253 Charter of Fundamental Rights of the European Union [2000] OJ C364/01.254 The relevant part of Article 6 ECHR reads: ‘In the determination of his civil rights and

obligations or of any criminal charge against him, everyone is entitled to a fair and public hearingwithin a reasonable time by an independent and impartial tribunal established by law.’

255 App No 34869/05, 29 June 2011.256 App No 15869/02, 23 March 2010.257 United Nations Convention on Jurisdictional Immunities of States and Their Property, New

York, 2 December 2004, UN doc A/RES/59/38 (16 December 2004) (not in force).



2. Paragraph 1 does not apply if:

(a) the employee has been recruited to perform particular functions in the

exercise of governmental authority;

The head accountant working at the Kuwaiti embassy in Paris (Sabeh ElLeil) and a Lithuanian switchboard operator at the Polish embassy inVilnius (Cudak) were both found not to be performing ‘functions in theexercise of government authority’ because their main duties did not ‘ob-jectively’ relate to the sovereign interests of the State.258 Langstaff Jrelied on these cases for the proposition that, in recent years, the pleaof State immunity had been increasingly restricted in cases involvingemployment contracts and that its application depended on ‘whetherthe proposed claim involved any public aspect of the employee’swork’,259 and not necessarily on whether the individual was a memberof a particular group of persons. Although this conclusion may followfrom Sabeh El Leil and Cudak, the decisions of the Grand Chamber havebeen criticised for asserting, without supporting evidence, that Article 11of the Convention is customary law, for giving the exceptions in Article11 a narrow and restrictive interpretation, especially as the law on im-munity in this area is evolving and unsettled, and for ‘channelling theinternational rules of State immunity into a regional approach that is notnecessarily accepted elsewhere.’260 It is not clear that the GrandChamber’s approach to embassy employment law cases reflects the pos-ition in customary international law.Nevertheless, given the factual findings of the Employment Tribunals,

Langstaff J was ‘satisfied that to render their employment dispute withSudan and Libya amenable to a decision of the court would not appearto interfere with any public government function of those states.’261 Con-sequently, the restriction imposed by Article 16(1)(a) could not be justifiedbecause the SIA no longer strikes ‘an appropriate balance’ between thecompeting interests of State immunity and ‘the importance of access tocourt for employees with functions such as those of the claimants’:262

Though the argument that the [SIA] struck an appropriate balance might at onestage in recent history have proved a sufficient answer, it no longer does so inthe light of the developing extent of restrictions on State Immunity.263

Langstaff J expressed ‘much greater hesitation’ in reaching the sameconclusion for section 4(2)(b) SIA because, at least during the negoti-ation of the 1991 draft of what is now the UN Convention on Immunity,

258 Sabeh El Leil v France, App No 34869/05, 29 June 2011, paras 55-68, and Cudak v Lithuania,App No 15869/02, 23 March 2010, paras 69-75.

259 [2014] 1 CMLR 40, para 33.260 See H Fox and P Webb, The Law of State Immunity (3rd edn, Oxford University Press, 2013),

443.261 [2014] 1 CMLR 40, para 33.262 [2014] 1 CMLR 40, para 33.263 [2014] 1 CMLR 40, para 33.



‘it was considered, as a matter of customary international law, that arational distinction could properly be drawn between nationals of thehost country, and others with no connection by residence with the hostcountry.’264 Somewhat surprisingly, he was nevertheless prepared to‘assume for the purpose of argument’ that the application of section4(2)(b) SIA breached Article 6 ECHR.265 However, neither conclusioncould help the appellants, because it ‘would cross the critical line be-tween interpretation and legislation’ to interpret the SIA to allow theclaims to proceed:266

Where Parliament has set out a clear list of those in respect of whom a plea ofimmunity will fail, and those in respect of whom it will succeed, it would in myview cross the critical line between interpretation and legislation to alter the listby removing one category from the “yes” camp, so as to place it in the “no”camp. Given that the overall approach [of the SIA] is deliberately to limit accessto justice in certain cases, there seems to me to be no proper interpretative scopefor altering the criteria defined.267

In relation to the appellants’ argument based on the EU Charter ofFundamental Freedoms, Langstaff J found that, to the extent that theappellants’ claims involved rights derived from EU law, the applicationof sections 16(1)(a) and 4(2)(b) SIA violated the EU Charter. Althoughthe UK had agreed an opt-out to the Charter when it was made bindingin the Lisbon Treaty 2009,268 the Court of Justice of the EuropeanUnion has subsequently concluded that the Charter makes rights, free-doms and principles of the EU ‘more visible, but [it] does not create newrights or principles’,269 and therefore the UK’s opt-out only confirmedthe already existing position in Article 51 of the Charter that the provi-sions of the Charter are applicable ‘with due regard for subsidiarity’ and‘only when [states] are implementing Union law’.270 In other words, the

264 [2014] 1 CMLR 40, para 36.265 [2014] 1 CMLR 40, para 37.266 [2014] 1 CMLR 40, para 41.267 [2014] 1 CMLR 40, para 41.268 Protocol on the Application of the Charter of Fundamental Rights of the European Union to

Poland to the United Kingdom, OJ [2007] C 306/157, article 1: ‘The Charter does not extend theability of the Court of Justice of the European Union, or any court or tribunal of Poland or of theUnited Kingdom, to find that the laws, regulations or administrative provisions, practices or actionof Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms andprinciples that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV ofthe Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far asPoland or the United Kingdom has provided for such rights in its national law.’

269 NS (European Union Law) v Secretary of State for the Home Department [2013] QB 102;[2011] EUECJ C-411/10 (21 December 2011), para 119.

270 Charter of Fundamental Rights of the European Union [2000] OJ C364/01, article 51, whichreads: ‘1. The provisions of this Charter are addressed to the institutions and bodies of the Unionwith due regard for the principle of subsidiarity and to the Member States only when they areimplementing Union law. They shall therefore respect the rights, observe the principles and pro-mote the application thereof in accordance with their respective powers. 2. This Charter does notestablish any new power or task for the Community or the Union, or modify powers and tasksdefined by the Treaties.’



opt-out did not exempt the UK or its courts from ensuring compliancewith the Charter provisions. The UK Supreme Court had then made itclear that the EU Charter has direct effect in UK law and applies whenthe UK implements EU law.271

Article 52(3) of the Charter provides that if a Charter right corres-ponds to an ECHR right, the meaning and scope of the Charter right isto be the same as the meaning and scope of the ECHR right.272

Consequently, Langstaff J was prepared to accept that Article 47,which also guarantees the right to a fair trial, was coterminous withArticle 6 and violated by the Employment Tribunal decisions to applysections 16(1)(a) and 4(2)(b) of the SIA. Although Article 47 could notbe directly applied in a dispute between private parties, the decisions ofthe Court of Justice in Mangold v Helm273 and Kucukdeveci v Swedex274

meant that a national court must, ‘within the limits of its jurisdiction’,give effect to the general principles of EU law, including disregardingcontrary provisions of national law. As section 2(1) of the EuropeanCommunities Act provides that the rights and obligations created byor arising under EU treaties are to be given legal effect in UK law,275

and Article 47 affirms, but does not establish, the general principle of theright of access to a court, the underlying principle of access to a courtmust be given effect in proceedings involving private parties.Langstaff J therefore ruled that section 16(1)(a) of the SIA should not

be applied to the extent it prevents Ms Benkharbouche’s claim of abreach of the Working Time Directive276 and sections 16(1)(a) and4(2)(b) of the SIA should not be applied to the extent that they preventMs Janah’s claim for a breach of the Working Time Directive and theRace Discrimination Directive,277 notwithstanding,

the uncomfortable recognition that the domestic legislature took care in the[Human Rights Act] not to allow the courts to disapply any domestic statutewhich was in conflict with the [European Convention on Human Rights].278

271 RFU v Consolidated Information Services [2012] UKSC 55; [2012] 1 WLR 3333, paras 26-31.272 Charter of Fundamental Rights of the European Union [2000] OJ C364/01, article 52(3),

which reads ‘In so far as this Charter contains rights which correspond to rights guaranteed by theConvention for the Protection of Human Rights and Fundamental Freedoms, the meaning andscope of those rights shall be the same as those laid down by the said Convention. This provisionshall not prevent Union law providing more extensive protection.’

273 Case C-144/04 [2005] ECR I- 9981.274 Case C-555/07 [2010] ECR I- 365.275 Article 2(1) of the European Communities Act 1972 reads: ‘All such rights, powers, liabilities,

obligations and restrictions from time to time created or arising by or under the Treaties, and allsuch remedies and procedures from time to time provided for by or under the Treaties, as inaccordance with the Treaties are without further enactment to be given legal effect or used in theUnited Kingdom shall be recognised and available in law, and be enforced, allowed and followedaccordingly; and the expression “enforceable EU right” and similar expressions shall be read asreferring to one to which this subsection applies.’

276 Directive 2003/88/EC, O.J. [2003] L 299/9.277 Directive 2000/43/EC, O.J. [2000] L 180/22278 [2014] 1 CMLR 40, para 66.



As the appellants’ claims of unfair dismissal, non-payment of wages and/or holiday pay, and non-payment of the minimum wage were not withinthe material scope of EU law, these could only be pursued via an appealfor a declaration of incompatibility under the Human Rights Act.279

Conscious of just how importance this decision is for English law andits relationship with EU human rights law, Langstaff J immediatelygranted both parties leave to appeal:

Since the law cannot necessarily be regarded as finally settled in this area; sinceit involves conflict between national provisions implementing the provisions oftreaties reached by the international community, and those giving effect to EUprinciples; since it may be seen as undesirable that the regime for paying respectto the ECHR, which carefully balances the roles of the courts and legislature,does not operate where EU rights of a somewhat unspecific nature are con-cerned, because they are said to be general and fundamental principles of theUnion, where the rights in question are precisely the same though the territoriesin which they operate are distinct, it is important that this decision be reviewedby a higher appellate court. I grant permission to appeal to both Libya andSudan, and also to the claimants, so that for their part they may pursue a dec-laration of incompatibility insofar as domestic statute, not disapplied in conse-quence of my decision, affects their claims which fall outside the material scopeof EU law as I have found it to be.280

This case highlights the increasingly complex and dynamic relation-ship between public international law proper, the law of the EuropeanUnion and the domestic law of England and Wales. Arguably the conflictbetween international rules incorporated into domestic law via the SIAand fundamental EU principles incorporated into domestic law via theEuropean Communities Act has arisen because of the creative develop-ment of the law by the Strasbourg court, in its interpretation of thecustomary international law exception to immunity in employment dis-putes, and the Luxembourg court, in its interpretation of the UK’s opt-out clause and the horizontal effect of EU general principles: both courtscan be said to have extended the reach of EU law into English lawthrough the ‘back door’.It remains to be seen whether the Court of Appeal will adopt Langstaff

J’s reasoning. If it does, then it will further entrench the GrandChamber’s embassy employment law exception to immunity, and itwill uphold a constitutionally controversial decision that, if appealed toand accepted by the Supreme Court, will represent a significant changein the way that European human rights claims are argued in UK courts.

279 Section 4 of the Human Rights Act 1998.280 [2014] 1 CMLR 40, para 71.



7. Regina vGul (Mohammed), 23October 2013, [2013]UKSC64, [2013]3 WLR 1207, [2014] 1 Cr App R 14 (SC(E))

Terrorism Act 2000, section 1 (as amended by Terrorism Act 2006, section 34 andCounter-Terrorism Act, section 75(2)(a))— definition of ‘terrorism’— TerrorismAct 2006, section 2 — disseminating terrorist publications — whether internationallaw characterises attacks by those engaged in armed struggle against coalition forcesin Iraq and Afghanistan as ‘terrorism’— whether domestic and/or international lawrequires domestic definition of terrorism to be read down

Section 1 (‘Terrorism: interpretation’) of the Terrorism Act 2000, asamended by the Terrorism Act 2006 and the Counter-Terrorism Act2008, provides a broad definition of ‘terrorism’ – in relevant part:

1. In this Act ‘terrorism’ means the use or threat of action where—

(a) the action falls within subsection (2),(b) the use or threat is designed to influence the government or an

international governmental organisation or to intimidate thepublic or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political,religious, racial or ideological cause.

2. Action falls within this subsection if it—

(a) involves serious violence against a person,(b) involves serious damage to property,(c) endangers a person’s life, other than that of the person committing

the action,(d) creates a serious risk to the health or safety of the public or a sec-

tion of the public, or(e) is designed seriously to interfere with or seriously to disrupt an

electronic system.

3. The use or threat of action falling within subsection (2) which involves the

use of firearms or explosives is terrorism whether or not subsection (1)(b) is

satisfied.281

Section 2 of the Terrorism Act 2006 makes it an offence to disseminate‘terrorist publications’. In relevant part:

(1) A person commits an offence if he engages in conduct falling within sub-

section (2) and, at the time he does so—

(a) he intends an effect of his conduct to be a direct or indirect en-couragement or other inducement to the commission, preparationor instigation of acts of terrorism;

(b) he intends an effect of his conduct to be the provision of assistancein the commission or preparation of such acts; or

(c) he is reckless as to whether his conduct has an effect mentioned inparagraph (a) or (b).

281 Terrorism Act 2000, c 11, section 1.



(2) For the purposes of this section a person engages in conduct falling within

this subsection if he—

(a) distributes or circulates a terrorist publication;[. . .](e) transmits the contents of such a publication electronically; or

Section 2(3) of the 2006 Act defines ‘terrorist publication’ as one wherethe matter contained in the publication is likely,

(a) to be understood, by some or all of the persons to whom it is or may becomeavailable as a consequence of that conduct, as a direct or indirect encouragementor other inducement to them to the commission, preparation or instigation ofacts of terrorism; or(b) to be useful in the commission or preparation of such acts and to be under-stood, by some or all of those persons, as contained in the publication, or madeavailable to them, wholly or mainly for the purpose of being so useful to them.

The appellant in this present case was convicted and sentenced to fiveyears’ imprisonment for the dissemination of terrorist publications con-trary to section 2(1) of the Terrorism Act 2006.282 The appellant up-loaded to various websites, including YouTube, videos that showed,

(i) attacks by members of Al-Qaeda, the Taliban, and other proscribed groupson military targets in Chechnya, and on the Coalition forces in Iraq and inAfghanistan, (ii) the use of improvised explosive devices (“IEDs”) againstCoalition forces, (iii) excerpts from “martyrdom videos”, and (iv) clips of attackson civilians, including the 9/11 attack on New York. These videos were accom-panied by commentaries praising the bravery, and martyrdom, of those carryingout the attacks, and encouraging others to emulate them.283

Before convicting the appellant, the jury sought clarification of the def-inition of terrorism in Section 1 of the 2000 Act from Judge Paget QC.One of the questions asked by the jury was:

Re: definition of terrorism in [section 1 of the 2000 Act], would the use of forceby Coalition forces be classed as terrorism?284

To which Judge Paget QC answered:

the use of force by Coalition forces is not terrorism. They do enjoy combatimmunity, they are ordered there by our government and the American gov-ernment, unless they commit crimes such as torture or war crimes.285

282 Terrorism Act 2006, c 11.283 [2013] 3 WLR 1207, 1211, para 2.284 [2013] 3 WLR 1207, 1211, para 5.285 [2013] 3 WLR 1207, 1211, para 5.



The jury then asked:

Please confirm that within Iraq/Afghanistan now there are governments in placethere cannot now be said to be a ‘conflict’ and therefore no combatant exemp-tion from what would otherwise be a terrorist attack, ie IED on CoalitionForces. To simplify, would an IED attack (ignoring self-defence) on CoalitionForces be a terrorist attack if carried out in 2008/9?286

After hearing submissions from counsel, Judge Paget QC gave the fol-lowing direction:

I have to apply the Terrorism Act and the definition of terrorism which is partof English law, and the answer is ‘yes, it would’. But it is ultimately for you tosay.287

The central issue in this case is whether the definition of ‘terrorism’ insection 1 of the 2000 Act includes military attacks by non-State armedgroups against State or inter-governmental armed forces during a non-international armed conflict.288 The Court of Appeal certified this ques-tion as follows:

Does the definition of terrorism in section 1 of the Terrorism Act 2000 operateso as to include within its scope any or all military attacks by a non-state armedgroup against any or all state or intergovernmental organisation armed forces inthe context of a non-international armed conflict?289 (the ‘Certified Question’)

This definition is central to the appellant’s conviction for offences undersection 2 of the 2006 Act. In convicting the appellant of the section 2offence, the jury must have been satisfied that, pursuant to section2(3)(a), the videos uploaded by the appellant would have been ‘under-stood by others as encouraging or inducing them to commit, prepare orinstigate acts of terrorism’ and the appellant intended or was reckless asto that consequence.290 If the conduct shown in the videos did not satisfythe definition of terrorism in section 1 of the 2000 Act, the appellant mayhave been acquitted on some or all of the charges on which he wasconvicted.A seven-member Supreme Court dismissed the appeal, holding that,

although the definition in section 1 of the 2000 Act is unquestionablywide, there is nothing in English law or in public international law thatpermits the Supreme Court to ‘read down’ its scope. Lords Neubergerand Judge JJSC, with whom Lady Hale JSC, Lord Hope JSC, Lord

286 [2013] 3 WLR 1207, 1212, para 6.287 [2013] 3 WLR 1207, 1212, para 6.288 [2013] 3 WLR 1207, 1216, para 24.289 [2012] 1 WLR 3432 (CA), 3455 and [2013] 3 WLR 1207 (SC), 1212, para 8.290 An offence was committed under section 2(1) because the appellant had ‘distribute[d] or

circulate[d]’ (section 2(2)(a) of the Terrorism Act 2006) a ‘terrorist publication’ within the meaninggiven in section 2(3) of the Terrorism Act 2006. [2013] 3 WLR 1207, 1215-6, para 21.



Mance JSC, Lord Keer JSC and Lord Reed JSC agreed, delivered thejudgment.Lords Neuberger and Judge JJSC began by confirming the accepted

view that section 1 of the 2000 Act provides a wide definition of terror-ism – one that captures conduct that some might feel uneasy character-ising as terrorism:

As a matter of ordinary language, the definition would seem to cover any vio-lence or damage to property if it is carried out with a view to influencing agovernment or IGO [inter-governmental organisation] in order to advance avery wide range of causes. Thus, it would appear to extend to military orquasi-military activity aimed at bringing down a foreign government, evenwhere that activity is approved (officially or unofficially) by the UK govern-ment. . . . . It is neither necessary nor appropriate to express any concluded viewwhether the definition of ‘terrorism’ goes that far, although it is not entirely easyto see why, at least in the absence of international law considerations, it does not.For present purposes it is enough to proceed on the basis that, subject to theseconsiderations, the definition of terrorism in section 1 in the 2000 Act is, at leastif read in its natural sense, very far reaching indeed. Thus, on occasions, activ-ities which might command a measure of public understanding, if not support,may fall within it: for example, activities by the victims of oppression abroad,which might command a measure of public understanding, and even support inthis country, may well fall within it.291

This interpretation of the natural reading of section 1 is supported by thereports of two Independent Reviewers of the legislation, appointedunder section 36 of the 2006 Act.292 Lord Carlile of Berriew QC con-cluded that the definition should remain as originally drafted, and is‘consistent with international comparators and treaties, and is usefuland broadly fit for purpose.’293 In his report, Mr Anderson QC notedthat some actions may amount to terrorism under section 1, ‘even whenthey might otherwise constitute lawful hostilities under international hu-manitarian law’,294 and acknowledged that while there may be an argu-ment for reducing the scope of the definition (describing the definition as‘remarkably broad – absurdly so in some cases’), any amendment to thedefinition would require a,

291 [2013] 3 WLR 1207, 1217, paras 28-9.292 Lord Carlile, Report on the Operation in 2005 of the Terrorism Act 2000, May 2006; Lord

Carlile, Report on the Operation in 2006 of the Terrorism Act 2000, June 2007; Lord Carlile, ‘TheDefinition of Terrorism’, Cm 7052, March 2007; D Anderson, The Terrorism Acts in 2011: Report ofthe Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act2006, June 2012 (Her Majesty’s Stationary Office); D Anderson, ‘The Terrorism Acts in 2012:Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of theTerrorism Act 2006’, July 2013 (Her Majesty’s Stationary Office).

293 Lord Carlile, ‘The Definition of Terrorism’, Cm 7052, March 2007, para 66.294 [2013] 3 WLR 1207, 1218, para 33, and: ‘As presently drafted, the definition is so broad as to

criminalise certain acts carried out overseas that constitute awful hostilities under internationalhumanitarian law.’ D Anderson, ‘The Terrorism Acts in 2011’ (June 2012), para 3.9.



root-and-branch review of the entire edifice of anti-terrorism law, based on aclear-headed assessment of why and to what extent it is operationally necessaryto supplement established criminal laws and procedures.295

The Crown submitted that, recognising the risks of criminalising con-duct that should not be prosecuted, Parliament enacted section 117 of the2000 Act, which precludes prosecution of terrorism offences without theconsent of the Director of Public Prosecutions (DPP) or, if the conducttook place abroad, the Attorney General.296 According to theirLordships, even if Parliament did enact section 117 for this reason, theargument is ‘intrinsically unattractive’ – it,

amounts to saying that the legislature, whose primary duty is to make the law,and to do so in public, has in effect delegated to an appointee of the executive,albeit a respected and independent lawyer, the decision whether an activityshould be treated as criminal for the purposes of prosecution. Such a statutorydevice, unless deployed very rarely indeed and only when there is no alternative,risks undermining the rule of law. It involves Parliament abdicating a significantpart of its legislative function to an unelected DPP, or to the Attorney General,who, though he is accountable to Parliament, does not make open, democratic-ally accountable decisions in the same way as Parliament. Further, such a deviceleaves citizens unclear as to whether or not their actions or projected actions areliable to be treated by the prosecution authorities as effectively innocent orcriminal - in this case seriously criminal.297

Consequently, their Lordships did not attach any weight to section 117as an aid to the construction of section 1;298 section 117 cannot and, totheir knowledge, was not intended to assist in the interpretation of le-gislation that criminalises conduct: ‘[e]ither specific activities carried outwith a particular intention or with a particular state of mind are criminalor they are not.’299 As a matter of law, conduct might involve ‘terrorism’and will be criminal under the 2000 and 2006 Acts ‘long before, andindeed quite irrespective of whether, any question of prosecutionarises.’300

Lords Neuberger and Judge JJSC concluded that Parliament had in-tended to enact a very wide definition of terrorism. The reports of theIndependent Reviewers supported this conclusion – even where theywere critical of the wide definition, they provided reasons for its widebreadth and suggested that for the most part ‘the wide discretions ap-pear . . . to be reasonably exercised.’301 Furthermore, although ‘this is not

295 D Anderson, ‘The Terrorism Acts in 2012’ (July 2013), para 4.5.296 [2013] 3 WLR 1207, 1217-8, para 30. Consent is withheld if a prosecution would not be in the

public interest.297 [2013] 3 WLR 1207, 1219, para 36.298 [2013] 3 WLR 1207, 1220, para 40.299 [2013] 3 WLR 1207, 1219, para 35. During Parliamentary debates the Terrorism Act 2000300 [2013] 3 WLR 1207, 1219, para 37. Contrast this position to the position taken by the House

of Lords in Regina (Purdy) v Director of Public Prosecutions [2010] 1 AC 345.301 [2013] 3 WLR 1207, 1218, para 34, citing the Second Report of D Anderson (July 2013).



a case in which it is appropriate to refer to what was said in Parliament asan aid to statutory interpretation’, the debates over the 2000 Act ‘pro-vid[ed] some comfort for the Crown’s argument’ that Parliament in-tended the definition of terrorism to be very wide.302 Moreover,

[o]f rather more legitimate relevance is the fact that Parliament was content toleave the definition of “terrorism” effectively unchanged, when consideringamendments or extensions to the 2000 Act, well after the 2007 report of LordCarlile, which so clearly (and approvingly) drew attention to the width of thedefinition of terrorism - see eg the Crime and Security Act 2010, the TerroristAsset-Freezing etc Act 2010 and the Terrorism Prevention and InvestigationMeasures Act 2011.303

For these reasons, Lords Neuberger and Judge JJSC concluded that,

It is difficult to see how the natural, very wide, meaning of the definition canproperly be cut down by this Court . . . the definition of ‘terrorism’ was intendedto be very wide. Unless it is established that the natural meaning of the legis-lation conflicts with the European Convention on Human Rights (which it is notsuggested) or any other international obligation of the United Kingdom (whichwe consider in the next section of this judgment), our function is to interpret themeaning of the definition in its statutory, legal and practical context. We agreewith the wide interpretation favoured by the prosecution: it accords with thenatural meaning of the words used in section 1(1)(b) of the 2000 Act, and, whileit gives the words a concerningly wide meaning, there are good reasons for it.304

[U]nless the appellant’s argument based on international law dictates a differentconclusion, the definition of terrorism as in section 1 of the 2000 Act is indeed aswide as it appears to be.305

This must be right. Narrowing what is an unambiguously wide defin-ition of terrorism would be too heavy a burden for the text of section 1.Nevertheless, the reference to international law in their Lordships con-clusion is puzzling. If an argument had been made that section 1 of the2000 conflicted with a human right guaranteed by the ECHR, then theSupreme Court could have used its powers under the Human Rights Act1998 – specifically, section 3, which requires, in so far as it is possible todo so, the Court to read and give effect to primary legislation in a waythat is compatible with the Convention rights – to ‘read down’ the def-inition in section 1 to the extent necessary to make it compatible with theConvention rights. For general international law, however, there is noequivalent domestic law power. There is a well-known presumption infavour of interpreting English law in a way that is consistent with theUK’s international obligations, but this presumption only arises wherean Act of Parliament covering the same subject matter and/or one which

302 [2013] 3 WLR 1207, 1220, para 39.303 [2013] 3 WLR 1207, 1220, para 39.304 [2013] 3 WLR 1207, 1219, para 38.305 [2013] 3 WLR 1207, 1220, para 41.



clearly incorporates a treaty into UK law is unclear – here the presump-tion is that Parliament intended to legislative in compliance with theUK’s obligations, unless it has clearly indicated to the contrary.306

Lords Neuberger and Judge JJSC observed that aspects of the 2000 Actand the 2006 were enacted to give effect to the UK’s international obli-gations under inter alia the International Convention for the Suppressionof Terrorist Bombings 1997307 and the International Convention for theSuppression of the Financing of Terrorism 1999,308 but under the ortho-dox approach to reliance on treaties for the interpretation of Parliamentarylegislation, reference to these treaties to interpret the scope of section 1 ofthe Terrorism Act 2000 is only permitted if the terms of section 1 areunclear. As Lord Hoffmann explained in R v Lyons:

[I]t is firmly established that international treaties do not form part of Englishlaw and that English courts have no jurisdiction to interpret or apply them: J HRayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC418 (the International Tin Council case). Parliament may pass a law which mir-rors the terms of the treaty and in that sense incorporates the treaty into Englishlaw. But even then, the metaphor of incorporation may be misleading. It is notthe treaty but the statute which forms part of English law. And English courtswill not (unless the statute expressly so provides) be bound to give effect tointerpretations of the treaty by an international court, even though the UnitedKingdom is bound by international law to do so. Of course there is a strongpresumption in favour of interpreting English law (whether common law orstatute) in a way which does not place the United Kingdom in breach of aninternational obligation. As Lord Goff of Chieveley said in Attorney General vGuardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283: ‘I conceive it to be myduty, when I am free to do so, to interpret the law in accordance with theobligations of the Crown under [the Convention].’

But for present purposes the important words are ‘when I am free to do so’. Thesovereign legislator in the United Kingdom is Parliament. If Parliament hasplainly laid down the law, it is the duty of the courts to apply it, whether thatwould involve the Crown in breach of an international treaty or not.309

In light of the Court’s conclusion that the wide interpretation of sec-tion 1 ‘accords with the natural meaning of the words’, and that ‘there aregood reasons for it’, and it was ‘intended to be very wide’, it is difficult tosee why the Court should have had recourse to these treaties, let aloneinternational law generally, in interpreting the scope of section 1.Nevertheless, the appellant argued that the definition of terrorism in

international law is narrower than the definition in section 1 of the 2000Act, and that, even if all elements of a definition are not agreed, there is

306 J H Rayner (Mincing Lane) Ltd. Appellants v Department of Trade and Industry and Others[1990] 2 AC 418, 500; R v Lyons [2003] 1 AC 976, 992, paras 27-8.

307 New York, 15 December 1997, 2149 UNTS 256.308 New York, 9 December 1999, 2178 UNTS 197.309 R v Lyons [2003] 1 AC 976, 992, paras 27-8. See also J H Rayner (Mincing Lane) Ltd v

Department of Trade and Industry and Others [1990] 2 AC 418, 500.



at least a general consensus in international law that acts committed byarmed groups against military targets during a non-international armedconflict are not considered terrorism.310 The appellant’s second argu-ment follows from the first: that, because some provisions in the 2000and 2006 Acts criminalise ‘terrorist’ conduct that occurs abroad, thedefinition of terrorism in section 1 of the 2000 Act should be coextensivewith the generally agreed definition in international law and/or reflectthe consensus that attacks by armed groups against military targets innon-international armed conflicts are not acts of terrorism. LordsNeuberger and Judge JJSC rejected the first submission and foundthat, because this case involves a UK citizen whose acts took placewithin the UK, it was not necessary to rule on the second submission.According to Lords Neuberger and Judge JJSC, ‘there is no accepted

norm in international law as to what constitutes terrorism’,311 and thereis no general consensus that acts of armed groups against military targetsin non-international armed conflicts do not amount to terrorism underinternational law.312 In reaching this conclusion, their Lordships exam-ined and noted several international sources.First, Lords Neuberger and Judge JJSC noted that the ad hoc com-

mittee established by United Nations General Assembly resolution 51/210 (17 December 1996) to draft a Comprehensive Convention on theSuppression of Terrorism had failed to agree on whether ‘[t]he activitiesof armed forces during an armed conflict, as those terms are understoodunder international humanitarian law, which are governed by that law,are not governed by [the Draft] Convention’,313 and that the WorkingGroup established by the General Assembly to finalise the drafting ofthat Convention reported in late 2012 that there remained disagreementbetween States on ‘the need for a clear legal definition of terrorism,which distinguished terrorism from the legitimate struggle of peoplesfighting in the exercise of self-determination’.314 While it is correctthat no agreement on these issues has been reached by those negotiatinga Comprehensive Convention, it was important for this present case todistinguish between attacks against civilians, which was the concern ofstates in the ad hoc and in the Working Group committees, and attacksby non-State actors against military targets, which was the issue in thiscase. Moreover, it is not clear why the lack of agreement on a

310 [2013] 3 WLR 1207, 1220-1, para 43.311 [2013] 3 WLR 1207, 1221, para 44. By contrast, the Court of Appeal in R v Gul relied on the

judgment of the Appeals Chamber of the Special Tribunal for Lebanon: Interlocutory Decision on theApplicable Law: Terrorism, Homicide, Conspiracy, Perpetration, Cumulative Charging (16 February2011), to conclude that ‘[t]here is . . .no doubt that international law has developed so that the crimeof terrorism is recognised in situations where there is no armed conflict. However the law has notdeveloped so that it could be said there is sufficient certainty that such a crime could be defined asapplicable during a state of armed conflict.’ [2012] 1 WLR 3432, 3441-2, paras 33-5.

312 [2013] 3 WLR 1207, 1221, para 45.313 [2013] 3 WLR 1207, 1221, para 46.314 [2013] 3 WLR 1207, 1221, para 46.



Comprehensive Convention is a decisive factor in this case, especially ifthe 2000 and 2006 Acts are giving effect to other treaties to which theUK is already a party and those treaties do exclude the conduct of armedforces during a non-international armed conflict.315

Second, their Lordships observed that while some UN and EUConventions do define terrorism as excluding ‘activities of armedforces during an armed conflict’, there ‘is room for argument as totheir precise effect, and, more importantly, it is quite impossible to sug-gest that there is a plain or consistent approach in UN Conventions onthis issue.’316 In this regard, the Crown had submitted that,

the UN has adopted fourteen counter-terrorism treaties to date, and of thesefourteen treaties (i) seven state that “the activities of armed forces during anarmed conflict, as those terms are understood under international humanitarianlaw, which are governed by that law are not governed by this Convention”, (ii)of the seven which have no such statement, six provide that the treaty “does notexclude any criminal jurisdiction exercised in accordance with national law”,and (iii) of the seven which include such a statement, at least five contain aprovision substantially to the like effect.317

The appellant submitted that the ‘absence of an armed conflict exclusionfrom a treaty does not mean that the treaty applies in relation to an actionat a time of armed conflict.’318 Lords Neuberger and Judge JJSC did notappear to place much weight on either argument, but did note that ‘it isnot normally appropriate to imply a term into an international treaty,and . . . the absence of any such express conclusion is scarcely consistentwith the contention that there is an internationally accepted norm such asthe appellant suggests.’319

Their Lordships also noted instances where United Nations resolutionshave referred to the activities of Al-Qaida and the Taliban as ‘terrorism’,notwithstanding that the resolutions may have been referring to the acts ofinsurgents against states in a non-international armed conflict.320 Theyalso observed that in international humanitarian law, insurgents in non-international armed conflicts do not enjoy combat immunity, althoughthey did not explain why this would support the conclusion that suchacts may be characterised as terrorism in international law.After concluding that there is no consensus in international law that

armed attacks against military targets during armed conflicts are not to

315 See 460-1 below.316 [2013] 3 WLR 1207, 1222, para 47.317 [2013] 3 WLR 1207, 1222, para 48, see also [2013] 3 WLR 1207, 1227, footnote 1 for a list of

the treaties. The Crown also submitted a survey of 42 states with legislation that defines terrorism,finding that 28 do not exclude armed attacks, four explicitly include armed attacks and seven ex-plicitly exclude armed attacks, which includes the US whose position may be said to be ambivalent:[2013] 3 WLR 1207, 1222, para 51.

318 [2013] 3 WLR 1207, 1222, para 48.319 [2013] 3 WLR 1207, 1222, para 48.320 [2013] 3 WLR 1207, 1222, para 49.



be characterised as terrorism, Lords Neuberger and Judge JJSC examinedthe argument that because Sections 62-64 of the Terrorism Act 2000,which criminalise extra-territorial acts of terrorism,321 were drafted togive effect to the UK’s obligations under the International Conventionfor the Suppression of Terrorist Bombings 1997322 and the InternationalConvention for the Suppression of the Financing of Terrorism 1999,323 thedefinition of terrorism in section 1 of the 2000 Act should have the samescope as the definition in those treaties. Their Lordships explained that,

It is also fair to say that these two Conventions [International Convention forthe Suppression of Terrorist Bombings 1997 and the International Conventionfor the Suppression of the Financing of Terrorism 1999], particularly the latter,appear to have been drafted so as to exclude insurgent attacks on military forcesin non-international armed conflicts from their respective ambits. [. . .]324

Of particular relevance to the facts of this present case is section 62 ofthe 2000 Act, which gives effect to Article 6(4) of the Terrorist BombingConvention.325 Section 62 reads in relevant part:

(1) If—

(a) a person does anything outside the United Kingdom as an act ofterrorism or for the purposes of terrorism, and

(b) his action would have constituted the commission of one of theoffences listed in subsection (2) if it had been done in the UnitedKingdom, he shall be guilty of the offence.

(2) The offences referred to in subsection (1)(b) are—

(a) an offence under section 2, 3 or 5 of the Explosive Substances Act1883 (causing explosions, &c.),

(b) an offence under section 1 of the Biological Weapons Act 1974(biological weapons), and

(c) an offence under section 2 of the Chemical Weapons Act 1996(chemical weapons).

The offence in Article 2 of the Bombing Convention does not require theact or threat of action to be designed ‘to influence the government or aninternational organisation, or to intimidate the public or a section of thepublic’, which is one of limbs of the definition of terrorism in section 1 ofthe 2000 Act (specifically, section 1(1)(b)). In order to meet the UK’sobligations under Article 6(4) of the Convention, section 1(3) of the 2000

321 That, if they had been performed in the UK, would have been an offence under the ExplosiveSubstances Act 1883, the Biological Weapons Act 1974, the Chemical Weapons Act 1996, or undersections 15-18 of the Terrorism Act 2000 that criminalise terrorist financing.

322 New York, 15 December 1997, 2149 UNTS 256.323 New York, 9 December 1999, 2178 UNTS 197.324 [2013] 3 WLR 1207, 1223, para 52.325 Article 6(4) reads: ‘Each State Party shall . . . take such measures as may be necessary to es-

tablish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender ispresent in its territory and it does not extradite that person to any of the States Parties which haveestablished their jurisdiction in accordance with paragraph 1 or 2.’



Act specifically provides that the use or threat of action which involvesthe use of firearms or explosives ‘is to be considered terrorism whether ornot’ it is for the purpose of influencing the government or an interna-tional organisation, or to intimidate the public or a section of the public.Article 19(2) of the Terrorist Bombing Convention provides, in rele-

vant part, that:

The activities of armed forces during an armed conflict, as those terms areunderstood under international humanitarian law, which are governed by thatlaw, are not governed by this Convention.

This provision excludes from theConvention the activities of armed forcesduring an armed conflict that are governed by international humanitarianlaw. It could be argued that the definition of section 1 of the 2000 Actshould reflect this exclusion in the same way that it reflects the fact thatthe definition of the criminal conduct in Article 2 of the BombingConvention is in some respects narrower than the definition of terrorismin section 1 of the 2000 Act. If this argument is accepted, then some of theconduct in thevideosuploadedby the appellantmaypotentially fall outsidethe definition of terrorism.The term ‘armed conflict’ is widely understoodas referring to both international and non-international armed conflicts,326

and Article 43 of Additional Protocol I to the Geneva Conventions,327

which some consider to reflect customary law,328 defines armed forces as,

all organized armed forces, groups and units which are under a command re-sponsible to [a party to the conflict] for the conduct of its subordinates, even ifthat Party is represented by a government or an authority not recognized by anadverse Party.

To the extent that the armed groups using explosive devices againstCoalition forces can be said to be organised and under a common re-sponsible to a party to the conflict for the conduct of its subordinates,their conduct, being governed by international humanitarian law, wouldbe excluded from the Terrorist Bombing Convention by Article 19(2) ofthat Convention.

326 See Common Article 3 to the Geneva Conventions. Statute of the ICC, article 8, para 2(f); ICTY,The Prosecutor v Dusko Tadic, Decision on the DefenceMotion for Interlocutory Appeal on Jurisdiction,IT-94-1-A, 2 October 1995, para 70; J Pictet, Commentary on the Geneva Convention for Amelioration ofthe Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva 1952, p. 32; ICRC,‘How is the Term “Armed Conflict” Defined in International Humanitarian Law?’, March 2008, see5http://www.icrc.org/eng/resources/documents/article/other/armed-conflict-article-170308.htm4accessed 2 July 2014.

327 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, 1125UNTS 3, article 43.

328 See ICRCCustomary International Humanitarian LawDatabase, Rule 4, available5http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule44accessed 2 July 2014. But cf Rogers, ‘Combatant Status’in E Wilmshurst and S Breau (eds), Perspectives on the ICRC Study on Customary International Huma-nitarian Law (Cambridge University Press, 2007), 110; P Gasser, ‘Agora: The US Decision Not toRatify Protocol I to the Geneva Conventions in the Protection of War Victims’ (1987) 81 AJIL 912.


http://www.icrc.org/eng/resources/documents/article/other/armed-conflict-article-170308.htm

http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule4

http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule4


Lords Neuberger and Judge JJSC did not go this far; instead, theyconcluded that the UK is perfectly entitled to go beyond its obligationsin the Conventions:

52. . . . [T]he notion that the meaning of ‘terrorism’ in section 1 of the 2000 Actshould be read down, because some of the activities which were rendered of-fences by that Act were criminalised as a result of the UK’s obligations underthe two Conventions, runs into two difficulties.53. First, there is no rule that the UK government cannot go further than isrequired by an international treaty when it comes to legislating – the exercise isoften known as ‘gold-plating’. It is not as if there is anything in either the 1997or the 1999 Convention which excludes a signatory state going further than therequirements of the Convention, or anything in the 2000 Act which suggeststhat Parliament intended to go no further. That is not to say that gold-plating isnever objectionable, but no argument was advanced on this appeal to suggestthat there was any reason why it was objectionable in this case (save that con-sidered and rejected in paras 44-51 above).329

54. Secondly, quite apart from this, if the wide definition of “terrorism” insection 1 of the 2000 Act has to be read down for the purposes of sections 62-64, there is no reason to read it down when it comes to any other provision of theAct – or of the 2006 Act. In Al-Sirri, para 36,330 this court appears to haveapproved, indeed to have relied on, the proposition that, if application of thewide definition of ‘terrorism’ in section 1 of the 2000 Act led to another provisionof the Act conflicting with the UK’s obligations under the Geneva Convention[on the Status of Refugees], then the definition should be read down whenapplied to the provision in question, and not generally throughout the Act. Toconclude otherwise would be a classic case of letting the tail wag the dog.55. The 2006 Act takes the appellant’s argument no further. It is true that someof its provisions give effect to the UK’s obligations under the Council of EuropeConvention on the Prevention of Terrorism 2005 and the InternationalConvention for the Suppression of Acts of Nuclear Terrorism 2005.However, section 2 of the 2006 Act was not enacted to give effect to any inter-national Convention, and, even if it had been and had gone further than theConvention concerned required, there is no reason why Parliament should nothave gold-plated the legislation, as already explained.331

Finally, the Court rejected the appellant’s argument that, as the 2000 and2006 Acts criminalise ‘terrorist’ actions committed outside the UK, themeaning of ‘terrorism’ in those Statutes should not be wider than themeaning given to the term under international law:

Even if it were the case that, because of the need to take into account the UK’sinternational law obligations, the wide definition of terrorism had to be readdown when it comes to construing those provisions, that would be of no

329 In paras 44-51 of the judgment, Lords Neuberger and Judge explain that there is no inter-national consensus on the definition of terrorism or the proposition that acts by armed groupsagainst military targets during armed conflict should not be characterised as terrorism.

330 Al-Sirri v Secretary of State for the Home Department, [2012] UKSC 54, [2013] 1 AC 745,780, (2013) 83 BYIL 254-264.

331 [2013] 3 WLR 1207, 1223, paras 52-5.



assistance to a defendant such as the appellant, who is a UK citizen beingprosecuted for offences allegedly committed in this country. There is noreason to read down the wide definition of terrorism in a case such as this.The present case does not involve a defendant who has committed acts, whichare said to be offences, abroad: the activities said to be offences were committedin the UK – and by a UK citizen.332

[. . .]58. The appellant contends that the mere fact that certain actions can be char-acterised as terrorism without offending international law does not mean thatthose actions can be criminalised by one state if they are carried out in anotherstate. The appellant cites, for example, Brownlie’s Principles of PublicInternational Law (8th ed 2012), p 458, which says “if a state wishes to projectits prescriptive jurisdiction extra-territorially, it must find a recognised basis ininternational law for doing so”. That raises a point of some importance andsome difficulty, and it might be said to represent a shift in focus in internationallaw. Given that we do not have to decide the issue, we should not do so in thisappeal: it should await another case.

Lords Neuberger and Judge JJSC are correct that when giving effectto the UK’s obligations in international law, the UK Parliament isentitled to go beyond – or, for that matter, legislate contrary to – theUK’s obligations. However, if a provision of an Act of Parliament isunclear and a presumption that Parliament intended to legislate in con-formity with the UK’s obligations arises such that a Court feels obligedto look to international treaties to assist with the interpretation of thatprovision, it is difficult to see how the Court can at the same time con-clude that the provision is sufficient clear to indicate that Parliamentintended to go beyond the UK’s obligations in those treaties.In the final paragraphs of the judgment, Lords Neuberger and Judge

JJSC note, obiter, that they have significant concerns over the wide def-inition of section 1, both in respect of the prosecution of offences underthe Acts and in respect of the ‘substantial intrusive powers [granted] topolice and to immigration officers’ under the Acts.333 In particular, theirLordships noted that ‘under Schedule 7 to the 2000 Act, the power tostop, question and detain in port and at borders is left to the examiningofficer. . . . [D]etention of the kind provided for in this Schedule repre-sents the possibility of serious invasions of personal liberty.’334

332 [2013] 3 WLR 1207, 1223, para 56. Finding it that is therefore unnecessary for the Court toconsider whether, as there is no internationally agreed definition of ‘terrorism’, the Court of Appealwas right to decide that there is no reason why Parliament cannot criminalise acts of ‘terrorism’, asdefined in section 1 of the Terrorism Act 2000, committed outside the UK.

333 [2013] 3 WLR 1207, 1225, para 63.334 [2013] 3 WLR 1207, 1225, para 64. See Miranda v Secretary of State for the Home Department

[2014] EWHC 255 (Admin) and Beghal v Director of Public Prosecutions [2013] EWHC 2573(Admin).



8. Youssef v Secretary of State for Foreign and Commonwealth Affairs, 29October 2013, [2013] EWCA Civ 1302 (CA(Civ))

United Nations Security Council sanctions — judicial review of the ForeignSecretary’s decision to left hold on claimant’s inclusion in United NationsSecurity Council’s list of persons associated with terrorist organisation — whethera full merits review appropriate and whether decision irrational — test to be appliedby Foreign Secretary for inclusion on list — whether Foreign Secretary required tomaintain hold on listing where designating State relying on foreign conviction ob-tained through evidence acquired under torture — whether Foreign Secretaryobliged to support claimant’s removal from European Union sanctions regime

The appellant sought judicial review of the decision by the Secretary ofState to allow his name to be included on the Consolidated List compiledand maintained by the Committee established by United NationsSecurity Council resolutions 1267 (1999) and 1989 (2011) (the‘Sanctions Committee’).335 Decisions to include an individual on theList must be reached by consensus of the Sanctions Committee.336

When a State makes a request for an individual to be included on theList (the ‘designating State’), other members of the SanctionsCommittee may request more time to consider the proposal and placea hold on the decision for a period of six months.337 If six months haveelapsed and members of the Committee have made no objections, it isdeemed that the inclusion of the individual is approved.338 A decision toremove an individual from the List also requires the absence of anyobjection by member of the Committee,339 except where a request ismade by the designating State and one or more other States objects to

335 See Youssef, R (on the application of) v Secretary of State for Foreign & CommonwealthAffairs, 23 July 2012, [2013] QB 906, [2012] EWHC 2091 (Admin). Prior to UNSC Res 1988(2011) and UNSC Res 1989 (2011), which split the ‘1267/1333/1390’ sanctions regime into separateAl-Qaeda and the Taliban regimes, the Committee was generally known as either the ‘Al-Qaeda andTaliban Sanctions Committee’ or the ‘1267 Committee’. UNSC Res 1267 (1999) has been extendedand revised by several subsequent UNSC Resolutions; the latest is UNSC Res 2083 (2012); thelatest resolution at the time at which the appellant was added to the List was UNSC Res 1617(2005). For further explanations of the operation of United Nations sanctions regime, see in thisYearbook the case-notes to R (Maftah) v Secretary of State for Foreign and Commonwealth Affairs;R (Khaled) v Secretary of State for Foreign and Commonwealth Affairs, [2011] EWCA Civ 350,[2012] 2 WLR 251, (2012) 82 BYIL 574-578 (CA (Civ. Div.)); A, K, M, Q and G v HM Treasury[2008] EWCA Civ 1187, [2009] 3 WLR 25, (2008) 79 BYIL 479–489 (CA); and Ahmed v HMTreasury [2010] UKSC 5, [2010] 2 AC 534, (2010) 81 BYIL 346–358 (SC (E)).

336 See Security Council Committee Pursuant to Resolutions 1267 (1999) and 1989 (2011)Concerning Al-Qaida and Associated Individuals and Entities, Guidelines of the Committee for theConduct of Its Work, adopted on 7 November 2002 and last amended on 15 April 2013 (‘Guidelinesof the Sanctions Committee’), para 4(a).

337 Guidelines of the Sanctions Committee, para 4(e). In exceptional circumstances, this may beextended by three months: Guidelines of the Sanctions Committee, para 4(k).

338 Guidelines of the Sanctions Committee, para 4(j).339 Guidelines of the Sanctions Committee, para 7(f).



the removal,340 or where the Ombudsperson recommends that an indi-vidual be removed from the List.341

The appellant’s inclusion on the Consolidated List resulted in himbeing subject to the asset-freezing measures that, at the relevant time,were provided for by United Nations Security Council resolution 1617(2005),342 which was given effect in English law by the Al-Qaeda andTaliban (United Nations Measures) Order 2006,343 and CouncilRegulation (EC) No 881/2002.344 Although the UK Supreme Courtheld that the 2006 Order was ultra vires the United Nations Act1947,345 the appellant’s inclusion on the Consolidated List remained ef-fective in English law by virtue of Regulation 881/2002.346 On 8 April2010, the Al-Qaida and Taliban (Asset-Freezing) Regulations 2010 cameinto effect, establishing in English law a regime for the enforcement ofRegulation 881/2002.In 1999, an Egyptian Military Court had convicted the appellant in

absentia, and the Egyptian authorities informed the British embassy thatthe appellant ‘had been identified as one of the leaders of a revolutionaryorganisation on confessions by other accused persons.’347 However,

it was recognized in asylum proceedings here [in England], brought by anotherof the Egyptian defendants, that there was good evidence that the proceedings ofthe military court were unfair, that the testimony before it was probably ob-tained by torture and that no credence should be given to the convictions in thattrial.348

On 29 March 2005, a member of the Sanctions Committee requestedthat the appellant’s name be added to the Consolidated List.349 In itsnote verbale the designating State recalled, inter alia, that the appellanthad been,

340 In these circumstances, a separate procedure will apply: Guidelines of the SanctionsCommittee, para 7(ii).

341 UNSC Res 1989 (2011) and UNSC Res 1904 (2009) (establishing the Office of theOmbudsperson). In these circumstances, unanimous agreement is required to retain the individual’sname on the List, subject to the possibility of referral of the decision to the Security Council:Guidelines of the Sanctions Committee, para 7(t).

342 UNSC Res 1617 (2005) is an amended and expanded version of UNSC Res 1267 (1999). Thelatest resolution is UNSC Res 2083 (2012).

343 The 2006 Order was purportedly created under section 1(1) of the Untied Nations Act 1967.However, in Ahmed v HM Treasury, the Supreme Court held that part of the 2006 Order was ultravires the United Nations Act 1947: [2010] UKSC 2; [2010] 2 AC 534, (2010) 81 BYIL 346-358(SC (E)).

344 27 May 2002, OJ L 139, 27.05.2002, 9. The Regulation was adopted to give effect to thesanctions imposed by the Security Council within the European Community.

345 [2010] UKSC 2; [2010] 2 AC 534, (2010) 81 BYIL 346-358 (SC (E)).346 See Articles 2(1) and 2(3) and Annex 1 of Regulation (EC) 881/2002.347 [2013] EWCA Civ 1302, para 16.348 [2013] EWCA Civ 1302, para 16; see Al-Sirri v Home Office [2009] EWCA Civ 222.349 [2013] EWCA Civ 1302, para 18. At the insistence of the Sanctions Committee, the identity of

the designating State has not been revealed to the appellant.



convicted for membership of an illegal group which aims to obstruct theConstitution and use terrorism as a means of achieving its objectives by assas-sinating police officers and public figures, as well as committing the offences ofmurder and firearms procurement.350

The Secretary of State placed a hold on the appellant’s inclusion on theConsolidated List in order to consider whether he met the criteria fordesignation.351 Following submissions by the Security Service, theSecretary of State accepted that the appellant met the criteria andreleased the hold on the appellant’s name. The appellant was added tothe Consolidated List on 29 September 2005, and on 5 October 2005, hewas added to Annex 1 of EC Regulation 881/2002.352 On 13 May 2009,in light of a revised Security Service assessment of the appellant, theForeign Secretary decided that the UK should seek the removal of theappellant from the Consolidated List,353 but ‘[s]uccessive attempts bythe UK to obtain the agreement of the Sanctions Committee to de-listthe appellant have been unsuccessful.’354 On 18 March 2010, the appli-cant’s solicitors asked the Foreign Office to make representations to theEuropean Commission to remove his name from Annex I to Regulation881/2002, but the Foreign Office declined to do so, noting that ‘theCommission is well aware of the government’s view that the appellantshould no longer be on the Consolidated List (mirrored, as it is, by theEU regime).’355 The Queen’s Bench Division of the AdministrativeCourt (Toulson LJ as he then was and Silber J) rejected the groundsof judicial review put forward by the appellant. He appealed.The Court of Appeal dismissed his appeal, rejecting all three of the

grounds for review put forward by the appellant: (1) the Secretary ofState had not committed a legal error in making his decision on the basisthat there were ‘reasonable grounds’ for including the appellant on thelist, as opposed to ascertaining whether the criteria were in fact satisfied;(2) the correct standing of review is the rationality (Wednesbury) test,356

not a full review on the merits; and (3) notwithstanding that some evi-dence presented to the Committee was or was likely to have been ob-tained by torture, the Secretary of State did not have an obligation to

350 [2013] EWCA Civ 1302, para 18.351 [2013] EWCA Civ 1302, para 18.352 [2013] EWCA Civ 1302, para 18.353 [2013] EWCA Civ 1302, para 19.354 [2013] EWCA Civ 1302, para 20.355 [2013] EWCA Civ 1302, para 20.356 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, 234. Instead

of reviewing the merits of a decision, the ‘Wednesbury’ test involves the Court asking only: is thedecision ‘so unreasonable that no reasonable authority could ever have come to it’? (Lord GreenMR). See also Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410: ‘By“irrationality” I mean what can by now be succinctly referred to as “Wednesburyunreasonableness” . . . It applies to a decision which is so outrageous in its defiance of logic or ofaccepted moral standards that no sensible person who had applied his mind to the question to bedecided could have arrived at it.’ (Lord Diplock)



ensure that other members of the Sanctions Committee did not maketheir decisions based on evidence that was not obtained by torture.When the Secretary of State made his decision to withdraw the hold

on the appellant’s designation, he was ‘acting on behalf of theGovernment in its capacity as a member of a international body, theSecurity Council’,357 which in English constitutional terms, means thathe was acting by authority of the Royal Prerogative, and not pursuant toauthority granted by an Act of Parliament. English law has long recog-nised the constitutional principle that an individual’s right to peacefulenjoyment of his property can only be interfered with by a clear legisla-tive pronouncement.358 On this basis, the appellant argued that ForeignSecretary, in making his decision under the prerogative and in lackingany legislative authority, acted contrary to the principle of legality:359

the Prerogative conferred no power on the Secretary of State to bar the applicantfrom access to funds or other economic resources, because it lacked the author-ity of legislation.360

Laws LJ, while agreeing with the constitutional principle, quickly re-jected the appellant’s argument on the basis that there was a legislativefooting for the Secretary of State’s decision: Articles 2(1), 2(3) andAnnex 1 to EC 881/2002, which are given effect in UK domestic lawby the European Communities Act 1972, obliged the Secretary of Stateto ‘apply the Consolidated List regime to its proper subjects’.361

Having confirmed that the Secretary of State had the power to make adecision, the next question was whether, in making his decision, heapplied the correct standard of proof in assessing whether the appellantshould have been included on the Consolidated List. It was clear fromwitness statements before the Court that the Foreign Secretary made hisdecision by asking whether there was a reasonable suspicion that theappellant was associated with any of the relevant terrorist groups.362

Although it was conceded that the Foreign Secretary would have reachedthe same decision even if the standard of proof had been whether in fact,on the balance of probability, the appellant had been associated withthese groups, Laws LJ did not found this to be a satisfactory resolutionto the issue of whether the Secretary of State’s approach to the decisionwas legally correct.363

357 [2013] EWCA Civ 1302, para 23 and [2013] QB 906, 925, para 53 (Toulson LJ).358 Entick v Carrington 95 ER 807; (1765) 2 Wils KB 275.359 The principle of legality is a rule of English constitutional law that, inter alia, requires the

executive to act in accordance with powers granted by Parliament, especially when an individual’srights are interfered with by the executive action. See Entick v Carrington 95 ER 807; (1765) 2 WilsKB 275 andAhmed v HMTreasury, [2010] UKSC 2; [2010] 2 AC 534, (2010) 81 BYIL 346-358 (SC(E)).

360 [2013] EWCA Civ 1302, para 25.361 [2013] EWCA Civ 1302, para 26.362 [2013] EWCA Civ 1302, para 22.363 [2013] EWCA Civ 1302, para 22.



As the Foreign Secretary’s decision was made in his capacity as aparticipant in the Consolidated List regime, principles of reason andfairness364 demanded that he act ‘according to the grain of the schemeand not across it’ and that he reach a decision ‘conformably’ with theregime.365 What, then, does the Consolidated List regime require? Theappellant argued that the text of paragraph 1 of United Nations SecurityCouncil resolution 1617 (2005),366 which was the relevant resolution atthe time at which the Secretary of State made the decision to release thehold on the appellant’s inclusion in the List, requires Member States tobe satisfied that an individual or group ‘is in fact . . . associated [with Al-Qaida et al]; and that the adoption of a test of no more than reasonablesuspicion “unilaterally expands” the scope of the resolution.’367

Laws LJ took a different approach, and found that the references inresolution 1617 to the importance of the Consolidated List regime inpreventing and suppressing the financing of terrorism

cast[] light on the approach to be taken to proof of association with any of therelevant terrorist groups. The aim of the regime is to reduce the risk that suc-cour will be given to the terrorists. The aim is clearly more effectively promotedby the adoption of a reasonable suspicion test for inclusion in the List.368

On this basis, the Secretary of State acted conformably with theConsolidated List regime: ‘reasonable suspicion of association’ was alawful standard of proof.Laws LJ also rejected the appellant’s submission that the legality of

the Foreign Secretary’s decision should be reviewed on its merits and notsimply subjected to the common law rationality test.369 In other words,for reasons rooted in the constitutional separation of powers, Laws LJdeclined to treat this case as one where the Court should exercise its ownjudgment as to whether the appellant met the criteria, rather than con-fining its role to ensuring that the Secretary of State acted within hisproper legal limits. The reasoning given by Laws LJ is worth citing infull:

It seems to me that this ground of appeal raises an issue touching the constitu-tional separation of powers. It is a commonplace that rights of appeal arise onlyunder statute. Common law judicial review is not an appellate jurisdiction; itspurpose is to confine the subordinate decision-maker within his proper legal

364 As the decision was made under the authority of the prerogative power, a review of thedecision ‘must found entirety on standards which are the product of the common law . . . [o]fthese, reason and fairness are the cornerstones’: [2013] EWCA Civ 1302, para 23.

365 [2013] EWCA Civ 1302, para 24.366 Paragraph 1 of UNSC Res 1617 (2005) reads in relevant part: ‘all States shall take the meas-

ures as previously imposed by paragraph 4(b) of Resolution 1267 (1999) [sc. ‘freeze funds and otherfinancial resources’] with respect to Al-Qaida, Usama bin Laden, and the Taliban and other indi-viduals, groups, undertakings and entities associated with them.’ [2013] EWCA Civ 1302, para 31.

367 [2013] EWCA Civ 1302, para 31.368 [2013] EWCA Civ 1302, para 32.369 See n 356 above.



limits, not to remake his decisions. It is therefore no coincidence that, generally,the judicial review court is not an arbiter of merits. It is so for good constitu-tional reasons. Absent a general right of appeal conferred by statute, a meritsjudgment by the court of a decision taken under statutory powers tends to usurpthe decision-maker’s function as Parliament’s delegate. Likewise a merits judg-ment of a decision taken under the Prerogative tends to usurp the function of theexecutive, which is the sole arm of government to inherit the Prerogative power.Manifestly, the courts have no business to usurp the legislature or the executive.It follows that a merits judgment in a judicial review case will be the exception.It will arise only where that is required in order to test the legality of the deci-sion under review. An instance is where the primary decision-maker’s jurisdic-tion to act depends upon proof of a precedent fact: in such a case, the judicialreview court will ascertain whether the precedent fact is proved. Another in-stance, of considerable importance in today’s jurisprudence, is given by a shift inthe boundary between fact and law. This is what has happened in cases wherethe law now requires a decision to be not only reasonable, but proportionate to alegitimate aim. This is of course a touchstone of review in many human rightscases. Where it arises, the judicial review court will test for proportionality; andto the extent (but only to the extent) that the exercise requires it, judge themerits.370

The present case was not an exception to the rule; there was no questionof ‘precedent fact’ and nor was the proportionality test applicable.371

The final potential basis for judicial review was whether, in light of thefact that some of the evidence before the Sanctions Committee had beenor was likely to have been obtained by torture,372 the Secretary of Statehad an obligation to maintain his hold on the appellant’s designation. Inthe Divisional Court, Toulson LJ (as he then was) concluded that theSecretary of State’s own reasons for the appellant’s inclusion on theConsolidated list were not ‘tainted by torture evidence’,373 and that hehad no legal duty to

tell other member states that, while he agreed with the designation of the claim-ant, he objected to the reason put forward by others and would for that reasonnot consent to the designation. As I have already said, different states may havedifferent reasons for concluding that a person met the criteria, which they mayor may not be willing to share with one another. I do not believe that it would beright for the court to dictate to the Foreign Secretary that he must instruct othermember states as to what might be a permissible basis for the designation, andmust prevent a designation (for which in his view the criteria were satisfied)unless and until he was satisfied that they were all proceeding on a basis whichhe considered to be proper.374

370 [2013] EWCA Civ 1302, para 41.371 [2013] EWCA Civ 1302, para 42: the case did not involve the European Convention on

Human Rights and ‘the Secretary of State was not required to exercise a discretionary judgmentwhere there might have been alternative outcomes – “fertile ground for a proportionality approach”.’

372 [2013] EWCA Civ 1302, para 52.373 [2013] EWCA Civ 1302, para 49.374 Youssef, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

[2013] QB 906, 931, para 90.



Before the Court of Appeal, the appellant argued that theAdministrative Court had mischaracterised his argument, stating that‘it was not a necessary part of the appellant’s case that such instructionbe given. The only decision challenged was the Secretary of State’s de-cision to lift the hold on [the] UN listing.’375 Laws LJ found this argu-ment to be ‘jesuitical’, because a decision to place an individual’s nameon the Consolidated List requires unanimity and therefore, a decision tomaintain the hold of the appellant’s name on the ground that ‘the des-ignation’s proposal was based on torture evidence . . . [would mean that]the Secretary of State would have been telling the members of theSanctions Committee that the designation was improper. TheDivisional Court declined to require him to do so.’376 The appellant’s‘real case is that the Divisional Court was wrong to take that position’,377

and that

the nature of the prohibition of torture by international law, being ius cogens ergaomnes, required the Secretary of State to object to the listing. The SanctionsCommittee as a “quasi-judicial” body was or should have been obliged to re-spect the international rule.378

The appellant relied on views expressed by both the Ombudsperson andthe United Nations Special Rapporteur on Counter-Terrorism andHuman Rights, who have both stated that the Sanctions Committeeshould not rely on evidence obtained by torture.379 To meet this argu-ment, the Crown reminded the Court of the general principle that courts‘will not interfere in the government’s conduct of foreign relations’.380

Laws LJ recalled that the jus cogens status of the prohibition againsttorture had been recognised by the UK House of Lords in A (No 2),381

and in the decision of the International Tribunal for the formerYugoslavia in Prosecutor v Furundz›ija, which also accepted that the pro-hibition was an obligation erga omnes.382 While acknowledging thatcourts will generally not interfere in the government’s conduct of foreignaffairs,

375 [2013] EWCA Civ 1302, para 51.376 [2013] EWCA Civ 1302, para 51.377 [2013] EWCA Civ 1302, para 52.378 [2013] EWCA Civ 1302, para 52.379 Letter from the Ombudsperson to the President of the Security Council, 31 January 2013,

paragraphs 30 and 57; Office of the Ombudsperson of the Security Council’s 1267 Committee,Approach to Assessment of Information including Information Alleged to have been obtained byTorture, available at 5https://www.un.org/en/sc/ombudsperson/approachtoinfo.shtml4 (lastupdated 26 November 2012).

380 [2013] EWCA Civ 1302, para 54. See Rahmatullah [2013] 1 AC 614, paragraphs 65-66.381 [2013] EWCA Civ 1302, para 52, quoting A v Secretary of State for the Home Department (No

2) [2006] 2 AC 221, 259, para 33 (Lord Bingham), (2005) 76 BYIL 615-25 (HL).382 [2013] EWCA Civ 1302, para 53, quoting Prosecutor v Furundz›ija (1998) 121 ILR 213, 260-1,

paras 151-5.


https://www.un.org/en/sc/ombudsperson/approachtoinfo.shtml


the court cannot ignore an established rule of international law, far less onewhich has the force of ius cogens erga omnes. In Trendtex TradingCorporation v Central Bank of Nigeria [1977] QB 529 this court held that therules of international law form part of the law of England unless they are inconflict with an Act of Parliament. Lord Denning MR cited Lord Mansfield CJin Triquet v Bath (1764) 3 Burr 1478. I would not base my decision on theproposition that the government’s conduct of foreign relations enjoys somethingclose to an immunity from judicial review.383

Instead, his Lordship relied on a view he expressed in R (Al-Rawi) vSecretary of State for Foreign & Commonwealth Affairs,384 namely that,as a matter of international law, ‘the status of ius cogens erga omnes em-powers but does not oblige a State to intervene with another sovereign toinsist on respect for the prohibition of torture.’385 However, the appel-lant’s submission

entails an obligation upon the Secretary of State so to intervene. Given that theSecretary of State’s own reasons for lifting the hold were not tainted by tortureevidence, there is nothing in [the appellant’s] case save an insistence that theUnited Kingdom should, in effect, have stymied the designation because otherStates were not so pure. The law did not require him to do so.386

There is no basis for questioning this reasoning or indeed, any aspect ofthis judgment.

383 [2013] EWCA Civ 1302, para 54.384 [2006] EWCA Civ 1279.385 [2013] EWCA Civ 1302, para 54, citing [2006] EWCA Civ 1279, para 102, citing (1998) 121

ILR 213, 260, para 151.386 [2013] EWCA Civ 1302, para 55.



9. Belhaj and another v Straw and Others, 20 December 2013, [2013]EWHC 4111 (QB) (Simon J)

State immunity — foreign act of State doctrine — territorial limitation of foreignact of State doctrine — public policy exception — unlawful rendition — whetherimpleading a foreign State — whether State immunity applies when a foreign Stateis not a party to proceedings or directly impleaded — whether foreign act of Statedoctrine bars claims against UK officials alleging assistance in the commission oftorts by foreign State officials

The first claimant, a Libyan national and former political opponent of theGaddafi regime, and the second claimant, his wife, brought several tortclaims against UK individuals and authorities on the basis that they as-sisted the unlawful abduction, kidnapping and removal of the claimantsfrom China to Libya, via Malaysia and Thailand, on a US-registered jet,and the unlawful detention and ill treatment of the claimants in each ofthese states and on board the US aircraft.387 The present proceedingsbefore the Queen’s Bench Division of the High Court were for the de-termination of two preliminary issues. First, whether the tort claimsshould be dismissed on the basis that UK courts lack jurisdiction tohear them, and second, if the claims are not dismissed, whetherEnglish law is the applicable law for the claimants’ causes of action. Onthe first question, Simon J, who delivered the judgment of the Court,ruled that all the claims, except the claim in negligence, are barred by theact of State doctrine because they rely on determining whether foreignState agents acted unlawfully under foreign State laws. In answer to thesecond question, the applicable law in the proceedings is the law of theState in which the harm occurred. Simon J also rejected the claimants’argument that a determination on the applicable law is fact sensitive andshould not therefore be made at this stage in the proceedings.The claimants allege that Chinese authorities intercepted them as they

attempted to travel from China to the UK, and took them to KualaLumpur, where they were held for two weeks. On 1 March 2004, theUK Secret Intelligence Service faxed the Libyan intelligence services,informing them of the location of the claimants. On 4 March 2004,

. . . the US authorities had also become aware of the Claimants’ detention, and aplan was formulated to abduct the Claimants and transfer them to Libyan cus-tody. US officials faxed the Libyan authorities stating that they were,

‘. . .working energetically to effect the extradition of [the First Claimant]from Malaysia. The Malaysians have promoted to co-operate and to arrangefor [the First Claimant’s] transfer to our custody.’388

387 The UK individuals and authorities listed as defendants are Jack Straw MP, Sir Mark AllenCMG, the Secret Intelligence Service, the Security Service, the Attorney General, the Foreign andCommonwealth Office, and the Home Office.

388 [2013] EWHC 4111 (QB), para 7.



A further fax agreed to a Libyan request that the First Claimant be renderedinto their custody.389

On 6 March 2004,

. . . the US authorities sent two further faxes to the Libyan authorities informingthem that the Claimants were due to be placed on a commercial flight fromKuala Lumpur to Bangkok, that the abduction and rendition would take place inBangkok and that they would be placed on a US aircraft for a flight to Libya.The US officials stated that it

. . . is vital that one of your officers accompany [the First Claimant] and hiswife on our aircraft during this leg of the journey (Bangkok to Libya) inorder to provide legal custody of [the Second Claimant].

A more detailed ‘Schedule for the Rendition of [the First Claimant] to theLibyan authorities’ was faxed later that day: the Claimants would be abductedin Bangkok, flown to Diego Garcia (a British Indian Ocean Territory) forrefuelling of the aircraft, and then on to Tripoli.390

The claimants were informed that they could only travel to the UnitedKingdom via Bangkok. On arrival in Bangkok, they were detained byThai officials and separated.391 The first claimant was taken to a ‘blacksite’ that was operated by agents of the United States, where he wasseriously ill-treated; the second claimant was taken to a cell and ill-trea-ted. Both claimants were then flown to Tripoli, on a business jet ‘ownedby a CIA [US Central Intelligence Agency] controlled front com-pany’,392 stopping once for fuel in Diego Garcia, a British IndianOcean Territory. On arrival in Tripoli, the claimants were transportedto Tajoura prison – a detention facility operated by Libyan intelligenceservices393 – where they suffered further ill-treatment and, in the case ofthe first appellant, continuous and severe ill-treatment.In a letter dated 18 March 2004, Sir Mark Allen CMG, then head of

the Counter-Terrorism Unit for the UK Secret Intelligence Service,wrote to the head of the Libyan Security Organization, ‘congratulatinghim on the successful rendition of the First Claimant’, and stating that:

This was the least we could do for you and for Libya to demonstrate the re-markable relationship we have built over recent years. . . .The intelligence about[the First Claimant] was British. I know I did not pay for the air cargo. But Ifeel I have the right to deal with you direct on this and am very grateful to youfor the help you are giving us.394

389 [2013] EWHC 4111 (QB), para 7.390 [2013] EWHC 4111 (QB), para 9.391 [2013] EWHC 4111 (QB), para 10.392 [2013] EWHC 4111 (QB), para 14.393 [2013] EWHC 4111 (QB), paras 14-15.394 [2013] EWHC 4111 (QB), para 16.



The defendants neither admitted nor denied much of the factual back-ground put forward by the claimants, but the Court noted that ‘unusu-ally, some [claims] appear to be supported by [the] documents [referredto above] which have come into the Claimants’ hands as a result of thechange in political fortunes in Libya.395

On the basis that the UK authorities provided intelligence thatenabled their rendition and ill-treatment, the claimants were seeking‘declarations of illegality and damages arising out of the defendants’ par-ticipation in the unlawful abdication, detention and rendition’ of theclaimants, and their ‘subsequent acts and omissions whilst they wereunlawfully detained’ in Libya.396 The judgment does not set out all ofthe claimants’ causes of action, but Simon J proceeded on the basis thatseveral of them – conspiracy to injure, trespass to the person and con-spiracy to use unlawful means;397 misfeasance in Public Office ‘based onthe Defendant’s knowledge of, or reckless indifference to, the illegality ofthe actions of the Thai, US and Libyan authorities’398 – could not suc-ceed unless it was demonstrated that foreign officials carrying out theprincipal acts had acted unlawfully.399 The claimants’ also claimed neg-ligence based on an alleged duty of a care to the claimants not to exposethem to a risk of unlawful rendition or torture, including by disclosinginformation to the Libyan authorities, but as this claim did not require adetermination of the legality of foreign State agents, it was excludedfrom the present decision on jurisdiction.400

In order to determine whether the court had jurisdiction to hear theclaims, Simon J examined the law of State immunity and the act of Statedoctrine. While examining the applicability of the act of State doctrine,the question of the applicable law was determined.On the question of whether State immunity was applicable, the de-

fendants submitted that although the claimants have not brought claimsdirectly against the foreign states in question, the foreign State’s immun-ity is ‘engaged where the interests of the foreign State are affected by thejudgment of the Court, so that the Court is bound to hear the state if itobjects’401 and, by parity of reasoning, this principle should ‘extend to asituation where the claim involves assertions of unlawful acts of deten-tion and torture by a foreign state or its agents, notwithstanding that thestate is not a party.’402 After consideration of the State Immunity Act

395 [2013] EWHC 4111 (QB), para 4.396 [2013] EWHC 4111 (QB), para 1.397 [2013] EWHC 4111 (QB), paras 24-5.398 [2013] EWHC 4111 (QB), para 27.399 Thus, the claim in negligence was excluded from this hearing: [2013] EWHC 4111 (QB), para

28.400 [2013] EWHC 4111 (QB), para 152(3).401 [2013] EWHC 4111 (QB), 58; See Sultan of Johore v Abubakar Tunku Aris Bendahar and

others [1952] AC 318, 342-44 (PC) (Viscount Simon).402 [2013] EWHC 4111 (QB), 58.



1978, Jurisdictional Immunities of the State (Germany v Italy: Greeceintervening) 403 and the decision of the House of Lords in Jones vSaudi Arabia,404 Simon J rejected the defendants’ argument:

62. It is clear that the doctrine of state immunity is an absolute jurisdictional barwhich if it applies, admits of no exceptions: even crimes against humanity andthe most extreme breaches of human rights . . . and, if the doctrine applies, theCourt must give effect to the immunity whether or not the foreign state appearsin the proceedings, provided its interests are affected. . . .65. The question then is whether foreign states or the agents and officials ofthose states have been impleaded by the claim. In this context, the term ‘im-pleading’ means that the claim requires the foreign state to adopt a position ofeither having to defend itself and forgo its immunity or have a judgment enteredagainst it, so that it is bound by the judgment.66. In my view the present claim does not implead either those countries or theiragents or servants. Their rights and interests will not be ‘obviously affected’ inthe sense understood by the doctrine of state immunity. The foreign states arenot put in a position of having to waive their right to immunity or have ajudgment in default, because there could be no judgment in default whichcould affect them, other than tangentially.67. The immunity does not apply merely because the court may be invited toconsider the actions of a foreign state or its agents, in circumstances where theclaim is not made against the foreign state or those who act on its behalf. If itdid, it is difficult to see how some of the cases would have been decided in theway they were.405 What must be affected for the state immunity doctrine toconstitute a preliminary bar to proceedings is something more tangible than astate’s reputation.406

This was not a case in which ‘claims are made against the agents orofficials’ of China, Thailand, Malaysia, the USA and Libya, ‘so thatthey are effective parties to the action’;407 and it was also not a case inwhich the foreign states or the agents and officials of these states havebeen impleaded by the claim.Simon J was also not persuaded by the defendants’ reliance on Article

6 of the UN Convention on Jurisdictional Immunities of States and their

403 ICJ Reports 2012, p. 99, in particular pp 123-4, paras 56-7.404 Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another [2007] 1 AC 270, in

particular 290-1, paras 30-33.405 Simon J refers to the following cases: A and others v Secretary of State for the Home

Department (No 2) [2006] 2 AC 221; AS and DD (Libya) SC 42 & 50/2005 (SIAC 2007 OuseleyJ); HT (Cameroon) v Secretary of State for the Home Department [2011] 1 AC 596; SK (Zimbabwe)v Secretary of State for the Home Department [2012] 1 WLR 2809.

406 [2013] EWHC 4111 (QB), paras 65-67.407 [2013] EWHC 4111 (QB), para 63.



Property.408 Article 6, Subparagraph 2, which concerns the modalitiesfor giving effect to State immunity, provides that:

2. A proceeding before a Court of a State shall be considered to have beeninstituted against another State if that other State:

(a) is named as a party to that proceeding; or(b) is not named as a party to the proceeding but the proceeding in effect seeks

to affect the property, rights, interests or activities of that other State.

Simon J found that the Convention has no effect in English law, and thatin any case, the claimants were not ‘seek[ing] to affect’ the activities ofthe foreign states in question; rather, the claimants ‘simply rely on cer-tain activities for the purposes of the claims against the Defendants.’409

Simon J also gave short shrift to the defendants’ somewhat surprisingreliance on a passage from the judgment of the International Court ofJustice in Case Concerning East Timor (Portugal v Australia):410

Whatever the nature of the obligations invoked, the Court could not rule on thelawfulness of the conduct of a State when its judgment would imply an evalu-ation of the lawfulness of the conduct of another State which is not a party to thecase.411

This passage clearly refers to the requirement of State consent in orderfor the International Court of Justice to exercise its jurisdiction. It has norelevance to the question of whether UK courts have jurisdiction overclaims that implead the activities of a foreign State.Finally, Simon J was not persuaded by the claimants’ argument that,

should the Court find that immunity applies in this case, its scope shouldbe interpreted narrowly ‘in so far as it imposes restrictions on access tothe court or interferes with a person’s right to secure justice’,412 as guar-anteed by Article 6 of the European Convention on Human Rights.Simon J found the view of Lord Bingham and Lord Hoffmann inJones v Saudi Arabia that ‘there is not even a prima facie breach of article6 if a state fails to make available a jurisdiction which it does not possess’to be ‘highly persuasive’.413

Having concluded that State immunity does not apply to this claim,Simon J turned to the question of whether the foreign act of State doc-trine required the court to decline to exercise its jurisdiction. In Englishlaw, the relevant aspect of the doctrine provides that the courts will notenquire into the validity of acts or laws of a foreign State.414 It operates

408 Adopted 2 December 2004, opened for signature 16 December 2004, (2005) 44 ILM 803.409 [2013] EWHC 4111 (QB), para 71.410 ICJ Reports 1995, p. 90.411 ICJ Reports 1995, p. 90, para 29, cited at [2013] EWHC 4111 (QB), para 72.412 [2013] EWHC 4111 (QB), para 74.413 [2013] EWHC 4111 (QB), paras 74-5. See Jones v Saudi Arabia [2007] 1 AC 270.414 See Yukos Capital SARL v OJSC Rosneft Oil Co (No 2), [2013] 1 All ER 223, (2013) 83

BYIL 226-230.



ratione materiae as a defence to a claim, as compared to immunitiesratione personae, which are preliminary objections to jurisdiction.415

Simon J examined the limitations of the doctrine relevant to the claim-ants’ case, namely whether the doctrine was limited to laws given effectin the territory of the State, the extent to which public policy consider-ations preclude application of the doctrine, and whether this was a case inwhich the claimants’ were simply seeking to demonstrate the existence ofa law or act of a sovereign as a purely factual matter, rather than askingthe court to adjudicate the legal effect or validity of those acts (sometimesknown as the Kirkpatrick exception).On the question of whether the doctrine applied to the extraterritorial

acts of a foreign State, Simon J noted that although the doctrine mayextend to extraterritorial acts, it is generally confined to acts within aState: ‘Buttes Gas was “a unique example of an extension beyond theterritorial boundaries of the state” ’.416 On the facts of this claim, thisexception could only apply to the acts of the United States’ officialsoperating in the ‘black site’ in Thailand and while the claimants werein transit to Libya.The claimants’ submitted that the Court should follow the reasoning

of the Australian Federal Court in Habib v Commonwealth of Australiaand not apply the act of State doctrine on the ground that to do so wouldbe contrary to public policy.417 In Habib, the Australian Federal Courtdeclined to apply the doctrine in a case brought by an Australian citizenagainst the Australian Government alleging misfeasance in public officeand the intentional infliction of indirect harm caused by the aiding andabetting of his torture in a foreign State. Jagot J, who gave the leadingjudgment in Habib and with whom Black CJ agreed, found that applyingthe act of State doctrine would mean that the Australian officials couldnot be held accountable in any court for ‘alleged breaches of Australianlaws having extra-territorial effect’:418

The cases on which the Commonwealth relied do not support a conclusion thatthe act of state doctrine prevents an Australian court from scrutinising thealleged acts of Australian officials overseas in breach of peremptory norms ofinternational law to which effect has been given by Australian laws havingextraterritorial application. The case law indicates to the contrary.419

The claimants in the present case made a similar argument.420

Ultimately, the facts of that case were different in three very importantrespects, namely that the claimant was relying on rights conferred by the

415 See Kuwait Airways Corporation v Iraqi Airways Company (Nos 4 and 5) [2002] 2 AC 883,972, para 319, (2003) 73 BYIL 400-04.

416 [2013] EWHC 4111 (QB), paras 80, citing Yukos Capital SARL v OJSC Rosneft Oil Co (No2), [2013] 1 All ER 223, 240, para 49 and 247, para 68.

417 Habib v Commonwealth of Australia [2010] FCAFC 12.418 Habib v Commonwealth of Australia [2010] FCAFC 12, paras 113-4.419 Habib v Commonwealth of Australia [2010] FCAFC 12, paras 113-4.420 [2013] EWHC 4111 (QB), para 90.



Australian Constitution in relation to acts of Australian officials, theAustralian court was only required to make factual findings about theconduct of foreign officials, and the case proceeded on the basis thatforeign relations would not be affected by a decision on the claim.Jagot J explained,

[118] . . .While this case will involve factual findings about the conduct of for-eign officials, the context in which their conduct arises for consideration is in-consistent with the acceptance of the Commonwealth’s proposition thatinternational comity might be undermined. The case involves an Australiancourt considering and determining whether, as alleged, officials of its own gov-ernment aided, abetted and counselled foreign officials to inflict torture upon anAustralian citizen in circumstances where the acts of those foreign officials, ifproved as alleged, would themselves be unlawful under Australian laws havingextra-territorial effect.[119] . . . in this case there are clear and identifiable standards by which theconduct in question may be judged - the requirements of the applicableAustralian statutes and the international law which they reflect and embody.The Court will not be in a ‘judicial no-man’s land’ (Buttes at 938).[131] Ultimately, the central submission for Mr Habib is compelling. If ac-cepted, the Commonwealth’s submissions would exclude judicial scrutiny ofthe conduct of Australian officials alleged to have involved serious breaches ofthe inviolable human rights of an Australian citizen in an overseas jurisdiction,even though the alleged conduct, if proved, would contravene Australian law atthe time and in the place where the conduct is said to have been committed.

Simon J also examined Kuwait Airways, the United States Court ofAppeal decision in John Doe v Unocal Corporation421 and the decisionof the House of Lords in Buttes Gas.422 The defendants argued thatfollowingKuwait Airways, which concerned whether an alleged violationof international law sufficient to justify refusing to recognise a foreignlaw on public policy grounds, the

strict confines of the public policy limitation [mean that] . . . it is only where thebreach is clear and acknowledged before the proceedings are commenced thatthe public policy exception can apply. If this were not so, the Court would haveto engage in an enquiry into the facts which the doctrine excludes, in order todecide whether the doctrine applies.423

Simon J was not persuaded by the defendants’ paradox, finding thatthe House of Lords was ‘not intending to lay down an absolute andinvariable test for the public policy exception’ in Kuwait Airways,424

421 John Doe v Unocal Corporation 395 F 3rd 932 (9th Cir, 2002).422 Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 (HL).423 [2013] EWHC 4111 (QB), para 95.424 [2013] EWHC 4111 (QB), para 96.



and referring to the observations of Lord Hope as of ‘generalapplication’:

The golden rule is that care must be taken not to expand the [public policyexception] beyond the true limits of the principle. These limits demand that,where there is room for doubt, judicial restraint must be exercised. But restraintis what is needed, not abstention. And there is no need for restraint on groundsof public policy where it is plain beyond dispute that a clearly established normof international law has been violated.425

Simon J concluded from John Doe v Unocal Corporation that the ‘four-factor balancing test’ adopted by the Circuit Court in that case indicatedthat the ‘ultimate decision will be sensitive to the particular facts ofthe case.’426 Finally, of particular importance was Lord Wilberforce’sreason in Buttes Gas for declining to adjudicate on extraterritorialdisputes:

the lack of judicial or manageable standards by which to judge these issues, or toadopt another phrase . . . the Court would be in a judicial no-man’s land.427

These authorities led Simon J to conclude:

where the Court can, by reference to ‘established norms’ or ‘judicial or man-ageable standards’, determine that the application of the act of state doctrine isinconsistent with principles of public policy, it should be prepared to say so andact upon its decision. However, doubts on the matter should be resolved infavour of the application of the act of state doctrine.428

The claimants, relying on Abbassi v Secretary of State for Foreign andCommonwealth Affairs and the Court of Appeal’s treatment ofOppenheimer v Cattermole in that case,429 argued that there is no diffi-culty in applying the appropriate standards in the present case becausefundamental human rights are at issue.430 After examining the relevantcase-law, Simon J concluded that one of the ‘most important circum-stances’ for determining whether the act of State doctrine applies,

will be the extent to which the Court is being asked to investigate and express aview about the legality of the conduct of a foreign state and another will bewhether there are incontrovertible (or at least clear and established) standardswhich can form the basis for such an investigation and determination. It is in

425 [2013] EWHC 4111 (QB), para 97.426 [2013] EWHC 4111 (QB), para 100.427 [2013] EWHC 4111 (QB), para 101, citing Buttes Gas & Oil Co v Hammer (No 3) [1982] AC

888, 938, lines A-C (HL).428 [2013] EWHC 4111 (QB), para 102.429 Abbassi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598,

para 53.430 [2013] EWHC 4111 (QB), para 104.



respect of the latter point that it may be necessary to look at how the parties haveapproached the pleading of the applicable law.431

Before examining the applicable law question, Simon J noted the applic-ability of the ‘Kirkpatrick limitation’, which stipulates that the act ofState doctrine only applies to where a domestic court is asked to adju-dicate on the validity or legal effect of a foreign law, not on its existenceas a factual matter.432

Simon J then turned to the question of whether the applicable law forthe claimants’ causes of action is the law of China, Malaysia, Thailand,the US and Libya, or whether it is English law, and even if it is notEnglish law, whether the Court should apply English law in the absenceof pleading and proof that the law of the relevant foreign States is dif-ferent.433 The claimants argued that the Court must consider whetherthe issue of applicable law is fact sensitive, and whether, for this reason,it should not be determined at this stage in the proceedings.434

Section 11 (‘Choice of applicable law: the general rule’) of the PrivateInternational Law (Miscellaneous Provisions) Act 1995 provides that:

(1) The general rule is that the applicable law is the law of the country in which

the events constituting the tort or delict in question occur.

(2) Where elements of those events occur in different countries, the applicable

law under the general rule is to be taken as being –

(a) for a cause of action in respect of personal injury caused to anindividual or death resulting from personal injury, the law of thecountry where the individual was when he sustained the injury;

(b) for a cause of action in respect of damage to property, the law of thecountry where the property was when it was damaged; and

(c) in any other case, the law of the country in which the most signifi-cant element or elements of those events occurred.

(3) In this section ‘personal injury’ includes disease or any impairment of

physical or mental condition.

Section 11 has the effect that where an injury is caused to an individ-ual, the applicable law is the law of the country in which the injury issustained; thus the applicable law for determining the allegations of falseimprisonment was the law of the country in which the claimants allegedthey had been unlawfully detained. However, the claimants’ argued thatit would be ‘substantially more appropriate’ to apply the law of Englandand wales pursuant to section 12 of the Private International Law Act,which provides an exception to section 11, ‘since the matters of com-plaint were carried out in purported exercise of state authority and it is

431 [2013] EWHC 4111 (QB), para 115.432 [2013] EWHC 4111 (QB), paras 116-7. See Yukos Capital SARL v OJSC Rosneft Oil Co (No

2), [2013] 1 All ER 223, 259-63, paras 100-110.433 [2013] EWHC 4111 (QB), para 119.434 [2013] EWHC 4111 (QB), para 119.



probable that the acts and omissions relied upon occurred while the firstand second defendants were in the United Kingdom.’435

The events which form the matters of complaint occurred overseas and theClaimants would have to show that it was ‘substantially more appropriate’ toapply the laws of England and Wales than (for example) Chinese or Malaysianlaw to the circumstances of their detention in those countries.436

Crucially, ‘none of the locations where the Claimants allege they weredetained, or from where they allege they were transferred, was underBritish control:’437

Even in respect of the two causes of action which might be said to have a reallink to the United Kingdom (misfeasance in public office and negligence) thebasis of the claims is the allegation of unlawful detention in and transfer fromvarious foreign states. This is not a case in which it would be ‘substantially moreappropriate’ to apply English law. . . . It is also pertinent to note that theClaimants are not, and never have been UK nationals, did not have the rightto enter or remain in the United Kingdom and were not resident within theUnited Kingdom during the relevant period.438

In order to meet this problem, the claimants argued that the issue ofapplicable law was fact sensitive and ‘should await findings of fact as towhat occurred.’439 Unsurprisingly, Simon J did not accept this argu-ment.440 He rejected the jurisprudence relied upon by the claimants441

on the basis that it did not support the claimants proposition that theparties proceed on ‘an unreal basis either that English law applies, or thatEnglish law is the same as the applicable foreign law,’442 and observedthat ‘[t]he Claimants have been able to plead the relevant events withparticularity, and these facts should enable them to plead their case onthe applicable law.’443 The claimants had also argued that absent anyreliance by either party on foreign law, the court should apply Englishlaw,444 relying on the approval of Gray J in Al-Miznad v Azzaman Ltdand others445 on the decision of University of Glasgow v Economist,446 inwhich it held that: ‘at least at the pleading stage, a claimant is entitled to

435 [2013] EWHC 4111 (QB), para 130.436 [2013] EWHC 4111 (QB), para 131.437 [2013] EWHC 4111 (QB), para 133.438 [2013] EWHC 4111 (QB), para 133.439 [2013] EWHC 4111 (QB), paras 135-6.440 Citing R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332, in which, at para 138,

Lord Brown made a similar observation on the facts of that case. [2013] EWHC 4111 (QB), para132.

441 Anyanwu v South Bank Students Union [2001] 1 WLR 638; PT Pan Indonesia Bank Ltd TBKv Marconi Communications International Ltd [2005] EWCA Civ 422.

442 [2013] EWHC 4111 (QB), paras 142 and 138.443 [2013] EWHC 4111 (QB), para 137.444 [2013] EWHC 4111 (QB), para 139.445 [2003] EWHC 1783 (QB).446 [1997] EMLR 495



rely on the presumption that the foreign laws are the same as Englishlaw.’447 Simon J, while noting that courts of first instance generally‘cannot ignore the rule that, in the absence of evidence, foreign law ispresumed to be the same as English law’,448 considered that the decisionin University of Glasgow, which was decided under old pleading rules,was ‘of doubtful continuing authority.’449 Finally, he explained that,

It is not consonant with the overriding objective of the Civil Procedure Rules, ina case where the 1995 Act applies, for a party either to decline to plead therelevant provisions of the applicable law or to rely on a presumption that aforeign law is the same as English law. Such an approach is evasive. Theremay of course be an issue as to which particular law applies, but that is a dif-ferent matter. The ‘parochial’ approach, which ‘presupposes that it is inherentlyjust for the rules of the English domestic law of tort to be indiscriminatelyapplied regardless of the foreign character of the circumstances and the parties’,is precisely the mischief which the Law Commission sought to remedy, andwhich was remedied by the 1995 Act . . .450

In conclusion,

The Claimants’ failure to plead the applicable law of the torts, taken with MrHermer’s concession that the detention in China and Malaysia may have beenlawful, presents the Claimants with a difficulty in answering the question: onwhat basis can it be said that the detention, which forms one of the bases of theclaim, is unlawful?Subject to the right to rely on s.14 of the 1995 Act, I would have concluded thatthe applicable law for determining the Claimants’ causes of action is as set out inx74 of the Defendants’ skeleton argument.451

Returning to the question of the act of State doctrine, Simon J notedthat there ‘was clear evidence that the determination of this claim has thepotential to jeopardise this country’s international relations and nationalsecurity interests . . . arising primarily from the perception that a forensicinvestigation of what occurred within the territory of a foreign state is anillegitimate interference with that state’s internal affairs.’452 Simon Jfound that the court was effectively being asked to judge the actions offoreign states by the standards of their own law and, [o]nce it is clear thatthe Court is being asked (for example) to judge the actions of the ChineseState by the standards of Chinese law, it is apparent how difficult andinappropriate the Court’s task would be.’453 Consequently, there was nodoubt that, in relation to the acts alleged to have been carried out by

447 [2003] EWHC 1783 (QB) at para 37.448 [2013] EWHC 4111 (QB), para 140(a).449 [2013] EWHC 4111 (QB), para 140(b).450 [2013] EWHC 4111 (QB), para 140(c).451 [2013] EWHC 4111 (QB), para 143.452 [2013] EWHC 4111 (QB), para 145.453 [2013] EWHC 4111 (QB), para 146.



officials of China, Malaysia, Thailand and Libya in those countries, theact of State doctrine applies and the claims are non-justiciable:

The claims (a) call into question the activity of a foreign state on its own terri-tory; (b) without reference to any ‘judicial or manageable’, or ‘clear and iden-tifiable’ standards by which such acts may be judged; and (c) relate to the legalvalidity of those acts within the states’ own territory.454

However,

[t]hese objections do not arise (at least not as starkly) in relation for the claimsbased on what is alleged to have occurred at the US ‘black site’ in Thailand andin transit to Libya. The acts did not take place in the sovereign territory of theUnited States; the public policy exception potentially applies ‘where there is agrave infringement of human rights’, or ‘serious breaches of . . . inviolablehuman rights’; and I am doubtful whether a validity issue arises.455

Simon J concluded that there were no judicial or manageable standardsby which to judge this conduct – finding that:

148. . . .The Defendants are not themselves implicated in the use of torture,which enjoys the enhanced status of a jus cogens or peremptory norm ofInternational law, which may be regarded for the purposes of the act of statedoctrine, if not the state immunity doctrine, as the subject of universal juris-diction, and from which no derogation is permitted.[. . .]150. I have concluded, with hesitation, that the Defendants are correct in theirsubmission that the case pleaded against them depends on the Court having todecide that the conduct of US officials acting outside the United States wasunlawful, in circumstances where there are no clear and incontrovertible stand-ards for doing so and where there is incontestable evidence that such an enquirywould be damaging to the national interest. The most recent and authoritativedecision, Rahmatullah, make clear at [53] and [70] that this is something that thedomestic court should not do.151. My hesitation arises from a residual concern that (on the basis of theParticulars of Claim) what appears to be a potentially well-founded claim thatthe UK authorities were directly implicated in the extra-ordinary rendition ofthe Claimants, will not be determined in any domestic court; and thatParliamentary oversight and criminal investigations are not adequate substitutesfor access to, and a decision by, the Court. Although the act of state doctrine iswell-established, its potential effect is to preclude the right to a remedy againstthe potential misuse of executive power and in respect of breaches of funda-mental rights, and on a basis which defies precise definition. It is a doctrine witha long shadow but whose structure is uncertain.

Simon J struck out all the claims on the basis that they are non-justi-ciable, save where they allege negligence.

454 [2013] EWHC 4111 (QB), para 146.455 [2013] EWHC 4111 (QB), para 147.



This is a carefully reasoned opinion by Simon J, on what appears tohave been a difficult case to argue. The case demonstrates the increasinguse of ordinary domestic tort law and private international law rules toprovide a cause of action and a remedy for the violation of public inter-national law norms, as well as the reliance on judicial dialogue betweenthe courts of different states.



Decisions of British Courts During 2013 Involving Questions of Public International Law

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