Rahmatullah v The Ministry of Defence

Mr Yunus Rahmatullah is a citizen of Pakistan who in February 2004 was detained by British forces in Iraq. Shortly afterwards he was transferred into the custody of US forces. By the end of March 2004, Mr Rahmatullah had been transported by US forces to Bagram Airbase in Afghanistan. There he was detained for the next 10 years without charge or trial. Mr Rahmatullah alleges that, while in detention, he was subjected to torture and other serious mistreatment including severe assaults, incommunicado detention, exposure to extremes of temperature and sound, tear gas and long periods of darkness, being placed in a tiny ‘air lock’ cell, being kept naked with other detainees, being beaten on the soles of his feet with rubber flex, and being immersed upside down into tanks of water.

In earlier proceedings commenced in May 2011 while Mr Rahmatullah was still imprisoned in Afghanistan, an application was made on his behalf for a writ of habeas corpus directed to the Secretary of State for Defence and the Secretary of State for Foreign and Commonwealth Affairs. That application was refused by a Divisional Court, but was granted on appeal. The Court of Appeal considered that there was sufficient reason to believe that Mr Rahmatullah’s continued detention by the US was unlawful, and that the US would return him upon a request from the UK government, to justify the issue of the writ: see Rahmatullah v Secretary of State for Defence [2012] 1 WLR 1462. The main reason for expecting that Mr Rahmatullah would be returned to the custody of the UK if a request was made was that on 23 March 2003, three days after the invasion of Iraq, the UK, the USA and Australia had signed a memorandum of understanding which established arrangements for the transfer of prisoners of war, civilian internees and civilian detainees between the armed forces of those countries. This memorandum (“the 2003 MoU”) distinguished between the state responsible for the original detention of an individual (“the detaining power”) and the state into whose custody an individual was transferred (“the accepting power”). Clause 4 of the 2003 MoU provided:

“Any prisoners of war, civilian internees and civilian detainees transferred by a detaining power will be returned by the accepting power to the detaining power without delay upon request by the detaining power.”

In the event, when a request to return Mr Rahmatullah was made to the US authorities, they did not return him to the UK, and in these circumstances no further order was made on the writ of habeas corpus. Both the decision of the Court of Appeal to issue the writ and the subsequent decision to make no further order on the writ were upheld on an appeal to the Supreme Court: see Rahmatullah v Secretary of State for Defence [2013] 1 AC 614.

In May 2014 Mr Rahmatullah was transferred from Bagram Airbase in Afghanistan to Pakistan. He was finally released from custody on 17 June 2014.

The first action now before the court is a civil claim for damages begun by Mr Rahmatullah on 26 March 2013. The defendants are the Ministry of Defence and the Foreign and Commonwealth Office. The re-amended particulars of claim dated 25 July 2014 assert claims (a) under the law of tort and (b) under the Human Rights Act 1998.

The defendants have applied under CPR Part 11 for an order declaring that the court has no jurisdiction or should not exercise any jurisdiction which it may have to try Mr Rahmatullah’s claims against them because of the doctrines of (i) state immunity, (ii) foreign act of state and/or (iii) Crown act of state. In the alternative, the defendants’ application asks the court to dismiss the claims on these grounds pursuant to CPR 3.1(2)(l) following the decision of a preliminary issue. The defendants have not in the event pursued their application in relation to the claims asserted under the Human Rights Act and have confined it to Mr Rahmatullah’s claims in tort.

In order to avoid any procedural point about whether all of the issues raised by the defendants’ application involve disputes as to the jurisdiction of the court which fall within CPR Part 11, I invited the parties at the beginning of the hearing to agree the formulation of preliminary issues, which they have since done. The issues are:

“1.

Whether the claimant’s claim, in so far as it seeks to establish either defendant’s liability in tort (however described) in respect of acts or omissions of US personnel while the claimant was in US custody in Iraq and/or Afghanistan, is barred by reason of (i) the doctrine of state immunity; and/or (ii) the doctrine of foreign act of state.

2.

Whether the claimant’s claim for false imprisonment and/or detention without lawful justification by UK armed forces prior to his transfer to US custody in Iraq (see re-amended particulars of claim, dated 25 July 2014, at paragraphs 132 and 132.1), is barred by reason of the doctrine of Crown act of state.”

In addition to his civil claim for damages, Mr Rahmatullah has brought a claim for judicial review. There is a second claimant in this action, Mr Amanatullah Ali. Mr Ali is another Pakistani man who was arrested by British forces in Iraq and transferred to the custody of the US at the same time as Mr Rahmatullah. Mr Ali was also transported to Bagram Airbase in Afghanistan, where he is still imprisoned. The claimants seek an order requiring the defendants to conduct an investigation into the circumstances of their transfer into US custody and of the UK’s failure to demand their return or to take any steps to prevent their transfer to Afghanistan.

This judicial review claim was commenced on 18 December 2013. On 9 June 2014 the court gave directions for the claimants’ application for permission to proceed with the claim to be considered at an oral hearing at the same time as the defendants’ application under CPR rule 11 and rule 3.1(2)(l) in Mr Rahmatullah’s civil damages claim. At that stage the defendants were opposing the grant of permission on grounds of state immunity, foreign act of state and Crown act of state as well as on additional grounds of “limitation, delay and abuse of process”. At the hearing, however, only the arguments based on delay and abuse of process were pursued.

Among the many hundreds of claims brought by Iraqi civilians against the Ministry of Defence (“MOD”) arising out of the Iraq war which are currently pending in the High Court and are known as the “Iraqi civilian litigation”, there are some claims brought by individuals detained by UK armed forces in Iraq who were transferred into the custody of the US. These claims raise similar issues to the claim brought by Mr Rahmatullah. As in Mr Rahmatullah’s case, these claims are made on two bases: (a) in tort; and (b) under the Human Rights Act. As in Mr Rahmatullah’s case, the MOD contends that the claims in tort are barred by (i) state immunity, (ii) foreign act of state and/or (iii) Crown act of state.

A preliminary issue in relation to three such claims (as test cases) was originally due to be tried as one of a group of preliminary issues in the Iraqi civilian litigation. In the interests of efficiency, however, that issue has been severed from the rest and argued at the same time as the preliminary issues in the case brought by Mr Rahmatullah. The issue has been reformulated and divided into two questions which are in similar terms to the preliminary issues in Mr Rahmatullah’s case, as follows:

“1.

Whether claims alleging liability of the defendant in tort in respect of alleged acts or omissions of US personnel while the claimant was in the custody of the United States of America are barred by the doctrines of state immunity and/or foreign act of state.

2.

Whether claims in tort in respect of (a) the capture and detention of the claimant by UK armed forces and/or (b) the transfer of the claimant to the custody of the armed forces of the United States of America are barred by the doctrine of Crown act of state.”

The names of the claimants in the three test cases in which these issues are to be decided have been anonymised and they are referred to HTF, ZMS and XYZ (together “the Iraqi civilian claimants”). I will briefly summarise the factual allegations on which their claims are based.

XYZ alleges that:

ZMS was arrested by British forces in Basra on the night of 11/12 July 2008. He alleges that he was assaulted at the time of his arrest. On 12 July 2008 he was flown to Baghdad and transferred to the custody of US forces. He was detained until August 2009 at several different detention centres including (for a substantial part of the time) at Camp Bucca. ZMS alleges that during this period he was subjected to serious mistreatment by US personnel.

HTF was arrested in Basra by British soldiers in the early hours of 27 June 2008. He alleges that he was assaulted by British soldiers during and after his arrest. He claims that he was thrown in the back of a lorry and taken to a British detention facility, and that during the journey he was stamped on and urinated on by British soldiers. On the evening of 27 June HTF was transferred by aircraft to a US detention facility. He alleges that, while there, he was repeatedly interrogated, held in solitary confinement, deprived of sleep, exposed to cold temperatures and loud noise, and physically assaulted. After a few days, HTF was transferred to Baghdad International Airport where he was interrogated further and suffered further ill treatment, including a sexual assault. Over the following months HTF was held at various detention facilities and alleges further mistreatment during this period. This includes being made to stand outside for hours at a time in the hot sun and in the cold and rain in winter. He was returned to Basra and released on 28 June 2009.

Through an accident of timing, the hearing of the preliminary issues in the present cases took place while judgment was reserved by the Court of Appeal in the case of Belhaj v Straw [2014] EWCA Civ 1394. In that case Mr Belhaj and his wife allege that UK officials conspired with officials of Libya and the United States to arrange for their unlawful detention, abduction and rendition to Libya from China via Malaysia and Thailand. They have brought proceedings against Mr Straw who was the Secretary of State for Foreign Affairs at the time of their alleged abduction, and other British officials, claiming damages in tort. As in the present case, the defendants have argued that the claims are barred by the doctrines of state immunity and/or foreign act of state. (No argument based on the doctrine of Crown act of state has been raised in the Belhaj case.) The validity of these objections was determined by Simon J as a preliminary issue. In his judgment given on 20 December 2013, the judge dismissed the plea of state immunity but held that the act of state doctrine operated as a bar to the claims: see Belhaj v Straw [2013] EWHC 4111 (QB).

There were cross-appeals against these rulings. In their judgment handed down on 30 October 2014, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) have upheld the judge’s ruling in relation to state immunity but have allowed the claimants’ appeal on the issue of foreign act of state.

To have adjourned the hearing in the present case until after judgment had been given by the Court of Appeal in the Belhaj case would, for administrative reasons, have resulted in a long and very undesirable delay. The hearing therefore went ahead and was argued, and I prepared this judgment in draft, without knowing what the Court of Appeal would decide in the Belhaj case. It was agreed, however, that I would not give this judgment until after the Court of Appeal had handed down judgment in the Belhaj case and the parties had had an opportunity to make further submissions on the significance of the Court of Appeal’s decision. A short further hearing was arranged for this purpose.

In the event, the decision of the Court of Appeal in the Belhaj case has not required me to change the conclusions which I had provisionally reached on the issues of state immunity and foreign act of state. Furthermore, in their skeleton arguments for the further hearing held on 11 November 2014 the defendants conceded that I am bound by the decision of the Court of Appeal in the Belhaj case to reach those conclusions and to hold that none of the claims in the present cases is barred by either doctrine. In these circumstances, it is on one view unnecessary for me to give any judgment on the issues of state immunity and foreign act of state. Another approach might have been to re-write (and radically shorten) this judgment so that it simply applies the reasoning of the Court of Appeal in the Belhaj case to the present claims. As it is, I have decided to give the judgment that I had already prepared in draft, adding to it only so far as necessary to record where I am now bound by the decision of the Court of Appeal. I have followed this course without any disrespect to the Court of Appeal in the belief that it does better justice to the parties in circumstances where I received detailed written submissions and heard oral argument over three days from different counsel to those who appeared in the Belhaj case and at a time when neither counsel nor the court had the benefit of the judgment of the Court of Appeal. It seems to me that the parties are entitled to know what conclusions I would have reached upon the arguments presented if the judgment of the Court of Appeal had not supervened. In addition, as the Court of Appeal has given leave to appeal to the Supreme Court on the issue of foreign act of state, and as the defendants in Mr Rahmatullah’s case have indicated that they intend to seek a ‘leapfrog’ under section 12 of the Administration of Justice Act 1969 to enable an appeal from my decision on that issue to proceed directly to the Supreme Court if the Supreme Court should grant leave, there is a possibility that the reasons which persuaded me independently of the Court of Appeal’s decision to reject the defendants’ arguments may still be relevant to the final determination of the present cases.

In the following parts of this judgment I first consider the way in which the claimants have formulated their claims for damages in tort. I then address in turn the defendants’ objections to those claims based on (1) state immunity, (2) foreign act of state and (3) Crown act of state. Lastly, I consider the application of Mr Rahmatullah and Mr Ali for permission to proceed with their claim for judicial review.

It is agreed that for the purpose of deciding the preliminary issues the court should assume that all the factual allegations made by the claimants in their particulars of claim are true. Many of the allegations are strongly denied by the defendants. It is therefore important to emphasise that none of the allegations has been proved.

For the purpose of the preliminary issues, the relevant claims in tort made by Mr Rahmatullah and the three Iraqi civilian claimants can be grouped into four categories as follows:

When a claim in tort is made in English proceedings and the events constituting the tort occurred partly or entirely in another country, the first question which the English court has to decide is what country’s law is applicable to the claim. The rules which govern this choice of law in relation to the present claims are contained in the Private International Law (Miscellaneous Provisions) Act 1995. (Footnote: ¹) Section 11 of the 1995 Act states the general rule for choosing the applicable law as follows:

“(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 an individual or death resulting from personal injury, the law of the country where the individual sustained the injury;

(b)

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

(c)

in any other case, the law of the country in which the most significant element or elements of those events occurred.”

Section 12 of the 1995 Act provides for the general rule to be displaced in circumstances where factors connecting the tort with another country are of such significance as to make it “substantially more appropriate” for the applicable law to be the law of that other country.

In R (Al-Jedda) v Secretary of State for Defence [2007] QB 621, the claimant, who had dual British and Iraqi nationality, travelled to Iraq where he was arrested and interned by British forces. On a claim for judicial review, he contended that his detention was unlawful at English common law. Counsel for the claimant submitted that English law was the applicable law because, although all the events constituting the alleged tort occurred in Iraq, it was “substantially more appropriate” to apply English law to a claim by a British citizen against the British government in respect of activities on a base operated according to British law by British troops: see [2007] QB 621, para 105. The Court of Appeal rejected this argument, holding that the factors relied on were not strong enough to displace the general rule and that the applicable law was therefore the law of Iraq (see paras 106-107). This decision was affirmed by the House of Lords on appeal: see R (Al-Jedda v Secretary of State for Defence [2008] AC 332, 355, paras 40-43.

In the present cases, all the events relied on as constituting the torts alleged by the Iraqi civilian claimants occurred in Iraq. The claimants have not sought to argue that English law is applicable and have accepted that the applicable law is the law of Iraq. It is likewise not disputed that the claims in tort relating to Mr Rahmatullah’s detention, alleged ill treatment and transfer to US forces in Iraq are governed by Iraqi law. In so far as Mr Rahmatullah’s claims are founded on his subsequent detention and alleged ill treatment in Afghanistan, the general rule dictates that Afghan law is applicable and neither party has suggested that there is any factor which could displace it.

Despite the fact that the law applicable to their claims in tort is agreed to be the law of Iraq, the Iraqi civilian claimants in their particulars of claim assert claims in English law. The causes of action pleaded are false imprisonment, assault, torture (which the claimants contend is a separate actionable tort at English common law), misfeasance in public office and negligence. In each case the particulars of claim contain a paragraph in the following terms:

“If the defendant avers that the relevant applicable law to any matter in the claim is Iraqi law, then it is for the defendant to prove any material difference between English law and Iraqi law. The claimant notes that the Iraqi Civil Code provides equivalent causes of action to those pleaded under English law.”

The particulars of claim then cite articles of the Iraqi Civil Code and of the Iraqi Constitution in force at the relevant time which are said to provide causes of action equivalent to the English torts of trespass to the person, false imprisonment and misfeasance in public office.

A similar approach is taken in the particulars of claim served on behalf of Mr Rahmatullah. In his case reference is also made to provisions of the Afghan Civil Code and Constitution. It is further averred in Mr Rahmatullah’s case that “in the particular circumstances of these claims reliance upon foreign law is inappropriate and otiose, not least because … it is presumed that the laws of all relevant countries will provide a remedy to victims of serious human rights violations and, absent evidence to the contrary, it should be assumed that they will do so consistently with common law.”

No defence has yet been served in Mr Rahmatullah’s case, and no evidence of Iraqi or Afghan law has been adduced by the defendants. Mr Eadie QC representing the defendants in that case was in agreement with the claimants that the preliminary issues should be decided by reference to English law.

The MOD, represented in the Iraqi civilian cases by Mr Sweeting QC, took a different position in relation to those claims. Defences have been served in those proceedings maintaining that it is not for the defendant to establish material differences between the law of Iraq and English law and disputing the claimant’s entitlement to frame his claims on the basis of English law. The defendant has not itself pleaded any positive case nor adduced any evidence as to the content of the relevant Iraqi law. There is thus a stand-off in which both parties agree that the claims are governed by Iraqi law but each maintains that the burden of proving how that law differs from English law falls on the other.

It is well established that in any case to which foreign law applies, that law must be pleaded and proved as a fact to the satisfaction of the judge, usually by means of expert evidence: see Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Edn), rule 25(1). It is also said, however, that, in the absence of satisfactory evidence of foreign law, the court will apply English law: ibid, rule 25(2). This principle is sometimes expressed by saying that foreign law is presumed to be the same as English law until the contrary is proved: ibid, para 9-025. However, Dicey, Morris & Collins recognise, at para 9-026, that:

“… there will still be cases in which the application of English law, whether because the party seeking to have foreign law applied has pleaded foreign law but has failed to prove its content to the satisfaction of the court, or because the parties have tacitly agreed not to seek to prove the content of foreign law and have the lex fori applied by default, will be just too strained or artificial to be appropriate.”

The authors go on to observe that, although there are cases in which neither the presumption of similarity nor the default application of English law will be suitable, the authorities do not yet offer precise guidance as to when this point will be reached.

In the present cases I have no difficulty in proceeding on the basis that arbitrary detention, assault, torture and other ill treatment of the kind alleged by the claimants in their particulars of claim are all wrongful acts for which damages can be recovered in tort under Iraqi law (and in the case of Mr Rahmatullah under Afghan law). No legal difficulty therefore arises in so far as the claimants allege that they were unlawfully detained and ill treated by British soldiers. However, the arguments based on the doctrines of state immunity and foreign act of state are directed to the claims that UK officials were complicit in unlawful detention and ill treatment of the claimants allegedly perpetrated by agents of the United States. Those claims raise the question whether, and if so when, one party can be liable in tort for acts done by another. Submissions were made on that question by all parties by reference to the English common law rules governing joint liability in tort for acts committed in furtherance of a common design.

As explained by Beatson LJ in Fish & Fish Ltd v Sea Shepherd UK [2013] 1 WLR 3700, paras 40-58, in English law the fact that a person (the accessory) has facilitated or assisted another person (the perpetrator) to do a tortious act is not in itself sufficient to make the accessory liable in tort, even where the facilitation or assistance is provided knowingly. English law does not recognise such accessory liability. English law does, however, recognise a principle of joint liability where two or more people have acted in furtherance of a “common design”. The requirements for this form of joint liability are: (1) a tortious act done by one person (the perpetrator); (2) a common design in the sense of an agreement, which may be tacit, between the perpetrator and another person (the participator) that the act should be done; and (3) some act (which may not itself be tortious) done by the participator to further the common design.

Although there is no evidence of the principles of Iraqi or Afghan law concerning joint or accessory liability in tort, I can see no reason to suppose that either of those legal systems has adopted the common law doctrine of common design. Since neither legal system is derived from English law, it would be extraordinary if they had. Nor do I see any reason to presume that the rules applied by those systems are similar to or consistent with the common law rules. This is accordingly a situation in which it seems to me that it would be artificial and inappropriate to apply English law.

A further difficulty faces the claimants. I doubt that the facts currently alleged in their statements of case would be sufficient, if proved, to establish a common design of the kind needed to give rise to a joint liability in tort at English common law. The most detailed pleading is in Mr Rahmatullah’s case where the particulars of claim incorporate a schedule of events relied on as “evidencing knowledge on the part of the defendants of US practice of extraordinary rendition and use of torture/inhuman and degrading treatment”. The schedule lists material in the public domain which refers to (1) the transfer or ‘rendition’ by the US authorities of detainees from the country in which the person was detained to Guantanamo Bay in Cuba, Bagram Airbase in Afghanistan or other places of detention outside the country in which the individual was captured; (2) the use by the US of interrogation methods which would or could be regarded as inhumane; and (3) cases of reported ill treatment and abuse of prisoners in the custody of the US.

Matters of this kind might in principle be capable of evidencing a risk of which the defendants knew or ought to have known that a prisoner handed over by UK forces to US forces in Iraq might be removed from Iraq by the US authorities and/or subjected to interrogation practices or other treatment which would be viewed as inhuman or degrading under international human rights law. To transfer a person into the custody of the US in such circumstances could, in principle, amount to a breach of article 3 of the Convention, assuming that the person transferred was within the jurisdiction of the UK for the purposes of the Convention. Mr Rahmatullah and the three Iraqi civilian claimants are indeed alleging such breaches of article 3 of the Convention in their claims under the Human Rights Act.

This would not be sufficient, however, to found a claim in tort in English law based on the principle of common design. For that purpose, as I have indicated, it would be necessary to show an express or tacit agreement between the US and UK authorities that individuals transferred into the custody of US forces in Iraq would be detained or treated by US forces in a way which would involve the commission of a tort. Knowledge of a risk that this might happen, or even knowledge that it would happen, would not be enough to make the UK authorities liable for the tortious conduct: see Fish & Fish Ltd v Sea Shepherd UK [2013] 1 WLR 3700 at paras 42 and 50.

As discussed, however, it is not English law that applies. Moreover, the defendants have not sought to argue that the claimants’ particulars of claim are deficient or do not disclose reasonable grounds for bringing claims asserting that the defendants are liable in tort for acts allegedly done to the claimants while they were in the custody of the US. The case which the defendants have chosen to advance is that such claims are barred by reason of the doctrines of state immunity and/or foreign act of state even on the assumption that all the factual allegations made by the claimants are true. Those allegations include allegations that the defendants (a) transferred the claimants into the custody of the US knowing that the claimants would be or were likely to be subject to unlawful detention and torture, and (b) refrained from requesting the return of the claimants pursuant to the 2003 MoU despite knowing that they were being unlawfully detained and tortured by US personnel. It is on those assumed facts therefore that the preliminary issues must be judged.

As for the applicable law, I think the preliminary issues can be decided without the need to make any assumption about whether joint or accessory liability in tort is recognised in Iraqi or Afghan law and, if so, in what form. It is sufficient to assume that the defendants could not be liable under the applicable law unless US personnel did acts which constituted torts under that law. That seems to me to be an appropriate assumption to make in circumstances where the case made against the defendants, however precisely it is formulated, is dependent on proving some form of knowing participation or assistance by UK officials in tortious acts committed by agents of the US.

On this basis I will consider first the defendants’ arguments based on state immunity.

The law of state immunity in England and Wales was originally part of the common law but is now governed by the State Immunity Act 1978. Section 1(1) of the Act establishes the basic rule that:

“A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.”

Pursuant to section 14(1) of the Act, the immunity applies to “any foreign or commonwealth state other than the United Kingdom”.

It is common ground that, in relation to the unlawful acts of its officials alleged in these proceedings, the United States is immune from the jurisdiction of the English courts. None of the exceptions set out in Part 1 of the 1978 Act applies to the acts alleged.

However, the claimants are not suing the US (or any of its officials) in these proceedings: they are suing only representatives of the government of the UK. It is nevertheless the defendants’ case that, in so far as the claims against them in tort require proof of unlawful acts allegedly committed by agents of the US, the immunity of the US from the jurisdiction of the English courts also applies to these proceedings. The defendants rely on section 1(2) of the 1978 Act, which requires a court to give effect to the immunity conferred by the Act “even though the State does not appear in the proceedings in question”.

It is not at first sight obvious how an immunity conferred on a foreign state can render the UK government immune from the jurisdiction of the English courts in relation to claims seeking compensation for alleged wrongdoing of UK officials, particularly when the 1978 Act expressly provides that the states to which it applies exclude the United Kingdom. Despite the skill with which the defendants’ case was argued, I have not been persuaded that there is on examination any valid answer to this short and simple objection to the defendants’ reliance on the law of state immunity.

The defendants’ case that they are protected by the immunity of the US is based on the concept of “indirect impleading”. They contend that the claims which allege complicity of the UK in torts allegedly committed while the claimants were in the custody of the US “indirectly implead” the US because they impugn acts of its officials and affect its interests.

In support of this case, the defendants rely, first of all, on English domestic cases which have invoked the concept of “indirect impleading” and, secondly, on what they argue is the recognition of that concept in public international law.

The defendants cited a line of authority for the proposition that at common law a foreign state may be indirectly impleaded in an action, such that the action is barred by state immunity, even though neither the foreign state nor any agent of the foreign state is a party to the action.

The first and seminal case in this line of authority is The Parlement Belge (1880) 5 PD 197. That was an action brought by shipowners who claimed compensation for damage caused to their ship when a mail boat owned by the sovereign of Belgium collided with it in Dover harbour. The plaintiffs argued that the action was a claim in rem against the Belgian ship and not a claim against the Belgian sovereign, and was therefore not barred by the sovereign’s immunity. The Court of Appeal rejected that argument on two grounds. First, the Court of Appeal held that the doctrine of state immunity protects not only “the person of any sovereign or ambassador of any other state”, but also “the public property of any state which is destined to public use” (p.217). Hence, even if an action in rem was regarded as a proceeding solely against property and not as “a procedure directly or indirectly impleading the owner of the property”, the claim fell within the scope of state immunity and was barred (p.217). Second, the Court of Appeal held that in any event the sovereign as the owner of the ship was “at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court” (p.218). As Brett LJ explained (p.219):

“To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principles upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded, any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court.”

Compania Naviera Vascongado v SS ‘Cristina’ (The Cristina) [1938] AC 485 was another action in rem. The plaintiffs claimed possession of a ship which had been requisitioned for public purposes by the Spanish government. The Spanish government applied for the release of the ship from arrest, relying on state immunity. On an appeal to the House of Lords Lord Atkin stated (at p.490) “two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute”:

“The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.

The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control.”

As in The Parlement Belge, both these principles were held to apply. With regard to the first, the Spanish government was directly impleaded because the writ named as defendants “all persons claiming an interest in the Cristina”, a description which applied to the Spanish government. The House of Lords also held that the Spanish government was indirectly impleaded for the same reason as the Belgian sovereign in The Parlement Belge – that is, that the proceedings placed the Spanish government in the position of having to choose between appearing in the proceedings and losing its interest in the ship. As stated by Lord Wright (p.505):

“The writ by its express terms commands the defendants to appear or let judgment go by default. They are given the clear alternative of either submitting to the jurisdiction or losing possession. In the words of Brett LJ [in The Parlement Belge] the independent sovereign is thus called upon to sacrifice either its property or its independence.”

The other two cases cited by the defendants in this line of authority were both decided on the basis of Lord Atkin’s second proposition: in each case the proceedings were regarded as attempts to seize or detain property in the possession or control of a foreign state.

In USA and Republic of France v Dollfus Mieg et Cie SA [1952] AC 582 the Bank of England was holding, in safe custody for the governments of the US, France and the UK, bars of gold which had been wrongly removed by German troops from a French bank and later captured by the allied armies in Germany during the Second World War. The French company which had deposited the gold with the French bank brought proceedings against the Bank of England claiming delivery of the gold bars. The governments of the US and France applied to have the proceedings stayed on the ground of state immunity. The House of Lords held that the foreign governments had a sufficient proprietary interest in the gold bars to bring the case within the second principle stated by Lord Atkin.

In Rahimtoola v Nizam of Hyderabad [1958] AC 379, that principle was extended to a case where money had been deposited with the defendant bank by the agent of a foreign government. The plaintiff who was claiming the money argued that there was a distinction between tangible property in the form of gold bars and money which as a matter of law constituted a debt owed by the bank. However, the House of Lords considered that the distinction was not sufficient to justify a different result and that the foreign government had a sufficient proprietary interest in the subject matter of the claim to bring it within the scope of state immunity.

I think it clear that the rule established by this line of authority is limited to proceedings relating to property. The rule is reflected in section 6(4) of the 1978 Act, which provides:

“A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property –

(a)

which is in the possession or control of a State; or

(b)

in which a State claims an interest,

if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b) above, if the claim is neither admitted nor supported by prima facie evidence.”

It is implicit in this provision that a court may not entertain against a third party proceedings relating to property (a) which is in the possession or control of a state or (b) in which a state claims an interest, if the state would have been immune had the proceedings been brought against it (and, in a case where the state claims an interest in the property, unless the claim is either admitted or not supported by prima facie evidence).

Two alternative rationales for this rule are found in the cases to which I have referred. The first and simpler rationale is that state immunity protects not only the state itself (as a legal person) but also its property. The second rationale is that proceedings relating to the property of a state, even when not brought against the state itself, “indirectly implead” the foreign state because they force it to submit to the jurisdiction of the court against its will on pain of losing its property or claimed interest in the property.

I see nothing in this line of authority which would support any wider doctrine of “indirect impleading” applicable in cases not concerned with any interest in property.

The authority which Mr Eadie QC put at the forefront of his submissions is the decision of the House of Lords in Jones v Ministry of Interior of Saudi Arabia [2007] 1 AC 270. Mr Eadie submitted that this decision demonstrates that the principle of indirect impleading is not limited to property cases, and indeed that even in a case of alleged torture the principle can apply to bar a claim brought against someone other than the foreign state itself.

In the Jones case the claimants asserted that they had been tortured while imprisoned in Saudi Arabia. They brought proceedings in tort against the Kingdom of Saudi Arabia and against certain individual state officials. One issue raised was whether state immunity can operate to bar a claim alleging grave violations of human rights which infringe peremptory norms of international law, or whether such norms take precedence over state immunity. The House of Lords held that there is no relevant exception to the principle of state immunity even where the claim is based on torture. A second issue was whether state immunity applied to the claims against the individual officials as well as to the claim against the Kingdom of Saudi Arabia itself. The House of Lords held that the doctrine did apply to bar those claims.

Lord Bingham and Lord Hoffmann each gave a judgment with which the other members of the appellate committee agreed. Lord Bingham noted that, although the State Immunity Act 1978 specifies certain persons and entities who are included within the expression “state”, neither the 1978 Act nor the 1972 European Convention on State Immunity expressly provides for the case where suit is brought against the servants or agents, officials or functionaries of a foreign state in respect of acts done by them as such in the foreign state (para 10). Lord Bingham continued:

“There is, however, a wealth of authority to show that in such cases the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state’s right to immunity cannot be circumvented by suing its servants or agents.”

To similar effect, Lord Hoffmann approved the conclusion of the Court of Appeal in Propend Finance Pty Ltd v Sing (1997) ILR 611, 669, that section 14(1) of the State Immunity Act 1978 affords individual employees or officers of a foreign state “protection under the same cloak as protects the state itself” (see para 68). Lord Hoffmann held that the term “state” in section 1 of the 1978 Act, and the term “government” which “state” is said by section 14(1)(b) to include, “must be construed to include any individual representative of the state acting in that capacity” (para 69).

The defendants rely, in particular, on a passage in the speech of Lord Bingham in which he rejected the conclusion which the Court of Appeal had reached that a civil claim against an individual torturer did not indirectly implead the state. Lord Bingham said, at para 31:

“It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.”

Mr Eadie QC argued that this passage shows that the concept of indirect impleading can apply to claims which affect interests of a foreign state other than interests in property.

I do not think that the Jones case establishes this point. The essential basis of the decision is that a state, whose legal personality is a creation of the law, can only act through individual human beings who are its representatives or agents. It is therefore necessary to apply rules of attribution to decide whose acts count as those of the state for the purpose of state immunity. Once it has been decided that particular acts of an individual are attributable to the state for this purpose, and are protected by the state’s immunity, it would defeat the principle of immunity if it could be avoided by naming as the defendant to the action the individual rather than the state itself. It is not necessary to invoke the concept of “indirect impleading” to hold that such a claim is barred. It is most simply explained by saying that, although the 1978 Act does not expressly provide that references to a “state” include references to individual officials of the state acting in that capacity, they are impliedly included in the definition of a “state”. As I have indicated, this is what Lord Bingham and Lord Hoffmann held. It follows that an action against such an individual impleads the state directly.

Even if the immunity afforded to officials of the state is analysed in terms of “indirect impleading”, this does not assist the defendants. Jones v Saudi Arabia demonstrates that state immunity extends to agents of the state whose acts are attributable to it. The House of Lords located the relevant rules of attribution in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts promulgated by the International Law Commission: see [2007] 1 AC 270, 281-2, para 12. The manner in which the state’s interests would be affected by a judgment against the defendant is therefore that the judgment would be against a person for whose conduct the state is liable under international law. By contrast, in the present case it is not and could not be suggested that the wrongful acts allegedly done by British officials were done on behalf of the US or are attributable to the US. The defendants are not agents of the US but of a different sovereign state, the UK. It is therefore nothing to the point that the immunity of the US would apply to an action brought against any of its own officials.

The defendants acknowledged that, with the sole exception of Jones v Saudi Arabia, which for the reasons I have just indicated does not in my view assist them, all the domestic cases in which the concept of indirect impleading has been invoked were concerned with property interests. However, they maintained that it would be illogical to confine the concept to interests in property and that the principles can be applied by analogy to any interest of a foreign state which would be affected by a judgment given in the proceedings.

Mr Eadie QC argued that a judgment against the defendants which involved findings of wrongdoing by US personnel would adversely affect the interests of the US. He suggested that it might lead, for example, to investigation of the conduct of US officials under the UN Convention against Torture or to an attempt to extradite US officials for the purpose of bringing a criminal prosecution against them in another country. The evidence adduced by the defendants does not suggest, however, that there is such a risk. In any event, I cannot accept that a potential adverse consequence of this kind is capable of engaging the doctrine of state immunity. No authority either of an English court or of a court in any other jurisdiction was cited by the defendants which would support that suggestion. Furthermore, any such extension of the doctrine of state immunity would render it both unreasonably broad and impossibly vague.

It seems to me that the point at which the doctrine of state immunity could be engaged if the risks suggested by Mr Eadie were to eventuate is when extradition proceedings were brought against US officials. The question then would be whether state immunity was a bar to extradition. Even if it were such a bar, and all the more so if it were not, I cannot see any justification for extending state immunity to proceedings against a third party which merely create a risk of future proceedings against the foreign state.

The second principal line of argument advanced by the defendants was based on international law. Mr Eadie QC argued that the English domestic law of state immunity should be interpreted as giving effect to international law and that the concept of indirect impleading finds expression in the international law of state immunity, in particular in the UN Convention on Jurisdictional Immunities of States and their Property (2004).

The first step in this argument is indisputable. It is clear that the domestic rules of state immunity incorporated in the 1978 Act derive from public international law and must be interpreted in the light of the international law of state immunity.

In The Parlement Belge (1880) 5 PD 197, the Court of Appeal saw the principle of state immunity as part of international law. As Brett LJ put it, the existence of immunity depended on “whether all nations have agreed that it shall be, or in other words, whether it is so by the law of nations” (p.205). Confirming the principle of state immunity in The Cristina [1938] AC 485, 502, Lord Wright said that it “may now more properly be regarded as a rule of international law, accepted among the community of nations. It is binding on the municipal Courts of this country in the sense and to the extent that it has been received and enforced by these Courts.” The relevance of international law was again affirmed by the House of Lords in The I Congreso del Partido [1983] 1 AC 244, 265, where Lord Wilberforce said that “in this area, English courts are applying or at least acting so far as possible in accordance with, international law,” and should determine the scope of immunity “so far as possible, in conformity with accepted with international standards.”

This remains the position since the domestic law was codified in the 1978 Act. In Alcom Ltd v Republic of Colombia [1984] AC 580, 597, Lord Diplock said that the provisions of the Act “fall to be construed against the background of those principles of public international law as are generally recognised by the family of nations”. This approach is manifest in Jones v Saudi Arabia [2007] 1 AC 270, where the House of Lords made extensive reference to international law.

As evidence of international law, the defendants relied principally on the United Nations Convention on Jurisdictional Immunities of States and Their Property adopted by the UN General Assembly on 2 December 2004. The UN Convention is not yet in force because not enough states have ratified it; indeed it has not so far been ratified by the UK. (Footnote: ²) It therefore does not have the status of a binding treaty. The UN Convention has, nevertheless, been recognised as an important guide to the scope of state immunity. In Jones v Saudi Arabia [2007] 1 AC 270, 289 at para 26, Lord Bingham said:

“Despite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases …”

See also para 8, where Lord Bingham endorsed the observations of Aikens J in AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1 WLR 1420, 1446, para 80, that the Convention and its “adoption by the UN after the long and careful work of the International Law Commission and the UN ad hoc committee, powerfully demonstrates international thinking on the point.”

Article 5 of the UN Convention sets out the general principle that:

“A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention”.

Article 6 provides:

“Modalities for giving effect to State immunity

(1)

A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.

(2)

A proceeding before a court of a State shall be considered to have been instituted 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.” (emphasis added)

The defendants have emphasised the broad language of Article 6(2)(b). Mr Eadie QC submitted that, in accordance with Article 31(1) of the Vienna Convention on the Law of Treaties, the primary focus should be on the ordinary meaning of the words, as interpreted in their context and in light of the object and purpose of the Convention. The defendants’ written submissions also cited a number of academic commentators who have noted the breadth of Article 6(2)(b). See, for example, Fox and Webb, ‘The Law of State Immunity’ (3^rd ed, 2013), p.307: “The proceedings to which the bar of immunity is extended by Article 6(2)(b) is very wide…”

Broad as the language is, I would not interpret Article 6(2)(b) as extending to a situation where, as in the present cases, a judgment of the court would not seek to have, and could not have, any legal effect on a foreign state or its property. The text of Article 6(2)(b) must be read in the light of Article 6(1) and the opening words of Article 6(2), as well as in the light of the general principle stated in Article 5. I cannot see that a proceeding against UK government departments to which the US is not a party could reasonably be regarded as “a proceeding instituted against another state” or as an exercise of jurisdiction over another state in the ordinary meaning of those words, in circumstances where a judgment given against the defendants in the proceedings would not have or purport to have any consequence in law for the US or its property. Article 6(2)(b) should not readily be interpreted so as to extend the scope of Article 6 beyond the ordinary meaning of its governing concepts.

Given, however, that the UN Convention is not yet in force and does not have the status of a treaty, arguments about how its language should be interpreted do not seem to me to be of primary importance. The relevance of the UN Convention is in the evidence that it provides of general state practice accepted as law and which can therefore be said to represent customary international law. Just as if not more important than the text itself in these circumstances is the evidence of state practice and legal opinion on which the International Law Commission based Article 6(2)(b). That is shown by the report on the work of its 43^rd session (1991) which contains commentaries on the draft articles. The commentary on Article 6(2)(b) reads as follows (with citations omitted):

“(11)

Without closing the list of beneficiaries of State immunities, it is necessary to note that actions involving seizure or attachment of public properties or properties belonging to a foreign State or in its possession or control have been considered in the practice of States to be proceedings which in effect implicate the foreign sovereign or seek to compel the foreign State to submit to the local jurisdiction. Such proceedings include not only actions in rem or in admiralty against State-owned or State-operated vessels used for defence purposes and other peaceful uses, but also measures of prejudgment, attachment or seizure (saisie conservatoire) as well as execution or measures in satisfaction of judgment (saisie exécutoire). …

(12)

As has been seen, the law of State immunities has developed in the practice of States not so much from proceedings instituted directly against foreign States or Governments in their own name, but more indirectly through a long line of actions for the seizure or attachment of vessels for maritime liens or collision damages or salvage services. State practice has been rich in instances of State immunities in respect of their men-of-war, visiting forces, ammunitions and weapons and aircraft. The criterion for the foundation of State immunity is not limited to the claim of title or ownership by the foreign Government, but clearly encompasses cases of property in actual possession or control of a foreign State. The court should not so exercise its jurisdiction as to put a foreign sovereign in the position of choosing of being deprived of property or else submitting to the jurisdiction of the Court.

(13)

Sub paragraph (b) applies to situations in which the State is not named as a party to the proceeding, but is indirectly involved, as for instance in the case of an action in rem concerning State property, such as a warship. …”

Many of the citations in this commentary (which I have omitted) are to English cases in the line of authority discussed earlier involving interests in property. Crucially, there is nothing in this commentary which indicates that the rule of state immunity recognised in customary international law is of any wider scope than is recognised in those cases. With the sole exception of visiting forces which does not assist the defendants, all the examples of state practice cited by the International Law Commission are concerned with rights and interests in property. There is no instance given of any state asserting or recognising a claim to immunity based on any alleged indirect effect of proceedings before a foreign court on any other kind of “rights, interests or activities”.

The only further authority on which the defendants relied in support of their case on international law is the decision of the International Court of Justice in the Case concerning East Timor (Portugal v Australia), ICJ Reports 1995. In that case a dispute between Portugal and Australia turned ultimately on the question whether, in 1989, the power to conclude a treaty on behalf of East Timor in relation to its continental shelf lay with Portugal or with Indonesia. The Court decided that it should not rule on this issue, as (i) the issue concerned the lawfulness of Indonesia’s conduct, (ii) the International Court of Justice has no jurisdiction to decide an issue between states without their consent and (iii) Indonesia had not consented to the Court’s jurisdiction over the dispute. As stated at para 29 of the judgment:

“… the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.”

The defendants submit that this approach reflects their conception of indirect impleading, in that the Court decided not to entertain a claim because a judgment on the claim would involve ruling on the lawfulness of the conduct of another state, even though that state was not a defendant to the proceedings. However, the East Timor case was not concerned with state immunity and I cannot see that it constitutes any authority on the scope of that doctrine. If it has any resonance for the defendants’ arguments it is in suggesting an analogy with the foreign act of state doctrine. However, foreign act of state is a doctrine of the common law and not international law and there is also a material distinction between the jurisdiction of the International Court of Justice which rests entirely on consent and that of a domestic court in which jurisdiction can be established as of right.

In Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ Reports 2012, the International Court of Justice observed at para 56:

“In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention. Opinio Juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States; in the acknowledgment, by States granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by States in other cases of the right to exercise jurisdiction over foreign States.”

This passage indicates a number of sources which are potentially relevant to the question whether the concept of indirect impleading for which the defendants argue is recognised in the practice and legal opinion of states to such a wide extent as to have attained the status of customary international law. As indicated by the International Court of Justice, relevant material would include, in addition to English authority, judgments of other national courts, legislation in other countries which have enacted statutes dealing with state immunity, and statements made by states both in the context of the drafting and adoption of the UN Convention and in other contexts claiming or acknowledging claims to immunity under international law. In response to an invitation from the court after the hearing to identify any further material of the kind described by the International Court of Justice which supports their case on the scope of state immunity under international law, the defendants confirmed that there is no material additional to the material referred to above on which they seek to rely. There is in these circumstances no evidence of any state practice or opinio juris capable of establishing that the very broad rule of state immunity for which the defendants contend has been recognised as a rule of customary international law.

I conclude that the principles of state immunity recognised in public international law provide no justification for interpreting the State Immunity Act 1978 as granting immunity to the defendants in this case.

On behalf of the claimants, Ms Kaufmann QC made a further argument that to bar any of the claims from proceeding on the ground of state immunity would violate the claimants’ rights of access to a court under article 6 of the Convention.

It is established that the right to a fair trial in the determination of a person’s civil rights and obligations guaranteed by article 6 includes an inherent right of access to a court: see Golder v United Kingdom (1979-80) 1 EHRR 524. This right of access is not absolute. It may be subject to restrictions imposed by the state provided that such restrictions do not impair “the very essence of the right”, pursue a legitimate aim and are reasonably proportionate to that aim: see e.g. Ashingdane v United Kingdom (1985) 7 EHRR 528.

In Holland v Lampen-Wolfe [2000] 1 WLR 1573 the House of Lords held that, where a state has immunity as a matter of international law, article 6 has no application. As explained by Lord Millett at p.1588, that is because immunity in such a case is not a “self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself.”

In Al-Adsani v United Kingdom (2002) 34 EHRR 11 the question whether state immunity is compatible with article 6 of the Convention in relation to a claim alleging torture was considered by the Grand Chamber of the European Court of Human Rights. The Court held (para 48) that state immunity operates as a procedural bar which restricts the claimant’s right of access to a court under article 6. This was said to follow from the fact that immunity can be waived. It is not clear, however, that the Court had in mind the position that in international law no state has jurisdiction over another without that other state’s consent. Consent, in other words, is part of what determines the existence or absence of jurisdiction and the fact that there is no jurisdiction over another state without its consent therefore does not signify that immunity operates as a procedural bar.

Be that as it may, the European Court also held in the Al-Adsani case (para 54) that the grant of state immunity in civil proceedings pursues the legitimate aim of “complying with international law to promote comity and good relations between states through the respect of another’s sovereignty”. The Court concluded (para 56):

“It follows that measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to [a] court as embodied in article 6(1).”

The Court adopted identical reasoning in two other cases decided at the same time: Fogarty v United Kingdom (2002) 34 EHRR 12, paras 26, 34 and 36; and McElhinney v Ireland (2002) 37 EHRR 13, paras 25, 35 and 37.

In Matthews v Ministry of Defence [2003] 1 AC 1163, although the question whether granting immunity would violate article 6 did not arise for decision, Lord Millett commented that he did not find the reasoning of the European Court convincing. Referring to the case of Fogarty, he said (para 103):

“It was obviously necessary for the Strasbourg court to satisfy itself that the immunity accorded to the United States was in conformity with international law; contracting states cannot be permitted to circumvent the requirement of article 6(1) by adopting idiosyncratic rules of state immunity. But once the court accepted that the immunity claimed by the United States was in conformity with generally accepted norms of international law, I consider that the better course would have been to hold that the case fell outside article 6(1) altogether.”

Lord Millett further observed that this was the approach adopted by the House of Lords in Holland v Lampen-Wolfe [2000] 1 WLR 1573; and that although an argument for that approach had been presented to the European Court in the Fogarty case, the Court had not addressed it.

In Jones v Saudi Arabia [2007] 1 AC 270, Lord Bingham confessed to difficulty in accepting the decision of the European Court of Human Rights in Al-Adsani v United Kingdom that the grant of state immunity engaged article 6. Lord Bingham said (para 14):

“Based on the old principle par in parem non habet imperium, the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give. This was the opinion expressed by Lord Millett in Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588, and it seems to me persuasive.”

Lord Bingham nevertheless went on to assume that article 6 was engaged and rejected the argument that granting immunity in relation to a case of alleged torture was inconsistent with a peremptory norm of international law and therefore disproportionate. Lord Hoffmann who gave the other substantive judgment adopted a similar approach (see para 64).

When the Jones case was taken to the European Court of Human Rights, the UK government invited the European Court to reconsider its finding in the Al-Adsani case that article 6 was engaged in cases concerning state immunity. They again advanced the argument that article 6 could not require a state to arrogate to itself powers of adjudication which, under international law, it did not possess: see Jones v United Kingdom (2014) 59 EHRR 1, para 162. The Court rejected this argument (para 164), but again gave no reason for doing so.

The difference seen in these cases between the approach of the House of Lords and the approach of the European Court may not have any practical consequence. On the reasoning of the House of Lords, there can be no right of access to a court where the court does not have jurisdiction as a matter of international law to afford access. On the approach of the European Court, there is a prima facie right of access to a court in such a case which is barred by reason of state immunity, but the bar is justified where it reflects generally recognised rules of public international law on state immunity. The reasoning of the House of Lords in Holland v Lampen-Wolfe [2000] 1 WLR 1573, from which the Supreme Court has not resiled, is binding on me and in any event seems to me to be compelling. However, I have concluded above that the present cases do not fall within the scope of state immunity required by international law. In these circumstances, on the reasoning of the House of Lords as well as on the approach of the European Court, any grant of immunity would be a self-imposed restriction on access to its courts which the UK has chosen to adopt and which requires justification under article 6.

For the same reason, on the approach of the European Court of Human Rights in the Al-Adsani case and other cases, any such grant of immunity could not be justified. As mentioned, the European Court has identified the legitimate aim pursued by the grant of state immunity as that of “complying with international law to promote comity and good relations between states through the respect of another’s sovereignty”: see Al-Adsani v United Kingdom (2002) 34 EHRR 11, para 54; Fogarty v United Kingdom (2002) 34 EHRR 12, para 36; and McElhinney v Ireland (2002) 37 EHRR 13, para 35. It is evident that a restriction which is not required in order to comply with international law cannot be proportionate to this aim; and in a number of cases the European Court has found national rules of state immunity to be disproportionate and in breach of article 6 where the rule was more restrictive than customary international law required: see e.g. Cudak v Lithuania (2010) 51 EHRR 15, paras 67-74 and Sabeh El Leil v France (2012) 54 EHRR 14, paras 58-67 (cited in Jones v United Kingdom (2014) 59 EHRR 1, para 192).

There is a further consideration. Where state immunity applies, the aim is not, in principle at least, to prevent a claim from being made at all, but is to allocate the claim to the jurisdiction of another state. The claims against UK officials based on their alleged complicity in wrongdoing, however, could not be brought in the US (or in any other foreign state), as the claims would there be barred by the state immunity of the UK. If immunity were afforded to these claims in the UK, therefore, the result would be that there is no state in the world with jurisdiction over the claims. It does not seem to me that a restriction which had that result could be regarded as proportionate.

Section 3 of the Human Rights Act 1998 requires the court, so far as it is possible to do so, to interpret the State Immunity Act in a way which is compatible with the Convention. Furthermore, to the extent that the common law concerning state immunity remains relevant, it cannot be applied in a way which is incompatible with the Convention (see section 6 of the Human Rights Act). For the reasons given, to interpret the State Immunity Act or to apply the common law in a way that barred any of the present claims would in my view be incompatible with article 6 of the Convention. Article 6 therefore provides additional reinforcement for what I in any event consider to be the correct interpretation of the common law and of the Act.

For these reasons, I would reject the defendants’ contention that the claims pleaded against them in tort which require proof of unlawful acts by US personnel are barred by the doctrine of state immunity.

As mentioned earlier, since this judgment was prepared in draft, the Court of Appeal has handed down judgment in Belhaj v Straw. The defendants in that case advanced a similar argument that state immunity may be invoked where the claim necessarily requires finding that officials of foreign states committed unlawful acts for which those states could claim immunity if the states or their officials had themselves been sued. That argument, like the defendants’ argument in this case, was based on the contention that such a claim “indirectly impleads” the states concerned. That argument has been rejected by the Court of Appeal for similar reasons to those which I have given, albeit more succinctly and cogently expressed. The defendants have accepted that there is no relevant point of distinction on the issue of state immunity between the Belhaj case and the present cases. It follows that my conclusion on the issue of state immunity is one that I am now in any event bound by authority to reach.

As well as and in the alternative to their argument based on state immunity, the defendants contend that the claims which seek to establish their liability in tort in respect of acts or omissions of US personnel while the claimants were in US custody are barred by the doctrine of foreign act of state. They submit that this doctrine precludes an English court from making findings that agents of a friendly foreign state committed acts which were unlawful and that, since the relevant claims that the defendants were complicit in torture and other tortious acts cannot succeed without such findings, the foreign act of state doctrine prevents the court from considering these claims against the defendants.

It is not easy to make sense of the foreign act of state doctrine. In his book ‘Foreign Affairs in English Courts’ (1986, OUP) at p.164, FA Mann described the doctrine as “one of the most difficult and most perplexing topics which, in the field of foreign affairs, may face the municipal judge in England”. He continued:

“The doctrine of the foreign act of state displays in every respect such uncertainty and confusion and rests on so slippery a basis that its application becomes a matter of speculation.”

It would be hard to say that the basis and application of the doctrine have become much more certain since those words were written.

The development of the foreign act of state doctrine in England and Wales has been heavily influenced by cases decided in the United States. In seeking to identify the principles on which the doctrine rests, it is natural to look to dicta in two decisions of the US Supreme Court which English courts have repeatedly cited when the doctrine of foreign act of state is invoked, and which the defendants put at the start of their submissions in the present cases. In Underhill v Hernandez (1897) 168 US 250 at 252, Fuller CJ began the judgment of the Court by stating:

“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.”

The second dictum is from Oetjen v Central Leather Co (1918) 246 US 297 at 303, where Clarke J said:

“The principle that the conduct of one independent government cannot be successfully questioned in the courts of another ... rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’”

In R v Bow Street Magistrate, ex p Pinochet (No 1) [2000] 1 AC 61 at 106, Lord Nicholls described Fuller CJ’s statement in Underhill v Hernandez as “sweepingly wide”. The statement is also ambiguous. In particular, it is unclear what amounts to “sitting in judgment” on the act of a foreign state. In trying to identify the scope of the foreign act of state doctrine, I think it useful to distinguish between three different senses in which that phrase can be understood.

One sense in which a court may be said to “sit in judgment” on the act of a foreign state is by asserting jurisdiction over the foreign state in relation to the act in question. The circumstances in which a court may assert such jurisdiction are the subject of the state immunity doctrine. In R v Bow Street Magistrate, ex p Pinochet (No 3) [2000] 1 AC 147, 269, Lord Millett noted that the doctrine of state immunity “is closely similar to and may be indistinguishable from aspects of the Anglo-American act of state doctrine”. He identified the difference between them as being that:

“state immunity is a creature of international law and operates as a plea in bar to the jurisdiction of the national court, whereas the act of state doctrine is a rule of domestic law which holds the national court incompetent to adjudicate upon the lawfulness of the sovereign acts of a foreign state.”

The decision of the US Supreme Court in Underhill v Hernandez (1897) 168 US 250, in which Fuller CJ made his canonical statement, appears on its facts to be a straightforward application of the doctrine of state immunity. The plaintiff, a US citizen, sued General Hernandez, the civil and military chief of the City of Bolivar in Venezuela, for damages for false imprisonment and for certain alleged assaults by the soldiers of Hernandez’ army. The US Supreme Court approved the conclusion of the Circuit Court of Appeals that “the acts of the defendant were the acts of the government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government”: 168 US 250 at 254. Since Hernandez was a state official who was acting in his capacity as such, under the principles of state immunity discussed earlier his acts were attributable to the state of Venezuela which was immune from suit in the US courts.

In so far as the foreign act of state doctrine is coextensive with state immunity, it adds nothing to the latter doctrine – which I have held does not bar any of the claims made in the present cases. The defendants therefore need to identify a basis on which the foreign act of state doctrine prevents a court from “sitting in judgment” on the act of a foreign state when the doctrine of state immunity does not.

A second sense in which a court may be said to “sit in judgment” on the act of a foreign state is by challenging or declining to recognise the legality of the act in question. Understood in this sense, the doctrine may be seen as requiring courts to treat the laws of a foreign state as valid and effective in so far as those laws have effect within the state’s territory. This principle has sometimes been applied in cases where the government of a state has confiscated or seized property.

The first cases in which the decisions of the US Supreme Court in Underhill v Hernandez (1897) 168 US 250 and Oetjen v Central Leather Co (1918) 246 US 297 were cited in England were both cases of this kind. In Luther v Sagor [1921] 3 KB 532, and again in Princess Paley Olga v Weisz [1929] 1 KB 718, the Court of Appeal recognised as valid decrees of the post-revolutionary Russian government confiscating property situated in Russia.

Jurisdiction in international law is founded on territorial sovereignty. Hence, states do not generally have international jurisdiction to enforce their laws abroad and must, by the same token, recognise the jurisdiction of other states to make and apply laws within their own territory. These principles underpin the branch of the law dealing with the conflict of laws. Building on these principles, that branch of the law has developed a set of rules for determining when recognition and effect should be given to foreign law. As is pointed out in Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Ed, 2012) at p.123, para 5-047, the result reached in Luther v Sagor [1921] 3 KB 532 and Princess Paley Olga v Weisz [1929] 1 KB 718 can be explained by applying those more specific rules. It is a rule of the conflict of laws that the validity and legal effect of a transfer of tangible moveable property is governed by the law of the country where the property is situated at the time of the transfer (lex situs): see Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Ed, 2012), rule 133. Similarly, rights to immovable property are governed by the lex situs: ibid, rule 132. It follows that laws of a foreign country affecting ownership of property situated within its territory will generally be recognised as valid and effective in England.

In the same way the seizure of property by a foreign government within its territory will generally not give rise to an action in tort in England, either on the basis that the English court will not “sit in judgment” on acts of a foreign state within its territory or because ordinary conflict of laws rules require the court to apply the law of the place where the tort was committed, under which the act was lawful: see Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Ed, 2012), para 5-047; Carr v Fracis Times & Co [1902] AC 176; Moti v The Queen [2011] HCA 50, para 52.

There are important limits to the willingness of English courts to recognise the validity of foreign law which themselves reflect international law and are embodied in English conflict of laws rules. In the first place, the same principle of territorial sovereignty which requires English courts to recognise the law of a foreign state as valid and effective, for example to transfer title to property situated within its territory, denies recognition to such laws of a foreign state which purport to have extra-territorial effect: see e.g. Bank voor Handel en Scheepvaart NV v Slatford [1951] 1 QB 248, 257-8. This also explains the refusal of English courts to enforce in this country penal, revenue and other public laws of a foreign state: see Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Ed, 2012), paras 5-020 – 5-021.

It is also well established that the English courts will not enforce or recognise a foreign law when to do so would be inconsistent with public policy: see Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Ed, 2012), rule 2. Hence a foreign law will be disregarded if it represents a serious infringement of human rights. In Oppenheimer v Cattermole [1976] AC 249 a majority of the House of Lords expressed the view that, although the question whether a person has foreign nationality is generally determined of the law of the foreign state concerned, English courts would not recognise decrees of the Nazi Government which deprived Jewish émigrés of their German nationality and confiscated their property. In the words of Lord Cross (at pp.277-8):

“A judge should, of course, be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. … but what we are concerned with here is legislation that takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all.”

More recently, in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883 the House of Lords held that the English courts should refuse to recognise an Iraqi law which transferred ownership from the claimant to the defendant of aircraft seized when Iraq invaded Kuwait. It was held that recognition of this law would be contrary to the public policy of English law in circumstances where the Iraqi invasion of Kuwait and seizure of its assets constituted a fundamental breach of international law.

Similar principles govern the recognition and enforcement of foreign judgments. Thus, at common law a judgment of a foreign court will generally be recognised and enforceable in England provided that the foreign court had territorial jurisdiction over the person against whom or the property in respect of which the judgment was given: see Dicey, Morris & Collins, ‘The Conflict of Laws’ (15^th Ed, 2012), rule 42. Such a judgment is conclusive of any matter adjudicated upon and cannot be impeached for any error either of fact or law: ibid, rule 48. As in the case of foreign legislation, there is an exception if enforcement or recognition of the judgment would be contrary to the public policy of English law: ibid, rule 51.

Ordinary conflict of laws rules may not entirely exhaust the scope of the foreign act of state rule understood in this sense. A situation may arise in which the executive arm of a foreign state does an act within that state’s territory which is or is arguably illegal under the state’s own laws. In this situation should the English court recognise as valid the act of the foreign executive or the acts of the legislature and judiciary which establish the laws of the foreign state?

The decisions of the US Supreme Court in Oetjen v Central Leather Co, supra, and in the case of Ricaud v American Metal Co (1918) 246 US 304 which was decided at the same time, indicate that US courts are bound to assume that acts done by an executive officer of the government of a foreign state within its territory were lawful. In each of those cases goods belonging to the plaintiff had been seized in Mexico by the armed forces of what was later recognised by the United States as the legitimate government of Mexico. In each case the goods were later sold to the defendant and the plaintiff claimed ownership of the goods in the US courts. In each case the US Supreme Court held that the seizure of the plaintiff’s property had effected a valid transfer of title, so the claim failed. The property in these cases was not seized pursuant to any legislative decree. However, the Supreme Court did not enter into the question whether the seizure of the property had been lawful under the law of Mexico and presumed it to be so. In the Ricaud case (at p.309) Clarke J explained the principle as follows:

“[T]hat the courts of one independent government will not sit in judgment on the validity of the acts of another done within its own territory … does not deprive the courts of jurisdiction once acquired over a case. It requires only that, when it is made to appear that the foreign government has acted in a given way on the subject-matter of the litigation, the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision. To accept a ruling authority and to decide accordingly is not a surrender or abandonment of jurisdiction but is an exercise of it.”

Understood in this way, the foreign act of state doctrine operates as a form of presumption that acts of the executive government of a foreign state done within the territory of that state are lawful under the laws of that state. Such a presumption avoids the need for what may be seen as an impertinent inquiry into the internal affairs and distribution of governmental powers within the foreign state concerned. It operates in a similar way to the recognition of foreign judgments. As already mentioned, where the conditions for recognition of a foreign judgment are met, a court will not re-examine the merits of the issues decided by the judgment. In a similar way, the court may be precluded from investigating whether executive acts of a foreign state were valid under that state’s own law.

It is unclear whether English courts are required to adopt such a “rule for their decision”. No English case cited to me has addressed this question. The decision of the House of Lords in Carr v Fracis Times & Co [1902] AC 176 may, however, provide some authority for such a rule. In that case goods on board a British ship were seized within the territorial waters of Muscat by an officer of the British navy acting under the authority of a proclamation issued by the Sultan, the sovereign ruler of Muscat. The House of Lords held that the seizure was lawful under the law of Muscat on the basis that the Sultan had said so. Lord Halsbury LC said (p.180):

“any other decision would be open to very serious questions of policy if, in every case where the lord of a country has declared what the law of his own country is, it were open to an English tribunal to enter into the question and to determine, as against him, what was the law of his country.”

If there is in English law a presumption that acts of the executive government of a foreign state are lawful under the laws of that state, then in principle the rule must be subject to the same public policy exception as applies in the context of the recognition and enforcement of foreign legislation and foreign judgments.

The claims made in the present cases do not fall within the scope of these rules. The English court is not being asked to enforce or recognise any law or judicial decision of the United States. Nor is the court being asked to determine whether acts of US officials done within US territory were lawful under the laws of the United States. Rather, the contention is that the English courts should not judge whether acts done by agents of the US on the territory of third party states were lawful under the laws of those states. There is nothing in the foreign act of state doctrine as so far discussed which would provide any support for such a contention.

The defendants rely on a different principle which involves a third sense of “sitting in judgment” on the acts of a foreign state. In this sense “sitting in judgment” means adjudicating upon the lawfulness, validity, effectiveness or wrongfulness of a foreign state’s acts. Understood in this way, the foreign act of state doctrine is not a rule which requires a court to decide a case before it by treating an act of a foreign state as legally valid: it is a rule which, when it applies, prevents the court from judging the case at all.

Such a principle of judicial abstention was first enunciated in England and Wales by the House of Lords in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888. The Buttes Gas case has been described by the Court of Appeal in Yukos Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, para 45, as the case “from which the modern law of foreign act of state may be said to take its impetus”.

The proceedings in the Buttes Gas case arose out of a dispute between two American oil companies about the right to exploit an oil field in the Gulf. Each company claimed under a concession granted by the ruler of a Gulf state. Each of the two states claimed that the oil field was within its territorial waters. Both the UK and Iran had become involved in the dispute. There was extensive litigation between the two companies both in England and in the United States. In the English proceedings one of the oil companies (Occidental) alleged that there had been a fraudulent conspiracy between the other company (Buttes) and the Ruler of Sharjah (one of the Gulf states concerned) to deprive Occidental of its rights to exploit the oil field. Buttes applied to strike out the conspiracy claim.

The judgment of the House of Lords was given by Lord Wilberforce, with whose speech the rest of the House agreed. After distinguishing the quite separate doctrine of Crown act of state, Lord Wilberforce identified a second version of ‘act of state’ consisting of “those cases which are concerned with the applicability of foreign municipal legislation within its own territory, and with the examinability of such legislation – often, but not invariably, arising in cases of confiscation of property” (p.931). Lord Wilberforce mentioned as examples of such cases Carr v Fracis Times & Co [1902] AC 176, Luther v Sagor [1921] 3 KB 532 and Princess Paley Olga v Weisz [1929] 1 KB 718. Lord Wilberforce referred to the two limits to the applicability of this doctrine which I have referred to earlier: (1) that foreign legislation is only recognised territorially – within the limits of the authority of the state concerned; and (2) that foreign legislation can be called in question where it is seen to be contrary to international law or to public policy.

Although he did not regard these limitations on the foreign act of state doctrine as relevant on the facts of the Buttes Gas case, Lord Wilberforce did not consider the doctrine to be applicable. That was evidently because the claims of Occidental did not depend upon challenging the validity of any foreign legislation. Nor did the claims involve any contention that any executive act of a foreign state was unlawful under the state’s own laws. In those circumstances Lord Wilberforce found it necessary to invoke “a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states” – a principle that he preferred to characterise, “not as a variety of ‘act of state’ but one for judicial restraint or abstention” (p.931).

On the basis of this principle, Lord Wilberforce concluded that the dispute between Occidental and Buttes could not be tried because it would require the courts to decide non-justiciable issues. That was because (p.938):

“the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law.”

In the opinion of Lord Wilberforce:

“Leaving aside all possibility of embarrassment in our foreign relations … there are … no judicial or manageable standards by which to judge these issues, or to adopt another phrase … the court will be in a judicial no-mans land …”

It is on the basis of the principle that “the courts will not adjudicate upon the transactions of foreign sovereign states” that the defendants found their argument in the present cases.

In Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, 486, the Court of Appeal, after reviewing cases since the Buttes Gas case, expressed the view, at para 66, that “Lord Wilberforce’s principle of ‘non-justiciability’ has, on the whole, not come through as a doctrine separate from the act of state principle itself, but rather has to a large extent subsumed it as the paradigm restatement of that principle.” Even if this is true, there is conceptually an important distinction between what I will call the “traditional” act of state doctrine and the principle which Lord Wilberforce preferred to describe as one of judicial restraint or abstention. As discussed above, the traditional act of state doctrine functions as a “rule of decision”, to adopt an expression found in the US case law. Such a rule requires the court to decide the case before it on the footing that the relevant acts of a foreign state were valid under its own law. A rule of abstention, on the other hand, prevents the court from deciding or adjudicating upon a case on the ground that its subject matter is not suitable for judicial determination.

It is notable that, since the Buttes Gas case was decided, the US Supreme Court has addressed the question whether the foreign act of state doctrine in the United States operates as a rule of decision or as a rule of abstention and has come down firmly in favour of characterising the doctrine as a rule of decision.

In so doing the Supreme Court effectively overruled a line of cases in which US Circuit Courts of Appeals had, starting in the late 1970s, been interpreting the act of state doctrine as a broad rule of abstention, closely related if not identical to the US ‘political question’ doctrine: see FA Mann, ‘Foreign Affairs in English Courts’ (OUP, 1986) pp. 172-174. In a number of such cases the plaintiff alleged that the defendant had conspired with or bribed officials of a foreign government so as to gain a benefit for itself and unlawfully deprive the plaintiff of the benefit. Such claims were held to be barred by the act of state doctrine on the basis that they involved an attack on the “motivation” of the foreign government: see e.g. Hunt v Mobil Oil Corp (1977) 550 F 2d 68 (2^nd Cir); Compania de Gas de Nuevo Laredo SA v Entex Inc (1982) 686 F 2d 322 (5^th Cir); Clayco Petroleum v Occidental Petroleum Corp (1983) 712 F 2d 404 (9^th Cir). Decisions in this line of authority in the litigation between Buttes and Occidental in the United States appear to have strongly influenced Lord Wilberforce in the Buttes Gas case: see [1982] AC 888 at 936-7.

In WS Kirkpatrick & Co Inc v Environmental Tectonics Corp International (1990) 493 US 400 the plaintiff company, which had unsuccessfully bid for a construction contract from the Nigerian government, claimed that the defendant had obtained the contract by bribing Nigerian officials. The plaintiff sought damages under US anti-racketeering legislation. The district court held that the action must be dismissed because upholding the claim would require a judicial determination that officials of a foreign state had acted unlawfully (by obtaining bribes). The US Supreme Court unanimously rejected that view. Scalia J, who delivered the opinion of the Court, noted that, in order to prevail, the plaintiff would need to prove facts – specifically, that the defendant made, and Nigerian officials received, certain payments – which would also establish a violation of Nigerian law. He said (p.406):

“Assuming that to be true, it still does not suffice. The act of state doctrine is not some vague doctrine of abstention but a ‘principle of decision binding on federal and state courts alike’. Sabbatino, supra, 376 US at 427. As we said in Ricaud, ‘the act within its own boundaries of one sovereign state … becomes … a rule of decision for the courts of this country’. 246 US at 310. Act of state issues only arise when a court must decide – that is, when the outcome of the case turns upon – the effect of official action by a foreign sovereign. When that question is not in the case, neither is the act of state doctrine. That is the situation here. Regardless of what the court’s factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit and there is thus no occasion to apply the rule of decision that the act of state doctrine requires.”

Scalia J concluded the judgment of the Court by saying (p.409):

“The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid. That doctrine has no application to the present case because the validity of no foreign sovereign act is at issue.”

It is thus now firmly established in the United States that the act of state doctrine is not a doctrine of judicial abstention, but a rule of decision which, where applicable, requires the court to decide cases by deeming acts of a foreign state to be valid. It was (or was assumed by the Supreme Court to be) necessary for the plaintiff in order to succeed in the Kirkpatrick case to prove that Nigerian officials had committed acts in Nigeria which were, as a matter of fact, unlawful under Nigerian law. However, deeming those acts to be valid under Nigerian law did not prevent the plaintiff from recovering damages under the US legislation, since establishing for that purpose that the defendant had engaged in a corrupt practice did not require proof that the Nigerian officials had acted illegally under their country’s own law. Similarly, none of the claims made in the present cases depends upon proving that US personnel committed acts in the United States which were unlawful under US state or federal law.

Since the House of Lords in the Buttes Gas case recognised a principle of judicial abstention which is capable of applying in circumstances where the traditional foreign act of state doctrine does not, the scope of this principle in English law has been a matter of uncertainty.

On the one hand, it is impossible to maintain that there is an absolute prohibition against a court examining whether a foreign state or its officials have acted unlawfully since, as Ms Kaufmann QC pointed out, there clearly are circumstances in which findings to that effect are made. For example, a court may have to decide whether evidence was obtained by torture carried out by officials of a foreign state in order to determine whether the evidence is admissible: see A v Home Secretary (No 2) [2006] 2 AC 221. In asylum cases, courts regularly make findings as to the likelihood that a person will be tortured or otherwise persecuted by a foreign state if returned to that state; and this may involve making findings about whether the individual concerned or members of a group to which the individual belongs have in fact been mistreated. In R v Home Secretary, Ex p Adan [2001] 2 AC 477, the House of Lords reached conclusions about the obligations of the UK government under the Refugee Convention which meant that France and Germany were acting unlawfully under international law in how they dealt with asylum seekers.

On the other hand, there are cases where courts have declined to decide issues which would involve examining the legality of acts of a foreign state. For example, in R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin) the applicants sought a declaration that UNSCR 1441 (which was later relied on as authority for the invasion of Iraq) did not authorise states to take military action in the event that Iraq failed to comply with its terms. The Court of Appeal dismissed the application on a variety of grounds. One of these grounds, as stated by Simon Brown LJ at para 47(ii), was that:

“The Court will in any event decline to embark upon the determination of an issue if to do so would be damaging to the public interest in the field of international relations, national security or defence.”

In R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin) the claimant sought an order requiring the UK government to take certain steps which included publicly denouncing actions of Israel in Gaza and in constructing a wall on the Occupied Palestinian Territory on the ground that those actions were in breach of peremptory norms of international law. Not surprisingly, a Divisional Court refused permission to proceed with the claim on the ground (amongst others) that it was not arguably justiciable. That was so in circumstances where granting the relief sought would have involved both condemning the acts of a foreign state and dictating to the executive branch of government the foreign policy that it should follow.

In Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 & 5) [2002] 2 AC 883, mentioned earlier, the House of Lords held that it was inconsistent with English public policy to recognise as valid an Iraqi law transferring title to aircraft seized after Iraq had invaded Kuwait. The public policy argument was based, not on the ground that the transactions concerned constituted a grave infringement of human rights as in Oppenheimer v Cattermole [1976] AC 249, but on the ground that they constituted a flagrant violation of international law. The defendant sought to rely on the Buttes Gas case to argue that the question whether the transactions were unlawful under international law was not justiciable in the English courts. The House of Lords rejected that argument. Lord Nicholls said that the non-justiciability principle discussed by Lord Wilberforce in the Buttes Gas case did not prevent an English court from ever considering whether a breach of international law had occurred and that in appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether the recognition of a foreign law would be inconsistent with public policy: see [2002] 2 AC 883, 1080-1, paras 24-26. Similarly, Lord Steyn saw “no difficulty in adjudicating on Iraq’s gross breaches of international law” (para 113), and Lord Hope considered that in determining the limits of the public policy exception judicial restraint should be exercised but not abstention (para 140).

It may be noted that the House of Lords in the Kuwait Airways case did not treat Lord Wilberforce’s principle of abstention as subsuming the act of state doctrine. As in the Buttes Gas case itself, the two principles were treated as distinct. Nor was the principle of abstention regarded as itself subject to a limitation equivalent to the public policy exception to the traditional foreign act of state doctrine. The structure of the argument was that the defendant sought to rely on the Buttes Gas principle to prevent the court from taking cognisance of international law or deciding that there had been a breach of international law when applying that public policy exception. The House of Lords rejected that broad interpretation of the Buttes Gas case, confirming that the English court can consider international law where doing so is necessary to decide a question of English domestic law – in that case the scope of English public policy – and holding that the public policy exception to the traditional foreign act of state doctrine encompassed a gross breach of international law.

In Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, the Court of Appeal undertook a very extensive survey of the law of foreign act of state. However, the issue actually decided in the Yukos case was that the foreign act of state doctrine did not prevent the court, in order to determine whether the enforcement of a foreign judgment would be inconsistent with English public policy, from adjudicating upon the conduct of the judiciary of a foreign state and potentially making findings that its judicial system was corrupt. I will come back to the significance of that decision. However, a notable feature of the Court of Appeal’s wider discussion of the doctrine is the emphasis placed on the extent of its limitations. The Court said at para 115:

“The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.”

When a rule is said to be defined by its absence, there is reason to wonder whether there is in fact such a rule.

Much needed illumination of the scope of the decision in the Buttes Gas case and the question of what issues are non-justiciable has recently been given by the Supreme Court in Shergill v Khaira [2014] 3 WLR 1. The question in that case was whether the court could or should refuse to determine religious issues in order to decide whether certain trusts were valid. The case therefore did not engage the foreign act of state doctrine. However, the judgment of Lord Neuberger PSC, Lord Sumption and Lord Hodge (with whom the other members of the Court, Lord Mance and Lord Clarke, agreed) contains a powerful and authoritative analysis of non-justiciability generally, including a discussion of the reasoning in the Buttes Gas case.

As explained in that judgment (para 40), the issue which arose in the Buttes Gas case of where the boundary lay between sovereign states was non-justiciable, not because it raised questions of international law, but because it was political:

“It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political.”

The lack of judicial or manageable standards resulted from “the way in which the four states concerned had settled the issue of international law by a mixture of diplomacy, political pressure and force in a manner adverse to the interests of Occidental Petroleum”. Notably, the Supreme Court regarded the conclusion in the Buttes Gas case that the claim was non-justiciable because it involved a political issue as one which could only arise in the context of political acts of sovereign states. That was because (para 40):

“… The acts of private parties, however political, are subject to law. The actors are answerable to municipal courts of law having jurisdiction over them and applying objective, external legal standards.”

The Supreme Court went on to define the term “non-justiciability” properly speaking, as referring to cases where an issue is “inherently unsuitable for judicial determination by reason only of its subject matter” (para 41). Such cases were said generally to fall into one of two categories.

The first category identified by the Supreme Court “comprises cases where the issue in question is beyond the constitutional competence assigned to the courts under our conception of the separation of powers” (para 42). The non-justiciability of certain transactions of foreign states was referred to as a paradigm case in this category, “based in part on the constitutional limits of the Court’s competence as against that of the executive in matters directly affecting the United Kingdom’s relations with foreign states.” The Court cited Buttes Gas, so far as it was based on the separation of powers, as the leading case in this category.

The second category of non-justiciable cases identified by the Supreme Court “comprises claims or defences which are based neither on private legal rights or obligations, nor on reviewable matters of public law” (para 43). The examples given include “issues of international law which engage no private right of the claimant or reviewable question of public law”. In an important passage the Court explained:

“Some issues might well be non-justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable. The best-known examples are in the domain of public law. Thus, when the court declines to adjudicate on the international acts of foreign sovereign states or to review the exercise of the crown's prerogative in the conduct of foreign affairs, it normally refuses on the ground that no legal right of the citizen is engaged whether in public or private law: R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin); R (El-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin). As Cranston J put it in the latter case, at para 60, there is no ‘domestic foothold’. But the court does adjudicate on these matters if a justiciable legitimate expectation or a Convention right depends on it: R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76. The same would apply if a private law liability was asserted which depended on such a matter.”

Applying this analysis to the claims made in the present cases, the defendants have not sought to argue, subject to one point, that the claims in tort of Mr Rahmatullah and the three Iraqi civilian claimants which involve allegations of wrongdoing by US personnel raise issues which are not justiciable.

The issues raised by these claims are not “political” in either of the two senses identified by the Supreme Court in Shergill v Khaira. They do not require the court to attempt to adjudicate on the legality of decisions and acts of sovereign states on the international political stage which are governed, not by law, but by power politics. The issues raised are simply whether private law rights of individuals have been violated. Such issues fall squarely within the constitutional competence of courts and involve the application of purely legal standards. It can make no difference in this regard that the legal standards to be applied are those of another country’s system of law which are applicable pursuant to English conflict of laws rules.

The fact that the claims in the present cases are based on private legal rights also means that the claims do not fall within the second category of non-justiciable cases identified by the Supreme Court in Shergill v Khaira. These are not cases in which no legal right of the claimant is engaged. Quite the opposite. Hence, if it is necessary to adjudicate on whether acts of US personnel were lawful under the applicable law of tort in order to decide whether the defendants violated the claimant’s legal rights, then the court can and must do so.

On behalf of the defendants, Mr Eadie QC did not dispute that the claims are justiciable judged by these criteria, subject to one point. He submitted that there is a lack of judicial and manageable standards by which to try the claims involving the conduct of US personnel because there is no realistic prospect that the US government will provide any evidence or documents or otherwise engage with the allegations. Any attempt to compel the US to participate in the litigation would be barred by state immunity. In these circumstances, Mr Eadie argued, the question whether US officials mistreated the claimants or committed other wrongful acts cannot properly or fairly be tried. Since the claims against the defendants require the court to decide that question, it follows that those claims also cannot fairly be tried.

I recognise that the defendants face practical difficulties in disputing the claimants’ accounts of what happened to them while they were in the custody of the US. The defendants may therefore be right that in practice the court would at a trial of these factual issues only have evidence from one side. I cannot accept, however, that this renders the issues inherently unsuitable for judicial determination. It often happens in litigation that one side is unable to adduce evidence to contradict evidence given by the other party because, for example, the only witness who could have done so has died or is abroad and cannot be compelled to testify. In such circumstances the court must decide the case based on the evidence that is available. The existence of evidential difficulties does not mean that there is a lack of relevant judicial standards.

The present cases are very different from Hamilton v Fayed [2001] 1 AC 395, cited by the Supreme Court as an example of a case where it was necessary to strike out an otherwise justiciable claim on the ground that it could not fairly be tried. In Hamilton v Fayed, if Parliamentary privilege had not been waived, it would have precluded the court as a matter of law from allowing any form of challenge to the veracity of evidence given to a Parliamentary committee. That would have made it impossible for the defendant to justify defamatory remarks accusing an MP of misconduct which were the subject of the claim against him. Legal impossibility of that nature is far removed from the kind of practical difficulties in obtaining evidence which the defendants say they will encounter in the present cases.

The main argument advanced by the defendants in response to the statement of principles articulated by the Supreme Court in Shergill v Khaira is that that statement does not exhaust the categories of case in which, in a foreign relations context, the courts should decline to adjudicate on acts of a foreign state. The defendants point out, correctly, that the foreign act of state doctrine was not in issue in Shergill v Khaira and the Supreme Court does not appear to have received submissions on that doctrine nor had cited to them any of the relevant authorities apart from the Buttes Gas case. The defendants then submit, again in my view correctly, that the observations of the Supreme Court cannot be taken to have overruled any case concerned with foreign act of state or to constitute a binding precedent on that issue. The defendants argue that in these circumstances Shergill v Khaira has not altered the law on foreign act of state, which is founded on principles of the sovereign equality of states and of international comity which do not form part of the Supreme Court’s analysis.

I agree with the defendants that nothing said by the Supreme Court in Shergill v Khaira affects what I have called the traditional doctrine of foreign act of state (nor for that matter the separate doctrine of Crown act of state understood as a defence to a claim in tort). However, as I have already discussed, the traditional foreign act of state doctrine concerned with the validity of foreign legislation and other governmental acts has no application to the present cases. Rather, the defendants are relying on the principle of non-justiciability enunciated in the Buttes Gas case. That case, and the scope of the principle which it establishes, were the express subject of the Supreme Court’s discussion in Shergill v Khaira, as were other cases in which the principle has been invoked in the context of foreign relations such as the CND and Al-Haq cases.

I accept the claimants’ submission that the Supreme Court’s analysis provides a coherent framework in which to comprehend the foreign act of state doctrine in so far as it is not simply a doctrine about the validity of foreign law but involves the wider principle of “judicial restraint of abstention” invoked in Buttes Gas. In particular, the analysis in Shergill v Khaira explains the limits of justiciability in terms of a modern understanding of the related constitutional concepts of the separation of powers, judicial competence and the rule of law. The Supreme Court clearly had in mind the foreign relations context since most of the cases and examples mentioned were taken from it. The judgment is, to put it at its lowest, highly persuasive authority.

Nevertheless, accepting as I do that the observations of the Supreme Court have the status of dicta, however strongly persuasive, and have not overruled any decision in which the Buttes Gas principle of judicial abstention has been applied, it seems to me still necessary to consider two questions. First, is there any case in which the principle in the Buttes Gas case has been applied which cannot be explained by the Supreme Court’s analysis? Second, do the principles, in particular those of the sovereign equality of states and international comity, which the defendants say underlie the doctrine of judicial abstention in the foreign relations context support or require a wider interpretation of the doctrine?

In terms of authority, the defendants identified one case, not mentioned in Shergill v Khaira, which they say demonstrates that the Buttes Gas principle is of wider scope. That case is R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872. This was an application for permission to proceed with a claim for judicial review brought by the son of a man killed in a drone strike in Pakistan. The drone was believed to have been operated by the US Central Intelligence Agency using ‘locational intelligence’ supplied by GCHQ in the UK. The claimant sought a declaration that a GCHQ officer or other Crown servant who passes ‘locational intelligence’ to an agent of the US may commit an offence of “encouraging or assisting in a crime” under sections 44-46 of the Serious Crime Act 2007. A Divisional Court refused permission to proceed observing that, even though as a matter of strict legal analysis it would not be necessary for an English court to find that US officials who executed drone strikes were guilty of murder or any other crime in order to find that UK officials would be guilty of encouraging or assisting such an offence under the 2007 Act, that would be the inevitable impression given by granting the declaration which the claimant sought. To do so would be seen as “an exorbitant arrogation of adjudicative power” in relation to the legality or acceptability of acts of another sovereign state. The Divisional Court also observed that the claimant had not “found any foothold other than on the most precarious ground in domestic law”. That conclusion and reasoning were affirmed on appeal. The Court of Appeal likewise considered that the findings which the claimant was asking the court to make “would be seen as a serious condemnation of the US by a court of this country”: see R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872, 885-5, paras 34-37.

Mr Eadie QC submitted that this reasoning applies to the present claims with even greater force. Whereas, as a matter of law, sections 44-46 of the 2007 Act only require the court to answer certain hypothetical questions and would not have required the court, in order to find UK officials guilty of an offence under those provisions, to find that any US official had actually committed a crime, the assumption on which the preliminary issues in the present cases are being determined is that it would be necessary in order for the relevant claims to succeed for the court to find that US officials had acted unlawfully. Mr Eadie argued that the Noor Khan case shows that the fact that claims require such findings to be made is sufficient in the context of international relations to preclude the courts from adjudicating on them.

As a matter of strict precedent, the decision of the Court of Appeal in the Noor Khan case is not a binding authority as it was reached on an application for permission. On this footing Ms Kaufmann QC made the bold submission that the case was wrongly decided. Whatever the technicalities of the matter, I would be very slow indeed to decline to follow the considered decision of the Court of Appeal even if I had doubts about its correctness. As it is, I have no such doubts. However, I do not think that the Noor Khan case bears out the defendants’ argument. In my view, it is a perfect example of the second category of non-justiciable cases identified by the Supreme Court in Shergill v Khaira.

The claimant in the Noor Khan case was not claiming that he had any legal right which the defendant had violated. The relief sought was, in effect, an advisory opinion on the criminal law. The claimant was asking the court to declare that certain conduct by UK officials, if it occurred in future, might in principle give rise to a criminal offence under English law. The case thus falls squarely within the category of cases, like the CND and El-Haq cases, where the claimant’s foothold for inviting the court to opine (or be seen to be opining) on international acts of a foreign sovereign state was no more secure than a desire to obtain a public proclamation on the issue in question. That is very far from the situation here.

I turn to the principles which are relied on by the defendants to justify a broad rule of judicial abstention from adjudicating on foreign acts of state. On behalf of the defendants, Mr Eadie QC located the rationale for the doctrine of foreign act of state in all its versions as resting on the same considerations of the sovereign equality of states and comity which underlie the doctrine of state immunity. He cited a dictum from the judgment of the Court of Appeal in the Yukos case that the two doctrines are “founded on analogous concepts of international law, both public and private, and of the comity of nations”: see [2014] QB 458, 486, para 66. Mr Eadie emphasised the importance in international law of the principle of sovereign equality of states, which was described by the International Court of Justice in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), IJC Reports 2012 at para 57 as “one of the fundamental principles of the international legal order”. Its importance is underlined by the fact that Article 2 of the United Nations Charter identifies the “principle of the sovereign equality of all its Members” as the first principle in accordance with which the United Nations and its members must act in pursuit of the purposes of the UN.

There can be no doubt about the importance of the principle of sovereign equality of states in international law. As discussed in the previous section of this judgment, the doctrine of state immunity is founded on that principle. That doctrine defines when as a matter of international law recognising sovereign states as equals prevents the courts of one state from asserting or seeking to exercise sovereign authority which would encroach on the sovereign authority of another. It is of the essence of state immunity and the principle of sovereign equality of states from which it derives that this recognition by states of each other’s sovereignty and corresponding immunity from each other’s jurisdiction is mutual. As stated by the International Court of Justice in the Jurisdictional Immunities case at para 56:

“[State] practice shows that, whether in claiming immunity for themselves or affording it to others, states generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other states to respect and give effect to that immunity.”

Furthermore, as Lord Wright explained in The Cristina [1938] AC 485 at 502, the doctrine is based at least in part on reciprocity, with “each sovereign State within the community of nations accepting some subtraction from its full sovereignty in return for similar concessions on the side of the others.”

That being so, it is difficult to see why the common law should afford greater respect for the sovereign authority of other states than is required by international law. To recognise an obligation not to adjudicate on acts of a foreign state when the courts of other states do not acknowledge any similar obligation and none exists in international law is not to treat other states as equals. It is voluntarily to adopt a position of inferiority towards other states, which is out of keeping with international norms.

As discussed in the previous section of this judgment, the defendants have argued that the claims alleging complicity of UK officials in torts committed by US personnel would “indirectly implead” the United States and are therefore barred by state immunity. For the reasons given, I have rejected that argument and held that deciding the claims would not involve an exercise of jurisdiction or sovereign power over the United States. In these circumstances there is no further scope for any argument that the proceedings would infringe the sovereign equality of states.

FA Mann described comity as “one of the most ambiguous and multi-faceted conceptions in the law in general and in the realm of international affairs in particular”: see FA Mann, ‘Foreign Affairs in English Courts’ (1986, OUP) at p.134. As he went on to show convincingly, however, in most cases the meaning of comity is coextensive with public international law, albeit that the term is “so elusive and imprecise … as to render its use unhelpful and confusing”: ibid, p.136. Dicey, Morris & Collins describe comity as “a term of very elastic content. Sometimes it connotes courtesy or the need for reciprocity; at other times it is used as a synonym for the rules of public international law”: see ‘The Conflict of Laws’ (15^th Ed 2012), para 1-008.

In so far as comity is synonymous with public international law, it provides no basis for any principle of judicial abstention in the context of international relations which goes beyond the requirements of state immunity – the contours of which, as discussed, are defined by international law. In so far as comity merely connotes courtesy it may provide a reason for caution and restraint, which should inhibit a court from making findings critical (or which will be perceived as critical) of a foreign state if such findings can be avoided. But it cannot override the court’s duty to decide questions of legal right properly brought before it. This is illustrated by how “comity” applies when an attack is made on the conduct of judges of a foreign state in the context of a dispute about whether the English court should recognise the validity of a foreign judgment.

In Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 a court in the Isle of Man granted permission to serve proceedings on the defendants out of the jurisdiction in Kyrgyzstan alleging that a judgment given by a Kyrgyz court had been obtained by fraud. The defendants applied to have the grant of permission set aside on the ground that the natural forum for the dispute was Kyrgyzstan. The claimants opposed the application on the ground that the dispute could not fairly be tried in Kyrgyzstan as its courts were corrupt and lacking in independence. On an appeal to the Privy Council the Judicial Committee held that permission to serve out had been properly granted as it had been shown by sufficient evidence that the claimants would not obtain justice in Kyrgyzstan. Lord Collins JSC, who gave the judgment of the Judicial Committee, rejected an argument that the act of state doctrine or the principle of judicial restraint enunciated in the Buttes Gas case precluded the court from finding that justice would not, or might not, be done because of endemic corruption in the foreign system. Lord Collins said (para 97) that comity requires the court to be “extremely cautious” before making such a finding but there is no principle which precludes the court from doing so. Lord Collins stated (at para 101):

“The true position is that there is no rule that the English court (or Manx court) will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence.”

In Yukos Capital Sarl v OJFC Rosneft Oil Co (No 2) [2014] QB 458 the claimant was seeking to enforce arbitration awards in England which had been annulled by the Russian courts. The claimant argued that the English court should refuse to recognise the judgments of the Russian courts as they were reached by a judicial process that was partial and lacking independence. The issue decided by the Court of Appeal to which their discussion of the act of state doctrine was directed was whether principles of act of state, non-justiciability and legal comity prevented the English courts from adjudicating upon the conduct of the judiciary of a foreign state for this purpose. Following the “highly authoritative” guidance of the Privy Council in the Altimo case, the Court of Appeal held, at para 86, that the answer to that question was ‘no’.

Given that comity does not preclude a court from examining allegations and making findings that a foreign judicial system is corrupt, but only requires an English court to exercise caution, it is reasonable to ask whether, and if so why, comity operates differently in relation to acts of the executive arm of a foreign state. The answer given to this question in the Yukos case, at para 87, was that “judicial acts are not acts of state for the purposes of the act of state doctrine”. That answer might be thought merely to move the question a stage further back. A further answer given was that: “Sovereigns act on their own plane … [and] internationally they are responsible only in accordance with international law and internationally recognised norms”.

The fact that certain transactions between sovereign states operate on an international plane which renders the transactions non-justiciable, either because they are not governed by legal norms at all or because they do not engage domestic legal rights, was recognised by the Supreme Court in Shergill v Khaira. In other circumstances, however, acts of a foreign state are justiciable. It seems to me that it cannot make any difference in principle whether the acts in question are acts of executive or judicial officers. The reason why acts of judicial officers of a foreign state can be examined when an English court is deciding whether to recognise the validity of a foreign judgment is not that the judicial officers of a foreign state are inherently less deserving of respect than its executive officers or that judicial acts are not acts of state. It is that the examination of such conduct is necessary in order to decide a question of domestic legal right within the court’s competence. What the Altimo and Yukos cases illustrate is that comity in such circumstances requires the English court to proceed with caution, but cannot justify refusing to make a decision.

One consideration which has featured in some decisions in the United States but which has not been treated as a reason for judicial abstention in this country is that for the court to criticise acts of a foreign state would embarrass the British government in its conduct of foreign relations. In the Buttes Gas case Lord Wilberforce (at p.938) expressly left aside “all possibility of embarrassment in our foreign relations”, which had not been suggested by the executive in that case. In the Yukos case, at para 65, the Court of Appeal expressed caution about giving weight to such a doctrine, which was said only to arise as a result of a communication from the British Foreign Office. No case was referred to by the Court of Appeal in the Yukos case or has been cited here in which there has been any such communication from the Foreign Office or in which a risk of embarrassment to the UK government has been accorded any weight.

On behalf of the defendants, Mr Eadie QC eschewed reliance on any consideration of embarrassment. He did, however, place some, albeit limited, reliance on the contention that determining the allegations made in these proceedings would potentially be damaging to the UK’s national interest as it would be liable to cause damage to the UK’s relationship with the US, its closest and most important ally. In support of this contention, the defendants adduced evidence in the form of witness statements from Dr Laurie Bristow, National Security Director at the Foreign Office, and Mr Steve McCarthy, Director of International Security Policy within the MOD. Both these officials expressed the opinion that, if the court makes the findings which the claimants seek in these proceedings about actions of the US, then this “could have a seriously damaging impact upon relations between the UK and the US” which would in turn have “significant negative consequences” for the national security interests of the UK.

In response to this evidence, the claimants served two expert reports. The first, from Mr Thomas Pickering, a former US diplomat, expressed his firm belief that adjudicating on Mr Rahmatullah’s case “is highly unlikely to cause damage to the relations or national security cooperation between the US and UK”. The reasons given included Mr Pickering’s opinion that to assert that such a process will cause offence to the US “is to misunderstand the value the United States places on the rule of law and an unbiased and open judicial system.” The second report from Professor Stefan Halper, a former US Government official and advisor who is now the Director of American Studies at the Department of Politics and International Studies at Cambridge University, agreed with this opinion and disagreed with the views of Dr Bristow and Mr McCarthy.

The parties were at one stage proposing that these witnesses should be called to give oral evidence and be cross-examined at the hearing. A few days before the hearing, however, they concluded that there would be insufficient time to accommodate this within the three days for which the hearing was listed and asked that there should be a further hearing at a later date when this evidence would be given. I refused this request and directed that, if either party wished to cross-examine the other’s witnesses, they would need to allocate part of their allotted time for this with correspondingly less time at the hearing for oral submissions. In the event, neither party required the other’s witnesses to attend for cross-examination.

The claimants’ primary position is that the evidence as to whether interests of the UK would be harmed if the court were to adjudicate on their claims is irrelevant; if that contention is rejected, however, they invite the court to prefer the evidence of Mr Pickering and Professor Halper. While not suggesting that it is a factor of great weight, the defendants contend that evidence of harm to UK interests is of some relevance, and they invite the court to accept the evidence of Dr Bristow and Mr McCarthy.

I do not think it appropriate that the court should seek to resolve conflicts of evidence nor indeed that it should take account of evidence of the kind which has been adduced, especially where that evidence is contentious. I recognise that in some recent cases where a defence of foreign act of state has been raised the defendants have been permitted to adduce opinion evidence that a finding in the claimant’s favour would give rise to a risk of harm to the UK’s interests. In particular, such evidence was given by Dr Bristow in the Belhaj case. It seems to me wrong, however, for a court to become involved in trying to judge on the basis of conflicting evidence whether deciding a case brought before it might harm the political interests of the UK. I think it wrong for two reasons. First, to decide whether to accept such evidence where it is contested and, if so, what weight to give it would require the court to make an essentially political judgment which it lacks the competence to make. It would indeed be perverse if, in order to determine whether a rule of judicial abstention applies, it is necessary for the court to make a judgment of precisely the kind which it is part of the function of the rule to avoid. Second and more fundamentally, for the court to refuse to decide a case involving a matter of legal right on the ground that vindicating the right would be harmful to state interests would seem to me to be an abdication of its constitutional function. As Lord Mansfield said when reversing the sentence of outlawry passed on John Wilkes:

“The constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences; how formidable soever they might be: if rebellion was the certain consequence, we are bound to say 'fiat justitia, ruat caelum'."

R v Wilkes (1768) 4 Burr 2527 at 2561-2, 98 ER 327 at 347.

In these circumstances I decline to attach any weight to the evidence adduced by either party or to express a view on whether the evidence of the defendants’ witnesses or that of the claimants’ witnesses should be preferred.

I accordingly consider that there is no binding authority or argument of principle which prevents me from accepting and applying the analysis of the Supreme Court in Shergill v Khaira as an authoritative statement of when the court must abstain from adjudicating upon acts of a foreign state and when the court is not barred from doing so. In short, what Shergill v Khaira teaches and no authority or principle gainsays is that the court can and indeed must decide whether agents of a foreign state acted unlawfully when to do so is within the court’s competence and necessary as a preliminary to the determination of the claimant’s domestic legal rights.

Additional support for that conclusion comes from the decision of the High Court of Australia in Moti v The Queen [2011] HCA 50. In order to decide whether criminal proceedings against the appellant in Australia should be stayed as an abuse of process, it was necessary to determine whether or not the Solomon Islands’ government had acted unlawfully in deporting him from the Solomon Islands to Australia. It was argued by the respondent, relying on the Buttes Gas case amongst others, that this question was not justiciable. The High Court rejected that argument, holding that the courts are free to consider and pronounce an opinion on the exercise of sovereign power by a foreign government, if the consideration of those acts of a foreign government only constitutes a preliminary to the decision of a question which in itself is subject to the competency of the court (para 52).

For these reasons, I would conclude that neither the traditional doctrine of foreign act of state nor the principle of judicial abstention recognised in the Buttes Gas case is capable of barring any of the claims in tort made by Mr Rahmatullah and the three Iraqi civilian claimants.

This does not mean that, in considering the allegations that US personnel committed unlawful acts, the court should not exercise restraint. Just as when, to take the example I have given, allegations of corruption are made about the judiciary of a foreign state, so when its officials are accused of committing serious violations of human rights, there is an obvious need for caution. I have well in mind the observation of Richards LJ in the CND case that “the court should steer away from these areas of potential difficulty in relation to other states unless there are compelling reasons to confront them”: see R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin) at para 62(iii).

As I indicated near the start of this judgment, it is far from clear that it will in fact be necessary in the present cases for the court to make findings on whether violations of the claimants’ rights by agents of the US took place. The claimants will have first to demonstrate that the law of Iraq (and in Mr Rahmatullah’s case the law of Afghanistan) includes a principle of accessory liability or joint liability in tort on which they can found claims against the defendants. They will then need to prove by evidence of the cogency demanded by the gravity of the allegations that the defendants had the requisite knowledge and fulfilled any other conditions required to give rise to such liability. Only if the claimants succeed on those issues will it be necessary for the court to make findings about the conduct of US personnel. If, however, such findings are indeed necessary in order to decide whether the claimants have a right to be compensated for wrongdoing by the defendants, the court would in my opinion be failing in its duty if it refused to adjudicate upon the allegations made.

As they did in relation to state immunity, the claimants have submitted that, for the court to adopt the defendants’ approach to foreign act of state, would amount to a breach of their rights of access to the court under article 6 of the Convention. Since I have not accepted the defendants’ contention that any of the claims is barred by reason of the foreign act of state doctrine, no question of any breach of article 6 arises. In these circumstances I do not think it necessary or desirable to express a view on the hypothetical question whether the foreign act of state doctrine would have been consistent with article 6 if the doctrine had a different scope from that which in my judgment (and now also that of the Court of Appeal in Belhaj v Straw) the doctrine has.

The judgment which has now been given by the Court of Appeal in the Belhaj case supports, and indeed compels, the result that I have reached. Not having had the benefit of its guidance when the issues in the present case were argued and when I wrote this judgment in draft, there are some differences between my analysis of the foreign act of state issue and that of the Court of Appeal. In particular, whilst I have recognised that the traditional foreign act of state doctrine is limited to acts done within the foreign state’s territory and is subject to an exception imposed by public policy where serious violations of human rights are alleged, I did not consider these limitations to be relevant to the question of justiciability.

If free to do so, I would consider the need to abstain from adjudication upon acts of a foreign state which do not engage domestic legal rights to be just as great when the acts occur or have effects outside the territory of the foreign state, as was the case for example in the Al-Haq and Noor Khan cases. I would also have held that, when a domestic legal right is engaged and the matter is within the court’s competence, the court has a duty to decide the case whether or not it involves allegations of grave violations of human rights. However, since the claims of Mr Rahmatullah and the three Iraqi civilian claimants involve allegations of human rights’ violations of the utmost gravity, the latter point does not need to be decided in the present cases; nor in those circumstances does the outcome turn on the territorial scope of the doctrine. What is critical is that the decision of the Court of Appeal in the Belhaj case confirms my conclusion that none of the claims is barred by the foreign act of state doctrine.

Separately from the doctrine of foreign act of state, the defendants rely on the doctrine of Crown act of state in answer to the claims in tort made by Mr Rahmatullah and by the three Iraqi civilian claimants that they were unlawfully detained by UK armed forces before being transferred to the custody of the US. In the three Iraqi civilian cases the MOD also relies on the Crown act of state doctrine in answer to the claims that the transfers were themselves wrongful.

I had to consider the nature and scope of the Crown act of state doctrine in Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB). In that case Mr Mohammed (“SM”) alleged that his detention by British forces in Afghanistan for a period of 110 days was unlawful. It was common ground that SM’s claim in tort was governed by the law of Afghanistan. I found that under Afghan law SM’s detention after 72 hours was a civil wrong for which he was entitled to compensation. However, I held that his claim to enforce that right in England was barred by the Crown act of state doctrine.

Modern authority on the doctrine is sparse. The leading case is the decision of the House of Lords in Nissan v Attorney General [1970] AC 179. In the Serdar Mohammed case I adopted the distinction drawn by Lord Wilberforce in the Nissan case (at p.231) between two different conceptions or rules included within the Crown act of state doctrine:

“The first rule is one which provides a defendant, normally a servant of the Crown, with a defence to an act otherwise tortious or criminal, committed abroad, provided that the act was authorised or subsequently ratified by the Crown. ...

The second rule is one of justiciability: it prevents British municipal courts from taking cognisance of certain acts. The class of acts so protected has not been accurately defined: one formulation is ‘those acts of the Crown which are done under the prerogative in the sphere of foreign affairs’ ...”

Applying this distinction, I found in the Serdar Mohammed case, at paras 380-383, that the second of these rules did not prevent SM from suing in the English courts as his claim in tort was justiciable. However, I held that the first Crown act of state rule referred to by Lord Wilberforce provided the MOD with a defence to the claim. At para 395 of my judgment I expressed the principle as being that:

“It is not the business of the English courts to enforce against the UK state rights of foreign nationals arising under [foreign] law for acts done on the authority of the UK government abroad, where to do so would undercut the policy of the executive arm of the UK state in conducting foreign military operations.”

I concluded that SM’s detention was an act done pursuant to a deliberate foreign policy of the UK government involving the use of military force abroad, and that in these circumstances his claim in tort under Afghan law was not enforceable in the English courts.

The defendants accept that the claims of Mr Rahmatullah and of the three Iraqi civilian claimants for damages in tort arising out of alleged assaults by British soldiers are not protected by the Crown act of state doctrine and must proceed. However, the defendants submit that the claims in tort based on the claimants’ allegedly unlawful detention by UK forces fall within the Crown act of state rule which I applied in the Serdar Mohammed case. The defendants further submit that these claims are not justiciable and therefore also fall within the second act of state rule referred to by Lord Wilberforce in the Nissan case.

The claimants’ case is that, on a proper understanding of the doctrine, there only is one rule, which is the rule of justiciability. The claimants submit that there is no separate Crown act of state rule which can provide a defence to a claim in tort. They further submit that the justiciability rule has no application to the present claims, just as I held that it had no application in the Serdar Mohammed case. Accordingly, they argue that none of their claims is barred by the Crown act of state doctrine.

I will start by considering the defendants’ argument that they can, if necessary, rely on the Crown act of state doctrine conceived as a rule of justiciability. I will then consider the claimants’ contention that there is no other rule included within the doctrine.

Conceived as a rule of justiciability, the Crown act of state doctrine, in the words of Lord Wilberforce quoted earlier, “prevents British municipal courts from taking cognisance of certain acts”. As Lord Pearson put it in the Nissan case (at p.237):

“An act of state is something not cognisable by the court: if a claim is made in respect of it, the court will have to ascertain the facts but if it then appears that the act complained of was an act of state the court must refuse to adjudicate upon the claim. In such a case the court does not come to any decision as to the legality or illegality, or the rightness or wrongness, of the act complained of: the decision is that because it was an act of state the court has no jurisdiction to entertain a claim in respect of it.”

Lord Pearson gave as examples of such acts “making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory”. Lord Wilberforce observed (p.231) that this Crown act of state rule is similar if not identical to the rule (or former rule) that acts of the Crown which are done under the prerogative in the sphere of foreign affairs are not reviewable by the courts.

In the Nissan case the plaintiff’s claim arose out of the occupation of his hotel in Cyprus by British troops. The plaintiff claimed that the Crown was under a duty at common law to pay compensation for the use of the hotel or alternatively that it had contracted to do so. There was a further claim for damages in tort for trespass to goods arising from the alleged damage and destruction of contents of the hotel.

In its defence the Crown pleaded that all the relevant acts were acts of state which were not cognisable by the court. The question whether this plea disclosed a good defence in law to the plaintiff’s claims was tried as a preliminary issue. At the hearing before the judge the Crown accepted that on the facts alleged the act of state doctrine did not provide a defence to the claim in tort: see Nissan v Attorney General [1968] 1 QB 286, 297, 339. On the appeal to the House of Lords, therefore, no issue arose as to whether the first of the two rules stated by Lord Wilberforce applied. The argument was solely concerned with the broader conception of Crown act of state as a rule of justiciability.

As I mentioned in the Serdar Mohammed case at paras 374-376, since the Nissan case was decided the courts have become more willing in principle to review acts of the executive in the field of foreign affairs – which is no longer regarded as a complete ‘no go’ area. Even on the law as it was understood in 1969, however, the House of Lords had no difficulty in holding in the Nissan case that the act of taking over the plaintiff’s hotel could not be regarded as a non-justiciable act of state. The essence of their reasoning was that, while the making of the treaty pursuant to which British troops were sent to Cyprus was no doubt an act of state, and some acts done in performance of the treaty might constitute acts of state, the act of taking over the plaintiff’s hotel was not sufficiently closely linked to the making of the treaty to fall within the act of state rule. As succinctly stated by Arden LJ in Al-Jedda v Secretary of State for Defence [2011] QB 773 at para 110: “It was no part of the peacekeeping function of the troops to take property without paying for it.”

Al-Jedda v Secretary of State for Defence [2009] EWHC 397 (QB) and [2011] QB 773 (Court of Appeal) followed on from the first action in which Mr Al-Jedda sought judicial review of his detention by British forces in Iraq. As mentioned earlier, it was held in the first action that the law applicable to any claim in tort for false imprisonment was the law of Iraq. In the second action Mr Al-Jedda claimed damages on the basis that his detention from 20 May 2006 until his release in December 2007 was unlawful under Iraqi law. At the trial Underhill J, after considering evidence of Iraqi law, found that Mr Al-Jedda’s detention had in fact been lawful. The claim therefore failed. The judge also expressed the view that, even if the detention had been unlawful as a matter of Iraqi law, it was an act of state which was not justiciable in the English courts. Important background to the latter conclusion was the decision of the House of Lords in the first Al-Jedda case that the resolution of the United Nations Security Council, UNSCR 1546, pursuant to which British forces were operating in Iraq as part of a Multi National Force (“MNF”) obliged them to intern individuals where this was necessary for “imperative reasons of security”: see R (Al-Jedda) v Secretary of State for Defence [2008] AC 332, paras 30-34.

In discussing the act of state issue, Underhill J began by citing the same passage from the speech of Lord Wilberforce in the Nissan case which I quoted at paragraph 181 above, distinguishing between Crown act of state as a defence to a claim in tort and as a rule of justiciability. Invoking the rule of justiciability, Underhill J considered that the decision to contribute British forces to the MNF in Iraq was an act of state because it was “quintessentially a policy decision in the field of foreign affairs” (para 76). He then concluded that, in circumstances where UNSCR 1546 imposed a positive obligation on the UK (once it accepted the invitation to contribute forces to the MNF) to carry out internment where necessary for imperative reasons of security, the internment of the claimant by British forces was itself an act of state not cognisable in the English courts.

On appeal, the Court of Appeal (by a majority) affirmed Underhill J’s decision that the claimant’s detention was lawful under Iraqi law. Arden LJ dissented on that issue but agreed with the judge’s conclusion and reasoning on the issue of act of state: see [2011] QB 773, 803, para 107. She referred to the decision of the House of Lords in the first Al-Jedda case that the UK was bound by an obligation under Article 103 of the UN Charter to intern persons where this was necessary for the internal security of Iraq, and said (at para 108):

“Internment for this purpose would clearly qualify as an act of state. My conclusion that act of state is a defence here does not go wider than this. It applies, in my judgment, because of the overriding force of UNSCR 1546. If courts hold states liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood is that states will be less ready to assist the UN to achieve its role in this regard, and this would be detrimental to the long-term interests of the states.”

Of the two members of the Court of Appeal who dismissed the appeal on the ground that the detention of Mr Al-Jedda was lawful under Iraqi law, Dyson JSC preferred not to express any view on the act of state issue in circumstances where it was unnecessary to do so (para 127). Elias LJ expressed the view that the internment of Mr Al-Jedda was an act of state, essentially for the reasons given by Underhill J (para 195). He was not persuaded, however, that this meant that the jurisdiction of the English courts to question the lawfulness of the claimant’s detention was entirely excluded in circumstances where the claimant was a British citizen.

Having now had cause to consider the second Al-Jedda case for a second time, I would respectfully wish to question whether the opinion that the claim was barred by the doctrine of Crown act of state might not be better explained on the basis of the Crown act of state rule which provides a defence to a claim in tort rather than by invoking the rule of justiciability. I find it difficult to see why, on the assumption that the policy decision to contribute British forces to the MNF in Iraq was not justiciable, it should follow that a decision taken by British forces participating in the MNF to intern a particular individual was not justiciable. It was not necessary to challenge the decision to send British forces to Iraq in order to judge whether the detention of Mr Al-Jedda was lawful under Iraqi law. Nor was the decision to detain Mr Al-Jedda itself a policy decision of a kind which is unsuitable for review by a court.

The characterisation of the decision to intern Mr Al-Jedda as a non-justiciable act of state was evidently driven by the view that the UK was under a positive obligation imposed by UNSCR 1546 to intern people who were believed to be a threat to security. However, it is difficult to see why the fact that an act is done by the Crown pursuant to such an obligation should prevent a British municipal court from taking cognisance of it. Such an approach seems hard to reconcile with the principle that obligations undertaken by the UK under international treaties have no domestic legal effect, except in so far as they are enacted by the legislature into domestic law: see e.g. JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; R v Lyons [2003] 1 AC 976. This principle does not mean that English courts cannot have regard to international law if the determination of a point of domestic law requires it – as, for example, in the first Al-Jedda case where it was necessary to interpret the UN Charter and UN Security Council Resolutions in order to determine whether there had been a breach of the Human Rights Act. However, it would appear contrary to this principle for an English court (i) to determine the extent of the UK’s obligations under the UN Charter and UN Security Council Resolutions, in order then (ii) where such an obligation is found to exist, to treat it as preventing the recognition or enforcement of rights under domestic law (which include rights under other systems of law made enforceable by English conflict of laws rules). This accords with the view expressed by Elias LJ in the second Al-Jedda case, when he said at para 178:

“It is firmly established that international obligations do not become part of UK law unless specifically incorporated, and there would seem to be no basis for asserting that the UK courts should refuse to give effect to the national law of another state on the grounds that they are incompatible with international obligations undertaken by the UK.”

Treating the Crown act of state doctrine as having such an effect also seems inconsistent with Walker v Baird [1892] AC 491. That was an appeal to the Privy Council from Newfoundland where a British naval captain had seized the plaintiff’s lobster factory acting on orders to enforce an agreement as to lobster fishing between the British and French governments. One argument relied on by the defendant was that his acts were acts of state. However, the Judicial Committee curtly rejected this suggestion as “wholly untenable”. (The only question so far as the Committee was concerned – which the Committee did not find it necessary to answer on the facts as pleaded – was whether the defendant's acts were lawful because the Crown had a power in domestic law to compel its subjects to obey a treaty made with the object of keeping the peace.) It is true that in Walker v Baird the acts were done on Crown territory, which was why the narrower Crown act of state rule illustrated by Buron v Denman, which I discuss below, was not applicable. But I find it difficult to see why this should affect the principle that an act done on the authority of the Crown to give effect to a treaty obligation does not thereby become a (non-justiciable) act of state.

These difficulties do not arise if the application of the act of state doctrine in the second Al-Jedda case is explained on the basis of the narrower Crown act of state defence rather than by invoking the rule of justiciability. This explanation would also address the concerns expressed by Elias LJ about the undesirability of applying a rule which would prevent an English court not only from enforcing a claim under the tort law of a foreign state but also from reviewing the lawfulness of the executive act in question according to British principles of public law: see [2011] QB 773 at paras 217-223.

Since the judgment of the Court of Appeal in that case was given, issues raised in the first Al-Jedda case have been considered by the Grand Chamber of the European Court of Human Rights: see Al-Jedda v United Kingdom (2011) 35 EHRR 23. The European Court took a different view from the House of Lords of the meaning of UNSCR 1546 and held that neither that resolution nor any other resolution of the UN Security Council imposed an obligation on the UK to detain an individual considered to constitute a risk to the security of Iraq indefinitely without charge – as had happened to Mr Al-Jedda. At present, the contrary conclusion of the House of Lords remains binding on lower courts. The question is relevant in many of the claims in the Iraq civilian litigation. And in Al-Waheed v Ministry of Defence [2014] EWHC 2714 (QB) I gave a ‘leapfrog’ certificate enabling an appeal on this point to proceed straight to the Supreme Court, if the Supreme Court gives permission to appeal.

Should the Supreme Court decide to depart from the decision of the House of Lords in Al-Jedda v Secretary of State for Defence [2008] 1 AC 332 and to adopt the view of the European Court as to the effect of UNSCR 1546, then the premise on which Underhill J and the Court of Appeal were proceeding in the second Al-Jedda case would fall away. It could then no longer be said that internment wherever necessary for imperative reasons of security was a positive obligation undertaken by the UK government under international law. On the view I took in the Serdar Mohammed case, however, Crown act of state would still operate as a defence to any claim for unlawful detention under the Iraqi law of tort brought by a claimant whose detention was authorised under the UK’s detention policy.

In these circumstances, and given my conclusion below that the narrower Crown act of state rule applies, I prefer to rest my decision in this case on that narrower basis.

The claimants accept that, if the Serdar Mohammed case was rightly decided on this issue, Crown act of state is available as a defence to their claims in tort in so far as those claims assert that their detention by UK forces was unlawful under Iraqi law. However, they submit that I was wrong in the Serdar Mohammed case to adopt Lord Wilberforce’s analysis of the Crown act of state doctrine as comprising two rules. The claimants contend that, on a correct understanding, the Crown act of state doctrine is solely a rule of justiciability and there is no separate rule which can provide a defence to a claim in tort. They base this contention on three arguments which were not advanced in the Serdar Mohammed case but which have been developed at great length by the claimants in their written submissions in the present case and which I must consider now.

The case cited by Lord Wilberforce as an example of Crown act of state operating as a defence to a claim in tort was Buron v Denman (1848) 2 Exch 167. The claimants’ first argument is that, properly understood, Buron v Denman is merely an expression of the non-justiciability rule in a case where the defendant was an agent of the Crown, rather than the Crown itself, and is not authority for the existence of a narrower act of state defence to claims in tort. Nor, the claimants submit, is there any other case prior to the Serdar Mohammed case in which the narrower rule has been applied.

In Buron v Denman the plaintiff was a Spanish slave trader operating in a part of West Africa where it was lawful to possess slaves. He brought an action in England for trespass against a British naval commander who had liberated his slaves and destroyed his property. Baron Parke directed the jury that, if they found that the defendant’s acts had been ratified by the Crown, it would follow that they were acts of state and the claim could not be maintained.

In his directions to the jury Baron Parke did not explain why, if the defendant’s acts of freeing the plaintiff’s slaves and destroying his property had been authorised by the Crown in advance, they would have constituted acts of state. That proposition was assumed, and the case focused on the question whether subsequent ratification was equivalent to prior authorisation. Ms Kaufmann QC submitted that the tacit reason why the defendant’s acts were treated as acts of state was that, when ratified by the Crown, they were regarded as sovereign acts operating at the international level of the state’s relations with a foreign state and its subjects and hence as inherently non-justiciable.

Ms Kaufmann sought to draw support for this explanation from the subsequent decision of the Privy Council in Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 MooPCC 22. There the East India Company acting on behalf of the Crown in India had seized the property of the deceased Rajah of Tanjore. The Privy Council held that the relevant acts were acts of state because they constituted “a seizure by arbitrary power on behalf of the Crown of Great Britain, of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds on Municipal law” (p.77) and “an exercise of sovereign power effected at the arbitrary discretion of the Company, by the aid of military force” (p.83). Ms Kaufmann submitted that it was because the acts of the defendant in Buron v Denman were acts of this character that, when ratified by the Crown, they were regarded as acts of state.

A case not cited by the claimants but which lends support to their interpretation is Feather v R (1865) 6 B&S 257, 296; 122 ER 1191, 1205, where Cockburn CJ said that the case of Buron v Denman only shows that:

“where an act injurious to a foreigner, and which might otherwise afford a ground of action, is done by a British subject, and the act is adopted by the government of this country, it becomes the act of the state, and the private right of action becomes merged in the international question which arises between our own government and that of the foreigner.”

The second step in the claimants’ argument is that under the modern law a different view is now taken of what matters are justiciable. Thus, Ms Kaufmann QC submitted that, judged from today’s perspective, tortious acts such as the destruction of property committed by the Crown abroad in the pursuit of foreign policy are no longer regarded as matters of international politics which are not justiciable in the municipal courts.

I accept that there was no explicit discussion in Buron v Denman of what constituted an act of state and that in the nineteenth century acts done by the Crown in the conduct of foreign relations were regarded as beyond the purview of the domestic courts in a way that is no longer the case. However, I do not accept that, judged by today’s standards, Buron v Denman was wrongly decided. So far as I am aware, the decision has never been doubted. The case is cited as an authority in many textbooks and was treated as good law in the Nissan case, where Lord Morris stated that “the conception of an act of state as illustrated in Buron v Denman has been so recognised that it cannot now be overthrown”: see [1970] AC 179, 220. Furthermore, the proposition that, distinct from principles of justiciability, Crown act of state operates a defence to claims in tort arising out of the pursuit of government policy abroad has the support, not only of distinguished academic commentators such as the authors of Dicey, Morris & Collins, but also of Lord Wilberforce in the Nissan case. The passage quoted earlier from the speech of Lord Wilberforce drawing the distinction between the two act of state rules, although obiter, is strong persuasive authority and was treated as authoritative in the second Al-Jedda case. I in any event consider, for the reasons given in my judgment in the Serdar Mohammed case at paras 392-397, that the Crown act of state rule which provides a defence to a claim in tort is sound in principle and rests on a proper appreciation of the separation of powers.

I therefore reject the claimants’ first argument that there is no good authority for the narrower act of state rule.

The claimants’ second argument is that, even if such a defence of Crown act of state once existed, it was extinguished in 1948 when the Crown Proceedings Act 1947 came into force.

That Act effected a major change in the law by abolishing the general immunity of the Crown from liability in tort. The most important provision of the Act is section 2(1):

“Liability of the Crown in tort.

(1)

Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:—

(a)

in respect of torts committed by its servants or agents;

...

Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.”

This provision removed the anomaly whereby at common law the Crown, unlike other employers, had no vicarious liability for torts committed by its employees or agents.

I cannot accept, however, that this provision had the object or effect of abolishing the Crown act of state doctrine as a defence to claims in tort. That defence was not simply an aspect of the Crown’s general immunity from tort liability. Had it been so, the defence would have applied without distinction to all tortious acts committed on behalf of the Crown whether in this country or abroad. It is, however, long established that act of state is not a good defence to an action in tort brought against an officer of the Crown in respect of an act done within British territory, even where the claimant is a foreign national: see Walker v Baird [1892] AC 491; Johnstone v Pedlar [1921] 2 AC 262. Furthermore, one point undoubtedly illustrated by Buron v Denman is that Crown act of state, where applicable, affords a defence to agents of the Crown who would otherwise have been personally liable for wrongful acts which they had committed. Thus, once the acts of Commander Denman had been ratified by the Crown, no action could be maintained against him in tort. The claimants say that this protection was necessary to avoid the anomaly that a private individual could be held liable for an act of state done on the Crown’s behalf for which the Crown could not be held liable. I agree. However, in the ordinary case where the Crown had immunity there was no such protection for agents of the Crown who committed tortious acts. The individual who did the act could still be sued personally, even though the Crown could not be sued. The fact, therefore, that the act of state doctrine applied to agents of the Crown is again inconsistent with any suggestion that the doctrine was merely an aspect of the Crown’s general immunity from liability in tort.

In these circumstances I think it clear that the doctrine of Crown act of state was not affected by section 2(1) of the 1947 Act. Any doubt about the matter is removed by the proviso in that section. In commenting on the effect of the Act at the time when it was introduced, Professor Glanville Williams wrote in relation to the proviso in section 2(1):

“It is thought that this proviso was inserted in order to make it plain that the Crown was to participate in the defence of ‘act of state’ that is open to the servant under the rule in Buron v Denman. But if this was the intention, the proviso used a bludgeon to kill a fly – and the fly was already dead, because where the servant has the defence of ‘act of state’ it cannot be said that he has committed a tort within the words of section 2(1)(a), and thus there is nothing for which the Crown could in any event be liable.”

See Glanville Williams, ‘Crown Proceedings’ (London, 1948) at p.44. In so far as the reference to a “tort” in section 2(1)(a) would be construed to mean a tort actionable in England, it can indeed be said that the proviso was unnecessary. But even if the proviso is regarded as an unnecessary bludgeon, it seems to me to put the matter beyond doubt.

I do not accept the claimants’ contention that, once the 1947 Act came into force, it was no longer necessary to protect Crown servants from claims made against them personally in tort which fall within the scope of the Crown act of state defence. That assumes that the Crown act of state defence was simply an aspect of the Crown’s general immunity in tort which, for the reasons given, it was not. The reason for the inability to sue the agent is that the character of the act is such that, when done on behalf of the Crown, it is not an act for which the court will give redress. The need to prevent a claimant from circumventing the doctrine by formulating a claim against the agent therefore did not disappear with the abolition of the Crown’s general immunity. In any event, there is nothing in the Act which can be construed as abolishing the defence in relation to Crown agents. To the contrary, the proviso in section 2(1) makes it expressly clear that the Act does not make any change to any rule of law which prevents a servant or agent of the Crown from being held liable in tort. It follows that, where the act of state defence applies, there is still no liability of the agent which could give rise to any vicarious liability on the part of the Crown.

I am reinforced in my conclusion that the Crown Proceedings Act 1947 did not affect the doctrine of Crown act of state by the fact that no such suggestion was made at any stage of the proceedings in the Nissan case by any of the many distinguished judges and counsel who extensively considered the doctrine. Indeed, Lord Morris specifically commented when discussing Buron v Denman that: “Even had section 2(1) of the Crown Proceedings Act 1947, been in existence the result would presumably have been that an action against the Crown would have failed”: see [1970] AC 179, 220.

The third argument advanced by the claimants is that, even if the Crown act of state defence survived the coming into force of the Crown Proceedings Act in 1948, it did not survive the coming into force of the Human Rights Act 1998 because it is incompatible with article 6 of the Convention. The claimants argue that the defence, if it exists, is a procedural bar which restricts access to the courts. They then argue that, even if this restriction can be said to serve a legitimate aim, it does so in a way which is arbitrary and disproportionate.

I think it is right to analyse the Crown act of state defence as a procedural bar to the enforcement of a claim. (Footnote: ³) However, the defence serves the legitimate aim of protecting the interests of the nation abroad, in particular where military action is considered necessary by the executive in the national interest.

I further consider that the extent of the restriction imposed on access to the English courts is proportionate in circumstances where the Crown act of state defence, as I analysed it in the Serdar Mohammed case at paras 394-397, (1) applies only to acts done abroad pursuant to deliberate UK foreign policy, (2) applies only to claims arising under foreign law, and (3) does not therefore apply to claims under the Human Rights Act. The latter point seems to me important because it means that the restriction does not interfere with the protection by the courts of any Convention rights. Furthermore, the Crown act of state rule does not prevent the claimant from bringing proceedings to enforce his rights in the courts of the country where the acts were committed or in any other country apart from the UK where he can establish jurisdiction over the UK government or its agents, albeit that he may be met by a defence of state immunity. Nor does it prevent a challenge in the English courts to the lawfulness of the relevant UK policy on English public law grounds.

The claimants’ submissions that the defence is disproportionate focused on the point that it can operate retrospectively. As discussed, it was held in Buron v Denman that an act done without authority may nevertheless be ratified by the Crown after the event. The claimants submitted that this makes the defence arbitrary. Quoting Lord Hoffmann in Matthews v Ministry of Defence [2003] 1 AC 1163, 1178, para 28, Ms Kaufmann QC argued that it gives the executive branch of government “a discretionary power to swoop down and prevent people with claims against the Crown from bringing them before the courts”.

I can see the force of this argument where an act is subsequently ratified by the Crown. It is noteworthy that in Buron v Denman itself Baron Parke expressed doubt about whether subsequent ratification from the Crown should be treated as equivalent to a prior command essentially because it amounted to a retroactive exemption from liability for a wrong. He contrasted the effect of such ratification with “the ordinary case of ratification by subsequent authority between private individuals”. Baron Parke said (at pp.188-9):

“If an individual ratifies an act done on his behalf, the nature of the act remains unchanged, it is still a mere trespass, and the party injured has his option to sue either; if the Crown ratifies an act, the character of the act becomes altered, for the ratification does not give the injured party the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from all liability the person who commits the trespass.”

However, these objections have no application where the act is done pursuant to a policy established in advance. In such a situation it cannot be said that the executive is exercising an arbitrary discretion to swoop down and prevent people from bringing claims. I do not understand the defendants to rely on subsequent ratification in the present cases. It is their case that the detentions were all authorised under the UK’s detention policy. It is therefore unnecessary to decide whether the test of proportionality would be satisfied in a case involving subsequent ratification.

I conclude that the defence of Crown act of state, as relied on by the defendants in these cases, is compatible with article 6 of the Convention.

For these reasons, I am not persuaded that any of the new arguments raised by the claimants which were not advanced in the Serdar Mohammed case provides any reason to alter the conclusions which I reached in that case about the basis on which and circumstances in which Crown act of state can afford a defence to claim in tort.

The defendants have not yet pleaded nor adduced any evidence to show that the arrest and detention of Mr Rahmatullah and the three Iraqi civilian claimants was in accordance with the UK’s detention policy. Provided that this is demonstrated, however, the claims to recover damages in tort based on the contention that their detention by British forces was unlawful under the law of Iraq will be barred by the Crown act of state doctrine.

As mentioned earlier, the MOD also relies on the Crown act of state doctrine in answer to the claims of the three Iraqi civilian claimants that they were wrongfully transferred into the custody of the US. As those claims are currently pleaded, there is no allegation that the transfers occurred otherwise than in accordance with UK government policy. Indeed, the allegations of “common design” made in the claimants’ particulars of claim assert that the system of transferring detainees between different forces of the coalition was a matter of policy which the UK joined with the US “to devise at the highest levels”. (Footnote: ⁴) It is difficult to see how in these circumstances any claim based on an allegation that the transfer of the claimants was wrongful under Iraqi law can be maintained.

However, it is also true that the defences pleaded by the MOD do not currently rely on Crown act of state in answer to the claims. The point has therefore not been addressed in the claimants’ statements of case. In the circumstances, I do not think it would be right to make any determination at this stage of the question whether claims alleging that the claimants’ transfer was wrongful are barred by Crown act of state.

In their claim for judicial review, Mr Rahmatullah and Mr Ali seek an order requiring the defendants to investigate allegations that the defendants violated their Convention rights by:

The defendants originally opposed the application for permission to proceed with the claim on the same grounds of state immunity, foreign act of state and Crown act of state as they relied on in opposition to Mr Rahmatullah’s civil damages claim, as well as on additional grounds of delay and abuse of process. By the time of the hearing, however, only those additional grounds were maintained. The defendants submitted that the claim was not commenced within the three month time limit for bringing judicial review claims established by CPR 54.5(1) and that there is no good reason to extend time. They argued that the grounds for making the claim first arose by, at the latest, the date of the application for habeas corpus in May 2011; however, the present judicial review proceedings were not begun until 18 December 2013. The defendants further contended that it was an abuse of the court’s process not to make the present claim for judicial review at the same time as the habeas corpus application.

In response, the claimants adduced evidence explaining the serious difficulties which their solicitors faced in taking instructions from them while they were imprisoned in Afghanistan, even after contact had been made through Reprieve. The evidence also explained why priority was given, while Mr Rahmatullah was in custody, to the attempt to secure his liberty. The claimants submitted that there was in these circumstances a good explanation for any delay in bringing the present judicial review claim and for the fact that it was not made at the same time as the application for habeas corpus.

The claimants further submitted that, even without a good explanation, the court ought to entertain the claim for judicial review in circumstances where its object is to require the defendants to undertake an investigation which they are under a continuing duty to carry out. The claimants relied on the approach taken by a Divisional Court (consisting of Fulford LJ and myself) in the recent case of R (Long) v Secretary of State for Defence [2014] EWHC 2391 (Admin). In that case proceedings were begun 10 years after the claimant’s son was killed in Iraq seeking a further investigation into his death. In response to the defendant’s objection that relief should be refused on the grounds of delay, the claimant argued (amongst other things) that the duty under article 2 of the Convention to hold an investigation into the soldiers’ deaths was a duty which was still continuing. At para 120 of the judgment we said:

“In circumstances where there is a duty on the state which it ought to be performing even if no claim to enforce performance of the duty is made at all, it is hard to see how it could be right to refuse to require the duty to be performed because a claim was not made sooner. Accordingly, if there is a duty to investigate which is still continuing and of which the state is in continuing breach, it seems to us that a court should generally be willing to entertain a claim brought by someone with a sufficient interest for an order requiring an investigation to be held irrespective of the length and reasons for the delay in making the claim.”

Although the passage was obiter, the defendants have not argued that the approach taken was wrong nor sought for present purposes to draw a distinction between the nature of the investigative duty under article 2 and the nature of the alleged duty under articles 3 and 5.

Instead, the response of the defendants, in further written submissions filed after the hearing, has been to record their position that there is no duty to investigate arguable breaches of the Convention of the kind alleged by the claimants. The defendants point out that the question whether there is a duty to investigate allegations of unlawful transfer, and the scope of the duty if it does exist, are the subject of preliminary issues which are going to be decided in R (Al-Saadoon and others) v Secretary of State for Defence. The defendants invited the court to decide the issues in the Al-Saadoon litigation before considering whether there is a continuing investigative duty in this case.

Where the defendants have thus ended up is in contesting the merits of the present claim on the ground that as a matter of law the alleged duty to investigate on which the claim is based does not exist. This point has never previously been relied on by the defendants as a ground for refusing permission to proceed and does not fall within the scope of the directions given on 7 June 2014. Even leaving that fact aside, it cannot justify the refusal of permission. The test at this stage is only whether the claim is arguable. It has not been and could not reasonably be suggested that the preliminary issues on which a hearing has now taken place in the Al-Saadoon proceedings do not involve arguable points. However those issues are decided, there is very likely to be an appeal. I cannot see that in these circumstances there is any reason for refusing Mr Rahmatullah and Mr Ali permission to proceed with their claim. Indeed, it seems to me that their claim ought from now on to be managed together with the case of Al-Saadoon and the other related claims for judicial review pending in the High Court.

I therefore grant permission to proceed. This will not of course prevent the defendants from maintaining their argument that relief should be refused on the grounds of delay. However, since they now accept that that argument is interlinked with the substantive issues raised by the claim, it cannot be decided separately from those issues.

For the reasons set out in this judgment, my conclusions are as follows: