Belhaj and another v Straw and Others; Rahmatullah v Ministry of Defence and another (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Mance,Lord Neuberger,Lord Wilson,Lady Hale,Lord Clarke,Lord Sumption,Lord Hughes |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] UKSC 3 |
| Date | 17 January 2017 |
| Court | Supreme Court |
[2017] UKSC 3
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hughes
Appellants (Rt Hon Jack Straw MP and 6 others)
Rory Phillips QC Sam Wordsworth QC Karen Steyn QC Sean Aughey
(Instructed by The Government Legal Department)
Appellant (Ministry of Defence and another)
James Eadie QC Karen Steyn QC Melanie Cumberland
(Instructed by The Government Legal Department)
Respondents (Belhaj and another)
Richard Hermer QC Ben Jaffey Maria Roche
(Instructed by Leigh Day)
Respondent (Rahmatullah)
Phillippa Kaufmann QC Edward Craven
(Instructed by Leigh Day)
Respondent (Rahmatullah)
Richard Hermer QC Nikolaus Grubeck Maria Roche
(Instructed by Deighton Pierce Glynn)
Interveners (UN Special Rapporteur on Torture and another)
Nathalie Lieven QC Ravi Mehta Shane Sibbel
(Instructed by Bhatt Murphy Solicitors)
Interveners
Martin Chamberlain QC Oliver Jones Zahra Al-Rikabi
(Instructed by The Redress Trust)
Interveners:-
(1) International Commission of Jurists
(2) JUSTICE
(3) Amnesty International
(4) REDRESS
Heard on 9, 10, 11 and 12 November 2015
| I Introduction | 1 |
| II The claimants' allegations | 2 |
| III Summary of conclusions | 6 |
| IV State immunity | 9 |
| V Foreign act of state | 19 |
| VI Three types of foreign act of state | 21 |
| VII Analysis of the case law | 26 |
| 26 | |
| (ii) The United States authorities | 27 |
| (iii) Buttes Gas v Hammer | 32 |
| VIII Application of the first and second types of foreign act of state | 36 |
| IX Application of third type of foreign act of state | 51 |
| X Miscellaneous points | 63 |
| XI Overall Conclusion | 64 |
The appeals now before the Supreme Court in Belhaj and Boudchar v Straw and Ministry of Defence v Rahmatullah concern the alleged complicity of United Kingdom authorities and officials in various torts, allegedly committed by various other states in various overseas jurisdictions. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault. The defences include in both appeals state immunity and the doctrine of foreign act of state. The case of Rahmatullah also raises for consideration the inter-relationship of these concepts with article 6 of the European Convention on Human Rights. The meticulous but differing analyses of the Court of Appeal (Lord Dyson MR and Sharp and Lloyd Jones LJJ) in Belhaj and Leggatt J in Rahmatullah underline the difficulties. The Supreme Court has nonetheless benefitted greatly from their analyses, as well as that of a previous Court of Appeal (Rix, Longmore and Davis LJJ) in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855; [2014] QB 458 (" Yukos v Rosneft").
The issues come before the courts by way of challenges under CPR rule 11.1 to the existence or exercise by the court of jurisdiction over the appellants (the defendants in the proceedings), combined with applications for dismissal of the relevant claims under CPR rule 3.1. The issues have, necessarily, to be determined by reference to allegations contained in the respondents' (the claimants') pleadings which have not been investigated or tested. One of the appellants' objections to their adjudication is indeed that it is impermissible or inappropriate for a domestic court to investigate allegations of the type advanced.
Both cases originate with events in February/March 2004. In Belhaj, Mr Belhaj, a Libyan national and opponent of Colonel Gaddafi, and his wife, Mrs Boudchar, a Moroccan national, attempted (under, it seems likely, other names) to take a commercial flight from Beijing to London, but were instead and for whatever reason deported by the Chinese authorities to Kuala Lumpur. There they were detained. MI6 is alleged to have become aware of their detention and on 1 March 2004 to have sent the Libyan intelligence services a facsimile reporting their whereabouts. This is said to have led to a plan being developed to render them against their will to Libya. Thereafter, they allege, they were unlawfully detained first by Malaysian officials in Kuala Lumpur and then by Thai officials and United States agents in Bangkok, before being put on board a US airplane which took them to Libya. There they were further detained, in the case of Mrs Boudchar until 21 June 2004, in the case of Mr Belhaj until 23 March 2010.
Mr Belhaj and Mrs Boudchar allege that the United Kingdom procured this detention in all these places "by common design with the Libyan and US authorities". They allege that they suffered mistreatment amounting to torture at the hands of US agents in Bangkok and in the airplane and at the hands of Libyan officials in Libya. They allege that the United Kingdom "by common design arranged, assisted and encouraged [their] unlawful rendition … to Libya". They rely in this connection upon a letter dated 18 March 2004 alleged to have been written by the second appellant, Sir Mark Allen, allegedly a senior official of the Secret Intelligence Service ("SIS") to Mr Moussa Koussa, Head of the Libyan External Security Organisation. The letter congratulated Mr Moussa Koussa "on the safe arrival of [Mr Belhaj]". It said that "This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years". It indicated that British intelligence had led to Mr Belhaj's transfer to Libya, although the British services "did not pay for the air cargo". Mr Belhaj and Mrs Boudchar further allege that the United Kingdom "conspired in, assisted and acquiesced in torture, inhumane and degrading treatment, batteries and assaults inflicted upon [them] by the US and Libyan authorities". Again, it should be stressed that these are allegations, based inter alia on alleged awareness of the risks of torture of detainees in United States and/or Libyan hands. It is also pleaded that "the renditions took place as part of a co-ordinated strategy designed to secure diplomatic and intelligence advantages from Colonel Gaddafi". The claims are framed as claims for false imprisonment, trespass to the person, conspiracy to injure or to use unlawful means, misfeasance in public office and negligence. They are brought against Mr Jack Straw as Foreign Secretary, Sir Mark Allen, the SIS, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office, all of whom are the appellants in Belhaj. The first and second appellants, Mr Straw and Sir Mark Allen, state that the Official Secrets Act makes it impossible for them to advance any positive case in response to the allegations against them. The remaining appellants state that it is the position of Her Majesty's Government that it would be damaging to the public interest for them to plead to such allegations.
Upholding Simon J on the point, the Court of Appeal held, and it is now accepted, that all the claims depend upon proof that torts such as those alleged existed under the laws of the places where they were allegedly committed (subject only to any countervailing considerations of, in particular, public policy under section 14 of the Private International Law (Miscellaneous Provisions) Act 1995). The issues now before the Court relate to all the claims, save for three negligence claims which are independent of the alleged facilitation of and acquiescence in rendition to and detention in Libya and which arise from alleged failure by the appellants to take protective steps after they became aware that Mr Belhaj and Mrs Boudchar were in Libya.
In Rahmatullah, Mr Rahmatullah, a Pakistani citizen, was on 28 February 2004 detained by British forces in Iraq on suspicion of being a member of Lashkar-e-Taiba, a proscribed organisation with links to Al-Qaeda. The UK and the USA were at the time occupying forces in Iraq, where there was a situation of international armed conflict. Shortly after his original detention, within a matter of days at most, Mr Rahmatullah was transferred into the custody of US forces, and by the end of March 2004 they had transferred him to Bagram Airbase in Afghanistan, where he was detained for over ten years without charge or trial, until released on 15 May 2014. He alleges that he was subjected to severe mistreatment in both British and United States detention. His claims are put under the like heads to Mr Belhaj's and Mrs Boudchar's, with assault and torture as additions. Again, the claims allege in various terms that the relevant appellants acted in concert or combination with the United States authorities, or assisted, encouraged or were complicit in relation to the alleged unlawful detention and mistreatment by the United States authorities. Again, the tenor of the allegations is that the United States authorities were the actors, even if they were being encouraged or engaged, procured, or utilised by the appellants to do as they allegedly did. Leggatt J regarded the claims relating to Mr Rahmatullah's detention by British forces and transfer into the custody of US forces as barred by the defence of Crown act of state, assuming that arrest and detention were authorised pursuant to lawful United Kingdom policy. The appeal from that aspect of his judgment was joined with the appeal in Mohammed (Serdar) v Ministry of Defence [2015] EWCA Civ 843; [2016] 2 WLR 247. The Court of Appeal allowed the appeal on the basis that Crown act of state is a nuanced defence, applicable only where "there are compelling considerations of public...
To continue reading
Request your trial
-
Araya v. Nevsun Resources Ltd, 2017 BCCA 401
...for Judgment of the Honourable Madam Justice Newbury: [1] In 2014, in Belhaj v. Straw [2014] EWCA Civ 1394, aff’d [2017] UKSC 3, Lloyd Jones, L.J. observed:… a fundamental change has occurred within public international law. The traditional view of public international law as a system of la......
-
Nevsun Resources Ltd. v. Araya, 2020 SCC 5
...By Abella J. Distinguished: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; considered: Belhaj v. Straw, [2017] UKSC 3, [2017] A.C. 964; Blad v. Bamfield (1674), 3 Swans. 604, 36 E.R. 992; Duke of Brunswick v. King of Hanover (1848), 2 H.L.C. 1, 9 E.R. 993; Yuko......
-
Corinna Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso
...if true: Jones v Ministry of the Interior of Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270 per Lord Bingham at [13]; Belhaj v Straw [2017] AC 964 per Lord Sumption JSC at [179]. … 36. The test under section 14(1) SIA requires consideration of whether the appellant, at a time when he remain......
-
R (on the application of Friends of the Earth Ltd) v The Secretary of State for International Trade / Export Credits Guarantee Department (UK Export Finance) (“UKEF”)
...We are concerned, if at all, with “the third rule.” 126 A convenient starting place is the Judgment of Lord Neuberger in Belhaj v Straw [2017] UKSC 3, [2017] AC 964. At [123] he said: “The third rule has more than one component, but each component involves issues which are inappropriate f......
-
UK Supreme Court Finds Guaidó Is to Be Recognised as Venezuela’s Head of State in Gold Dispute
...questions may need to be addressed in due course. Endnotes [1] [2021] UKSC 57. [2] [1993] 1 QB 54 [3] [2021] UKSC 57 at para. 98. [4] [2017] UKSC 3. [5] [2017] UKSC 3 at paras. 121-124. [6] [2021] UKSC 57 at para....
-
Business Litigation Report - September 2018
...(Russia) towards another (Ukraine) on the international plane. Having regard to the decision of the UK Supreme Court in Belhaj v. Straw ([2017] UKSC 3), Law Debenture argued that Ukraine’s defense lacked a “domestic foothold” as it was not based on English law rights and duties, but matters......
-
Foreign sovereign immunity in the caribbean: a case for legislative intervention
...quite distinct 243. BCB Holdings Ltd. v. Gov’t of Belize, 232 F. Supp. 3d at 39 (D.D.C. 2017). 244. Per Lord Sumption in Belhaj v. Straw [2017] UKSC 3, [2017] AC 964, [200]. In Singapore, the rationale behind the act of state doctrine is to disallow the Singapore courts from adjudicating on......
-
Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context
...Kuwait Airways Corporation v Iraqi Airways Corporation (Nos 4 and 5) [2002] AC 883, 1101; Rahmatullah (No 1) vMinistry of Defence [2017] AC 964, 999–1000.116. Petrotimor (n 54).117. (2007) 159 FCR 578 (‘Gamogab’).118. See Sim (n 107) 128; Richard Garnett, ‘Foreign States and Australian Cour......
-
Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context
...Kuwait Airways Corporation v Iraqi Airways Corporation (Nos 4 and 5) [2002] AC 883, 1101; Rahmatullah (No 1) vMinistry of Defence [2017] AC 964, 999–1000.116. Petrotimor (n 54).117. (2007) 159 FCR 578 (‘Gamogab’).118. See Sim (n 107) 128; Richard Garnett, ‘Foreign States and Australian Cour......
-
Between form and Substance: Minimising Judicial Scrutiny of Executive Action
...98 See Mohammed v Ministry of Defence [2017] 2 WLR 287; Mohammed v Ministry of Defence (No 2) [2017] 2 WLR 327; Belhaj v Straw [2017] 2 WLR 456. 99 Mohammed v Ministry of Defence [2017] 2 WLR 287. 100 Belhaj v Straw [2017] 2 WLR 456. 101 See Mohammed v Ministry of Defence [2017] 2 WLR 287, ......