Mohammed and Others v Ministry of Defence and another; Rahmatullah v Ministry of Defence and another; Iraqi Civilians v Ministry of Defence

JurisdictionEngland & Wales
JudgeLady Hale,Lord Wilson,Lord Hughes,Lord Mance,Lord Sumption,Lord Neuberger,Lord Clarke
Judgment Date17 January 2017
Neutral Citation[2017] UKSC 1
Date17 January 2017
CourtSupreme Court
Rahmatullah (No 2)
(Respondent)
and
Ministry of Defence and another
(Appellants)
Mohammed and others
(Respondents)
and
Ministry of Defence and another
(Appellants)

[2017] UKSC 1

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Mance

Lord Clarke

Lord Wilson

Lord Sumption

Lord Hughes

THE SUPREME COURT

Hilary Term

On appeals from: [2014] EWHC 3846 (QB) and [2015] EWCA Civ 843

Appellants (MOD in XYZ and ors)

Derek Sweeting QC James Purnell

(Instructed by The Government Legal Department)

Appellants (MOD and FCO in Rahmatullah)

James Eadie QC Karen Steyn QC Julian Blake

(Instructed by The Government Legal Department)

Appellant (MOD in Mohammed)

James Eadie QC Sam Wordsworth QC Karen Steyn QC Julian Blake Sean Aughey

(Instructed by The Government Legal Department)

Respondents (Rahmatullah and XYZ and ors)

Phillippa Kaufmann QC Ben Jaffey Edward Craven

(Instructed by Leigh Day)

Respondent (Mohammed)

Richard Hermer QC Ben Jaffey Nikolaus Grubeck

(Instructed by Leigh Day)

Heard on 9 and 10 May 2016

Lady Hale

(with whom Lord Wilson and Lord Hughes agree)

1

This is another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and Afghanistan. The litigation is being expertly managed by Leggatt J, but so far there have been no trials and so the points of law are being decided mainly on the basis of assumed facts. To summarise the issues which have so far been heard in this court:

(1) Mr Rahmatullah is a Pakistani national who was captured by the British forces in Iraq on 28 February 2004, transported to a United States detention facility that same day, and transferred by the US to a detention facility in Afghanistan on 29 March 2004, where he remained until his release on 15 May 2014. He is suing the Ministry of Defence and the Foreign and Commonwealth Office, first in respect of the United Kingdom's own treatment of him, and second in respect of the UK's alleged complicity in his detention and treatment by the United States. In relation to the second aspect of his claim, the UK government has raised the defences of state immunity and foreign act of state. The arguments relating to these defences were heard together with the claims of Mr Belhaj and his wife, Mrs Boudchar, against Mr Jack Straw and a number of UK officials and agencies, for alleged complicity in their rendition by Malaysian, Thai and US officials to Libya and their detention and torture there, where the same defences were raised. Judgment is given today: see Belhaj and another (Respondents) v Straw and others (Appellants) and Rahmatullah (No 1) (Respondent) v Ministry of Defence and another (Appellants) [2017] UKSC 3. In relation to the first aspect of his claim, which is based on both the Iraqi law of tort and the UK Human Rights Act 1998, the UK Government has raised the doctrine of Crown act of state in relation to the tort claim, and this judgment is concerned with that doctrine.

(2) A large number of Iraqi citizens have made claims similar to that of Mr Rahmatullah in respect of their detention and treatment by UK troops and transfer to the US authorities at various times during the UK's military presence in Iraq. In relation to many of these claims, the UK Government raised the defence that they were statute-barred by the Iraqi law of limitation. Judgment on that issue was given on 12 May 2016: see Iraqi Civilians v Ministry of Defence [2016] UKSC 25; [2016] 1 WLR 2001. The UK Government has also raised the doctrine of Crown act of state. Three of the claimants, known as XYZ, ZMS and HTF, have been chosen as representative for the purpose of deciding this issue.

(3) Mr Serdar Mohammed is an Afghan national who was captured in a planned International Security Assistance Force (ISAF) operation targeting a senior Taliban commander on 7 April 2010. He was detained by British troops until 25 July 2010 when he was transferred into Afghan custody. He was subsequently tried, convicted and sentenced to ten years' imprisonment for offences relating to the insurgency in Afghanistan. He too claims that his detention was unlawful both under the Afghan law of tort and the Human Rights Act 1998. In relation to his Human Rights Act claim, the UK Government argues that his detention was not in breach of article 5 of the European Convention on Human Rights, because article 5 has to be modified to take account of detention during armed conflict which is permitted, either under resolutions of the United Nations Security Council or under International Humanitarian Law. The argument about article 5 was heard together with a similar argument raised against the Ministry of Defence by Mr Al Waheed, an Iraqi national detained in the course of the conflict in Iraq. Judgment is given today: see Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent) and Serdar Mohammed (Respondent) v Ministry of Defence (Appellant) [2017] UKSC 2. In relation to Mr Mohammed's tort claim, the UK Government has raised the same doctrine of Crown act of state as is raised in Mr Rahmatullah's and the Iraqi civilians' cases, and with which this judgment is concerned.

(4) For completeness, there should also be mentioned the claims brought by the "PIL three" under both the Human Rights Act 1998 and UK public law in respect of their detention in Afghanistan. They bring no claim under the Afghan law of tort and so the question of Crown act of state does not arise in their cases.

The issues relating to Crown act of state
2

So what is this doctrine of Crown act of state? An act of state has been very widely defined, for example, by ECS Wade (in "Act of State in English Law: Its Relations with International Law" (1934) 15 British Yearbook of International Law 98, at p 103):

"Act of state means an act of the Executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown."

That definition is cited, not entirely approvingly, in the leading case of Nissan v Attorney General [1970] AC 179, at 212 (Lord Reid), 218 (Lord Morris) and 231 (Lord Wilberforce). It is also cited in the footnotes to the current issue of Halsbury's Laws of England, with the comment that act of state is "not a term of art". Halsbury refines the definition slightly:

"An act of state is a prerogative act of policy in the field of international affairs performed by the Crown in the course of its relationship with another state or its subjects."

No doubt it is a necessary component of the doctrine that the act in question falls within some such definition. But, as Lord Wilberforce pointed out in Nissan, that does not tell us what the doctrine is, or to what rule or rules of law it gives rise.

3

The doctrine is very rarely pleaded and so recent authority is scant. In this century, it has been raised in the context of the conflicts in Iraq and Afghanistan, first in Al-Jedda v Secretary of State for Defence (No 2) [2010] EWCA Civ 758; [2011] QB 773, which was decided on other grounds, and now in the current cases. In the 20th century, there are only two reported House of Lords cases in which it was raised, Johnstone v Pedlar [1921] 2 AC 262 and Nissan v Attorney General, above, and in neither of them was it successful, although it did succeed in a number of Indian appeals before the Judicial Committee of the Privy Council. We have therefore to go back to the 19th century and beyond to discover its origins and rationale.

4

The starting point is that English law "does not recognise that there is an indefinite class of acts concerning matters of high policy or public security which may be left to the uncontrolled discretion of the Government and which are outside the jurisdiction of the courts" (H Street, Governmental Liability, A Comparative Study, Oxford University Press, 1953, p 50). That there is no general defence of state necessity to a claim of wrongdoing by state officials was firmly established in the landmark case of Entick v Carrington (1765) 19 St Tr 1029, following on from Leach v Money (1765) 19 St Tr 1001 and Wilkes v Wood (1763) 19 St Tr 1029. This principle was reiterated by Viscount Finlay in Johnstone v Pedlar, at 271:

"It is the settled law of this country, applicable as much to Ireland as to England, that if a wrongful act has been committed against the person or the property of any person the wrongdoer cannot set up as a defence that the act was done by the command of the Crown. The Crown can do no wrong, and the Sovereign cannot be sued in tort, but the person who did the act is liable in damages, as any private person would be."

5

It was thus no defence to a claim for the return of money and a cheque, taken by the police from a person arrested in Ireland for illegal drilling in 1918, that the Chief Secretary for the Treasury had signed a certificate formally to "ratify, adopt and confirm the said seizure and detention of the said cash and cheque" as an act of state for the defence of the realm and for the prevention of crime. It made no difference that the person arrested was a US citizen: the United Kingdom was not at war with the United States. As a friendly alien resident here he was "a subject by local allegiance with a subject's rights and obligations", per Viscount Cave at 276.

6

However, there was an exception, which Viscount Finlay stated in very wide terms, at 271:

"This rule of law has, however, been held subject to qualification in the case of acts committed abroad against a foreigner. If an action be brought in the British Courts in such a case it is open to the defendant to plead that the act was done by the orders of the...

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