Mutua v Foreign and Commonwealth Office [England, High Court, Queen's Bench Division]
| Jurisdiction | England & Wales |
| Judge | McCombe J |
| Judgment Date | 05 October 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 October 2012 |
England, High Court, Queen's Bench Division
(McCombe J)
State succession Colonies Independence Kenya Kenya becoming independent in December 1963 Creation of new independent State Responsibility of United Kingdom Government Rules of constitutional theory Succession in respect of tortious liabilities of Colonial Government Whether United Kingdom Government or independent Kenya succeeding to liability Claims for torture of detainees during the colonial period
Relationship of international law and municipal law Customary international law Principles on State succession State practice Customary international law source of English common law Doctrine of incorporation International law rules incorporated automatically if not conflicting with United Kingdom statute Kenya Independence Act 1963 Liabilities of Colonial Government Whether transferring to United Kingdom Government by common law upon Kenya's independence Domestic English law of limitation Limitation Act 1980 Section 33 considerations European Convention on Human Rights obligations Public international law principles Relevance Justice of case against accepted international legal norms
Human rights Prohibition of torture English law regarding torture with revulsion Refusal to admit evidence obtained by torture United Kingdom Government having means to prevent torture Claimants alleging negligence in failing to prevent torture Whether issue triable Limitation Act 1980 Considerations under Section 33 Duty of State under Article 3 of the European Convention on Human Rights, 1950 to investigate allegations of torture Public international law with regard to torture Relevance under Limitation Act 1980
Human rights Fair trial Whether possible after delay Section 33 of Limitation Act 1980 Discretionary exclusion of time limit for actions in respect of personal injuries or death Whether claimants persuading Court to exercise its discretion Considerations under Section 33 Retrospective application of Convention obligations Duty of State under Article 3 of European Convention to investigate allegations of torture Public international law with regard to torture Relevance The law of England
Summary:2The facts:The claimants brought an action for damages for personal injuries against the defendant, representing the United Kingdom Government. They claimed that the United Kingdom Government was liable for the torture to which they had been subjected by Kenyan colonial officials while in detention in what was then the British Colony of Kenya between 1954 and 1959.
The torts alleged by the claimants were committed during a state of emergency in Kenya, following the Mau Mau rebellion in the 1950s. Proclaimed by the Governor of Kenya3 on 20 October 1952, this Emergency lasted until 12 January 1960. It was proclaimed under Section 3 of the Emergency Powers Order-in-Council 1939, in exercise of powers conferred by Acts of the United Kingdom Parliament. The Emergency Regulations 1952, also made under the 1939 Order, contained wide powers of arrest and detention of suspected persons. From March 1953 thereabouts detention camps were constructed to accommodate the many detained under the Emergency Powers. Military command in Kenya was subsequently strengthened, operating directly under the British War Office and with a British Commander-in-Chief. A Council of
Ministers and War Council were also established. Changes in constitutional arrangements led up to Kenya's independence on 12 December 1963 by virtue of the Kenya Independence Act 1963.4 A new constitution was enacted. On 12 December 1964 Kenya became a republic.
The claimants' claim was formulated under five heads.5 The claimants maintained that the United Kingdom Government was liable for the torts due to the transfer of liabilities of the Colonial Government by common law on independence, the July 1957 instruction, its complicity in a tortious system through the British Army and the Colonial Office, and its negligence. They argued that under customary international law, a source of common law, with respect to the creation of a new successor State in the context of decolonization, the liability of the colonial administration of the predecessor State devolved to the predecessor State upon independence. The defendant maintained that liability did not devolve to the United Kingdom upon Kenya's independence but to the new independent government. Any action taken by the United Kingdom during the Emergency was as part of the operation of the Colonial Government of Kenya,6 which controlled the detention camps where the alleged torture occurred.
The defendant applied for orders striking out the claimants' claims and/or for summary judgment dismissing their claims under Parts 3 and 24 of the Civil Procedure Rules (CPR). The claimants also applied under Part 17 of the CPR for permission to amend the Particulars of Claim.
Judgment of 21 July 2011
Held:The defendant's applications were denied, except in respect of the first formulation. The claimants had viable claims in law against the defendant. The claimants' application was granted.
(1) The claimants' case as founded upon the first formulation failed, whether considered under CPR Parts 3 or 24. The relevant paragraphs of the Particulars of Claim were to be struck out. The facts, however found at trial, would not have affected this head of claim's viability. Any liability of the Colonial Government would have passed to, or remained with, the new independent Kenya in December 1963.
(a) In the half-year up until independence any claims in tort against the Kenyan Government, or the United Kingdom in right of Kenya, could have been brought before the Kenyan courts in the name of the Attorney-General under the Crown Proceedings Ordinance 1956 (paras. 669).
(b) Upon independence any liabilities passed to the new State to be enforced by and against it as previously by and against the Colonial Government. A new
independent government had to take over from the old Colonial Government with minimum disruption to the functions, rights and responsibilities of the institution of government, whatever its status (paras. 707)(c) After independence, the government remained Her Majesty in right of Kenya, although the source of advice in exercising Crown functions came thereafter from Kenyan ministers alone to the exclusion of British ministers. Kenyan liabilities remained Kenyan, and British liabilities were British, as reflected by Section 40(2) of the Crown Proceedings Act 1948 and Section 34(2) of the Kenyan Crown Proceedings Ordinance. What happened in Kenya was a matter for Kenyan Parliament with which Her Majesty's Government in the United Kingdom was not concerned. The remedy thus lay with an independent Kenya (paras. 789).
(d) Since the matter was resolved by the true construction and effect of the independence statutes, not by common law, it was unnecessary to pursue the customary international law submission for practical purposes. International law rules were incorporated into English law automatically only if they were not in conflict with an Act of Parliament. Although the Kenya Independence Act 1963 did not expressly transfer rights and liabilities to the new Kenyan State, its mechanism was to leave the rights and liabilities of the old Kenyan administration with the new one. This was consistent with British State practice (paras. 805).
(e) It was undisputed that customary international law, including State succession principles, was a source of common law. In accordance with those principles, private law rights under the domestic law of the territory upon the succession of a new State were to be preserved (para. 86).
(f) It was generally accepted that the sources of public international law were contained in Article 38 of the Statute of the International Court of Justice. For a customary international law rule to be established, it had to be shown that relevant state practice was both extensive and virtually uniform. The claimants had failed to establish such a rule as the basis of a claim under the common law of England. The Vienna Conventions on Succession of States in Respect of Treaties, 1978 and Respect of State Property, Archives and Debts, 1983, which dealt with obligations assumed to other States, did not help. Neither did the Arbitral Commission or other decisions on which the claimants relied (paras. 8795).
(g) While it had been taken for granted that a successor State was not liable for the delicts of its predecessor, it remained unclear whether this referenced international delicts giving rise to State responsibility or torts in municipal law. One might or might not constitute the other. Mischaracterization had produced defective jurisprudence (paras. 96102).
(2) The formulation of the claim with respect to the United Kingdom Government's liability for assaults by means of the dilution technique7 on or after 16 July 1957 was not to be struck out in view of uncertainty. Since the
documents authorizing the treatment fell short of an act under the Kenyan Colonial Constitution, the Secretary of State for the Colonies had acted in the right of the United Kingdom rather than in the right of the Colony. If this hesitant conclusion on the status of the documents in the context of the Quark principle was wrong, it could be corrected after a full review of the facts (paras. 10312)(3) The formulations of the claim in regard to the liability of the United Kingdom Government for complicity in a tortious system through the British Army and the Colonial Office were not to be struck out since the issues were properly triable on the evidence.
(a) Historic research and contemporaneous Kenyan judgments evidenced the possibility of systematic torture of detainees during the Emergency. There was also evidence that both governments knew but failed to act. A trial court might conclude that...
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