R v Tra
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lady Hale,Lord Wilson,Lord Hodge,Lord Reed |
| Judgment Date | 13 November 2019 |
| Neutral Citation | [2019] UKSC 51 |
| Court | Supreme Court |
| Date | 13 November 2019 |
[2019] UKSC 51
Lady Hale, President
Lord Reed, Deputy President
Lord Wilson
Lord Hodge
Lord Lloyd-Jones
Appellant
Steven Powles QC
Tatyana Eatwell
Margherita Cornaglia
(Instructed by Bark & Co)
Respondent
David Perry QC
Paul Rogers
Kathryn Howarth
Emilie Pottle
(Instructed by CPS Counter Terrorism Division (Westminster))
Intervener (Redress)
Sudhanshu Swaroop QC
John Bethell
(Instructed by Hogan Lovells International LLP)
Heard on 24 and 25 June 2019
( with whom Lady Hale, Lord Wilson and Lord Hodge agree)
The appellant, TRA, who was arrested in the United Kingdom on 1 June 2017, is charged with one count of conspiracy to commit torture (count 1) and seven counts of torture (counts 2–8). The substantive offence alleged in each case is that of torture contrary to section 134, Criminal Justice Act 1988 (“ CJA”). The charges relate to events in Liberia in 1990, in the early stages of the first Liberian civil war, when an armed group, the National Patriotic Front of Liberia (“NPFL”), sought to take control of the country and to depose the then President, Samuel Doe. The leader of the NPFL was Charles Taylor REDACTED. The NPFL eventually succeeded in taking control of Liberia and Charles Taylor became President in 1997.
This is an appeal pursuant to section 36, Criminal Procedure and Investigations Act 1996 (“ CPIA”) and section 33(1), Criminal Appeal Act 1968. It arises out of a ruling on a question of law made within a preparatory hearing under section 32(3) CPIA which was amalgamated into a decision on an application for dismissal under the Crime and Disorder Act 1998, Schedule 3 paragraph 2(2). The Criminal Division of the Court of Appeal (Lord Burnett CJ, Popplewell and Whipple JJ) has certified the following point of law of general public importance:
“What is the correct interpretation of the term ‘person acting in an official capacity’ in section 134(1) of the Criminal Justice Act 1988; in particular does it include someone who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs?”
REDACTED
The prosecution maintains that at the time and place of the alleged offences, the NPFL was the de facto military government or government authority and that Charles Taylor and those acting for and with him, including the appellant, were acting in an official capacity for, and on behalf of, the NPFL and had effective control of the area where the various alleged offences occurred at the time they occurred.
The prosecution's expert witness acknowledges that identifying a specific date when a particular town fell under NPFL control is difficult. Territory changed hands quickly during the early months of the war. Both the NPFL and the government of Liberia made misleading statements regarding which towns were under their control. During its advance across Nimba County the NPFL did not have a clearly defined military structure, although Charles Taylor was universally recognised as leader of the group during this period. Commanders moved with the fighting and exercised influence based on the number of soldiers they were able to recruit and train.
The prosecution's expert witness indicates that within days of falling under NPFL control, villages and towns usually received a visit from an NPFL commander and a detachment of fighters, although the NPFL did not maintain a permanent presence in all locations. Further, he states that his own research suggests that all of Nimba County including the major towns and cities was under NPFL control by early May 1990.
In a memorandum served by the prosecution after the hearing before the Court of Appeal, the prosecution's expert clarifies that his use of the term “control” refers to military rather than administrative control over the area. He states that the NPFL offensives in early 1990 caused the Armed Forces of Liberia (“AFL”) to withdraw from nearly all areas of Nimba County and consolidate their forces in military bases located in strategic towns. This withdrawal created a situation in which NPFL forces had freedom of movement throughout the County. As a result, the NPFL was the de facto military authority in the area. Such military control is said to be very different from administrative control. He states that before June 1990 the NPFL did not have a sustained presence in much of Nimba County. It did not assign officials to oversee towns or deploy forces to provide security. NPFL forces passed through towns and villages on an ad hoc basis; there was no sustained or coordinated occupation. Much of the population lived in a ‘no man's land’, areas without any consistent administrative authority, but with the occasional presence of NPFL fighters.
REDACTED
Following her arrest on 1 June 2017, the appellant denied involvement in the offences. In her Defence Case Statement, she asserts that at no time did she act in an official capacity for the NPFL and she disputes that the NPFL was the de facto government authority in the relevant locations and at the relevant times.
The appellant made an application to dismiss the charges pursuant to the Crime and Disorder Act 1998, Schedule 3, paragraph 2. The application came before Sweeney J at the Central Criminal Court in two stages. The parties agreed that the judge should first hear argument as to the correct legal test of official capacity with the intention that, once that ruling had been delivered, the defence could consider whether to continue with a submission that there was no case to answer. The application proceeded on the basis that a submission of no case to answer may include the calling of evidence by the prosecution or the defence and that the determination of such a submission would be a matter of law. The first part of the dismissal application was heard on 26 and 27 March 2018. In his ruling dated 30 July 2018, Sweeney J concluded that section 134 “applies, not only to acting for entities either tolerated by, or acting under the authority of the government of a state, but also, in situations of armed conflict, to individuals who act in a non-private capacity and as part of an authority-wielding entity”. Following this ruling, the second part of the defendant's dismissal application was heard on 4 October 2018. On 10 October 2018 Sweeney J ruled that there was a case to answer on all counts. In his reasons given in writing on 29 October 2018 the judge explained that, while the questions whether the appellant was acting in a non-official capacity on behalf of the NPFL and whether the NPFL was an authority-wielding entity would ultimately be for the jury, the dismissal application turned on whether the evidence, taken at its highest, was sufficient for a jury properly to so conclude. He held that it was.
The appellant appealed against the ruling dated 30 July 2018, made again within the context of the preliminary hearing on 29 October 2018, to the Court of Appeal which dismissed the appeal on 21 December 2018. It held that the category of perpetrator defined as “a public official or person acting in an official capacity” in section 134 CJA is not confined to those acting on behalf of a recognised state but “covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict.” (para 69) The Court of Appeal noted that it had expressed its conclusion in slightly different language from that of Sweeney J in his ruling, but it considered that the test he adopted and applied was not materially different on the facts of the case and that his subsequent ruling on the factual submission of no case to answer was not affected by the difference. Accordingly, the appeal was dismissed.
On 13 February 2019 the Supreme Court (Lady Hale, Lord Reed and Lord Kerr) granted permission to appeal.
It is necessary to identify and apply the law as it existed at the dates on which it is alleged that the offences in the indictment were committed.
Section 134 CJA provides in relevant part:
“134. Torture
(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.
(2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if —
(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence —
(i) of a public official; or
(ii) of a person acting in an official capacity; and
(b) the official or other person is...
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