Yunus Rahmatullah v The Ministry of Defence and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Leggatt
Judgment Date19 November 2014
Neutral Citation[2014] EWHC 3846 (QB)
Docket NumberClaim No HQ13X01841

[2014] EWHC 3846 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Leggatt

Claim No HQ13X01841

Claim No: CO/17549/2013

Between:
Yunus Rahmatullah
Claimant
and
(1) The Ministry of Defence
(2) The Foreign and Commonwealth Office
Defendants

R on the application of

(1) Yunus Rahmatullah
(2) Amanatullah Ali
Claimants
and
(1) Secretary of State for Defence
(2) Secretary of State for Foreign and Commonwealth Affairs
Defendants

Phillippa Kaufmann QC, Adam Straw, Edward Craven and Maria Roche (instructed by Leigh Day) for the Claimants

James Eadie QC, Karen Steyn QC, Ben Watson and Melanie Cumberland (instructed by Treasury Solicitors) for the Defendants

Derek Sweeting QC and James Purnell (instructed by Treasury Solicitors) for the Defendants in the Iraqi Civilian Litigation

Hearing dates: 24 – 26 September 2014, 11 November 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Leggatt

Section

Para No.

A. INTRODUCTION

Mr Rahmatullah

1

Mr Rahmatullah's claim for damages

5

The preliminary issues in Mr Rahmatullah's case

7

The judicial review claim

8

Iraqi civilian claims

10

XYZ

13

ZMS

14

HTF

15

Belhaj v Straw

16

Structure of this judgment

20

B. THE CLAIMS IN TORT

Assumed facts

21

Analysis of the claims

22

Choice of law

23

The claimants' statements of case

27

Burden of proof

31

Common design

33

The allegations of complicity

35

Approach taken to the preliminary issues

38

C. STATE IMMUNITY

41

Indirect impleading

45

English cases

47

Jones v Saudi Arabia

57

Non-property interests

64

International law

67

The UN Convention 2004

71

The East Timor case

77

Other evidence of customary international law

79

Conclusion on international law

81

Article 6

82

Conclusion on state immunity

94

D. FOREIGN ACT OF STATE

96

Dicta of the US Supreme Court

98

Act of state and state immunity

100

Recognition of foreign laws

103

Validity of foreign judgments

110

Legality of executive acts

111

Application of the doctrine in the present case

115

The Buttes Gas case

116

A rule of decision or a rule of abstention?

123

The Kirkpatrick case

124

Subsequent English cases

128

Shergill v Khaira

135

Non-justiciability in the present cases

140

The defendants' position

146

The Noor Khan case

150

Sovereign equality

154

Comity

158

Political embarrassment or harm

164

Conclusions on the rule of abstention

171

Conclusions on foreign act of state

173

Article 6

176

Belhaj v Straw

177

E. CROWN ACT OF STATE

179

Serdar Mohammed v MoD

180

The issues in dispute

183

Justiciability

186

The Nissan case

187

The second Al-Jedda case

190

Defence to a claim in tort

201

The rationale of Buron v Denman

202

The Crown Proceedings Act 1947

210

Article 6

216

Conclusion on the availability of the defence

223

Conclusion on the detention claims

224

Conclusion on the wrongful transfer claims

225

F. THE JUDICIAL REVIEW CLAIM

227

G. CONCLUSIONS

234

Mr Justice Leggatt

A. INTRODUCTION

Mr Rahmatullah

1

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.

2

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."

3

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.

4

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

Mr Rahmatullah's claim for damages

5

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.

6

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.

The preliminary issues in Mr Rahmatullah's case

7

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."

The judicial review claim

8

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.

9

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...

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