Zayn Al-Abidin Muhammad Husayn (Abu Zubaydah) v The Foreign and Commonwealth Office

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Lane
Judgment Date19 February 2021
Neutral Citation[2021] EWHC 331 (QB)
Docket NumberCase No: QB/2019/004274
Date19 February 2021

[2021] EWHC 331 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Lane

Case No: QB/2019/004274

Between:
Zayn Al-Abidin Muhammad Husayn (Abu Zubaydah)
Claimant
and
(1) The Foreign and Commonwealth Office
(2) The Home Office
(3) The Attorney General
Defendants

Richard Hermer QC, Ben Jaffey QC and Edward Craven (instructed by Bhatt Murphy) for the Claimant

Jonathan Glasson QC, Melanie Cumberland and Andrew Byass (instructed by the Government Legal Department) for the Defendants

Hearing date: 20 January 2021

JUDGMENT IN PRELIMINARY ISSUE

Mr Justice Lane

BACKGROUND

1

The claimant is held by the United States as a detainee in Guantanamo Bay, Cuba. He was captured in March 2002 in Pakistan. The claimant says that between 2002 and 2006 he was unlawfully rendered by agents of the United States to the following countries: Thailand, Poland, the United States' base at Guantanamo Bay, Morocco, Lithuania and Afghanistan (hereafter “the Six Countries”). In 2006 he was rendered again to Guantanamo Bay.

2

The claimant's case is that in each of these Six Countries he was arbitrarily detained at a US “black site” prison, where he was subjected to extreme mistreatment and torture, including waterboarding on some 83 occasions, extreme sleep deprivation, confinement inside boxes (including those said to simulate a coffin), beatings, death threats, denial of food and denial of medical care.

3

These “black sites” have been described as secret detention facilities around the world, operating outside the US legal system. The claimant was the first person to be detained in such a site, according to the 2014 Report of the US Senate Select Committee on Intelligence. Although the United States is said to have denied the existence of these facilities at the time and, even after admitting the “black sites” programme in 2006, has never confirmed the location of the sites, the European Court of Human Rights in Al-Nashiri v Poland/Husayn v Poland (2015) 60 E.H.R.R. 16 found that such a site existed in Poland and that the claimant had been held in it, during which time he suffered breaches of the ECHR. Similar findings were made in respect of Lithuania in Abu Zubaydah v Lithuania (Application No. 46454/11) (31 May 2018).

4

The particulars of claim aver that the claimant was taken to Thailand, following his capture in Pakistan, where he remained at a “black site” facility until 4 December 2002. On that day he was placed on a CIA Gulfstream jet aircraft and rendered to Poland, where he arrived on 5 December 2002. He was held at a “black site” facility in Poland from 5 December 2002 to 22 September 2003. On that day, he was placed on another CIA Gulfstream jet and rendered to Guantanamo Bay. The claimant remained there from 22 September 2003 to 27 March 2004, again in “black site” detention. On 27 March 2004, the claimant was placed on a CIA rendition aircraft and taken from Guantanamo Bay to Morocco. This is said to have been in response to the CIA's expectation that United States Supreme Court would shortly deliver a judgment, recognising the right of Guantanamo detainees to challenge the legality of their detention before US courts.

5

The particulars further aver that from 27 March 2004 until some date in February 2005, the claimant was detained at a “black site” facility in Morocco. On 17 or 18 February 2005, he was removed by CIA aircraft from Morocco to Lithuania. The claimant was detained at a “black site” facility in Lithuania from 17 or 18 February 2005 until 25 March 2006, when he was removed by CIA aircraft to Afghanistan. The claimant was in Afghanistan, again at a “black site” facility, from 25 March 2006 until a date in September 2006. In that month, the claimant was removed by CIA aircraft from Afghanistan to Guantanamo Bay, where he remains. It is contended in the particulars of claim that the claimant suffered arbitrary detention, torture and mistreatment in each of the countries at which he was held in a “black site” facility.

6

The claimant's case against the defendants arises as follows. The particulars of claim state that from at least May 2002 the defendants were aware that the claimant was being arbitrarily detained without trial at secret “black sites”, where he was being subjected to extreme mistreatment and torture during interrogations conducted by the CIA. Notwithstanding that knowledge, from at least May 2002 until at least 2006, the Secret Intelligence Service (“SIS”) and the Security Service (“SyS”) sent numerous questions to the CIA, to be used in their interrogations of the claimant for the purpose of attempting to elicit information of interest to SIS and SyS. No assurances were sought that the claimant would not be tortured or mistreated and no steps were taken to discourage or prevent such torture or mistreatment being inflicted against the claimant during his interrogation sessions. It is, the claimant says, therefore to be inferred that SIS and SyS sent the questions to the CIA in the knowledge and with the expectation and/or intention that the CIA would subject the claimant to torture and extreme mistreatment at those interrogation sessions, conducted for the specific purpose of attempting to extract information in response to the questions from SIS and SyS.

7

The first defendant is said to be vicariously liable for the acts and omissions of officials of the SIS. The second defendant is said to be vicariously liable for the acts and omissions of the SyS. The Attorney General is made a defendant pursuant to section 17(3) of the Crown Proceedings Act 1947. This provides for proceedings to be brought against the Attorney General when no authorised government department is the appropriate defendant in civil proceedings against the Crown; or where there is reasonable doubt as to whether any department is the appropriate defendant to proceedings.

8

The claimant contends that the defendants are liable to him for the tort of misfeasance in public office; conspiracy; trespass to the person and false imprisonment; and negligence. The particulars of claim contend that the defendants are liable for these torts under the law of England and Wales. If that is not the case, the claimant avers that the defendants are liable under the laws of the Six Countries. Paragraphs 58 to 107 of the particulars set out what is said to be the applicable laws of the Six Countries. So far as concerns Guantanamo Bay, the claimant pleads US law, including the Alien Tort Statute 1789, which recognises the subset of customary international law in respect of violations of “specific, universal, and obligatory” norms of international law.

9

Paragraph 47 of the defendants' open defence is considered by the claimant to involve the contention that the law of Cuba falls to be applied in respect of the CIA's conduct at Guantanamo Bay. Depending on the outcome of the present proceedings, the claimant indicates that he will consider whether to plead Cuban law in the alternative.

PRELIMINARY ISSUE

10

The preliminary issue concerns the applicable law for the purposes of the claim. It is common ground that the issue of the applicable law falls to be determined by reference to the provisions of Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”). By a consent order dated 8 January 2021, it was ordered that the issue of the applicable law should be determined as a preliminary issue at a hearing to take place remotely on 20 January 2021. It was also ordered by consent that the proceedings are proceedings in which a closed material application may be made in accordance with section 6 of the Justice and Security Act 2013 (“the 2013 Act”).

11

Section 10 of the 1995 Act abolished the common law rules, which required actionability under both the law of the forum and the law of another country, for the purpose of determining whether a tort or delict was actionable. It also abolished the rule allowing, by way of exception to the rule just mentioned, for the law of a single country to be applied for the purpose of determining those issues. The general rule for choice of applicable law is set out in section 11:-

“11. Choice of applicable law: the general rule.

(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.

(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being—

(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;

(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and

(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.

(3) In this section “ personal injury” includes disease or any impairment of physical or mental condition.”

12

The claimant accepts that, unless displaced, section 11(2)(a) produces the result that the applicable law in the context of the present proceedings is the laws of each of the Six Countries (subject to the point mentioned earlier regarding Guantanamo Bay). The claimant contends, however, that, in the circumstances of his case, the operation under section 12 of the 1995 Act is such that the appropriate law for the purposes of his claim against the defendants is the law of England and Wales.

13

Section 12 provides:-

“12. Choice of applicable law: displacement of general rule.

(1) If it appears, in all the circumstances, from a comparison of—

(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable...

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