Zayn Al-Abidin Muhammad Husayn (Abu Zubaydah) v The Foreign and Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lady Justice Thirlwall,Dame Victoria Sharp |
| Judgment Date | 16 March 2022 |
| Neutral Citation | [2022] EWCA Civ 334 |
| Docket Number | Case No: CA-2021-000495 (formerly B3/2021/0493) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 334
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Lane
Royal Courts of Justice
Strand, London, WC2A 2LL
Dame Victoria Sharp,
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lady Justice Thirlwall
and
Lord Justice Males
Case No: CA-2021-000495 (formerly B3/2021/0493)
Richard Hermer QC, Ben Jaffey QC & Edward Craven (instructed by Bhatt Murphy) for the Appellant/Claimant
David Blundell QC, Melanie Cumberland & Andrew Byass (instructed by the Government Legal Department) for the Respondents/Defendants
Hearing date: 1 March 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to BAILII. The date and time for hand-down is deemed to be 10.30 a.m. on Wednesday 16 th March 2022
This appeal is concerned with the law which is applicable to torts allegedly committed by the Security Service and the Secret Intelligence Service (together “the Services”) against a detainee subjected to so-called “enhanced interrogation techniques” by the United States Central Intelligence Agency (“the CIA”). The essence of the claimant's claim is that the Services were aware that the claimant was being subjected to extreme mistreatment and torture at secret CIA “black sites” in six different countries, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and intending (or at any rate not caring) that the claimant would be subject to such mistreatment and torture at interrogation sessions conducted for the purpose of attempting to obtain this information.
The claimant contends that by acting in this way the Services committed the torts of misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence; and that the defendants are vicariously liable for their conduct.
The question is whether the law applicable to these tort claims is English law or the law of the various countries where the claimant's ill-treatment occurred, namely Thailand, Lithuania, Poland, the United States Base at Guantánamo Bay, Cuba, Afghanistan and Morocco (“the Six Countries”). Mr Richard Hermer QC for the claimant contends for English law, while Mr David Blundell QC for the defendants contends that the applicable law is the law of the place where the mistreatment occurred: that is to say, that Thai law applies to conduct resulting in mistreatment in Thailand, Polish law applies to conduct resulting in mistreatment in Poland, and so on. The judge, Mr Justice Lane, accepted the defendants' position and the claimant now appeals.
The events in issue took place between 2002 and 2006, which means that the question of the applicable law depends upon the application of the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”).
Factual background
The claimant, known as Abu Zubaydah, is held by the United States as a detainee in Guantánamo 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 Six Countries. In 2006 he was rendered again to Guantánamo Bay, where he has been held without trial ever since. It appears that at an early stage the CIA determined that the claimant should be held incommunicado for the rest of his life and, so far, that is what has happened.
The claimant's case is that in each of the Six Countries he was arbitrarily detained at a CIA “black site”. According to a 2014 report by the United States Senate Committee on Intelligence (“the Senate Report”), these were secret detention facilities around the world, outside the US legal system, where there were no visits by international welfare organisations and treatment standards were not monitored. The claimant's case is that at each of these locations he was subjected to extreme mistreatment and torture. This included waterboarding on some 83 occasions, extreme sleep deprivation, confinement inside boxes (including boxes said to simulate a coffin and boxes which required him to adopt a stress position), beatings, death threats, starvation and denial of medical care. For extended periods he was kept naked or “diapered”, with no access to sanitation facilities.
According to the Senate Report, the claimant was the first person to be detained at such a site. Although the United States denied the existence of these facilities at the time and, even after admitting the “black sites” programme in 2006, has never confirmed their location, the European Court of Human Rights in Al-Nashiri v Poland/ Husayn v Poland (2015) 60 EHRR 16 found that such a site existed in Poland and that the claimant had been held in it, during which time he suffered grave breaches of his human rights. Similar findings were made in respect of Lithuania in Abu Zubaydah v Lithuania (Application No. 46454/11) (31 st May 2018).
The claimant's pleaded case is that he was taken to Thailand after his capture in Pakistan, where he remained at a “black site” facility until 4 th December 2002. On that day he was placed on a CIA Gulfstream jet aircraft and rendered to Poland, where he arrived on 5 th December 2002. He was held at a “black site” facility in Poland from 5 th December 2002 to 22 nd September 2003. On that day, he was placed on another CIA Gulfstream jet and rendered to Guantánamo Bay. The claimant remained there from 22 nd September 2003 to 27 th March 2004, again in “black site” detention. On 27 th March 2004, the claimant was placed on a CIA rendition aircraft and taken from Guantánamo Bay to Morocco. This is said to have been in response to the CIA's expectation that the United States Supreme Court would shortly deliver a judgment, recognising the right of Guantánamo detainees to challenge the legality of their detention before US courts by applying for habeas corpus.
The claimant says that from 27 th March 2004 until February 2005 he was detained at a “black site” facility in Morocco. On 17 th or 18 th February 2005 he was removed by CIA aircraft from Morocco to Lithuania, where he was detained at a “black site” facility until 25 th March 2006, when he was removed by CIA aircraft to Afghanistan. He was detained in Afghanistan, again at a “black site” facility, from 25 th March 2006 until a date in September 2006. In that month, the claimant was removed by CIA aircraft from Afghanistan to Guantánamo 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 “black site” facilities at which he was held.
The claim in this action
The claimant does not suggest that United Kingdom forces played any part in his capture or that United Kingdom authorities or personnel, including the Services, had any involvement in his rendition to any of the “black site” facilities or played any part in (or were present at) the treatment which he received. His case is that from at least May 2002 the Services were aware that he 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 Services sent numerous questions to the CIA, to be used in interrogations of the claimant for the purpose of attempting to elicit information of interest to them. They did so without seeking any assurances that the claimant would not be tortured or mistreated and no steps were taken to discourage or prevent such treatment during his interrogation sessions. It is, the claimant says, to be inferred that the Services sent the questions to the CIA in the knowledge and with the expectation and/or intention, or at the very least not caring, that the CIA would subject him to torture and extreme mistreatment in order to obtain information from him in response to their questions.
The claimant contends that the defendants are vicariously liable for the torts thus committed by the Services, namely misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence. The Particulars of Claim assert that the law applicable to the claim is the law of England and Wales, but plead in the alternative a case that the defendants are liable under the laws of each of the Six Countries where the mistreatment occurred, with particulars of the laws of each of those countries being set out.
The defendants' OPEN Defence (we have not seen any CLOSED material) asserts that they are unable to respond openly to all of the allegations made in the Particulars of Claim for reasons of national security. Their position, in summary, is that they do not plead to allegations made against the United States authorities (in particular the allegations concerning rendition and torture) and that they neither confirm nor deny the matters relied on by the claimant to establish their liability.
While it is difficult to be categorical without seeing any CLOSED Defence which may have been served, the availability of material in the public domain suggests that there is unlikely to be any serious dispute about the fact of the claimant's rendition to the various countries listed above, his detention at CIA “black sites”, and that he was subject to treatment in those countries at the hands of the CIA which, in this jurisdiction, would be regarded as torture. The critical issue in the case seems likely to be whether the claimant will be able to prove his allegations...
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