Belhaj and another (Respondents) v Straw and others (Appellants)

Cite as:[2017] UKSC 3
Hand-down Date:January 17, 2017
 
FREE EXCERPT

Hilary Term [2017] UKSC 3 On appeals from: [2014] EWCA Civ 1394 and [2014] EWHC 3846 (QB)

JUDGMENT

Belhaj and another (Respondents) v Straw and others (Appellants)

Rahmatullah (No 1) (Respondent) v Ministry of Defence and another (Appellants) before

Lord Neuberger, President Lady Hale, Deputy President Lord Mance

Lord Clarke

Lord Wilson

Lord Sumption Lord Hughes JUDGMENT GIVEN ON 17 January 2017 Heard on 9, 10, 11 and 12 November 2015 Appellants (Rt Hon Jack Straw MP and 6 others) Respondents (Belhaj and another) Rory Phillips QC Richard Hermer QC Sam Wordsworth QC Ben Jaffey Karen Steyn QC Maria Roche Sean Aughey (Instructed by The Government Legal

Department) (Instructed by Leigh Day) Appellant (Ministry of Defence and another) Respondent (Rahmatullah) James Eadie QC Phillippa Kaufmann QC Karen Steyn QC Edward Craven Melanie Cumberland (Instructed by The Government Legal

Department) (Instructed by Leigh Day) Respondent (Rahmatullah) Richard Hermer QC Nikolaus Grubeck Maria Roche (Instructed by Deighton Pierce Glynn) Interveners (UN Special Rapporteur on Torture and another) Nathalie Lieven QC Ravi Mehta Shane Sibbel (Instructed by Bhatt

Murphy Solicitors) Interveners Martin Chamberlain QC Oliver Jones Zahra Al-Rikabi (Instructed by The Redress Trust) Interveners:-

(1) International Commission of Jurists

(2) JUSTICE

(3) Amnesty International

(4) REDRESS

LORD MANCE:

I Introduction ............................................................................................................ 1

II The claimants' allegations ...................................................................................... 2

III Summary of conclusions ........................................................................................ 6

IV State immunity ........................................................................................................ 9

V Foreign act of state ............................................................................................... 19

VI Three types of foreign act of state ........................................................................ 21

VII Analysis of the case law ....................................................................................... 26

(i) Carr v Fracis Times & Co ............................................................................... 26

(ii) The United States authorities .......................................................................... 27

(iii) Buttes Gas v Hammer ........................................................................................ 32

VIII Application of the first and second types of foreign act of state .......................... 36

IX Application of third type of foreign act of state ................................................... 51

X Miscellaneous points ............................................................................................ 63

XI Overall Conclusion ............................................................................................... 64

I Introduction

  1. The appeals now before the Supreme Court in Belhaj and Boudchar v Straw and Ministry of Defence v Rahmatullah concern the alleged complicity of United Kingdom authorities and officials in various torts, allegedly committed by various other states in various overseas jurisdictions. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault. The defences include in both appeals state immunity and the doctrine of foreign act of state. The case of Rahmatullah also raises for consideration the inter-relationship of these concepts with article 6 of the European Convention on Human Rights. The meticulous but differing analyses of the Court of Appeal (Lord Dyson MR and Sharp and Lloyd Jones LJJ) in Belhaj and Leggatt J in Rahmatullah underline the difficulties. The Supreme Court has nonetheless benefitted greatly from their analyses, as well as that of a previous Court of Appeal (Rix, Longmore and Davis LJJ) in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855; [2014] QB 458 ("Yukos v Rosneft").

    Page 1

  2. The issues come before the courts by way of challenges under CPR rule 11.1 to the existence or exercise by the court of jurisdiction over the appellants (the defendants in the proceedings), combined with applications for dismissal of the relevant claims under CPR rule 3.1. The issues have, necessarily, to be determined by reference to allegations contained in the respondents' (the claimants') pleadings which have not been investigated or tested. One of the appellants' objections to their adjudication is indeed that it is impermissible or inappropriate for a domestic court to investigate allegations of the type advanced.

    II The claimants' allegations

  3. Both cases originate with events in February/March 2004. In Belhaj, Mr Belhaj, a Libyan national and opponent of Colonel Gaddafi, and his wife, Mrs Boudchar, a Moroccan national, attempted (under, it seems likely, other names) to take a commercial flight from Beijing to London, but were instead and for whatever reason deported by the Chinese authorities to Kuala Lumpur. There they were detained. MI6 is alleged to have become aware of their detention and on 1 March 2004 to have sent the Libyan intelligence services a facsimile reporting their whereabouts. This is said to have led to a plan being developed to render them against their will to Libya. Thereafter, they allege, they were unlawfully detained first by Malaysian officials in Kuala Lumpur and then by Thai officials and United States agents in Bangkok, before being put on board a US airplane which took them to Libya. There they were further detained, in the case of Mrs Boudchar until 21 June 2004, in the case of Mr Belhaj until 23 March 2010.

  4. Mr Belhaj and Mrs Boudchar allege that the United Kingdom procured this detention in all these places "by common design with the Libyan and US authorities". They allege that they suffered mistreatment amounting to torture at the hands of US agents in Bangkok and in the airplane and at the hands of Libyan officials in Libya. They allege that the United Kingdom "by common design arranged, assisted and encouraged [their] unlawful rendition ... to Libya". They rely in this connection upon a letter dated 18 March 2004 alleged to have been written by the second appellant, Sir Mark Allen, allegedly a senior official of the Secret Intelligence Service ("SIS") to Mr Moussa Koussa, Head of the Libyan External Security Organisation. The letter congratulated Mr Moussa Koussa "on the safe arrival of [Mr Belhaj]". It said that "This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years". It indicated that British intelligence had led to Mr Belhaj's transfer to Libya, although the British services "did not pay for the air cargo". Mr Belhaj and Mrs Boudchar further allege that the United Kingdom "conspired in, assisted and acquiesced in torture, inhumane and degrading treatment, batteries and assaults inflicted upon [them] by the US and Libyan authorities". Again, it should be stressed that these are allegations, based inter alia on alleged awareness of the risks of torture of detainees in United States and/or Libyan hands. It is also pleaded that "the renditions took place as part of a co-ordinated strategy designed to secure diplomatic and intelligence advantages from Colonel Gaddafi". The claims are framed

    Page 2

    as claims for false imprisonment, trespass to the person, conspiracy to injure or to use unlawful means, misfeasance in public office and negligence. They are brought against Mr Jack Straw as Foreign Secretary, Sir Mark Allen, the SIS, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office, all of whom are the appellants in Belhaj. The first and second appellants, Mr Straw and Sir Mark Allen, state that the Official Secrets Act makes it impossible for them to advance any positive case in response to the allegations against them. The remaining appellants state that it is the position of Her Majesty's Government that it would be damaging to the public interest for them to plead to such allegations.

  5. Upholding Simon J on the point, the Court of Appeal held, and it is now accepted, that all the claims depend upon proof that torts such as those alleged existed under the laws of the places where they were allegedly committed (subject only to any countervailing considerations of, in particular, public policy under section 14 of the Private International Law (Miscellaneous Provisions) Act 1995). The issues now before the Court relate to all the claims, save for three negligence claims which are independent of the alleged facilitation of and acquiescence in rendition to and detention in Libya and which arise from alleged failure by the appellants to take protective steps after they became aware that Mr Belhaj and Mrs Boudchar were in Libya.

  6. In Rahmatullah, Mr Rahmatullah, a Pakistani citizen, was on 28 February 2004 detained by British forces in Iraq on suspicion of being a member of Lashkar-e-Taiba, a proscribed organisation with links to Al-Qaeda. The UK and the USA were at the time occupying forces in Iraq, where there was a situation of international armed conflict. Shortly after his original detention, within a matter of days at most, Mr Rahmatullah was transferred into the custody of US forces, and by the end of March 2004 they had transferred him to Bagram Airbase in Afghanistan, where he was detained for over ten years without charge or trial, until released on 15 May 2014. He alleges that he was subjected to severe mistreatment in both British and United States detention. His claims are put under the like heads to Mr Belhaj's and Mrs Boudchar's, with assault and torture as additions. Again, the claims allege in various terms that the relevant appellants acted in concert or combination with the United States authorities, or assisted,...

To continue reading

REQUEST YOUR TRIAL