Case Preview: Belhaj v Straw

Belhaj and another (Respondents) v Straw and others (Appellants) UKSC 2014/0264 concerns allegations by a former opponent of Colonel Gaddafi and his wife that they were abducted and unlawfully taken to Libya in February 2004 and were both allegedly detained and tortured in that country. Abdul-Hakim Belhaj, the first respondent, was detained until 23 March 2010 and alleges he was tortured and was sentenced to death following a flagrantly unfair trial. Fatima Boudchar, the second respondent, was released on 21 June 2004. The appellants – namely Jack Straw (ex-foreign secretary), Sir Mark Allen CMG (ex-director of Counter-Terrorism of the Secret Intelligence Service), the Secret Intelligence Service, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office – have denied liability in their defences and the issues in this appeal have arisen by way of preliminary issues of law. There is an abundance of intervention in these proceedings and the UN Special Rapporteur on Torture, the UN Chair-Rapporteur on Arbitrary Detention, the International Commission of Jurists, Amnesty International, Redress and Justice are apparently all involved.

Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hughes heard this case – on appeal from [2014] EWCA Civ 1394 (Sir John Dyson MR, Lloyd Jones and Sharp LJJ) – in the second week of November 2015 together with the MoD and FCO’s appeal in the Rahmatullah case. Belhaj and Boudchar appealed to the Court of Appeal against preliminary rulings made by Simon J, as he then was, [2013] EWHC 4111 (QB) that the act of state doctrine operated as a bar to their claims against the foreign secretary and government officials and departments. Belhaj, who opposed the former Libyan strongman Muammar Gaddafi in the 1990s, had fled Libya and moved to China in 2003. In 2004, Belhaj and Boudchar had hoped to claim asylum by taking a commercial flight from Beijing to London. (Gaddafi may have been terrible but his downfall totally crippled Libya and it has lost $68 billion in potential oil revenue since 2013.) Boudchar was pregnant when they were detained at Beijing airport and were later removed to Kuala Lumpur, Malaysia where they were detained for two weeks. They were subsequently flown to Bangkok and unlawfully put on board a US aircraft bound for Libya where Belhaj was imprisoned but was eventually released in 2010.

Issues for Supreme Court

The court’s case summary identifies the issues as whether the Court of Appeal:

  • correctly held that the public policy limitation applied and precluded the application of the foreign act of state doctrine.
  • correctly held that the territorial limitation of the foreign act of state doctrine applied to the alleged acts of the United States.
  • was wrong to hold that the doctrine of foreign act of state was engaged.
  • correctly held that foreign states were not indirectly impleaded in the Particulars of Claim and that the claim was not barred by state immunity.

High Court

Simon J had dismissed the government’s plea of state immunity. On the other hand, he unhesitatingly accepted that the allegations that agents or officials of foreign states had acted tortiously were barred by the act of state doctrine and were non-justiciable. Without prejudice to subsequent reliance on section 14 of the Private International Law (Miscellaneous Provisions) Act 1995, he found that the applicable law to determine the claims was the law of the jurisdiction in which the alleged conduct had taken place.

The judge had decided (a) that the claims set out in their particulars of claim should not be dismissed on the basis of a plea of state immunity by the defendants but that the act of state doctrine operated as a bar to the claims and (b) to grant the defendants’ application to strike out the claims, save certain claims in negligence.

The Court of Appeal

Before Sir John Dyson MR, Lloyd Jones and Sharp LJJ, [2014] EWCA Civ 1394, Belhaj and Boudchar alleged mistreatment in places of detention by agents of numerous states with the defendants’ collusion. The causes of action pleaded by them included false imprisonment, conspiracy to injure and trespass to the person, misfeasance in public office as well as negligence. Delivering a judgment produced primarily by Lloyd Jones LJ, allowing the appeal in part Lord Dyson MR held that the doctrine of act of state and state immunity did not bar claims for damages and a declaration of illegality, arising from the alleged participation of the above named British authorities in Belhaj and Boudchars’ unlawful abduction, kidnapping and removal to Libya in 2004, including their unlawful detention and mistreatment in four foreign states by agents of those states and on board an American aircraft by US agents.

The defendants submitted that state immunity could be invoked where the claim necessarily required findings of illegality in respect of acts by foreign states for which they could have claimed immunity if sued directly. Belhaj and Boudchar argued that the act of state doctrine had no application because the validity of a foreign sovereign act was not in issue, the conduct alleged was not sovereign in character, and it should be disapplied on grounds of public policy where there was a violation of international law or fundamental human rights.

According to the Court of Appeal, the claims fell within the established limitation on the doctrine imposed by considerations of public policy on grounds of violation of human rights and international law. There were compelling reasons requiring the exercise of the English court’s jurisdiction. The court allowed Belhaj and Boudchar’s appeal against Simon J’s decision below.

However, the Court of Appeal dismissed the appeal in relation to Simon J’s finding that the applicable law for determining Belhaj and Boudchar’s causes of action was the law of the places in which the alleged unlawful detention or injury and damage had allegedly occurred.

Reasoning

In bald summary, the Court of Appeal provided the following rationale in support of its decision.

Firstly, extending state immunity in the manner contended by the British establishment defendants concerned was unnecessary and would obscure the differences between state immunity and act of state. It was clear to the court that the principles of state immunity and act of state as applied in England and Wales are clearly linked and share common rationales. Lord Dyson said that they may both be engaged in a single factual situation but they nevertheless operate in different ways: state immunity by reference to considerations of direct or indirect impleader and act of state by reference to the subject matter of the proceedings. Any wider exemption from jurisdiction extending beyond state immunity in cases of direct or indirect interpleader was addressed by the act of state doctrine and principles of non-justiciability. The court reasoned that extending state immunity would leave no room to apply those principles and Lord Dyson held that the concept of indirect interpleader was limited to cases relating to a state’s property and its servants or agents. The test for indirect interpleader was not whether the rights of the state would be obviously affected.

The court’s analysis of the act of state doctrine in England and Wales traced back to seventeenth and nineteenth century case law which held that the court could not enquire into a sovereign act of a foreign state performed within its own territory. Notably, American and English case law subsequently wrestled with the doctrine and transatlantic courts influenced one and other until the decision in Buttes Gas and Oil Co v Hammer (Nos 2 and 3) [1982] AC 888 where the House of Lords firmly established in England an act of state principle in this sense. Applying Yukos Capital Sarl v OJSC Rosneft Oil Co [2012] EWCA Civ 855, Buttes Gas & Oil Co v Hammer (Nos 2 and 3) and Kuwait Airways Corp v Iraqi Airways Co (No 6) [2002] UKHL 19, the Court of Appeal held that the act of state doctrine was constructed upon the principles of the sovereign equality of states and, subject to certain qualifications, international comity. The court did not find the plea of act of state to be limited to cases where there was a lack of judicial competence arising from the separation of powers and in light of Yukos Capital the act of state doctrine was not limited to circumstances where the validity of foreign law was in issue, but extended to challenges to the legality of a state’s conduct.

Bearing in mind the approach taken by Beatson LJ in Fish & Fish Limited v Sea Shepherd UK [2013] EWCA Civ 544 – that joint responsibility in the law of tort is more restricted than it is in the criminal law, since tort law does not recognise true accessory liability, only joint liability where the person who can be termed the actual perpetrator is the agent of another person – the court noted that joint responsibility turned on common design, joint tortfeasorship and the furtherance of the common design. It concluded that an essential feature of this analysis is that the conduct of the perpetrator must be wrongful.

In Belhaj and Boudchar’s case, each cause of action depended on establishing that the conduct of the actual perpetrators, in each case the agents of a foreign state, was unlawful. It was consistent with the decision in Jones v Saudi Arabia & Ors [2006] UKHL 26 that the acts had the character of sovereign acts. The present case fell within the established limitation on the act of state doctrine imposed by public policy and the court found compelling reasons requiring the exercise of jurisdiction. Noting that the respondents (defendants) were either current or former officers or officials of state in the UK or government departments or agencies, the Court of Appeal held:

117. … They are not entitled to any immunity before the courts in this jurisdiction, whether ratione personae or ratione materiae. Furthermore, their conduct, considered in isolation, would not normally be exempt from investigation by the courts. On the contrary there is a compelling public interest in the investigation by the English courts of these very grave allegations. The only ground on which it could be contended that there is any exemption from the exercise of jurisdiction in the present case is because of the alleged involvement of other states and their officials in the conduct alleged. Notwithstanding our view that the present proceedings would entail an investigation of the legality of the conduct of those foreign officials, the fortuitous benefit the act of state doctrine might confer on the respondents is a further factor supporting the application of this public policy limitation.

The “stark reality” remained that unless the English courts exercised jurisdiction in the case, the very grave allegations against the executive would be forever be sheltered from judicial investigation. Lord Dyson, Lloyd Jones and Sharp LJJ remained unapologetic about the risk of displeasing “our allies” by exercising jurisdiction. For them, damage to foreign relations and national security interests did not outweigh the need for the court to exercise jurisdiction. If anything, Belhaj and Boudchar’s case fell within the established limitation on the act of state doctrine imposed by considerations of public policy on grounds of violations of human rights and international law. Explaining that there was no lack of judicial or manageable standards, the court held that:

120. … The subject matter of these allegations is such that, these respondents, if sued in the courts of another state, are likely to be entitled to plead state immunity. Furthermore, there is, so far as we are aware, no alternative international forum with jurisdiction over these issues. As a result, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy.

The court also concluded that the act of state doctrine was outweighed by Belhaj’s right of access to the court under article 6 ECHR. It was clear that act of state doctrine had no application to the conduct of American officials outside of US territory and Simon J had made a proper and fair decision on the applicable law, which had not been premature.

Comment

As observed in the connected post, in a move purporting to restore confidence in the legal system, David Cameron has “ordered” changes to legal aid, no-win no-fee cases and civil courts. He is alarmed by the swelling number of “spurious claims” being made against members of the British armed forces and has even resorted to threatening to sue Leigh Day (who also represent Belhaj and Boudchar) for their “witch-hunt” against soldiers who were simply serving their country. The other firm, Public Interest Lawyers (PIL), specialising in Iraq compensation claims is also under investigation by the Solicitors Regulation Authority (SRA). Such “spurious” claims against veterans are seen as an “intolerable burden” by politicians, which the prime minister relies on as a ground to “stamp out” what the government sees as the “industry” to profit from servicemen.

Apparently, the reason behind Leigh Day’s referral to the SRA is that the firm failed to disclose a key document, which may have quickly ended the Al-Sweady inquiry (turning on “hotly disputed” facts), which demonstrated that the claimants were not innocent civilians and had been part of Muqtada al-Sadr’s fearsome Shia Mahdi Army. The Iraq Historic Allegations Team (IHAT) is examining more than 1,500 alleged cases of mistreatment and unlawful killing, submitted by Leigh Day and PIL. Of these 1,154 claims cases of alleged criminality have been submitted by PIL and it expects to issue them as civil law claims – on negligence grounds – and seek damages. IHAT, which is likely to be funded until 2019 but was scheduled to be wound up this year, has reportedly dismissed 60 claims against British troops.

However, David Cameron’s overlordship and punditry has come under attack by Lt Col Nicholas Mercer. The army’s former legal adviser in Iraq explained that £20 million paid out by the MoD for 326 cases of misconduct and the absence of any criminal proceedings point to the fact that the claims were not false and involved issues of “very high importance” as regards military abuse. Therefore the prime minister was patently incorrect to charactierise the firms representing claimants as “money grabbing lawyers”. This is so despite the fact that Sir Thayne Forbes, the inquiry chairman and a former high court judge, concluded in 2014 that the most serious claims were “deliberate lies, reckless speculation and ingrained hostility”.

Be that as it may, things are never so one-sided in the law. Indeed, in R (Al-Sweady & Ors) v Secretary of State for Defence [2009] EWHC 2387 (Admin) – in a string of then on-going proceedings during which the government admitted that it might not have made full disclosure, and in effect conceded the claimants’ claim for an inquiry – the Divisional Court (Scott Baker LJ and Silber and Sweeney JJ) applauded the lawyers under attack and said:

67. We cannot part with this case without paying tribute to the claimants’ legal advisers who although greatly outnumbered by the Secretary of State’s legal team have persisted with their requests for disclosure skilfully and with commendable determination.

Of course in R (Al-Sweady & Ors) v Secretary of State for Defence [2009] EWHC 1687 (Admin), Baker LJ and Silber and Sweeney JJ said things had gone “badly wrong” because of serious failures within the MoD in relation to its procedures for public interest immunity (PII) claims. The court said it should never have been misled because the central government had a very high duty to assist it with full and accurate explanations of all the facts relevant to the issue requiring a judicial decision.

The judges thought it was clearly a matter of deep regret that the court relied on the partly false PII certificate and schedule and consequently made a number of rulings as to the non-disclosure of particular redactions that were subsequently shown to be wholly wrong. Against what they described as “the lamentable history” of the Al-Sweady litigation, the judges hoped that the government would reform its ways and set a better example for future times because the integrity of ministerial PII certificates and schedules was of crucial importance to the legal process. Ultimately, the courts needed to have complete confidence in the credibility and reliability of such documents and nothing less was acceptable.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Al-Sweady, Article 6, Cases, Detention, Disclosure, ECHR, Human Rights Act, Libya, Public Interest and tagged , , , , , . Bookmark the permalink.

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