Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50 (20 December 2023)
Dismissing the Foreign Commonwealth and Development Office, the Home Office and the Attorney General’s appeal, the Supreme Court held in this case that under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) the law applicable to torts alleged to have been committed by the UK’s security agencies is the law of England and Wales and not the law of each of the six countries in which Mr Zubaydah alleges he was unlawfully detained and tortured by the American CIA. Mr Abu Zubaydah (Zayn Al-Abidin Muhammad Husayn) has been detained without trial by the US authorities since March 2002. He is Palestinian and is currently held in Guantánamo Bay. He claims that from at least May 2002 to at least 2006, whilst he was being rendered to, detained in and subjected to extreme mistreatment and torture at secret “black sites” by the the CIA, the Security Service and the Secret Intelligence Service (“the UK Services”) sent numerous questions to the CIA in order to elicit information from him. He wants to be compensated for personal injuries which he contends were sustained in pursuit of the information sought by the UK services in CIA black site facilities in the “Six Countries”, i.e. Thailand, Poland, Morocco, Lithuania, Afghanistan and Guantánamo Bay. Mr Abu Zubaydah brought a claim and named the Foreign, Commonwealth Office, the Home Office and the UK Attorney General as defendants on the basis that they are vicariously liable for the acts of the UK Services.
Notably, under the law of England and Wales, the torts alleged against the UK authorities were misfeasance in public office, conspiracy to injure, trespass to the person, negligence and false imprisonment. In the first instance, the High Court ordered that as a preliminary issue the law governing the torts should be identified. His primary case is that the law of England and Wales applies whereas the defendants argue that the laws of each of the Six Countries apply. The High Court (Lane J) agreed with the defendants—but the Court of Appeal (Males, Sharp and Thirlwall LJJ) overturned that decision. Mr Zubaydah was held for years in detention conditions specifically designed to isolate and disorientate him, he is not able to give detailed evidence, for e.g., as to the countries or the locations in those countries in which he was detained and tortured or as to the dates between which he was detained in those countries. Furthermore, the exceptionally grave mistreatment allegedly inflicted on him over a period of years has resulted in lasting damage so that he is unable to comprehend and remember the dates and locations of his torture. In addition, he is still detained in Guantánamo Bay with strict restrictions on his ability to communicate with his legal representatives.
Many of the facts alleged in his Amended Particulars of Claim were taken from publicly available materials, rather than from information given by him, including the Report of the US Senate Committee on Intelligence, the ECtHR’s judgments in Husayn (Abu Zubaydah) v Poland reported with Al Nashiri v Poland (2014) 60 EHRR 16 and Husayn (Abu Zubaydah) v Lithuania (Application No 46454/11), (unreported) 31 May 2018, and redacted documents such as a 2004 CIA report given by the US authorities in 2009.
Rendition and torture
Mr Zubaydah claimed that on 27 March 2002, he was captured in Faisalabad, Pakistan in a raid by Pakistani armed forces working in conjunction with US personnel. He said that during his capture he had suffered gunshot injuries to his groin, thigh and stomach, which resulted in serious wounds. He alleged that the black sites in question are secret detention facilities operated by the CIA in various countries around the world outside the US legal system and de facto outside the legal systems of the countries in which they are located.
Mr Zubaydah alleged that during his detention in Thailand, he was detained naked in a cold and cramped windowless cell which was constantly illuminated with artificial light and into which loud music and artificially generated noise were played at high volume to cause severe disorientation and distress. He said he was deliberately subjected to extreme sleep deprivation; repeatedly shackled both during and outside of interrogations; slapped in the face and abdomen and was grabbed by the face repeatedly; repeatedly doused with cold water; repeatedly made to stand against a wall for long periods of time; repeatedly confined inside cramped confinement boxes for long periods of time; and repeatedly made to stand in painful stress positions for long periods of time. He claimed to have spent 47 days in continuous solitary confinement.
He said he was removed by the CIA from the black site in Thailand and rendered by them to a secret CIA black site in Poland where he was detained, mistreated, and tortured. From Poland he was rendered by them to Guantánamo Bay military detention camp and he was detained, mistreated, and tortured. He was taken from Guantánamo Bay and rendered by them to a secret CIA black site in Morocco where again he was detained, mistreated, and tortured. From Morocco he was rendered to a secret black site in Lithuania and then again to Afghanistan (being detained, mistreated, and tortured) from where he was rendered to Guantánamo Bay.
The Supreme Court
The Supreme Court dismissed the appeal by a majority and held that the applicable law is the law of England and Wales and not the law of the Six Countries. Lord Lloyd-Jones and Lord Stephens gave the leading judgment—Lord Burrows and Lord Kitchin agreed with their Lordships.
Lord Sales, who would have allowed the appeal, delivered a dissenting judgment. But he agreed with the majority that the Court of Appeal had been wrong to focus on the conduct of the UK Services rather than on the elements of the tort.
The Supreme Court said that the question of applicable law in this context is governed by sections 11 and 12 of PILA. Moreover, section 11 establishes a general rule that the law applicable to a tort claim is the law of the country in which the events constituting the tort in question occurred. Where the elements of those events occurred in different countries, the applicable law in respect of personal injury is the law of the country where the injury was sustained. Further, section 12 of PILA states that the general rule can be displaced if, after a comparison of the significance of the factors connecting the tort with the country of the applicable law under the general rule and the significance of the factors connecting that tort to a different country, it is substantially more appropriate for the law of the other country to apply.
Lord Lloyd-Jones and Lord Stephens said that the correct approach to be adopted when considering whether the general rule is displaced pursuant to section 12 was considered by the Court of Appeal in VTB Capital plc v Nutritek International Corpn [2012] EWCA Civ 808 and on appeal in that case by the Supreme Court in VTB Capital Plc v Nutritek International Corp & Ors [2013] UKSC 5. The essential evaluative nature of the exercise required to be performed by a judge under sections 11 and 12 of the PILA informs the test to be applied on an appeal against the judge’s conclusion. An appellate court will be slow to interfere and in VTB Capital delivering the judgment of the Court of Appeal, Lloyd LJ observed at para 150 that … it is ‘quintessentially’ for the judge to make an assessment of the significance of the elements of the events constituting the tort for the purposes of section 11(2)(c). This court will not interfere with that assessment unless it is satisfied that the judge ‘made such an error in his assessment as to require this court to make its own assessment:’ …”. As to whether the Court of Appeal was entitled to interfere with the judge’s evaluation, Lord Lloyd-Jones and Lord Stephens held that:
79. We consider that, for the reasons it gave and which are considered above, the Court of Appeal was correct to identify a series of errors in the approach of the judge which were sufficiently significant to justify the intervention of the Court of Appeal and to justify it in performing for itself the exercise under sections 11 and 12.
However, the Court of Appeal had fallen into error in relation to the required focus under section 12 of the PILA on the torts committed by the defendants. The Court of Appeal had taken an unduly narrow approach by focussing on the conduct of the UK Services instead of the specific torts which are alleged to have occurred and which on the facts of this case involved actions by both the UK Services and the CIA.
Consequently, it was necessary for the Supreme Court to conduct the evaluation required by sections 11 and 12 of the PILA for itself. The significance of the connection between the torts and the Six Countries is massively reduced by a number of factors. Importantly, the Supreme Court’s judgment was based on the facts as alleged by Mr Zubaydah: it must always be borne in mind that the issue appealed is a preliminary issue and there have been no factual findings in the proceedings yet. On the assumed facts, first Mr Zubaydah was involuntarily present in the Six Countries because he had been unlawfully rendered there against his will in succession and could have had no reasonable expectation that the law of whichever location he was in (and which location was not known to him at the time) should apply to him. Second, there is no suggestion that the UK Services were aware or ever took steps to find out where he was being held.
Third, the rendition took place without reference to the laws of the Six Countries. Indeed, on the assumed facts an appropriate inference is that the locations were selected precisely to deny any access to local law or recourse to local courts. Fourthly, the fact that he was held in six secret detention facilities in six different countries diminishes the significance of the law of any one of them. Fifth, the his captors and interrogators were not agents of the Six Countries but of a third party, the United States.
The Supreme Court considered numerous authorities. Among them were Belhaj v Straw [2014] EWCA Civ 1394, R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327 and [2007] UKHL 58 and Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB). The facts of the present case were closer to the facts of Belhaj v Straw [2013] EWHC 4111 (QB); [2014] EWCA Civ 1394; [2017] AC 964 and Rahmatullah v Ministry of Defence [2019] EWHC 3172 (QB).
Overall, the Supreme Court found substantial factors which, on the assumed facts of the present case, connected the torts to the UK. First of all, the claim relates to torts allegedly committed by the UK Services. Secondly, the events which constitute those alleged torts took place in part in England and in part by the CIA in the Six Countries. Thirdly, those alleged actions were taken by UK executive agencies acting in their official capacity in the purported exercise of the powers conferred to them under the law of England and Wales. The majority concluded that it would be substantially more appropriate for the law of England and Wales to apply to this claim than the law of the Six Countries and held:
102. In our view, the claimant has established a compelling case in favour of the displacement of the general rule in the unusual circumstances of this case. We have no hesitation in accepting the submission that, on the basis of a comparison of the significance of the factors connecting the alleged torts with the Six Countries and with England and Wales, it is substantially more appropriate for the applicable law to be the law of England and Wales.
Lord Sales said in his dissenting judgment that he would allow the appeal. Lord Sales did not consider that the High Court erred in law in assessing whether the general rule should be displaced in this case.
He agreed with the majority of the Supreme Court that the Court of Appeal was wrong to focus on the conduct of the UK Services rather than on the elements of the tort.
However, Lord Sales concluded that it is not substantially more appropriate to apply the law of England and Wales to the claim and the laws of the Six Countries should apply.
He considered that it is highly significant that: (i) Mr Zubaydah sustained his personal injuries and was imprisoned in the Six Countries; and (ii) the American CIA agents, who were the primary alleged wrongdoers, were present in the Six Countries and accordingly subject to and answerable for their actions according to the laws of those countries.
His Lordship’s view was that the fact that the UK Services were not the prime movers in the alleged scheme to seize, imprison and torture the claimant greatly diminishes the force of the connecting factor to England and Wales.
Comment
According to the Americans, Mr Zubaydah was a part of Osama bin Laden’s ‘inner circle’ and they claim he had directed an al Qaida terrorist cell in Jordan from Pakistan under bin Laden’s orders. He allegedly served as Osama bin Laden’s top aide is said to be al Qaida’s third or fourth highest-ranking member. The US claims he managed a network of training camps, was involved in every major terrorist operation carried out by al Qaida, including planning the 9/11 attacks and was engaged in planning future terrorist attacks against US interests. When the ECtHR ordered the Polish government to pay him damages in 2014, Zubaydah, who is a high-value detainee (“HVD”, or an extrajudicial prisoner of the US), stated through his US lawyer that he would be donating the money to victims of torture.
United Kingdom Immigration Law Blog 