Neutral Citation Number: [2014] EWHC 3846 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
19/11/2014

B e f o r e :

MR JUSTICE LEGGATT
______

Between:

YUNUS RAHMATULLAH / Claimant
-and-
(1) THE MINISTRY OF DEFENCE
(2) THE FOREIGN AND COMMONWEALTH OFFICE / DefendantsClaim No: CO/17549/2013
R on the application of
(1) YUNUS RAHMATULLAH
(2) AMANATULLAH ALI / Claimants
-and-
(1) SECRETARY OF STATE FOR DEFENCE
(2) SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS / Defendants

______

Phillippa Kaufmann QC, Adam Straw, Edward Craven and Maria Roche (instructed by Leigh Day) for the Claimants
James Eadie QC, Karen Steyn QC, Ben Watson and Melanie Cumberland (instructed by Treasury Solicitors) for the Defendants
Derek Sweeting QC and James Purnell (instructed by Treasury Solicitors) for the Defendants in the Iraqi Civilian Litigation
Hearing dates: 24 – 26 September 2014, 11 November 2014
______

HTML VERSION OF JUDGMENT
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Crown Copyright ©

Section / Para
A. INTRODUCTION
Mr Rahmatullah / 1
Mr Rahmatullah's claim for damages / 5
The preliminary issues in Mr Rahmatullah's case / 7
The judicial review claim / 8
Iraqi civilian claims / 10
XYZ / 13
ZMS / 14
HTF / 15
Belhaj v Straw / 16
Structure of this judgment / 20
B. THE CLAIMS IN TORT
Assumed facts / 21
Analysis of the claims / 22
Choice of law / 23
The claimants' statements of case / 27
Burden of proof / 31
Common design / 33
The allegations of complicity / 35
Approach taken to the preliminary issues / 38
C. STATE IMMUNITY / 41
Indirect impleading / 45
English cases / 47
Jones v Saudi Arabia / 57
Non-property interests / 64
International law / 67
The UN Convention 2004 / 71
The East Timor case / 77
Other evidence of customary international law / 79
Conclusion on international law / 81
Article 6 / 82
Conclusion on state immunity / 94
D. FOREIGN ACT OF STATE / 96
Dicta of the US Supreme Court / 98
Act of state and state immunity / 100
Recognition of foreign laws / 103
Validity of foreign judgments / 110
Legality of executive acts / 111
Application of the doctrine in the present case / 115
The Buttes Gas case / 116
A rule of decision or a rule of abstention? / 123
The Kirkpatrick case / 124
Subsequent English cases / 128
Shergill v Khaira / 135
Non-justiciability in the present cases / 140
The defendants' position / 146
The Noor Khan case / 150
Sovereign equality / 154
Comity / 158
Political embarrassment or harm / 164
Conclusions on the rule of abstention / 171
Conclusions on foreign act of state / 173
Article 6 / 176
Belhaj v Straw / 177
E. CROWN ACT OF STATE / 179
Serdar Mohammed v MoD / 180
The issues in dispute / 183
Justiciability / 186
The Nissan case / 187
The second Al-Jedda case / 190
Defence to a claim in tort / 201
The rationale of Buron v Denman / 202
The Crown Proceedings Act 1947 / 210
Article 6 / 216
Conclusion on the availability of the defence / 223
Conclusion on the detention claims / 224
Conclusion on the wrongful transfer claims / 225
F. THE JUDICIAL REVIEW CLAIM / 227
G. CONCLUSIONS / 234

Mr Justice Leggatt:

A. INTRODUCTION

Mr Rahmatullah

  1. Mr Yunus Rahmatullah is a citizen of Pakistan who in February 2004 was detained by British forces in Iraq. Shortly afterwards he was transferred into the custody of US forces. By the end of March 2004, Mr Rahmatullah had been transported by US forces to Bagram Airbase in Afghanistan. There he was detained for the next 10 years without charge or trial. Mr Rahmatullah alleges that, while in detention, he was subjected to torture and other serious mistreatment including severe assaults, incommunicado detention, exposure to extremes of temperature and sound, tear gas and long periods of darkness, being placed in a tiny 'air lock' cell, being kept naked with other detainees, being beaten on the soles of his feet with rubber flex, and being immersed upside down into tanks of water.
  1. In earlier proceedings commenced in May 2011 while Mr Rahmatullah was still imprisoned in Afghanistan, an application was made on his behalf for a writ of habeas corpus directed to the Secretary of State for Defence and the Secretary of State for Foreign and Commonwealth Affairs. That application was refused by a Divisional Court, but was granted on appeal. The Court of Appeal considered that there was sufficient reason to believe that Mr Rahmatullah's continued detention by the US was unlawful, and that the US would return him upon a request from the UK government, to justify the issue of the writ: see Rahmatullah v Secretary of State for Defence[2012] 1 WLR 1462. The main reason for expecting that Mr Rahmatullah would be returned to the custody of the UK if a request was made was that on 23 March 2003, three days after the invasion of Iraq, the UK, the USA and Australia had signed a memorandum of understanding which established arrangements for the transfer of prisoners of war, civilian internees and civilian detainees between the armed forces of those countries. This memorandum ("the 2003 MoU") distinguished between the state responsible for the original detention of an individual ("the detaining power") and the state into whose custody an individual was transferred ("the accepting power"). Clause 4 of the 2003 MoU provided:

"Any prisoners of war, civilian internees and civilian detainees transferred by a detaining power will be returned by the accepting power to the detaining power without delay upon request by the detaining power."

  1. In the event, when a request to return Mr Rahmatullah was made to the US authorities, they did not return him to the UK, and in these circumstances no further order was made on the writ of habeas corpus. Both the decision of the Court of Appeal to issue the writ and the subsequent decision to make no further order on the writ were upheld on an appeal to the Supreme Court: see Rahmatullah v Secretary of State for Defence[2013] 1 AC 614.
  1. In May 2014 Mr Rahmatullah was transferred from Bagram Airbase in Afghanistan to Pakistan. He was finally released from custody on 17 June 2014.

Mr Rahmatullah's claim for damages

  1. The first action now before the court is a civil claim for damages begun by Mr Rahmatullah on 26 March 2013. The defendants are the Ministry of Defence and the Foreign and Commonwealth Office. The re-amended particulars of claim dated 25 July 2014 assert claims (a) under the law of tort and (b) under the Human Rights Act 1998.
  1. The defendants have applied under CPR Part 11 for an order declaring that the court has no jurisdiction or should not exercise any jurisdiction which it may have to try Mr Rahmatullah's claims against them because of the doctrines of (i) state immunity, (ii) foreign act of state and/or (iii) Crown act of state. In the alternative, the defendants' application asks the court to dismiss the claims on these grounds pursuant to CPR 3.1(2)(l) following the decision of a preliminary issue. The defendants have not in the event pursued their application in relation to the claims asserted under the Human Rights Act and have confined it to Mr Rahmatullah's claims in tort.

The preliminary issues in Mr Rahmatullah's case

  1. In order to avoid any procedural point about whether all of the issues raised by the defendants' application involve disputes as to the jurisdiction of the court which fall within CPR Part 11, I invited the parties at the beginning of the hearing to agree the formulation of preliminary issues, which they have since done. The issues are:

"1. Whether the claimant's claim, in so far as it seeks to establish either defendant's liability in tort (however described) in respect of acts or omissions of US personnel while the claimant was in US custody in Iraq and/or Afghanistan, is barred by reason of (i) the doctrine of state immunity; and/or (ii) the doctrine of foreign act of state.

2. Whether the claimant's claim for false imprisonment and/or detention without lawful justification by UK armed forces prior to his transfer to US custody in Iraq (see re-amended particulars of claim, dated 25 July 2014, at paragraphs 132 and 132.1), is barred by reason of the doctrine of Crown act of state."

The judicial review claim

  1. In addition to his civil claim for damages, Mr Rahmatullah has brought a claim for judicial review. There is a second claimant in this action, Mr Amanatullah Ali. Mr Ali is another Pakistani man who was arrested by British forces in Iraq and transferred to the custody of the US at the same time as Mr Rahmatullah. Mr Ali was also transported to Bagram Airbase in Afghanistan, where he is still imprisoned. The claimants seek an order requiring the defendants to conduct an investigation into the circumstances of their transfer into US custody and of the UK's failure to demand their return or to take any steps to prevent their transfer to Afghanistan.
  1. This judicial review claim was commenced on 18 December 2013. On 9 June 2014 the court gave directions for the claimants' application for permission to proceed with the claim to be considered at an oral hearing at the same time as the defendants' application under CPR rule 11 and rule 3.1(2)(l) in Mr Rahmatullah's civil damages claim. At that stage the defendants were opposing the grant of permission on grounds of state immunity, foreign act of state and Crown act of state as well as on additional grounds of "limitation, delay and abuse of process". At the hearing, however, only the arguments based on delay and abuse of process were pursued.

Iraqi civilian claims

  1. Among the many hundreds of claims brought by Iraqi civilians against the Ministry of Defence ("MOD") arising out of the Iraq war which are currently pending in the High Court and are known as the "Iraqi civilian litigation", there are some claims brought by individuals detained by UK armed forces in Iraq who were transferred into the custody of the US. These claims raise similar issues to the claim brought by Mr Rahmatullah. As in Mr Rahmatullah's case, these claims are made on two bases: (a) in tort; and (b) under the Human Rights Act. As in Mr Rahmatullah's case, the MOD contends that the claims in tort are barred by (i) state immunity, (ii) foreign act of state and/or (iii) Crown act of state.
  1. A preliminary issue in relation to three such claims (as test cases) was originally due to be tried as one of a group of preliminary issues in the Iraqi civilian litigation. In the interests of efficiency, however, that issue has been severed from the rest and argued at the same time as the preliminary issues in the case brought by Mr Rahmatullah. The issue has been reformulated and divided into two questions which are in similar terms to the preliminary issues in Mr Rahmatullah's case, as follows:

"1. Whether claims alleging liability of the defendant in tort in respect of alleged acts or omissions of US personnel while the claimant was in the custody of the United States of America are barred by the doctrines of state immunity and/or foreign act of state.

2. Whether claims in tort in respect of (a) the capture and detention of the claimant by UK armed forces and/or (b) the transfer of the claimant to the custody of the armed forces of the United States of America are barred by the doctrine of Crown act of state."

  1. The names of the claimants in the three test cases in which these issues are to be decided have been anonymised and they are referred to HTF, ZMS and XYZ (together "the Iraqi civilian claimants"). I will briefly summarise the factual allegations on which their claims are based.

XYZ

  1. XYZ alleges that:

i) On 6 July 2003 he was arrested at his home in Baghdad by US soldiers and taken to a holding camp for detainees where he was tortured and abused by members of coalition forces who may have included UK personnel.

ii) After several days he was transferred by plane to Basra and was severely beaten by British soldiers after disembarking from the aircraft.

iii) He was handed back to US forces and taken to Camp Bucca where he was detained until his transfer to Abu Ghraib Prison on a date between late November 2003 and January 2004. For part of this period Camp Bucca is said to have been under the control of the UK.

iv) While in the custody of US forces at Abu Ghraib Prison, XYZ was allegedly subjected to torture and abuse of the most serious nature, including anal rape with a broomstick, being forced to stand against a wall naked and hooded while soldiers poured dirt and human excrement on him, being left hooded and shackled in a metal container for 10-15 days while soldiers continuously banged on the container, being given electric shocks and shot repeatedly in the buttocks with rubber bullets, and being made to witness soldiers urinating on the bodies of other detainees who had recently been killed.

v) XYZ was released from custody on around 13 December 2004.

ZMS

  1. ZMS was arrested by British forces in Basra on the night of 11/12 July 2008. He alleges that he was assaulted at the time of his arrest. On 12 July 2008 he was flown to Baghdad and transferred to the custody of US forces. He was detained until August 2009 at several different detention centres including (for a substantial part of the time) at Camp Bucca. ZMS alleges that during this period he was subjected to serious mistreatment by US personnel.

HTF

  1. HTF was arrested in Basra by British soldiers in the early hours of 27 June 2008. He alleges that he was assaulted by British soldiers during and after his arrest. He claims that he was thrown in the back of a lorry and taken to a British detention facility, and that during the journey he was stamped on and urinated on by British soldiers. On the evening of 27 June HTF was transferred by aircraft to a US detention facility. He alleges that, while there, he was repeatedly interrogated, held in solitary confinement, deprived of sleep, exposed to cold temperatures and loud noise, and physically assaulted. After a few days, HTF was transferred to Baghdad International Airport where he was interrogated further and suffered further ill treatment, including a sexual assault. Over the following months HTF was held at various detention facilities and alleges further mistreatment during this period. This includes being made to stand outside for hours at a time in the hot sun and in the cold and rain in winter. He was returned to Basra and released on 28 June 2009.

Belhaj v Straw

  1. Through an accident of timing, the hearing of the preliminary issues in the present cases took place while judgment was reserved by the Court of Appeal in the case of Belhaj v Straw[2014] EWCA Civ 1394. In that case Mr Belhaj and his wife allege that UK officials conspired with officials of Libya and the United States to arrange for their unlawful detention, abduction and rendition to Libya from China via Malaysia and Thailand. They have brought proceedings against Mr Straw who was the Secretary of State for Foreign Affairs at the time of their alleged abduction, and other British officials, claiming damages in tort. As in the present case, the defendants have argued that the claims are barred by the doctrines of state immunity and/or foreign act of state. (No argument based on the doctrine of Crown act of state has been raised in the Belhaj case.) The validity of these objections was determined by Simon J as a preliminary issue. In his judgment given on 20 December 2013, the judge dismissed the plea of state immunity but held that the act of state doctrine operated as a bar to the claims: see Belhaj v Straw[2013] EWHC 4111 (QB).
  1. There were cross-appeals against these rulings. In their judgment handed down on 30 October 2014, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) have upheld the judge's ruling in relation to state immunity but have allowed the claimants' appeal on the issue of foreign act of state.
  1. To have adjourned the hearing in the present case until after judgment had been given by the Court of Appeal in the Belhaj case would, for administrative reasons, have resulted in a long and very undesirable delay. The hearing therefore went ahead and was argued, and I prepared this judgment in draft, without knowing what the Court of Appeal would decide in the Belhaj case. It was agreed, however, that I would not give this judgment until after the Court of Appeal had handed down judgment in the Belhaj case and the parties had had an opportunity to make further submissions on the significance of the Court of Appeal's decision. A short further hearing was arranged for this purpose.
  1. In the event, the decision of the Court of Appeal in the Belhaj case has not required me to change the conclusions which I had provisionally reached on the issues of state immunity and foreign act of state. Furthermore, in their skeleton arguments for the further hearing held on 11 November 2014 the defendants conceded that I am bound by the decision of the Court of Appeal in the Belhaj case to reach those conclusions and to hold that none of the claims in the present cases is barred by either doctrine. In these circumstances, it is on one view unnecessary for me to give any judgment on the issues of state immunity and foreign act of state. Another approach might have been to re-write (and radically shorten) this judgment so that it simply applies the reasoning of the Court of Appeal in the Belhaj case to the present claims. As it is, I have decided to give the judgment that I had already prepared in draft, adding to it only so far as necessary to record where I am now bound by the decision of the Court of Appeal. I have followed this course without any disrespect to the Court of Appeal in the belief that it does better justice to the parties in circumstances where I received detailed written submissions and heard oral argument over three days from different counsel to those who appeared in the Belhaj case and at a time when neither counsel nor the court had the benefit of the judgment of the Court of Appeal. It seems to me that the parties are entitled to know what conclusions I would have reached upon the arguments presented if the judgment of the Court of Appeal had not supervened. In addition, as the Court of Appeal has given leave to appeal to the Supreme Court on the issue of foreign act of state, and as the defendants in Mr Rahmatullah's case have indicated that they intend to seek a 'leapfrog' under section 12 of the Administration of Justice Act 1969 to enable an appeal from my decision on that issue to proceed directly to the Supreme Court if the Supreme Court should grant leave, there is a possibility that the reasons which persuaded me independently of the Court of Appeal's decision to reject the defendants' arguments may still be relevant to the final determination of the present cases.

Structure of this judgment