In the first case, the claimant, a citizen of Afghanistan, was arrested and detained there for some months by British armed forces, acting as part of a multi-national force, established by a United Nations Security Council resolution and under NATO command, which was deployed to assist the Afghan Government in maintaining security in Afghanistan. The claimant began proceedings against the defendant claiming damages on the ground, inter alia, that his detention by British forces had been unlawful under the Afghan law of tort, which was the applicable law. By its defence the defendant sought to rely on the doctrine of Crown act of state. On trial of preliminary issues and on assumed facts the judge concluded that the doctrine was applicable to bar the claim in tort. On appeal the Court of Appeal reversed the judge’s decision.
The claimant in the second case and the claimants in the third case, who were citizens of Pakistan and Iraq respectively, were detained in Iraq by British armed forces and, by virtue of an agreement between the United Kingdom and the United States of America, transferred to the American armed forces. They brought proceedings against the Ministry of Defence and the Foreign and Commonwealth Office claiming, inter alia, damages in tort on the grounds that their arrest, detention and, where relevant, their transfer had been unlawful under Iraqi tort law. Determining preliminary issues on assumed facts in both cases, the judge concluded that if the defendants were able to show at trial that the claimants’ arrest, detention and transfer had been authorised pursuant to a lawful policy of the United Kingdom Government, the doctrine of Crown act of state would apply to bar their claims. On appeal the Court of Appeal, varying the judge’s rulings, held that the tort claims would only be barred under that doctrine if the defendants were able to establish that there were compelling grounds of public policy to refuse to give effect to Iraqi tort law.
On the defendants’ appeals —
Held, appeal allowed. (1) Since the law vested in the Crown the power to conduct its international relations including its military operations in support of its objectives, it would be irrational and inconsistent if courts, while acknowledging the Crown’s power to do so, treated as civil wrongs acts which were inherent in exercise of that power. The doctrine of Crown act of state, which was based on that premise, was a substantive rule of law whereby the courts, although not disabled from adjudicating on certain issues by virtue of their subject matter, exercised a principle of abstention or self-restraint so that no liability would extend to a limited class of acts which were an exercise of sovereign power, inherently governmental in nature, and done outside the United Kingdom with the prior authority or subsequent ratification of the Crown in the conduct of its relations with other states or their subjects. That rule extended not just to the acts of decision-makers but also to the acts of Crown agents which were necessary in giving effect to their decisions and were of a sovereign, inherently governmental, character; that, having regard to the proviso to section 2(1) of the Crown Proceedings Act 1947, the doctrine was not affected by that Act. Ssince the doctrine was a rule of substantive law and not a procedural bar, it was not incompatible with the right to a fair trial protected by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( paras 33, 36–37, 40–43, 45, 55–58, 72–73, 76, 80–81, 88–93, 97, 99, 101–104, 106, 107).
(2) Since on the assumed facts the doctrine was raised only in respect of the claimants’ detention by British forces or transfer from British custody to that of the United States of America, the acts relied on, having been authorised by the United Kingdom’s detention policy or required pursuant to its agreements with the United States, were governmental in nature and authorised by the Crown in the conduct of its international relations and so fell within the scope of the doctrine of Crown act of state. Accordingly, the defendants could rely on that doctrine as a bar to the claims ( paras 46, 75, 77, 95, 106, 109).
Per Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Wilson and Lord Hughes JJSC. It would be unwise for the court to propound a definitive statement as to when the Crown act of state doctrine can be invoked ( paras 36, 102).
Quaere. Whether the doctrine of act of state applies on where the alleged tort was committed against a person not owing allegiance to the Crown (post, para 81).
Derek Sweeting QC and James Purnell (instructed by Treasury Solicitor) for the defendants in the third case.
James Eadie QC, Karen Steyn QC and Julian Blake (instructed by Treasury Solicitor) for the defendants in the second case.
James Eadie QC, Sam Wordsworth QC, Karen Steyn QC, Julian Blake and Sean Aughey (instructed by Treasury Solicitor) for the defendant in the first case.
Phillippa Kaufmann QC and Edward Craven (instructed byLeigh Day ) for the claimants in the second and third cases.
Richard Hermer QC, Ben Jaffey and Nikolaus Grubeck (instructed by Leigh Day) for the claimant in the first case.