The prosecution case

3. REDACTED

4. The prosecution maintains that at the time and place of the alleged offences, the NPFL was the de facto military government or government authority and that Charles Taylor and those acting for and with him, including the appellant, were acting in an official capacity for, and on behalf of, the NPFL and had effective control of the area where the various alleged offences occurred at the time they occurred.

5. The prosecution's expert witness acknowledges that identifying a specific date when a particular town fell under NPFL control is difficult. Territory changed hands quickly during the early months of the war. Both the NPFL and the government of Liberia made misleading statements regarding which towns were under their control. During its advance across Nimba County the NPFL did not have a clearly defined military structure, although Charles Taylor was universally recognised as leader of the group during this period. Commanders moved with the fighting and exercised influence based on the number of soldiers they were able to recruit and train.

6. The prosecution's expert witness indicates that within days of falling under NPFL control, villages and towns usually received a visit from an NPFL commander and a detachment of fighters, although the NPFL did not maintain a permanent presence in all locations. Further, he states that his own research suggests that all of Nimba County including the major towns and cities was under NPFL control by early May 1990.

7. In a memorandum served by the prosecution after the hearing before the Court of Appeal, the prosecution's expert clarifies that his use of the term “control” refers to military rather than administrative control over the area. He states that the NPFL offensives in early 1990 caused the Armed Forces of Liberia (“AFL”) to withdraw from nearly all areas of Nimba County and consolidate their forces in military bases located in strategic towns. This withdrawal created a situation in which NPFL forces had freedom of movement throughout the County. As a result, the NPFL was the de facto military authority in the area. Such military control is said to be very different from administrative control. He states that before June 1990 the NPFL did not have a sustained presence in much of Nimba County. It did not assign officials to oversee towns or deploy forces to provide security. NPFL forces passed through towns and villages on an ad hoc basis; there was no sustained or coordinated occupation. Much of the population lived in a ‘no man's land’, areas without any consistent administrative authority, but with the occasional presence of NPFL fighters.

8. REDACTED

9. Following her arrest on 1 June 2017, the appellant denied involvement in the offences. In her Defence Case Statement, she asserts that at no time did she act in an official capacity for the NPFL and she disputes that the NPFL was the de facto government authority in the relevant locations and at the relevant times.

The proceedings

10. The appellant made an application to dismiss the charges pursuant to the Crime and Disorder Act 1998, Schedule 3, paragraph 2. The application came before Sweeney J at the Central Criminal Court in two stages. The parties agreed that the judge should first hear argument as to the correct legal test of official capacity with the intention that, once that ruling had been delivered, the defence could consider whether to continue with a submission that there was no case to answer. The application proceeded on the basis that a submission of no case to answer may include the calling of evidence by the prosecution or the defence and that the determination of such a submission would be a matter of law. The first part of the dismissal application was heard on 26 and 27 March 2018. In his ruling dated 30 July 2018, Sweeney J concluded that section 134 “applies, not only to acting for entities either tolerated by, or acting under the authority of the government of a state, but also, in situations of armed conflict, to individuals who act in a non-private capacity and as part of an authority-wielding entity”. Following this ruling, the second part of the defendant's dismissal application was heard on 4 October 2018. On 10 October 2018 Sweeney J ruled that there was a case to answer on all counts. In his reasons given in writing on 29 October 2018 the judge explained that, while the questions whether the appellant was acting in a non-official capacity on behalf of the NPFL and whether the NPFL was an authority-wielding entity would ultimately be for the jury, the dismissal application turned on whether the evidence, taken at its highest, was sufficient for a jury properly to so conclude. He held that it was.

11. The appellant appealed against the ruling dated 30 July 2018, made again within the context of the preliminary hearing on 29 October 2018, to the Court of Appeal which dismissed the appeal on 21 December 2018. It held that the category of perpetrator defined as “a public official or person acting in an official capacity” in section 134 CJA is not confined to those acting on behalf of a recognised state but “covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict.” (para 69) The Court of Appeal noted that it had expressed its conclusion in slightly different language from that of Sweeney J in his ruling, but it considered that the test he adopted and applied was not materially different on the facts of the case and that his subsequent ruling on the factual submission of no case to answer was not affected by the difference. Accordingly, the appeal was dismissed.

12. On 13 February 2019 the Supreme Court (Lady Hale, Lord Reed and Lord Kerr) granted permission to appeal.

The UN Convention against Torture and its implementation

13. It is necessary to identify and apply the law as it existed at the dates on which it is alleged that the offences in the indictment were committed.

14. Section 134 CJA provides in relevant part:

• “134. Torture

• (1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

• (2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if -

  • (a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence -

    • (i) of a public official; or

    • (ii) of a person acting in an official capacity; and

  • (b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.

• …

• (6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.”

15. Section 134 CJA came into effect on 29 September 1988. It applies to conduct committed after that date. Section 135 provides that prosecutions under section 134 require the consent of the Attorney General. Such consent was given in this case on 2 June 2017.

16. Section 134 CJA implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, (1991) (Cm 1775), 1465 UNTS 85 (“UNCAT”). Article 1 defines “torture” for the purposes of UNCAT:

• “Article 1

• 1. For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

• 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”

Under UNCAT each State Party is required to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (article 2). No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture (article 3). Each State Party is required to ensure that all acts of torture are offences under its criminal law (article 4) and to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him (article 5). In such cases each State Party is obliged, if it does not extradite the alleged offender, to submit the case to its competent authorities for the purpose of prosecution (article 7). Each State Party also undertakes to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (article 16).

17. UNCAT entered into force on 26 June 1987, in accordance with article 27(1). It currently has 166 State Parties.

Torture in international humanitarian law

18. Torture for the purposes of UNCAT must be distinguished from discrete concepts of torture in international humanitarian law where torture may form the basis of a war crime or a crime against humanity. I would draw attention, in particular, to the following matters.

• (1) Article 3, common to each of the four Geneva Conventions of 1949, prohibits torture in non-international armed conflicts and establishes protections for persons who do not or who no longer take an active part in hostilities. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits, Judgment) ICJ Rep 1986, 14 at 113–4, para 218, the International Court of Justice held that Common Article 3 establishes minimum guarantees that apply in all armed conflict.

• (2) The statutes of the ad hoc international tribunals for the former Yugoslavia (“ICTY”) and Rwanda (“ICTR”) conferred jurisdiction to try offences of torture committed during armed conflict without defining the offence. The Tribunals produced their own definitions, based heavily on UNCAT.

• (3) Under the Rome Statute of the International Criminal Court (“ICC”), 17 July 1988, torture is capable of constituting (1) a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population (article 7(1)(f)); (2) a war crime when committed in an armed conflict whether international or not of an international character (articles 8(2)(a)(ii) and 8(2)(c)(i)).

19. A vital distinction for present purposes between torture under UNCAT and torture in international humanitarian law is that torture under UNCAT is limited to cases where “pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Although the ICTY initially considered that there was a requirement in respect of torture in an armed conflict that “at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, eg as a de facto organ of a State or any other authority-wielding entity” (Prosecutor v Furundžija, Trial Chamber Judgment, 10 December 1998, para 162; see also Appeal Chamber Judgment, 21 July 2000, para 111), it later took the contrary view (Prosecutor v Kunarac, Trial Chamber Judgment, 22 February 2001, para 496; Appeals Chamber Judgment, 12 June 2002, para 148). It is now established that there is no such requirement in the case of war crimes or crimes against humanity in international humanitarian law. In particular, there is no such requirement in the case of torture as a war crime or a crime against humanity under the Statute of the ICC. As a result, it is necessary to exercise caution when referring to materials and authorities on international humanitarian law for the purpose of ascertaining the scope of article 1 of UNCAT.

20. Torture as a crime against humanity and torture as a war crime, as defined in the Statute of the ICC, are both offences contrary to UK law by virtue of sections 50 and 51, International Criminal Court Act 2001. As a result, torture committed in certain circumstances may be prosecuted here as a war crime or a crime against humanity. However, the alleged conduct which gives rise to the current charges against the appellant could not be prosecuted in the United Kingdom on either of these bases, even if the elements of these offences were otherwise established, because section 65A of the International Criminal Court Act 2001, inserted by section 70 of the Coroners and Justice Act 2009, which deals with retrospective application, provides that the relevant sections apply to acts committed on or after 1 January 1991, which is later than the date on which the instant offences are alleged to have been committed.

The submissions of the parties

21. On behalf of the appellant Mr Steven Powles QC submits that section 134 CJA and the term “person acting in an official capacity” apply only to those acting for or on behalf of the government of a State. He submits that this is the ordinary meaning of both section 134 CJA and article 1, UNCAT, in light of the object and purpose of UNCAT, that this is also supported by the travaux preparatoires and that this is further demonstrated by the pronouncements of the UN Committee against Torture. He submits that, as a result, section 134 CJA does not apply to the conduct of an alleged member of an armed opposition group fighting against or seeking to overthrow the government of a State.

22. On behalf of the prosecution Mr David Perry QC submits that section 134(1) CJA covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict. He submits that the concept of official capacity in the Convention extends beyond any formal State structure and even beyond actors who had been invested with authority by the State. It covers all those who exercise a form of public authority over individuals in a manner which might be similar to the authority of a State. Thus, he submits, it would extend to armed groups who seek to depose the government and to exercise State power and would certainly extend to those who in their quest for authority have displaced the legitimate government in those areas where they operate.

The approach to interpretation of section 134 CJA and article 1, UNCAT

23. Section 134 CJA was intended to give effect to UNCAT in domestic law. As a result, the words “person acting in an official capacity” must bear the same meaning in section 134 as in article 1, UNCAT. (See R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) (“Pinochet No 3”) [2000] 1 AC 147 per Lord Browne-Wilkinson at p 200A-B.) The principles of international law governing the interpretation of treaties are to be found in articles 31 and 32, Vienna Convention on the Law of Treaties, 23 May 1969, (1980) (Cm 7964), 1155 UNTS 331.

• “Article 31. General Rule of Interpretation

• 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

• 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

  • (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

  • (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

• 3. There shall be taken into account, together with the context:

  • (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

  • (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

  • (c) Any relevant rules of international law applicable in the relations between the parties.

• 4. A special meaning shall be given to a term if it is established that the parties so intended.

• Article 32. Supplementary Means of Interpretation

• Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

  • (a) Leaves the meaning ambiguous or obscure; or

  • (b) Leads to a result which is manifestly absurd or unreasonable.”

Ordinary meaning

24. On behalf of the appellant, Mr Powles submits that the ordinary meaning of both article 1, UNCAT and section 134 CJA is such that section 134 applies only to those acting for or on behalf of the government of a State. He points out, correctly, that while article 1(2) UNCAT is without prejudice to national legislation which does or may contain provisions of wider application, section 134 is not drafted in terms of wider application than article 1. The offence contrary to section 134(1) can be committed only by a “public official or person acting in an official capacity”. He further draws attention to the fact that both subsections 134(1) and (2) provide that the public official or person acting in an official capacity must be acting in the performance or purported performance of their official duties. He points to the fact that the definition applies to torture both in the United Kingdom and elsewhere and submits that it is hard to envisage that anyone could, in the United Kingdom, commit an act of torture in the performance of their “official duties” unless they were acting for or on behalf of the State. Anyone not acting either for or on behalf of the State is, he submits, by definition, acting in a private and individual capacity and such conduct, in the United Kingdom, would fall within the jurisdiction of ordinary domestic criminal law and be prosecuted accordingly.

25. The difficulty with the appellant's approach is that it seeks to impose a gloss on the ordinary meaning of the words of the two provisions. Those words are apt to describe a person performing official administrative or governmental functions but provide no suggestion that those functions must be performed on behalf of the government of the State concerned. The dichotomy drawn by the provisions is between official conduct and purely private conduct, not between State and non- State activity. While in most normal circumstances, such as those prevailing in the United Kingdom to which the appellant refers, official conduct will usually be performed on behalf of a State, it is necessary to consider the applicability of the Convention in less stable situations, including those where more than one body may be performing administrative or governmental functions within the territory of the State. Unhappily, examples of such situations arise not infrequently. In my view the words used do not support a limitation of the kind proposed. On the contrary, the words “person acting in an official capacity” are apt to include someone who holds an official position or acts in an official capacity in an entity exercising governmental control over a civilian population in a territory over which it holds de facto control.

Object and purpose

26. It is well established that a treaty should be interpreted in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (Vienna Convention on the Law of Treaties, article 31(1)). It is necessary, however, to sound a cautionary note at this point. While the object of UNCAT was undoubtedly, in one sense, to end impunity for perpetrators of what might be termed “official torture” it does not follow that the reading of the Convention which would best avoid impunity must be adopted in all circumstances. It is, rather, necessary to give effect to the words used in the light of the object and purpose of the scheme created by the State parties to the Convention. Similarly, the mere fact that a particular reading may be seen as a desirable development of the law is not of itself a valid reason for adopting it. It is not for national courts engaged in interpreting a treaty to seek to force the pace of the development of international law, however tempting that may be. There is an analogy to be drawn here with the consideration by national courts of potential rules of customary international law, addressed by the House of Lords in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) (“Jones v Saudi Arabia”) [2006] UKHL 26; [2007] 1 AC 270 where Lord Hoffmann observed (at para 63):

Lord Bingham noted, similarly, (at para 22) that one swallow does not make a rule of international law.

27. The principal purpose of UNCAT is not to outlaw torture and other cruel, inhuman or degrading treatment or punishment. On the contrary the Convention is based upon the recognition that such practices are already outlawed under international law and the principal aim of UNCAT is to strengthen the existing prohibition by a number of supportive measures (Burgers and Danelius, The United Nations Convention against Torture - A Handbook on the Convention against Torture (Martinus Nijhoff 1988), p 1). Thus, Lord Browne-Wilkinson observed in Pinochet (No 3) at p 199C:

As Judge Crawford points out, UNCAT, in common with similar treaties relating, for example, to the unlawful seizure of aircraft or the taking of hostages, does not impose criminal responsibility directly upon individuals, but rather requires contracting States to prevent and punish the conduct in question.

It can be seen therefore that the object of UNCAT has been to make torture as defined in article 1 a criminal offence of universal jurisdiction enforceable by domestic courts and, by virtue of very extensive State participation in the Convention, to establish a machinery capable of reducing the likelihood of perpetrators of “official torture” escaping justice before national courts.

28. Article 1 of UNCAT therefore defines a criminal offence which contracting States are required to criminalize and punish within their respective legal systems. The fact that UNCAT is a human rights treaty imposing obligations in international law on the contracting States is not a good reason for limiting the scope of that offence to conduct attributable to the State itself. It does not follow that the reference in the Convention to public officials and those acting in an official capacity must be taken to refer to State actors as opposed to non-State actors.

Travaux preparatoires

29. We have been referred by the parties to records of the drafting history of article 1, UNCAT and to commentaries on the Convention, including Burgers and Danelius (above) and Nowak and McArthur, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OUP, 2008). Both parties submit that these materials are admissible as a supplementary means of interpretation under article 32, Vienna Convention on the Law of Treaties and support their respective interpretations of the words “a public official or other person acting in an official capacity” in article 1, UNCAT.

30. The UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly resolution 3452 (XXX) of 9 December 1975 (the “1975 Declaration”) defined “torture” in article 1 in terms which required that it be inflicted by or at the instigation of a public official. By Resolution 32/62 of 8 December 1977, the UN General Assembly requested the Commission on Human Rights to draw up a draft convention against torture. The Commission examined the matter at its 34th session and invited comments on the draft articles from the governments of member states of the United Nations and its specialized agencies in advance of its 35th session. The comments received are summarised in three documents published by the Commission on Human Rights (E/CN.4/1314, 19 December 1978; E/CN.4/1314/Add 1, 18 January 1979; E/CN.4/1314/Add 2, 31 January 1979). At that stage, the definition of torture in draft article 1 required that it be inflicted “by or at the instigation of a public official”. In its response the Austrian Government proposed that the concept of “public official” be expanded, for example by using the words “persons, acting in an official capacity” (E/CN.4/1314, para 43). The United States proposed that the term “public official” be defined in order to clarify the breadth of the concept and to make clear that both civil and military officials are included (E/CN.4/1314, para 45). The United Kingdom proposed that, in order to amplify the definition, the phrase “or any other agent of the State” be inserted after “public official” (E/CN.4/1314/Add 1, para 3). The observation of the Federal Republic of Germany was summarised as follows:

Clearly, the German proposal was not implemented in terms. (See Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement, (Martinus Nijhoff 1999), pp 27–28; Wendland, A Handbook on State Obligations under the UN Convention against Torture, Association for the Prevention of Torture, (2002), p 29.) Nevertheless, it may have influenced the expansion of the concept of “public official”. Nowak and McArthur summarise the matter as follows:

On this basis Mr Powles submits that the compromise was the inclusion of non-State actors who act with the consent or acquiescence of a public official and not the expansion of the definition of “person acting in an official capacity” beyond persons or entities who in fact act for or on behalf of the State.

31. It seems clear from this account by Nowak and McArthur that, in the result, the intention was at least to exclude from the definition the conduct of private individuals acting in a private capacity. The question is whether it was intended to go further and to include within the definition acts of de facto authorities exercising governmental functions. On behalf of the appellant, Mr Powles draws particular attention to the reference by Nowak and McArthur to insistence “on a traditional State-centred definition” and submits that it supports the view that conduct in an official capacity must be attributable to the State. It is not entirely clear, however, what is meant by this term. A later passage in Nowak and McArthur, on which the prosecution relies, suggests that it may be intended simply to exclude perpetrators acting entirely in a personal capacity.

Article 7(2)(i), ICC Statute, to which Nowak and McArthur refer, provides:

32. On its face, this passage from Nowak and McArthur strongly supports the prosecution's submission. Mr Powles, however, criticises Nowak and McArthur's statement that the term “other person acting in an official capacity” was inserted in order to meet the concerns of the Federal Republic of Germany that certain non-State actors whose authority is comparable to governmental authority should also be held accountable. He points to the sequence in which comments were submitted, which seems to show that the Austrian amendment was proposed before the German observation was made. On the information presently available to us, it can nevertheless be said that the German observation was under consideration by the Working Group before the amendment proposed by Austria was agreed and the sequence does not necessarily mean that the amendment does not reflect Germany's concern. (In this regard, Mr Perry, on behalf of the prosecution, also draws our attention to the fact that section 312a of the Austrian Criminal Code provides that “public officials within the meaning of this provision shall also be those who, in the event of the absence or default of the public authorities, are effectively acting as officials”. The significance of this as an aid to interpreting article 1, UNCAT is, however, much reduced by the fact that article 1(2) provides that article 1 is without prejudice to any national legislation which does or may contain provisions of wider application. In other words, UNCAT does not prohibit gold plating by contracting States. Furthermore, although Austria ratified UNCAT in 1987 this amendment to the Austrian Criminal Code was not introduced until 2013.) In the result, therefore, the commentary by Nowak and McArthur and the legislative history to which they refer can be said to provide some support for the interpretation for which the prosecution contends.

33. Mr Powles also relies on passages in Burgers and Danelius concerning the drafting history in support of his reading of article 1.

In a further passage, Burgers and Danelius state:

While these passages may be read as providing some support for the appellant's case, it is important to bear in mind that neither was addressing the specific question which arises in these proceedings. The first was addressing the distinct questions of whether torture under the Convention should include private acts of torture and whether it should extend beyond acts committed by public officials. The second was addressing the requirement that torture should be committed for a specific purpose connected to the actor's public function. As a result, these passages cast little light on the meaning of the words “acting in an official capacity”.

34. The same is true of the following statement by the Chairman-Rapporteur, Mr J H Burgers in his report of the Working Group dated 25 March 1983 addressing whether the offence of torture should attract universal jurisdiction:

35. While these aspects of the travaux preparatoires may be inconclusive as to the meaning of the words “public official or other person acting in an official capacity” in article 1, they do, however, cast some light on certain objectives of the Convention. Two points, in particular, emerge with some clarity.

36. First, it was the intention that the offence defined in article 1 should not include purely private acts of torture with no official character or connection. While the representatives of some States in the Working Group considered that the offence should not be limited to the conduct of public officials since the purpose of the Convention was to eradicate any and all activities which result in torture, others considered that such purely private acts were not matters of particular interest to the international community and that each State could normally be expected to take action according to its criminal law against private persons who had committed such private acts of torture so that there was no need for its regulation by an international convention. The prevailing view was that acts of torture committed by or under the responsibility of public officials for purposes connected with their public functions were different in nature from, and inherently more serious than, those inflicted by a private person, and that the elimination of the former category of torture should be the primary target of the Convention. (See Nowak and McArthur, paras 33, 40; Burgers and Danelius, pp 45, 118–120; E/CN.4/1314, 19 December 1978, para 29.) Thus, international action was primarily designed to cover situations where national action was otherwise least likely (E/CN.4/L.170, 12 March 1979, paras 17, 18). To the extent that the words “a public official or other person acting in an official capacity” in article 1 were intended to achieve that result, they should not exclude conduct by rebels, outside the authority of the State, exercising governmental functions over the civilian population of territory under its control. On the contrary, such conduct is properly the concern of the international community and requires international regulation, albeit implemented at national level. Official torture is as objectionable and of as much concern to the international community when it is committed by a representative of a de facto governmental authority as when it is committed on behalf of the de jure government.

37. Secondly, there is likely to be reluctance on the part of States to bring to justice perpetrators of torture who have acted in an official capacity, where torture is a State policy, not least because the public interest may be claimed as a justification. (See Burgers and Danelius, pp 45, 118–120; E/CN.4/1982/L.40, para 26; E/CN.4/1983/63, para 21.) As a result, the bringing to justice of perpetrators could not be left to the territorial jurisdiction of the State concerned and a primary objective of the Convention was to establish universal jurisdiction for this reason. To the extent that the words “a public official or other person acting in an official capacity” in article 1 were intended to achieve that result, the point can fairly be made on behalf of the appellant that this rationale does not apply to torture perpetrated by rebels acting outside the authority of the State. While a case for establishing universal jurisdiction may be made out in such circumstances, its basis would be the inability and not the reluctance of the State to act.

Subsequent practice

38. Article 31(2)(b) Vienna Convention on the Law of Treaties provides that in interpreting a treaty there shall be taken into account, together with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. In this regard, the appellant relies on the report by the Special Rapporteur dated 19 February 1986 and both parties rely on the decisions and General Comments of the UN Committee Against Torture (“CAT”).

Context of international law

53. Article 31(2)(c) of the Vienna Convention on the Law of Treaties provides that in interpreting a treaty there shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties. In this regard it is necessary to refer to the possible relevance of two matters: State responsibility and recognition of States and governments.

UK authorities

60. The appellant draws attention to the following passage in the speech of Lord Millett in Pinochet (No 3) as emphasising the governmental nature of the act of torture in article 1 UNCAT.

So much is uncontroversial. What is more problematical is what constitutes acting in an official capacity, a matter on which, with one exception, the UK authorities provide little assistance.

61. The appellant relies on a line of authority concerning the relevant definition of torture for the purposes of immigration and asylum detention policy which, it is submitted, reveals a clear understanding that “person acting in an official capacity” in article 1 UNCAT refers to persons acting on behalf of the State. In R (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), ACD 116 Burnett J concluded that “torture” in rule 35(3), Detention Centre Rules 2001 (SI 2001/238) (“DCR”) and in certain policy documents had a broader meaning than the UNCAT definition. It was not confined to acts of public officials or other persons acting in an official capacity or in which they were complicit or acquiesced. Subsequent to EO, the Secretary of State introduced statutory guidance entitled “Adults at Risk in Immigration Detention” (“AARSG”). The definition of “torture” for the purposes of rule 35 of DCR and the AARSG is set out in Detention Services Order, DSO 09/2016 which sets out the definition in article 1 UNCAT but adds:

In R (Medical Justice) v Secretary of State for the Home Department [2017] EWHC 2461 (Admin); [2017] 4 WLR 198, Ouseley J set out the history of these provisions and noted that:

This, it is said on behalf of the appellant, demonstrates that the courts and the parties to these cases, including the Secretary of State, clearly understood that “person acting in an official capacity” for the purposes of article 1, UNCAT applies only to a person acting for or on behalf of a State. While this might, at first sight, appear to support the appellant's case, I am unable to attach any great weight to it. The precise question in issue here was not under consideration. Moreover, in the particular context of immigration detention it was clearly desirable to include such an express provision for the benefit of persons who, because of their history, should not be detained.

62. We were informed that this is only the third occasion on which a prosecution has been brought in the United Kingdom pursuant to section 134, CJA. In R v Lama [2014] EWCA Crim 1729; [2017] QB 1171 the present issue did not arise. However, in my view considerable assistance is to be found in the first instance decision of Treacy J in R v Zardad, Case No T2203 7676, 7 April 2004. Zardad was charged with a conspiracy to torture in Afghanistan in circumstances where the substantive charge would have been that contrary to section 134, CJA. The case concerned the period between 1992 and 1996 when the Hezb-I-Islami faction was in control of Laghman Province. During that period Zardad was a chief commander of Hezb-I- Islami and the military controller of the area of Sarobi. Zardad maintained that he was not a public official since there was a recognised government in Afghanistan at the relevant time and the group to which he belonged was not a part of that government and was actively opposed to it. The prosecution maintained that he was either a public official de jure or a person acting in an official capacity de facto.

63. At a preparatory hearing pursuant to section 29, Criminal Procedure and Investigations Act 1996, Treacy J considered that there was no evidence on which a jury could find that Zardad was a de jure public official. However, having surveyed the evidence of the degree of control exercised by Hezb-I-Islami, he continued:

He rejected a submission, based on Elmi, that the mere fact that there is a central government in existence precludes there being a de facto authority of which a person might be a public official or on whose behalf a person might act in a similar capacity. He considered that the words “person acting in a public capacity” included those acting for an entity which had acquired de facto effective control over an area of a country and was exercising governmental or quasi-governmental functions in that area. In his view, there was material on which a jury could conclude that Zardad was such a de facto public official in an area totally controlled by his organisation which exercised, with a degree of permanence, functions which would be functions of a state authority (at paras 34–38).

64. Mr Powles submits that Zardad is wrongly decided. However, I find the approach of Treacy J compelling and in conformity with the preponderant weight of material relevant to the interpretation of article 1, UNCAT.

65. Zardad is also instructive as to which features are indicative of governmental activity. There, in support of its contention that Zardad should be treated as a public official on a de facto basis, the prosecution maintained that Zardad was akin to a Military Governor in control of a province and that he was, accordingly, to be regarded as a quasi-official and amenable to the provisions of section 134 CJA. Treacy J drew attention, inter alia, to Zardad's admission that he was a general within Hekmatyar's army (Hekmatyar being the leader of the Hezb-I-Islami faction), which controlled the Sarobi area, and to the clear command structure within that force. The judge referred to the fact that prisons within the controlled area were run by Hezb-I-Islami which was the only law enforcement authority in the area and to the role of Hezb-I-Islami and Zardad personally in arresting and imprisoning lawbreakers and in mediating and resolving disputes between individuals. Representatives of international organisations and aid agencies would make representations to Zardad, as opposed to any central government authority, if equipment was seized or delayed at any of the checkpoints for which Zardad's force was responsible. Those who complained of ill-treatment, torture and hostage taking regarded Zardad and Hekmatyar as the only official authority in the area which was dominated and controlled by them. Against this background Treacy J concluded:

US authorities

66. The appellant relies on a number of US authorities concerning the Alien Tort Claims Act (“ATCA”). First, reliance is placed on certain passages in the judgment of Chief Judge Newman in Kadic v Karadzic (above). The plaintiffs sought remedies against Karadzic, the president of a three-man presidency of the self-proclaimed Bosnian-Serb Republic of Srpska in respect of alleged atrocities including torture committed in Bosnia-Herzegovina. The complaints alleged that Karadzic acted in an official capacity, either as titular head of Srpska or in collaboration with the government of the recognised nation of the former Yugoslavia. Subject matter jurisdiction was grounded, inter alia, in ATCA and the Torture Victim Protection Act of 1991 (“TVPA”). A motion for dismissal succeeded in the District Court, inter alia, on the ground of lack of subject matter jurisdiction. The Court of Appeals considered that the requirement of ATCA that the tort be “committed in violation of the law of nations” was satisfied. With regard to torture, the Court of Appeals observed, at p 243:

and then recited the definition in article 1, UNCAT. In a passage cited earlier in this judgment at para 56 the Court of Appeals held that the proscription of official torture applied without distinction to both recognised and non-recognised States and continued, at p 245:

67. On behalf of the appellant it is submitted that the Court of Appeals here placed considerable emphasis on the need for the entity under consideration to possess significant State-like qualities. Moreover, it is said that the State-like qualities possessed by Srpska were of a considerably different order from those of NPFL as it existed during the relevant period of 1990 in Liberia. However, in common with most of the other US authorities relied on by the appellant, Kadic concerns the distinct question of actionability under ATCA. Furthermore, to the extent that it may be relevant, Kadic, notwithstanding the use of the language of statehood, does not support the appellant's reading of article 1, UNCAT. On the contrary, the Court of Appeals apparently considered that official torture required “merely the semblance of official authority” and could be committed by “a person purporting to wield official power” who had exceeded internationally recognised standards of civilised conduct. In the result, the conduct of a de facto governmental authority was held to constitute official torture.

68. The same is true of a further US decision on which the appellant relies, Mehinovic v Vuckovic, 198 F Supp 2d 1322 (2002) (US District Court, N D Georgia, Atlanta Division). The plaintiffs sued a former soldier in the Bosnian Serb Army alleging, inter alia, acts of torture. The District Court held that it had jurisdiction under both ATCA and TVPA. With regard to ATCA, it noted that official torture violated obligatory norms of customary international law and, after referring to the definition in article 1, UNCAT observed that

The appellant relies in particular on the following passage:

In this second passage, the court was considering whether the claim also satisfied the requirement of TVPA that the torture be “under actual or apparent authority, or color of law, of any foreign nation”. This does not detract in any way from the court's earlier conclusion that the conduct was that of persons acting in an official capacity. On the contrary, the court's reasoning supports the view that conduct of a de facto governmental authority can constitute official torture within article 1, UNCAT.

69. The appellant also relies on further US cases concerning the scope of application of ATCA, in particular the requirement that the tort alleged should have been committed “in violation of the law of nations”. Tel-Oren v Libyan Arab Republic, 726 F 2d 774, 233 US App DC 384 (1984), a decision which pre-dated UNCAT, concerned the murder of civilians in a terrorist attack on a bus in Israel in March 1978. The three members of the court, for different reasons, provided support for the view that torture claims against non-State actors were not within the jurisdictional grant of ATCA. In particular, Judge Edwards considered that the Palestine Liberation Organisation was not a recognised member of the community of nations and that there was insufficient consensus in 1984 that torture by private actors violated international law. In Ali Shafi v Palestinian Authority 642 F 3d 1088 (2011), the US Court of Appeals, Second Circuit endorsed this approach concluding, similarly, that in 2011 the appellants in that case had not demonstrated a consensus in the law of nations that torture by private actors violates international law. These cases were concerned with whether under ATCA there is a cause of action for torture against non-State actors. Neither case was directly concerned with the question whether the conduct of an individual acting on behalf of a quasi-governmental entity which is in de facto control of territory may give rise to official torture under UNCAT. Nor, in my respectful view, does the decision of the US Supreme Court in Sosa v Alvarez-Machain 542 US 692 (2004) on the scope of ATCA cast any light on the present issue.

70. Finally, in this regard, I should refer to United States of America v Belfast (US Court of Appeals, 11th Circuit, 15 July 2010) which concerned a series of constitutional challenges to the Torture Act, 18 USC para 2340–2340A. In rejecting a challenge brought on the ground that the official conduct requirement of the Act used the phrase “under color of law” rather than the phrase “in an official capacity” as found in UNCAT, the Court of Appeals referred to the view of the Senate Executive Committee charged with evaluating UNCAT that there is no distinction between the phrases.

The appellant points to the fact that the Court of Appeals then went on to draw attention to the definition of “under color of law” in the different context of 42 USC para 1983 (“[t]he traditional definition of acting under color of state law requires that the defendant … have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law’”: West v Atkins, 487 US 42, 49 (1988) quoting in turn from United States v Classic, 313 US 299, 326 (1941)). Notwithstanding this equiparation of official conduct under UTCA and acting “under color of law” in a different context, the statement by the Senate Executive Committee and its adoption by the Court of Appeals makes clear that the distinction both sought to draw was between “torture that occurs in a the context of governmental authority” and “torture that occurs as a wholly private act”. Furthermore, Belfast was concerned solely with conduct which took place in Liberia after Charles Taylor had established himself as President of that State. Accordingly, it was not directly concerned with the question whether the conduct of a person acting on behalf of a quasi-governmental entity which is in de facto control of territory may give rise to official torture.

Conclusion

75. It is time to draw the threads together.

76. First, I am persuaded that the prosecution is correct in its interpretation of article 1 UNCAT and section 134 CJA. I consider that the words of those provisions in their ordinary meaning support this reading. They are sufficiently wide to include conduct by a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control. In particular, I can see no justification for imposing the limitation on those words for which the appellant contends, which would require the conduct to be on behalf of the government of the State concerned. On the contrary, the words in their ordinary meaning are apt to include conduct on behalf of a de facto authority which seeks to overthrow the government of the State. This reading also conforms with the object and purpose of the provisions. Here I attach particular significance to the purpose of the Convention in seeking to establish a regime for the international regulation of “official” torture as opposed to private acts of individuals. Torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the scheme. In addition, some support for this conclusion can be found in the decisions of the CAT under article 22(7), UNCAT and it is favoured by the preponderant weight of academic comment. I would express the principle in the following terms.

77. Secondly, I would emphasise, that exercise of governmental functions is a core requirement. It will be noted that the formulation of the principle set out above differs from that of the Court of Appeal, which referred to a person acting “for or on behalf of an organisation or body which exercises or purports to exercise the functions of government …”. Section 134(1) refers to a person acting “in the performance or purported performance of his official duties”. In the Court of Appeal's formulation, however, the adjective “purported” has been transposed so as to refer to the function being exercised by the organisation or body. This is an error as the functions being exercised by the organisation or body must be governmental in character. Purporting to exercise such functions would not be sufficient.

78. Thirdly, the exercise of a governmental function must be distinguished from purely military activity not involving any governmental function. I note that, in this regard, Treacy J in Zardad distinguished governmental functions from “the activities of a rebel faction which has not acquired a sufficient degree of control, permanence, authority or organisation to fulfil criteria sufficient for it to be recognised as an authority wielding official or quasi-official powers” (at para 36). However, insurrectional forces engaged in fighting the forces of the central government of a State may nevertheless exercise sufficient governmental authority over territory and persons under their control for acts done on their behalf to be official acts for this purpose. Thus, in Zardad the area controlled by Hezb-I-Islami was controlled essentially by military force but the group also exercised governmental functions. The failure to take account of the distinction between governmental and military activity leads me to the view that the formulation adopted by Sweeney J in the present case - “in situations of armed conflict, … individuals who act in a non-private capacity and as part of an authority-wielding entity” - is too broad. It is also necessary to bear in mind that there are circumstances in which torture might constitute a crime against humanity or a war crime contrary to UK law, whether or not performed by a public official or a person acting in an official capacity. However, for reasons explained at para 20 above, that is not so with regard to the alleged facts in the present case.

79. Fourthly, it is necessary to say something about what may be the indicative features of governmental authority in any particular case. I consider that Treacy J in Zardad correctly identified the required approach when he observed that it is necessary to look at the reality of any particular situation and to consider whether, at the relevant time, the entity in question had a sufficient degree of organisation and actual control over an area and whether it exercised the type of functions which a government or governmental organisation would exercise. This will require examination of evidence as to the position on the ground. In doing so it will be necessary to make allowance for the particular conditions which may make administration difficult and for different views of appropriate structures of government. The question will be whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi-official powers, as opposed to a rebel faction or a mere military force. The one reservation I have about the approach of Treacy J. in Zardad is his view that the entity would be required to establish itself with a degree of permanence. This, it seems to me, is likely to be a flexible concept and the fact that the long-term survival of an entity may be an unlikely prospect should not prevent it from being considered a de facto government provided that it has effectively established itself as such. Furthermore, it is clear that the continued existence of a central government would not prevent an entity exercising the authority described above from being a de facto government in respect of the territory under its control. The application of this approach to the particular facts in Zardad has been considered at para 65 above.

80. Fifthly, if this matter proceeds to trial, the question whether the appellant acted in an official capacity as alleged in the indictment will be a matter for the jury and it will be open to the defence to argue that the evidence does not come up to the mark. However, this appeal arises out of a ruling at a preparatory hearing under section 31(3) CPIA and the issue for the judge at that hearing was the correct interpretation of the words “person acting in an official capacity” in section 134 CJA. The Court of Appeal expressed its conclusion on the legal test in different terms from those of Sweeney J but, nevertheless, considered that the test the judge applied was not materially different on the facts of the case and that his ruling on the factual submission of no case to answer was not affected. Since the hearing in the Court of Appeal, however, the prosecution has served a further memorandum in which its expert witness clarifies that his use of the term “control” in his evidence refers to military rather than administrative control over the area. In particular, he states that NPFL were the de facto military authority but that military control is very different from administrative control. (See para 7, above.) This is a matter of some importance for the reasons expressed at para 79, above. Furthermore, for the reasons set out in para 77 above, I would modify the test adopted by the Court of Appeal. Accordingly, in these circumstances, I consider that it is necessary for this matter to be remitted to the judge for him to reconsider it in the light of these further developments and in the light of further expert evidence.

81. I would, therefore, on this narrow basis, allow the appeal, quash the determination of the Court of Appeal and remit the matter to the judge for further consideration in the light of the new evidence from the prosecution expert and the judgment of this Court. For this purpose, I would make an order under rule 9.16(5), Criminal Procedure Rules that the appellant be permitted to make, within 28 days from the date on which judgment is given in this appeal, a new application to dismiss.