International: Zubaydah v Foreign, Commonwealth and Development Office & Ors [2023] UKSC 50
Does English law apply to alleged torts by MI5 and MI6 (“the Security and Intelligence Services”) following allegations of torture by the CIA in overseas black sites?
Facts
The claimant is a Palestinian national.
He alleged that the Security and Intelligence Services knew that he was being arbitrarily rendered, detained, and subjected to torture, by the CIA at six, secret, overseas, black sites (“the black sites”).
The claimant also alleged that the black sites were outside the US legal system, and that of the countries in which they were located, which is why they were chosen.
He never had leave to enter, remain, or had even been in, the UK, or any of the countries in which the black sites were located prior to capture.
The claimant further alleged that the Security and Intelligence Services sent questions to the CIA with a view to eliciting information.
In doing so, he alleged that the Security and Intelligence Services expected, intended, and did not care about, torture by the CIA.
It was not alleged that the Security and Intelligence Services played any part in the claimant’s capture, rendition or detention, were present at or participated in his treatment, had any direct contact with him, or were even aware of his precise location.
The alleged torts included misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence.
Damages were claimed for personal injuries, aggravated damages for extraordinary levels of suffering, distress and humiliation, and exemplary damages in light of unconstitutional and arbitrary conduct.
The Security and Intelligence Services neither confirmed, nor denied, the allegations against them, or whether they knew about the CIA’s alleged actions.
No findings of fact were made. No closed material was considered.
The case was decided on the assumed facts asserted by the claimant. Many were from publicly available material because he is still in Guantánamo Bay with extremely stringent restrictions.
Issue
The only issue was the applicable law.
There were two options. First, English law applied. Secondly, English law did not apply; the law of the countries in which the black sites were located applied.
Neither party submitted that US law applied.
The claimant alleged that the Security and Intelligence Services were exercising or purporting to exercise powers conferred by English law. Members of the Security and Intelligence Services were in England. They were subject to the supervisory jurisdiction of the High Court and the criminal and public law of England.
Accordingly, the claimant alleged that knowledge acquired by the Security and Intelligence Services was acquired in England. Members sent questions to the CIA and received answers from the same whilst in England. Acts and omissions therefore took place in England for the perceived benefit of the UK.
First instance
The High Court held that English law did not apply.
First appeal
The Court of Appeal allowed the appeal and held that English law applied.
Second appeal
Lords Lloyd-Jones and Stephens (with whom Lords Kitchin and Burrows agreed) gave the leading judgment.
The general rule requires a determination of whether the tort occurred in a particular country. If so, the applicable law is the law of that country. The general rule, however, may be displaced.
It was agreed that elements of the events constituting the alleged torts occurred in different countries, so that, unless displaced, the general rule applied.
The dispute was whether the general rule was displaced.
The principal factor connecting the alleged torts with the countries in which the black sites were located was that the claimant’s injuries were sustained there. This is why the general rule would lead to the application of those laws.
The significance of this connection, however, “is massively reduced” by five factors.
First, the claimant’s involuntary presence in the countries in which the black sites were located cannot constitute a meaningful connection with those countries. The claimant had no reasonable expectation that the law of wherever he was should apply to him.
Secondly, there was no suggestion that the Security and Intelligence Services were aware of, or ever took steps to find out, where the claimant was. They were entirely indifferent.
Thirdly, the claimant was rendered to, and held in, the countries in which the black sites were located, without reference to the law of those countries, denied access to the local courts, and, it is to be inferred that, the black sites were selected for this reason.
Fourthly, the number of black sites in which the claimant was held diminished the significance of the law of the countries in which any of them are located.
Fifthly, the claimant’s captors, and those who administered the alleged torture, were not agents of the countries in which the black sites were located. They were agents of another country: the US. It was not alleged that anyone from the countries in which the black sites were located had any involvement.
There were also three “substantial factors” connecting the alleged torts to the UK.
First, the claimant alleged that the torts were committed by agents of the Security and Intelligence Services for which the UK Government was vicariously liable.
Secondly, the events which constitute the alleged torts were committed, in part by the Security and Intelligence Services in England, and in part by the CIA at the black sites. It was alleged that no assurances were sought, and no steps were taken to discourage or prevent, the claimant from being tortured. The acts and omissions took place in England, and, they were committed for the perceived benefit of the UK.
Thirdly, the acts and omissions were taken by members of the Security and Intelligence Services in their official capacity, in the purported exercise of powers conferred under English law, and they were subject to English criminal and public law.
Disposal
The majority held that there was a “compelling case” in favour of displacing the general rule in these “unusual circumstances”. They had “no hesitation” that “it is substantially more appropriate” for English law to apply.
The appeal was dismissed.
Dissent
Lord Sales handed down a detailed dissent.
The High Court did not err. Lane J did not reach a conclusion that was irrational, outside the range of conclusions that were legitimately open to him, fail to have regard to a relevant consideration, or take into account an irrelevant consideration.
The Court of Appeal, therefore, erred by criticising the reasoning of Lane J.
The first criticism that of Lane J in fact reflected the error that the majority of the Supreme Court found that the Court of Appeal had fallen into.
The second and third criticism of Lane J “simply reflects a disagreement about the weight to be accorded to certain factors in the overall evaluation exercise, rather than any legal error by the judge.”
Lord Sales said that “the fact that the claimant considers that his interests may best be protected if English law is found to be the applicable law does not affect the task of the court”. Further, “it is usually the case that a party will contend for application of the system of law which gives it the greatest forensic advantage or provides for the greatest or lowest level of recovery (depending on whether the party is bringing or defending the claim).”
Accordingly: “If it were the case that the claimant would be better protected under the laws of the Six Countries where he was in fact subjected to torture, would one nonetheless conclude that English law rather than those laws was the applicable law?”
Lord Sales considered that “significant weight” attached to the factors connecting the alleged torts to the countries in which the black sites were located.
For example: “If the [Security and Intelligence] Services had been the prime movers in such a scheme, that might have been a powerful factor pointing in favour of connecting the torts with England and Wales (though even then, I do not think it is necessarily the case that it would outweigh other factors pointing in a different direction …). The fact that they were not the prime movers greatly diminishes the force of that connecting factor in my opinion.”
Furthermore: “In so far as the claimant had any expectation of which law should apply to him, again the most obvious is the law of the place where the mistreatment was inflicted on him, followed perhaps by the law of the USA whose agents were directly involved in inflicting that mistreatment on him. Although, like the claimant, the [Security and Intelligence] Services may not have known where the claimant was located at any particular time, the same is true for the [Security and Intelligence] Services, in so far as they can be said to have had any expectation which law applied in relation to his mistreatment.”
The general rule is displaced on “very few” occasions.
Moreover: “The dominant circumstances of the events are that he was imprisoned and tortured by CIA agents in the Six Countries in the course of a scheme and a pattern of conduct carried out by them on their own initiative and for their own purposes, in which the [Security and Intelligence] Services were only peripherally involved.”
The applicable law was that of the countries in which the black sites were located.
Written by Dominic Bright