This case arose as a preliminary issue in criminal proceedings against TRA, who was charged with one count of conspiracy to commit torture and seven counts of torture contrary to the Criminal Justice Act 1988, s 134. The charges against TRA relate to events during the Liberian Civil War. TRA was associated with an armed group, the National Patriotic Front of Liberia (NPFL), which was at war with the then-Government of Liberia. The NPFL were thus not a State authorised or directed entity, and TRA did not hold any State-related position; but the prosecution contended that the NPFL exercised the functions of government over the civilian population in the territory it controlled.

The question before the Supreme Court was whether, in that context, TRA was capable of being a “a public official of person acting in an official capacity” for the purposes of the Criminal Justice Act 1988, s 134. If TRA was not at least “a person acting in an official capacity”, she could not be guilty of torture, that being an element of the offence under the Criminal Justice Act.

Giving the majority judgment, Lord Lloyd-Jones held that TRA was capable of being “a person acting in an official capacity”. Lord Reed gave a dissenting judgment.

The majority judgment

Lord Lloyd-Jones observed that s 134 was intended to give effect in domestic law to the UN Convention against Torture (UNCAT). As a result, the phrase “person acting in an official capacity” had to mean the same in s 134 as it does in article 1 of UNCAT: [23]. In analysis of the meaning of those words, Lord Lloyd-Jones considered that they set up a dichotomy between official conduct and purely private conduct [25] and, whilst “official conduct” is normally performed on behalf of a State, in less stable situations (such as internal armed conflict), those words “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”. That reading also accords with the object and purpose of UNCAT, which is to make torture a crime of universal jurisdiction, i.e. a crime that can be tried by national courts everywhere regardless of where the torture took place, and therefore reduce the prospect of a perpetrator escaping justice [27].

By a reading of the travaux preparatoires relating to UNCAT, and other preparatory and associated documents, Lord Lloyd-Jones observed two points, which in his opinion “emerge with some clarity” [35]:
(i) Article 1 of UNCAT was not intended to apply to purely private acts of torture with no official character or connection. (Offences of that nature would be prosecuted under ordinary domestic criminal law provisions, for example by grievous bodily harm or assault charges.) That was because UNCAT (as an international convention) is only concerned with crimes affecting the international community. But Lord Lloyd-Jones considered that that should not exclude conduct by rebels, outside the authority of the State, but exercising governmental authority over a civilian population: “on the contrary, such conduct is properly the concern of the international community and requires international regulation, albeit implemented at national level” [36].
(ii) There is likely to be reluctance on the part of States to bring to justice perpetrators of torture within their territory, where torture is a State policy – hence universal jurisdiction is necessary to bring perpetrators to justice. While that reluctance would not apply where torture was perpetrated by non-State actors (even “officially”), there may be an inability to prosecute (for example because the context in which that is most likely to arise is in civil war) [37].

Considering subsequent practice in relation to Article 1 of UNCAT (i.e. the way in which relevant bodies such at the Committee against Torture have interpreted Article 1), Lord Lloyd-Jones considered that there was “some support for the view that the conduct of non-State actors exercising de facto authority over territory which they occupy can fall within Article 1 of UNCAT” [52]. An earlier domestic judgment, R v Zardad, also supported the position that a person acting on behalf of a non-State entity may be acting in an official capacity for the purposes of s 134 if the non-State entity “had a sufficient degree of organisation, a sufficient degree of actual control of an area and […] exercised the type of functions which a government or governmental organisation would exercise” [63]. So too did cases from the USA [67-68] and academic commentary: [71].

Lord Lloyd-Jones concluded, ultimately, that 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 is “a person acting in an official capacity” for the purposes of CJA 1988, s 134 [76]. The person must actually be exercising governmental functions, and not merely purporting to do so: [77]. Military activity is not the same as governmental control, but insurrectional/military forces may (depending on the facts of the situation) exercise governmental authority [78-79]. The Court of Appeal had failed to make the distinction between military activity and governmental control, and for that reason the Supreme Court varied the Court of Appeal’s order (which in form amounted to allowing the appeal on a narrow basis, but in substance amounted to dismissing the appeal: 81. The case was remitted to the trial judge to consider whether, on the basis of the Supreme Court’s findings and the expert evidence in the case, there was a basis to proceed to trial.

See Part Two of the Comment here.