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See Part One of this Case Comment here.

The dissenting judgmentjones_j-022_bw_indmem

Lord Reed gave a dissenting judgment. In his opinion, the ordinary meaning of the phrase ‘a public official or other person acting in an official capacity’ “does not extend to a member of an insurgent group engaged in armed insurrection against the government of the country” [83]. For him, the phrase “or other person acting in an official capacity” would extend to persons who were not public officials but were acting in a similar capacity, for example where the Government has outsourced a public function to private agencies. The key criterion for him is that the person must be acting on behalf of a State: [83]. As well as the provisions of UNCAT, the Vienna Convention on the Interpretation of Treaties, and academic commentary, Lord Reed looked at the way in which UNCAT Article 1 had been enshrined in the domestic law of other countries: [90] highlighting several examples where a more limited approach had been taken. He considered that the requirement for legal certainty in the criminal law – include the principle that criminal legislation whose meaning is unclear should be read restrictively rather than expansively – meant that the appeal should have been allowed [97-99].

Disposal

As above, the respondent (CPS)’s arguments found favour with the majority, such that TRA is capable of coming within CJA 1988, s 134 despite not having a “State” position at the relevant time. Because the majority considered that it needed to draw a clear distinction between military activity in an area, and governmental control of an area (only the latter being sufficient to bring a person acting on behalf of a non-State entity within the terms of s 134), it was necessary for the order of the Court of Appeal to be amended, and so the appeal was allowed to that very limited extent.

The Supreme Court did not consider whether TRA was acting in an official capacity: that is a question of fact for the jury at a criminal trial to determine. The question that had been before the trial judge was on an application for dismissal of the charges (i.e. whether the evidence against TRA, taken at its highest, is sufficient to provide a basis on which a jury could properly convict: the Crime and Disorder Act 1998, Sch 3, para 2). The case was therefore remitted to the trial judge to consider whether, applying the law as enunciated by the Supreme Court, and taking into account expert evidence (which had changed since the date of the dismissal hearing) that test was met.)

Discussion

This is a fascinating case in which the Supreme Court was required to chart a course between two fundamental principles of law which were in apparent conflict with each other on the issue in question: the principle of ending impunity for international crimes, which would tend towards an expansive reading of s 134, and the principle of legal certainty (and nulle poena sine lege; no punishment without law) which would tend towards Lord Reed’s narrow reading. Human rights lawyers and activists will no doubt be pleased by the conclusion the majority reached, and by the potential ramifications of the decision on the prospects of obtaining accountability for torture in a wider set of circumstances. Although the events at issue in relation to TRA occurred several decades ago, the geopolitical context of the last decade – in which non-State groups have, for example, been in control of substantial swathes of territory in Syria and elsewhere – and are accused of acts which would plainly fall within CJA 1988, s 134 (“intentionally inflicting severe pain or suffering”) may mean that the impact of the judgment is profound.