Supreme Court of United Kingdom: Serdar Mohammed-an Afghan national was captured by British troops in Afghanistan on 7 April 2010 as the soldiers believed he was a senior Taliban commander who posed a threat to their safety. After his arrest, he was detained at British military bases in Afghanistan until 25 July 2010 after which he was transferred to a prison controlled by the Afghan authorities. Later on, he was sentenced to imprisonment of 10 years. With him, a large number of people (respondents) had claimed to have been wrongfully detained or mistreated by UK forces in the curse of conflicts between Iraq and Afghanistan and have brought proceedings under law of tort against the Ministry of Defence and the Foreign and Commonwealth Office (‘the Government’).

The government claimed that the claims of respondents were based on Iraqi or Afghan Law of tort and therefore, they raised the doctrine of Crown act of State. It is a doctrine of sovereign immunity as per which a sovereign or State can not commit any legal wrong and is immune from any sort or prosecution-civil or criminal. It is an international law principle which exempts the sovereign state from the jurisdiction of foreign national courts. The question whether the doctrine would apply in this particular case had to be determined by the Supreme Court and after the decision; the individual cases would be taken up by the lower courts according to the decision.

Government’s Argument: The Government argued that certain acts of high policy committed by a sovereign state cannot be subject to adjudication in the courts as they are ‘non-justiciable’. Government also argued that Crown act of state is a defence to an action in tort where a foreigner seeks to sue the Government in the courts of the country (UK) in respect of certain acts committed abroad, with respect to any policy in the conduct of its foreign affairs.

Respondents’ Argument: The respondents argued that the doctrine of Crown act of state was a narrow rule of non-justiciability for acts of high policy in the conduct of foreign relations and averred that it does not extend at all to decisions made to detain or transfer particular individuals.

Held by High Court: In the High Court, Leggatt J held that the claims were justiciable. But at the same time, declared that the Crown act of state doctrine would provide a defence to the tort claims and allowed the respondents’ appeals. It held that the doctrine provided a tort defence as well as a non-justiciability rule, but that the defence would only apply when the Government could establish that there were compelling grounds of public policy to refuse to give effect to the local tort law and observed that no such grounds arose in the case of Mr Mohammed.

Decision of Supreme Court: The Supreme Court unanimously allowed the Government’s appeals. Lady Hale (with whom Lord Wilson agreed) giving the main judgment held that, insofar as the respondents’ tort claims were based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state and therefore, for these the Government could not be liable in tort, the Court observed.

The Court went on to say that a Crown act of state is a prerogative act of policy in the field of international affairs performed by the Crown in the course of its relationship with another state or its subjects. It stated that the principle that there is no general defence of state necessity to a claim of wrongdoing by state officials had been established since the eighteenth century and elucidated that the earlier cases indicated that there was an exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown.

The intention of the Court was to suggest that the doctrine encompassed two rules:- (i) one of non-justiciability for certain prerogative acts of the Crown in sphere of foreign affairs;

(ii) providing the Government or its servants with a defence to claims arising from acts of state committed abroad.

It expressed that there was no reason to doubt that the first rule exists but the question for the Supreme Court was whether, as the Government submits, the doctrine also provides a defence to a claim which is otherwise suitable for adjudication for a court, it said.

The Court suggested that if the doctrine is to be confined to a non-justiciability rule, a broader concept of non-justiciability is required, which should encompass aspects of the conduct of military operations abroad as well as the high policy decision to engage in them and then, the courts may need to hear evidence and find facts in order to determine whether the acts in question fall within this category. It elucidated that the doctrine must be narrowly confined to a class of acts which involve an exercise of sovereign power, inherently governmental in nature, committed abroad, with the prior authority or subsequent ratification of the Crown, in the conduct of foreign relations of the Crown and held that the class of acts must be closely connected to that policy so that the doctrine can be pursued extending that, at least to the conduct of military operations which are themselves lawful in international law.

The Court observed that as per the facts presented before it, the respondents’ detention by Her Majesty’s forces and transfers out of British custody were steps taken pursuant to deliberately formed policy against persons reasonably suspected to be insurgents, in the context and furtherance of foreign military operations during a time of armed conflict, and could therefore, be termed as Crown acts of state for which the Government cannot be held liable in proceedings for common law damages.

However, Lord Mance considered that the underlying principle of Crown act of state is one of non-justiciability and that it created unnecessary confusion to suggest that it would have two branches. He analysed that Crown act of state did offer a defence, but he doubted whether it would help to treat the doctrine as comprising two rules, and in any event in the present context the two rules merge into one.

Lord Neuberger agreed with Lord Sumption that the doctrine is ultimately based on the need for consistency or coherence in the distribution of functions between the executive and the judiciary in the United Kingdom’s constitutional arrangements. It was further clarified that it is not that a judge lacks the information or expertise to resolve the issue, but rather that there are certain governmental acts which owing to their nature or circumstances can not be made susceptible to judicial assessment. The Court held that the doctrine was also compatible with the right to a fair trial protected by article 6 of the European Convention on Human Rights, as it is clearly a rule of substantive law and not a procedural bar.

Consequently, the Court allowed the appeal in part and declared that, in proceedings in tort governed by foreign law, the Government can rely on the doctrine of Crown act of state to preclude the court from passing judgment on the claim if the circumstances demand so. The circumstances can be as accepted by the government like the doctrine wouldn’t apply in for acts of torture, expropriation of property ( as compensation for it can always be paid), in cases of maltreatment of detainees or prisoners, etc. [Mohammed Serdar v. Ministry of Defence, [2017] 2 WLR 287, decided on 17-01-2017]

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