21/11/2019

Sudhanshu Swaroop QC and John Bethell in Supreme Court case on the international law of torture

R V TRA (Appellant) [2019] UKSC 51

In a significant judgment the Supreme Court has held that “torture” under the 1984 United Nations Convention against Torture (“UNCAT”) can, in principle, be committed by non-state actors. Sudhanshu Swaroop QC and John Bethell acted for Redress, the Intervener.

Background

The appellant was arrested in the United Kingdom in 2017 and charged with one count of conspiracy to commit torture and seven counts of torture, contrary to section 134 of the Criminal Justice Act 1988 (“CJA”). The charges relate to events during the first Liberian civil war in 1990 when an armed group, the National Patriotic Front of Liberia (“NPFL”) took control of parts of Liberia. In 1997 the leader of the NPFL, Charles Taylor, became President of Liberia.

Section 134 of the CJA provides jurisdiction to prosecute “torture”, even if committed outside the UK. It states: “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.” Section 134 implements the United Kingdom’s obligations under UNCAT.

The issue

The appeal concerned the meaning of the words “person acting in an official capacity” in s134 of the CJA (and in Article 1 of UNCAT). The appellant argued that these words (and therefore the offence of “torture”) were limited to those acting on behalf of the government of a state. The prosecution argued that the words extend to conduct on behalf of a de facto authority.

The judgment

The majority of the Supreme Court held that the words “person acting in an official capacity” could extend to conduct for a de facto authority. The words include “a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations” and cover “any such person whether acting in peace time or in a situation of armed conflict.” In reaching this conclusion the Court considered, inter alia, the object and purpose and the drafting history of UNCAT.

The Court remitted the matter to the Trial Judge for reconsideration in the light of further evidence from the prosecution’s expert witness regarding the nature of the NPFL’s control over the relevant territory.

Comment

The judgment of the Supreme Court is of some importance for the international law of torture, particularly in armed conflict situations involving non-state actors.

Read the judgment.