Editorial Committee of the Cambridge Law Journal

Torture and the Jurisdictional Immunity of Foreign StatesAuthor(s): Susan MarksSource: The Cambridge Law Journal, Vol. 56, No. 1 (Mar., 1997), pp. 8-11Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508282 .

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The Cambridge Law Journal The Cambridge Law Journal

Secondly, there is the Government's reaction to the revelation of the fact that the police have been bugging and burgling houses illegally, which is to promote instant legislation legalising these activities when policemen do them. A clause in the Police Bill, currently before Parliament, provides that "No entry or interference with property or with wireless telegraphy shall be unlawful" if the Chief Constable of the force "thinks it necessary ... on the ground that it is likely to be of substantial value in the prevention or detection of serious crime, and is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means".

Lastly, there is the general mess we have now got into over the law regulating the powers of the police to gather evidence.

In a free country which has subscribed to the European Convention on Human Rights it would be reasonable to expect the powers of the police to gather evidence to be carefully graded, with the ones that are particularly invasive, sinister or frightening always needing the prior authorisation of the courts. Instead, look what we have! To search my house openly and above board, the police must indeed obtain a warrant from the justices. To tap my telephone on the other hand, the Interception of Communications Act 1985 allows them to act on the permission of the Home Secretary. And if they want to burgle my house at dead of night, or to plant secret listening devices all over it, the new Police Bill-if passed in its original form-will allow them to do this without the prior authorisation of any external agency at all.

J.R. SPENCER

TORTURE AND THE JURISDICTIONAL IMMUNITY OF FOREIGN STATES

UNDER the State Immunity Act 1978 foreign States enjoy immunity from the jurisdiction of the courts of the United Kingdom except in specified contexts. Among these contexts are where the proceedings relate to "death or personal injury caused by an act or omission in the United Kingdom" (section 5). Al-Adsani v. Government of Kuwait and others (C.A., unreported) was an attempt to persuade the courts that immunity should be denied in respect of death or personal injury caused by acts outside the United Kingdom as well, where those acts involve torture. The attempt failed, but is important for the questions it brings into focus about the relationship between State immunity and human rights.

The plaintiff was a United Kingdom national and possibly also a Kuwaiti national. He was in Kuwait at the time of the Iraqi occupation, and during this period came into possession of some video tapes depicting material apparently embarrassing to a member of the ruling

Secondly, there is the Government's reaction to the revelation of the fact that the police have been bugging and burgling houses illegally, which is to promote instant legislation legalising these activities when policemen do them. A clause in the Police Bill, currently before Parliament, provides that "No entry or interference with property or with wireless telegraphy shall be unlawful" if the Chief Constable of the force "thinks it necessary ... on the ground that it is likely to be of substantial value in the prevention or detection of serious crime, and is satisfied that what the action seeks to achieve cannot reasonably be achieved by other means".

Lastly, there is the general mess we have now got into over the law regulating the powers of the police to gather evidence.

In a free country which has subscribed to the European Convention on Human Rights it would be reasonable to expect the powers of the police to gather evidence to be carefully graded, with the ones that are particularly invasive, sinister or frightening always needing the prior authorisation of the courts. Instead, look what we have! To search my house openly and above board, the police must indeed obtain a warrant from the justices. To tap my telephone on the other hand, the Interception of Communications Act 1985 allows them to act on the permission of the Home Secretary. And if they want to burgle my house at dead of night, or to plant secret listening devices all over it, the new Police Bill-if passed in its original form-will allow them to do this without the prior authorisation of any external agency at all.

J.R. SPENCER

TORTURE AND THE JURISDICTIONAL IMMUNITY OF FOREIGN STATES

UNDER the State Immunity Act 1978 foreign States enjoy immunity from the jurisdiction of the courts of the United Kingdom except in specified contexts. Among these contexts are where the proceedings relate to "death or personal injury caused by an act or omission in the United Kingdom" (section 5). Al-Adsani v. Government of Kuwait and others (C.A., unreported) was an attempt to persuade the courts that immunity should be denied in respect of death or personal injury caused by acts outside the United Kingdom as well, where those acts involve torture. The attempt failed, but is important for the questions it brings into focus about the relationship between State immunity and human rights.

The plaintiff was a United Kingdom national and possibly also a Kuwaiti national. He was in Kuwait at the time of the Iraqi occupation, and during this period came into possession of some video tapes depicting material apparently embarrassing to a member of the ruling

8 8 [1997] [1997]

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Case and Comment

Al-Sabah family (the second defendant). After the Iraqis were expelled, the plaintiff suffered very severe injuries. He claimed to have been abducted by the second defendant and others, and tortured both by them and by guards at a prison to which they took him. Reaching England, the plaintiff brought proceedings against his alleged abduc- tors and against the Government of Kuwait. The decision under consideration here relates solely to the proceedings against the Gov- ernment, and to the question whether, as the Government maintained, State immunity precluded jurisdiction in these proceedings.

The plaintiffs claim against the Government was that it was liable for the acts of torture committed by the prison guards in Kuwait. Additionally, he complained of injuries suffered after his arrival in England. He alleged that he had sustained psychological harm as a result of anonymous telephone calls, threatening him with dire consequences if he pursued legal action or otherwise publicised his case. He attributed these calls to the Government. He also contended that the Kuwaiti ambassador in London had attempted improperly to silence him.

Subsection 1 (1) of the Act provides that foreign States are "immune from the jurisdiction of the courts of the United Kingdom except as provided" in the Act. For both Mantell J. (at first instance) and the Court of Appeal this meant that the Government had the benefit of a presumption of immunity. The onus was on the plaintiff to show that immunity was lacking in the circumstances. With respect to the events in England, the plaintiff sought to rely on the exception in section 5. Had he been able to substantiate his claims, it might well have been held that to this extent Kuwait was not immune from English jurisdiction. However, neither the judge nor the Court of Appeal was satisfied that the anonymous telephone calls were attributable to persons for whom the Government was responsible or that the warnings by the ambassador caused the plaintiff harm.

With respect to the events in Kuwait, the plaintiffs difficulties were different. It was common ground that the acts of the prison guards amounted to torture. And both the judge and the Court of Appeal were prepared to assume for the purposes of deciding the State immunity issues that the Government was responsible for these acts, though the Government denied this. On the other hand, it was patent that section 5 could not avail the plaintiff. There could be no claim that the proceedings related to "personal injury caused by an act or omission in the United Kingdom". Instead, the plaintiff invited the court to construe subsection 1(1) in such a way that the presumption of immunity would not apply with respect to these events. He argued that, as the Act deals with inter-State relations, it should be read subject to international law. Torture is a violation of international

C.L.J. 9

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The Cambridge Law Journal

law. More than that, it is a violation of a norm of jus cogens, a norm of fundamental importance to which other principles of international law must yield. The immunity of States from foreign jurisdiction is

among these other principles. It follows-so the argument ran-that subsection 1(1) should not be applied so as to grant immunity in respect of claims of torture.

Once again, the submission did not succeed. Both the judge and the Court of Appeal found subsection 1(1) unambiguous in conferring immunity unless it could be shown that the case came within one of the exceptions or excluded categories stipulated in the Act. There were no overriding considerations of the kind for which the plaintiff contended. Their Lordships expressed sympathy with the plaintiffs predicament (having nowhere to bring his case except the courts of Kuwait, to which he was understandably reluctant to turn). But they also voiced concern at the practical consequences of accepting the plaintiffs argument. The courts of the United Kingdom might be overwhelmed with claims against foreign States in respect of ill- treatment abroad. The United Kingdom courts would, moreover, have grave difficulty in deciding these claims, for the States concerned would be unlikely to appear. It was, in any event, a matter for Parliament whether it wished to allow this.

Order 11 of the Rules of the Supreme Court may offer some reassurance to their Lordships, inasmuch as leave to serve outside the jurisdiction must always be obtained. Yet if a claim concerning torture can be brought within Order 11, and if the claim can be proved, it is not altogether clear why it should be barred simply because the defendant is a foreign State. The objection to jurisdiction is all the more difficult to understand when the United Kingdom's treaty obligations with respect specifically to torture (as distinct from human rights abuses generally) are taken into account. Under the UN Convention Against Torture 1984 the United Kingdom is obliged to establish criminal jurisdiction over acts of torture, wherever commit- ted, by, for or with the consent or acquiescence of State authorities, and to prosecute individual offenders who can be arrested here and are not then extradited to face trial elsewhere. Parliament gave effect to these commitments by enacting sections 134 and 135 of the Criminal Justice Act 1988. If criminal jurisdiction with respect to torture for which the State bears responsibility is not limited to acts in the United Kingdom, why should civil jurisdiction be so limited, at least where there is some nexus with the United Kingdom of the sort acceptable under Order 11? The courts of the United Kingdom are frequently the favoured forum for those seeking the resolution of commercial disputes, including disputes over liability in tort. If, as a result of accepting the plaintiffs interpretation of subsection 1(1) or of

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C.L.J. Case and Comment 11

amending the Act, these courts were likewise to become a magnet for

those seeking redress in well-documented cases of torture, would this

be so undesirable?

Susan Marks

C.L.J. Case and Comment 11

amending the Act, these courts were likewise to become a magnet for

those seeking redress in well-documented cases of torture, would this

be so undesirable?

Susan Marks

ASSAULT BY TELEPHONE

In K v. Ireland [1996] 3 W.L.R. 650 the defendant telephoned three

women a large number of times. When the telephone was answered he

remained silent. As a result the women developed various illnesses,

including stress, inability to sleep and palpitations. The defendant was

convicted on three counts of "assault occasioning actual bodily harm",

contrary to Offences Against the Person Act 1961, s. 47. Following the interpretation of section 47 by the House of Lords in D.P.P. v.

Parmenter [1992] 1 A.C 699 it was necessary for the prosecution to

show that the defendant had committed a common assault or a battery and that this had caused the victim to suffer actual bodily harm; the

only mens rea requirement was that necessary for the assault or

battery. It had been established in R v. Chan-Fook [1994] 1 W.L.R. 689 that psychological harm could constitute actual bodily harm so

long as it took the form of a psychiatric illness, recognised by the medical profession.

The Court of Appeal upheld the convictions. It accepted the orthodox definition of an assault as "any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence" (p. 653A) and asserted that "the conduct

complained of falls squarely within the recognised definition of the

offence" (p. 657A). This may at first sight be surprising as the facts of the case seem to lack some of the essential requirements of an assault.

First, the victims did not appear to suffer a fear of violence at all but rather a more general fear. Secondly, there did not seem to be a fear of immediate violence. Thirdly, it was far from clear from the previous case law whether words alone could constitute an assault, let alone the actual silence of a caller at the other end of a telephone.

The court's judgment was given by Swinton Thomas L.J., and there seem to be two possible readings of his approach. The first is that the creation ofa fear of suffering psychiatric injury is sufficient to establish an assault; there need not be a fear of actual violence. Swinton Thomas L.J. referred to Smith v, Chief Superintendent, Woking Police Station (1983) 76 Cr.App.R. 234, in which a man who stared at a woman through her bedroom window was said to have committed an assault. He acknowledged that the present case could be distinguished from Smith on the grounds that in Smith the victim

ASSAULT BY TELEPHONE

In K v. Ireland [1996] 3 W.L.R. 650 the defendant telephoned three

women a large number of times. When the telephone was answered he

remained silent. As a result the women developed various illnesses,

including stress, inability to sleep and palpitations. The defendant was

convicted on three counts of "assault occasioning actual bodily harm",

contrary to Offences Against the Person Act 1961, s. 47. Following the interpretation of section 47 by the House of Lords in D.P.P. v.

Parmenter [1992] 1 A.C 699 it was necessary for the prosecution to

show that the defendant had committed a common assault or a battery and that this had caused the victim to suffer actual bodily harm; the

only mens rea requirement was that necessary for the assault or

battery. It had been established in R v. Chan-Fook [1994] 1 W.L.R. 689 that psychological harm could constitute actual bodily harm so

long as it took the form of a psychiatric illness, recognised by the medical profession.

The Court of Appeal upheld the convictions. It accepted the orthodox definition of an assault as "any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence" (p. 653A) and asserted that "the conduct

complained of falls squarely within the recognised definition of the

offence" (p. 657A). This may at first sight be surprising as the facts of the case seem to lack some of the essential requirements of an assault.

First, the victims did not appear to suffer a fear of violence at all but rather a more general fear. Secondly, there did not seem to be a fear of immediate violence. Thirdly, it was far from clear from the previous case law whether words alone could constitute an assault, let alone the actual silence of a caller at the other end of a telephone.

The court's judgment was given by Swinton Thomas L.J., and there seem to be two possible readings of his approach. The first is that the creation ofa fear of suffering psychiatric injury is sufficient to establish an assault; there need not be a fear of actual violence. Swinton Thomas L.J. referred to Smith v, Chief Superintendent, Woking Police Station (1983) 76 Cr.App.R. 234, in which a man who stared at a woman through her bedroom window was said to have committed an assault. He acknowledged that the present case could be distinguished from Smith on the grounds that in Smith the victim

This content downloaded from 185.2.32.110 on Fri, 13 Jun 2014 03:44:34 AMAll use subject to JSTOR Terms and Conditions