1 Wednesday, 13 January 2016 2 (10. 00 am)
Download 1.31 Mb.
|
| 17 involved in the alleged torture. You can see that at
18 paragraph 2 and following, particularly paragraph 3 in 19 the speech of Lord Bingham, page 278. So in the first 20 action Lieutenant Colonel Abdul Aziz was sued as the 21 servant or agent of the king. 22 In the second action two of the first defendants 23 were sued as officers in the king's police force. The 24 third defendant was sued as a colonel in the Ministry of 25 Interior and deputy governor of a prison in which the 138
1 claimants were confined. So these were all individuals 2 directly and instrumentally involved in the ill 3 treatment in question. And there was no case made or 4 capable of being made that they had any nongovernmental 5 involvement in the wrongdoing. They were sued as the 6 jailor or the torturer, effectively. 7 That's what the issue in Jones was about. 8 Ratio, insofar as it deals with these issues is that 9 immunity runs where an officer in actual or purported 10 exercise of official function, official acting as such, 11 and obviously you cannot predicate an exception based 12 upon something breaching their duties, because that is 13 to prejudge the very controversial issue that the 14 immunity is meant to close off and forestall the 15 investigation of. 16 Clearly part of the ratio, paragraph 10 which 17 Ms Carss-Frisk referred to, the argument is: 18 "While the 1978 Act explains what is comprised 19 within the expression 'State' and both it and the 1972 20 Convention govern the immunity of separate entities 21 exercising sovereign powers, neither expressly provides 22 for the case where the suit is brought against the 23 servants or agents, officials or functionaries of 24 a foreign State, servants or agents, in respect of acts 25 done by them as such." 139
1 Ie as servants or agents of the receiving State. 2 Then you have the dicta about borderline cases but 3 this is not such a case. 4 And then a review of all the various materials 5 starting at 12 onwards, all of which emphasises that the 6 ratio is directed to servants or agents acting as such. 7 That, in my submission, is the proper reading of the 8 speech of both Lord Bingham and of Lord Hoffmann. And, 9 of course, the Mallen case is a case exactly in that ilk 10 because the officer flashes his badge, exercises his 11 authority to get access to the bus in question before 12 proceeding to beat up the individual against whom he has 13 a grudge. 14 I think it emerges most clearly perhaps in 15 paragraph 69 of Lord Hoffmann's speech, page 299 where 16 he says halfway down paragraph 69: 17 "That means that State in section 1.1 of the SIA and 18 government which the term 'State' is said by 19 section 41(b) to include must be construed to include 20 any individual representative of the State acting in 21 that capacity as it is by Article 2.1(b)(4) of the 22 immunity Convention. The official acting in that 23 capacity is entitled to the same immunity as the State 24 itself." 25 MR JUSTICE BLAKE: So here the minister who apparently 140
1 authorised the expropriation of land would be exercising 2 an official capacity. The Attorney General who 3 apparently authorised something to do with a criminal 4 investigation or charge was acting in official capacity. 5 MR DE LA MERE: Correct. 6 MR JUSTICE BLAKE: The judges that, on the data I have 7 reviewed, appear to have authorised detention from time 8 to time were exercising an official capacity. 9 MR DE LA MERE: Correct. None of them are defendants. 10 MR JUSTICE BLAKE: But all their acts are necessarily 11 impleaded because if they are all lawful acts that would 12 be the end of the causation of any malice by some third 13 party who happened to be a private party. 14 MR DE LA MERE: That's where we get to Belhaj. So the 15 second case, Belhaj, involves actions by a party that is 16 not a servant or agent of the State acting as such. In 17 Belhaj the factual matrix was that the UK officers had 18 provided information that led to facilitated organised, 19 arranged, induced the extraordinary rendition of 20 Mr Belhaj from Hong Kong to Libya, and thereafter had 21 continued to interview him whilst he was held in 22 prolonged incommunicado extra-judicial detention and 23 questioned him in the circumstances in which on the 24 pleaded case, with which I am very familiar, is that he 25 intimated he was being tortured and he continued to 141
1 arrange for him to be questioned. In those 2 circumstances it was said that the acts of the UK 3 officers don't fall within the Jones exception because 4 they are not acts of the officers of the State claiming 5 immunity acting as such. The approach of the Court of 6 Appeal is to say instead you look at those facts and the 7 degree of impleader that that raises through the lens of 8 foreign act of State. 9 MR JUSTICE BLAKE: Yes. 10 MR DE LA MERE: So that is Belhaj. 11 MR JUSTICE BLAKE: Yes. 12 MR DE LA MERE: A clear judgment to that effect for the 13 court written by Lord Justice Lloyd Jones, it's 14 paragraph 1 in the case, a renowned public international 15 law expert. The significance of the distinction between 16 the two, of course, is that there are wider exceptions 17 in foreign acts of State. 18 MR JUSTICE BLAKE: I appreciate that. 19 MR DE LA MERE: You have got all of those points. 20 What we don't have between the poles of Jones on the 21 one hand and Belhaj on the other are two scenarios. The 22 first scenario is, what is the scenario where you are 23 dealing with a citizen of the State in question, let's 24 say a Qatari citizen, with no connection whatever to 25 a governmental or official post, but an official with 142
1 considerable clout and power, whether through, let's 2 say, their vast holdings of land, the fact that they own 3 all the newspapers, and the fact that they are the 4 king's or the Emir's golf partner and best friend or 5 what have you, considerable power and they use that 6 power and influence to persuade, suborn, bribe, who 7 knows what, a public official to do these acts? 8 Now, in an English analysis that is effectively an 9 inducement or procurement of a tort. It is a classic 10 CBS v Amstrad scenario where you persuade somebody, 11 procure that they commit a tort, you are liable as a 12 tortfeasor for that tort. 13 MR JUSTICE BLAKE: Except it's procuring a tort from 14 a public official to misuse their powers. 15 MR DE LA MERE: Well, it would be inducing misfeasance in 16 a public office. 17 MR JUSTICE BLAKE: Well, quite. That is more the territory 18 that I thought -- 19 MR DE LA MERE: Yes. 20 MR JUSTICE BLAKE: -- if we are going to make an analysis 21 through using the concepts that we are familiar with in 22 this jurisdiction. 23 MR DE LA MERE: Yes, I accept that. The misfeasance is the 24 unlawful detention and the misfeasance is the snatching 25 from Saudi Arabia, and the tortious act is inducing it 143
1 to occur. 2 MR JUSTICE BLAKE: Right. And the point I put to you a few 3 moments ago is that in order to investigate and try that 4 action you would necessarily be impleading the acts of 5 the public officials allegedly induced to make the 6 misfeasance. 7 MR DE LA MERE: Absolutely. In exactly the same way that 8 they would be impleaded in a Belhaj-type of case, 9 because the Belhaj case -- 10 MR JUSTICE BLAKE: Different State, different officials and 11 different judiciary. 12 MR DE LA MERE: No material difference, because the Belhaj 13 case involves saying that the Libyans are 14 extraordinarily rendered this person in breach of God 15 knows what international legal conventions, and they 16 tortured him. And the complaint about the UK is that 17 you know all of that and you are taking the fruits of 18 it, you are participating in it, you are condoning it, 19 you are encouraging it. That is the essence of the 20 complaint in the case. 21 MR JUSTICE BLAKE: Maybe you can set up a case because you 22 don't have these concepts for your own UK official, but 23 if you move the facts of Belhaj to a closer analogy to 24 here, if Mr Belhaj was suing a Libyan official for 25 setting up the events, which gave rise to it -- 144
1 MR DE LA MERE: But he is not suing an official. On this 2 analogy, in this case, in the case that falls between 3 the poles, he is suing a private individual who has 4 encouraged a public official to do these things. So the 5 analogy to somebody inducing a misfeasance is complete, 6 it is exactly like Belhaj. 7 MR JUSTICE BLAKE: Supposing that we had a case -- let's 8 change the facts a little bit in order to see what we 9 are dealing with. If Mr Belhaj's case was that a son of 10 Colonel Gaddafi had induced the prosecutor in Libya to 11 have caused him to be prosecuted unfairly and everything 12 else and that regime was still in power -- I appreciate 13 that it fell from power -- isn't that going to implead 14 necessarily, if you sued the son, the State sovereignty? 15 MR DE LA MERE: Not if he holds no office, no. 16 MR JUSTICE BLAKE: Because you are impleading the public 17 acts of Libya, courts, prosecutors, judges, ministers, 18 who at the material time, in order to avoid going off 19 into another issue, were the recognised government and 20 the Foreign Office at least comes up with that and says: 21 at this time we recognise them as the government, indeed 22 we were doing deals with them or trying to. 23 MR DE LA MERE: Absolutely. It impleads them, but it 24 permissibly impleads them because it falls on the facts 25 of that case within the acceptance -- it is important to 145
1 realise that in Belhaj the case would have been struck 2 out on foreign acts of State immunity for that very type 3 of impleader but for the fact that it fell within the 4 fundamental rights exception. So the whole operation, 5 the whole argument in Belhaj about foreign acts of State 6 is predicated upon the fact that there is a form of 7 indirect impleader not falling within State immunity, 8 because it is not within Jones, but nevertheless calling 9 into question a foreign act. That is a typical 10 commonplace in litigation, it can be more or less 11 extreme. So in a commercial context, let's say that you 12 want to allege that a particular company order taken by 13 a foreign company registrar is invalid, foreign acts of 14 State will prevent you from doing so, from challenging 15 the validity of the act because by that action you are 16 calling into question the action of an organ of the 17 foreign State, you have to take it as you find it. It 18 doesn't fall within the exception identified in the 19 cases running from Oppenheim v Catermolle ever forward 20 and, therefore, there is nothing you can do about it. 21 You are stuck with the binding foreign act which you 22 cannot implead. That is why Lord Justice Lloyd Jones 23 says broadly speaking the correct analysis is this is 24 not the terrain of State immunity, it is the terrain of 25 the foreign acts of State, and for all bar those cases 146
1 falling within the wider exception a foreign act of 2 State is going to be a complete answer. 3 In my submission, that scenario -- let's take a more 4 familiar one, a journalist bribing a police officer to 5 do some terrible disclosure and fundamental breach of 6 their obligation, some incredibly intrusive, damaging 7 personal information that a journalist pays for, on that 8 analogy the act of the police officer in any 9 international court will be an action for which the 10 United Kingdom is answerable, whether it is in the ECHR 11 or else where. The act of the journalist, on the other 12 hand, attracts no international responsibility and no 13 immunity. 14 That is the first of my scenarios, a private 15 individual in the State of Qatar falls outside State 16 immunity, it may well be that foreign acts of State 17 picks up the heavy lifting for those cases that don't 18 fall within the human rights exception, but that is not 19 the argument before the court. 20 Then we get to this case, this case is what I would 21 call a two hats' case. 22 This is not a case of a State with nicely familiarly 23 segregated public life and private life. This is an 24 individual with marked real power derived from private 25 and familial matters, quite apart from any office of 147
1 State. We don't know how the various people have done 2 what they have done in abuse of office, and I don't 3 shrink from saying they have done it in abuse of office, 4 we don't know how and why they have been persuaded to do 5 so. It may have been some threat of losing office; we 6 don't know. It may have been the passage of money; we 7 don't know. It may have been the winning of influence 8 with this important man who has the ear of the current 9 Emir; we don't know. 10 The basic problem for such an individual with such 11 a challenging position of wearing two hats is which hat 12 is he wearing at any point in time. This is an issue 13 that is incapable of resolution by way of strike out in 14 this case. It is an issue that needs to be tried out. 15 If it is demonstrated that contrary to his denials these 16 things happened, but the way these things happened was 17 because effectively he was using his office in order to 18 secure what happened, there will be a defence of State 19 immunity, and if it happens, however, that the way he 20 has viewed it, for the sake of argument, and I emphasise 21 for the sake of argument, is by way of financial payment 22 or to secure influence or whatever, then the hat that 23 will be being worn in that context will be the private 24 hat. He will be in an analogous position to the 25 journalist and, therefore, he will have to make good his 148
1 case under foreign act of State, and obviously because 2 of the severity of the matters in question being 3 snatched from Saudi Arabia, being detained 4 incommunicado, having his land expropriated for nothing 5 close to market value, we say those are matters falling 6 within the human rights exception. 7 And I should just emphasise one point of detail. My 8 learned friend emphasised, well, everyone who had their 9 land expropriated in the Al-Rayyan land deal were 10 treated in the same way, including brothers of the 11 defendant, so how is he being singled out? What is your 12 complaint? Our client's evidence is that you cannot 13 just look at the State expropriation, you also have to 14 look at the regime of ex gratia compensation that ran 15 alongside it. 16 Paragraph 21 details this, and in particular 21F at 17 page 147 -- bundle 2, tab 11, page 147, 21F -- where he 18 discloses that those who were the subject of the State 19 of compensation also received ex gratia payment, 20 everyone that is except for him. 21 That is the problem. It is a problem of two hats. 22 Now, I readily concede that there are aspects of our 23 case that are going to require repleading. Unlike the 24 Jones case, it is no necessary part of our case to 25 allege that the influence that was exerted, the power 149
1 that was misused, was in a public capacity. That is why 2 I started by saying there is no conceivable way that the 3 lieutenant colonel, the jailor, et cetera, can have been 4 involved in the tortious acts, other than as an official 5 of State. That simply doesn't apply here for somebody 6 who has kept themselves removed from all official 7 aspects of the wrongdoing and may have secured what he 8 desires by a variety of means, and if necessary -- and 9 there is no point until my Lord has decided in principle 10 whether I am right that this two hats' case falls 11 outside State immunity and inside foreign acts of State 12 and subject to the exceptions, if necessary we will 13 replead to clarify we make no positive case as to the 14 basis upon which the power and influence has been 15 exercised. 16 MR JUSTICE BLAKE: But if I decide it on the face of the 17 pleadings and I am persuaded by Ms Carss-Frisk's 18 submissions on this issue it is going to be too late, 19 isn't it, to amend your pleading? 20 MR DE LA MERE: I make that application for permission to 21 amend now, if I need to. It would be regrettable in 22 circumstances where there is obviously -- 23 MR JUSTICE BLAKE: That does sound a touch 11th and a half 24 hour. 25 MR DE LA MERE: Yes. 150
1 MR JUSTICE BLAKE: Because the case has been prepared on the 2 basis of what you allege understandably, because that is 3 what we are looking at, isn't it? 4 MR DE LA MERE: The allegations certainly include 5 allegations of abuse of power. They also include 6 general allegations of abuse of power and influences. 7 And, you know, the evidence before the court and the 8 pleading is a mixture of the two, and I accept the 9 preponderance of the allegations fall into the category 10 of allegations of misuse of State or power. But there 11 is still a case there, a case there that private power 12 is being misused. 13 MR JUSTICE BLAKE: What it boils down to now is despite your 14 pleadings there is still something you could say which 15 wouldn't infringe the principle that is being argued. 16 MR DE LA MERE: What I ask my Lord to do is to resolve the 17 two hats' point. I understand Ms Carss-Frisk's case is 18 that if you are in paragraph 11 borderline case of the 19 kind envisaged by Lord Bingham, and if it's a mixture of 20 the two, then you apply the benefit of doubt and say the 21 State wins. We don't think that that's right, but if 22 you decide this case that way, then there is no point in 23 embarking upon the costly exercise of repleading, and 24 any replea at this juncture, in my submission, would 25 have to address what the Court of Appeal in Belhaj says 151
1 about applicable law, et cetera. So it is going to be 2 a reasonably substantial exercise that is going to have 3 to look at pleading out the law of Qatar so far as the 4 law of Qatar is relevant. 5 I have to make the concessions -- 6 MR JUSTICE BLAKE: Very frank and fair of you, but there we 7 are. 8 MR DE LA MERE: It is not part of my mission to mislead the 9 court. My submission is that there was a blend of 10 things going on here, and there is a perfectly viable 11 proper case that this powerful individual is misusing 12 his private power, his continued clout, in order to 13 persecute my client in the way that he has. And in many 14 ways the ultimate proof positive of the point, which is 15 why we take diplomatic immunity first, is the 16 extraordinary state of affairs in relation to diplomatic 17 immunity. If you are satisfied that he has no 18 diplomatic immunity, that there are no functions, the 19 very fact that to this day the State of Qatar, of which 20 he is no longer the Foreign Minister or the 21 Prime Minister, feels it necessary to provide him this 22 unjustified protection through diplomatic immunity is 23 proof positive of the kind of residual power and 24 influence he has always had in Qatar. And for those 25 reasons we say the State immunity case cannot prevail. 152
1 The proper way to proceed is to allow this case to be 2 repleaded and for a defence of foreign act of State to 3 be taken in relation to any such pleas if it can be 4 consistent with the exceptions to it. 5 Mr Hickman rightly reminds me, you have seen all the 6 sort of negative column of the pleadings. There are 7 pleas in the pleadings that make the case the way 8 I advocate, so for instance at page 21 of bundle 1 in 9 the particulars of false imprisonment, the case is made 10 that: 11 "Further or in the alternative the defendant 12 procured the claimant's arrest through the provision of 13 false or misleading information to State authorities." 14 My Lord mentioned malicious prosecution. Until the 15 relatively recent Privy Council ruling, malicious 16 prosecution I don't think was a tort. It is now thought 17 to be a tort, and the law in relation to that has 18 changed, a tort recognised by English law. 19 MR JUSTICE BLAKE: Sorry, malicious prosecution has only 20 recently been recognised as a tort? 21 MR DE LA MERE: Yes. Yes, in relation to civil proceedings. 22 But, of course, these matters raise a blend of civil and 23 criminal proceedings. So for instance in relation to 24 the allegations flowing from the administrative process. 25 MR JUSTICE BLAKE: But, I mean -- 153
1 MR DE LA MERE: Here this is criminal. This has always been 2 a tort, my error. A long day. 3 MR JUSTICE BLAKE: I thought do I just delete a great chunk 4 of -- 5 MR DE LA MERE: No. It is malicious civil prosecutions that 6 have recently been recognised as a tort. 7 MR JUSTICE BLAKE: Malicious abuse of process of a civil 8 process? 9 MR DE LA MERE: Yes. So here we have, my Lord floated one 10 analysis of this case in terms of malicious prosecution, 11 here is the germ of such a case, and we say that we 12 should be allowed the opportunity to replead this case 13 in such a way that respects the boundaries I hope I have 14 candidly, accurately and fairly stated. 15 MR JUSTICE BLAKE: But if the basis for the improper 16 influence is because he happened to be the 17 Prime Minister it sounds like quite a significant role 18 at the time, it is very difficult -- well, I can't see 19 an alternative pleading here that even if he was not 20 acting as Prime Minister he was acting as a corrupt 21 private official, that is what you essentially saying. 22 MR DE LA MERE: No, it doesn't have to be a corrupt public 23 official, it can be an individual. 24 MR JUSTICE BLAKE: An individual seeking to obtain 25 a corruption of justice for his private purposes. 154
1 MR DE LA MERE: Private ends, yes. 2 MR JUSTICE BLAKE: That is not a theme which is imminent in 3 the letter before action or these pleadings. But ... 4 MR DE LA MERE: That is what distinguishes a case from the 5 Mallen-type case. If you don't flash your badge, if you 6 don't exert public authority and use public authority, 7 then that is a different scenario, and it takes one to Directory: wp-content -> uploads -> 2016 2016 -> 2017 afoCo Landmark Scholarship Program 2016 -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings 2016 -> Step student Scholarships for Year 10-13 2016 -> The united church of canada 2016 -> Idan raichel biography – May 2016 Brief Producer, keyboardist, Lyricist, composer and Performer Idan Raichel 2016 -> An introduction to centre’s interventions expanding access to justice 2016 -> Sanchar Shakti 2016 -> Unit analysis should help here. We want number of bananas 2016 -> The Autobiography of Elder Joseph Bates 2016 -> The Great Heat and the Rhode Island Deep Water Bay Scallop (Argopecten irradians) Fishery 1875-1905 Download 1.31 Mb. Share with your friends:
|