1 Wednesday, 13 January 2016 2 (10. 00 am)
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| 22 MS CARSS-FRISK: Absolutely, with a sort of symmetry between
23 a public international plane remedy and there not being 24 a remedy in the domestic court, yes. 25 MR JUSTICE BLAKE: Yes. 18 1 MS CARSS-FRISK: If we then look at the sort of overarching 2 test for working out when a particular act really is to 3 then be seen as an act of a State that introduces State 4 immunity in this sense, the way that Lord Bingham puts 5 it is to refer to whether there is a sufficient degree 6 of connection between the acts in question and the 7 foreign State. 8 You get that from paragraph 11, if I could just ask 9 you to turn it up. He says: 10 "In some borderline cases there could be doubt 11 whether the conduct of an individual although a servant 12 or agent of a State had a sufficient connection with the 13 State to entitle it to claim immunity for his conduct." 14 And, of course, it is possible for a State official 15 to act in a purely private capacity, but in this case, 16 for the reasons I have already mentioned, it is clear 17 that the claim is abuse of power. 18 MR JUSTICE BLAKE: Yes. 19 MS CARSS-FRISK: So in a sense, my Lord, I don't need to go 20 into the intricacies of what is meant by "sufficient 21 connection" or exactly how you find that out, because, 22 as I have said, it is clear on the face of the pleading. 23 But if it is necessary to go into it, we would suggest 24 there are factors that are obviously relevant to that 25 question of sufficient connection such as the identity 19 1 of the relevant actors, and here the identity of the 2 relevant actors is that they are all clearly public 3 officials at various levels of seniority with, as I have 4 said, the defendant at the top of the pyramid as 5 Prime Minister/Minister of Foreign Affairs. 6 The other relevant factor, we would suggest, is the 7 nature of the powers being used, the nature of the act 8 involving State power. Does it involve a use of State 9 power? 10 Well, in this case again we are talking about 11 expropriation pursuant to various State powers. We are 12 talking about detention pursuant to various State 13 powers. Again, whether ultimately lawful or not, there 14 is no doubt on the pleaded case that this is what the 15 claim is about, and as it happens on the evidence before 16 you there is no doubt about it either, but, of course, 17 we are focusing on the way that the case is put. 18 MR JUSTICE BLAKE: Yes. 19 MS CARSS-FRISK: It is no doubt also relevant to look at the 20 purposes or purported purposes of the acts in question. 21 Well, again so far as expropriation is concerned, 22 certainly for the purposes or at least purported 23 purposes of public benefit in the shape of the so-called 24 Education City project, your Lordship may remember that 25 was why the land was appropriated from the claimant as 20 1 was the land of many others. 2 MR JUSTICE BLAKE: Had this project proceeded there is 3 foreign universities on this land -- 4 MS CARSS-FRISK: Absolutely, yes. 5 MR JUSTICE BLAKE: -- so it didn't end up by chance in 6 someone's personal possession. 7 MS CARSS-FRISK: Absolutely not. One can look at all of 8 that on the website. As far as I can see, there is no 9 dispute about that at all. 10 So far as detention is concerned, again as 11 your Lordship knows, certainly that was for a public 12 purpose or at least purportedly so, ie to do with 13 a criminal investigation, and indeed charge. 14 In addition, one may factor in, so far as detention 15 is concerned, that what is being alleged is that the 16 claimant was held at various facilities that were in 17 fact prisons in Qatar, State facilities. 18 So everything has a public flavour consistently with 19 what is said in the letter before claim and what is said 20 in the pleading itself about abuse of public office. 21 So what then is the claimant's response to this. Of 22 course, I will have a right of reply, but very, very 23 briefly -- 24 MR JUSTICE BLAKE: We have finished with Jones now, have we? 25 MS CARSS-FRISK: We have finished with Jones now. As 21 1 I understand it, it is being said, well, but the 2 defendant and the State of Qatar haven't stated that the 3 claimed actions of the defendant were acts of a State. 4 That is a reference to paragraph 5.1 of the claimant's 5 skeleton. 6 Without taking you to the evidence on this, can 7 I just put down a marker that that is, with respect, 8 just a clear misreading of the defendant's position. 9 One focuses, of course, on what is being alleged. 10 Indeed that is what the claimant invites the court to 11 do. So there is absolutely no inconsistency between it 12 being said on behalf of the defendant that he was not 13 materially involved in these acts, but at the same time 14 it being said on his behalf and on behalf of the 15 State of Qatar, importantly, that these allegations 16 involved acts that would trigger State immunity if they 17 took place that would be the nature of the acts, if they 18 took place as per the claimant's case. 19 Your Lordship may have seen, and I will come back to 20 it if I have to in reply, that the Attorney General, and 21 indeed the Minister of Foreign Affairs, was very, very 22 clear in their evidence, that State immunity is taken as 23 a point on behalf of the State of Qatar, its case being 24 that it is being impleaded in this case. 25 The next point then being taken by the claimant, as 22 1 I understand it, is that, well, it is not enough for us 2 to rely simply on what is said to have been done by 3 other Qatari officials than the defendant, but 4 your Lordship has our simple answer to that, which is, 5 well, we are not relying simply on the acts of other 6 Qatari officials. We are saying they are part of the 7 picture with the defendant being sued and allegations 8 being made against him as having exerted influence under 9 colour of his office. That phrase "under colour of his 10 office" is, of course, one also referred to in the Jones 11 case. 12 That then also means, for the reasons that we have 13 already discussed, that there is nothing in the Court of 14 Appeal's decision in Belhaj that undermines our case on 15 State immunity here. Belhaj probably was that the 16 relevant officials of the foreign States in question 17 were not being sued, but here the defendant, an official 18 of the foreign State in question, is being sued. 19 MR JUSTICE BLAKE: Yes. 20 MS CARSS-FRISK: My Lord, that then completes our 21 submissions for now on State immunity. 22 MR JUSTICE BLAKE: Thank you very much. 23 (10.40 am) 24 Submissions by MR DE LA MERE 25 MR JUSTICE BLAKE: Just before you get underway, 23 1 Mr De La Mere, can you so arrange it round about 11.30 2 to have a pause and a break for the shorthand writers. 3 MR DE LA MERE: Of course, my Lord. 4 My Lord, you will be aware that this cases arises, 5 my client says and you must assume for the purposes of 6 this strike out, from the culmination of a long-running 7 feud between him and the defendant. That feud started 8 when or shortly after the claimant was, on his account, 9 purged from his office as a spokesman for the 10 State of Qatar. It then escalated through disputes 11 about fee payments, salary, compulsory purchase of land, 12 and then culminated in the high point, which is 13 effectively, my client would say, the extraordinary 14 rendition that occurred in Saudi Arabia and his 15 subsequent unlawful incommunicado detention in Qatar of 16 such duration and of such intensity intended to inflict 17 psychological harm and so as to amount to torture. 18 It is a critical part of that feud that it started 19 or at least escalated with the defendant's actions being 20 taken in what is obviously a private capacity. 21 Now, in the context of this case it is, in my 22 submission, critically important to realise that the 23 defendant throughout the 2000s has continued to pursue 24 his extensive private business interests, even when 25 Foreign Minister and Prime Minister of Qatar. 24 1 For proof positive of that you need look no further 2 than his multi-billion pound investment in Barclays Bank 3 in 2008 at the height of the credit crisis. It was an 4 investment made in his private capacity for his own or 5 his own family's exclusive benefit through his 6 Challenger private investment vehicle, and it was an 7 investment made alongside another multi-billion pound 8 investment by the Qatari Sovereign Wealth Fund, the 9 Qatari Investment Authority or QIA, which he also 10 chaired at the same time. 11 The unchallenged evidence in relation to that you 12 can find in Mr Barnett's witness statement, bundle 2, 13 tab 12, page 187, paragraphs 60 to 63. 14 Those investments and the circumstances surrounding 15 them are the subject of an ongoing and high profile SFO 16 investigation against Barclays, I must emphasise, in 17 which one must anticipate there is every prospect that 18 the defendant will be a highly significant witness if 19 compellable. 20 I mention this, because to English, indeed western 21 eyes, this untroubled blending of private interests and 22 public functions at the highest level of the Qatari 23 State is, to say the least, anomalous, and yet, as we 24 shall see, it would appear to be the order of business 25 in Qatar. It is relevant context because the feud with 25 1 my client is just one aspect of the defendant dealing in 2 this way, simultaneously, if you like, as a kind of 3 Warren Buffet of Qatari investment whilst being the 4 Prime Minister or Foreign Minister of the State. 5 One can see the private realm dimension to the 6 dispute with my client in a number of contexts. First 7 of all, for instance, the interference with the success 8 fee that my client says was due to him for his work in 9 assisting recovery of assets misappropriated by the then 10 former Emir. Proceedings were brought in order to 11 recover State funds misappropriated by the former Emir, 12 and my client says he was entitled to a success fee, 13 which was then effectively knocked down, and then it 14 moved into the beginnings of dispute about the Al-Rayyan 15 land, if one looks at paragraphs 18 to 22 of the 16 evidence. 17 MR JUSTICE BLAKE: Of the particulars of claim or ... 18 MR DE LA MERE: Of his witness statement. 19 MR JUSTICE BLAKE: Of your client's witness statement? 20 MR DE LA MERE: Yes. That initially began with the 21 defendant attempting to persuade my client to sell him 22 the Al-Rayyan land in a purely private capacity, and my 23 client's evidence is that the defendant was angry and 24 upset when rebuffed because the price was insufficient. 25 As detailed at paragraphs 20 to 21, my client says that 26 1 the steps thereafter taken were effectively taken in 2 a private capacity, seeking to use his influence and 3 power to secure that the State did something he wanted 4 it to do. 5 Now, this will lead when we come to the State 6 immunity side of the case to a critical problem of 7 categorisation and a critical problem of ascertaining 8 where influence lies, because what is central in this 9 case is effectively that the defendant has two strands 10 to his power base, two strands to his influence. He has 11 formal power, and real power, accrued through office, 12 and he has real power, real politik power acquired 13 through his business interests, his family connections, 14 his connections to whoever may be the Emir at the time, 15 and whether or not he has the ability to exert influence 16 through persuasion and so forth. It is a different 17 analysis one must conduct in Qatar, which is after all 18 ultimately a form of absolute monarchy than one would 19 ordinary exercise in the context of a State. 20 Critically for this claim the feud culminated in my 21 client who had left Qatar by that stage to escape the 22 hostile attentions of the defendant to being 23 extraordinarily rendered from Saudi Arabia. That is 24 a horrible legal euphemism that we are all familiar 25 with. In ordinary language, he was in effect forcibly 27 1 taken in Saudi Arabia, a like attempt having failed in 2 Doha, by unidentified officers, now said to be Saudi 3 security officers, and forcibly taken from Saudi Arabia 4 where he was legally resident to Qatar. The said basis 5 for this was that he had committed crimes against the 6 State by disclosing State secrets in the course of 7 administrative proceedings he had brought to seek to 8 recover his salary, which had been withdrawn. Again, he 9 says, at instigation of the defendant. 10 All of this was done with no legal process whatever 11 as he was entitled to, both as a Qatari citizen, and 12 indeed -- and Ms Carss-Frisk was at pains to point this 13 out -- a Qatari citizen with a diplomatic passport -- 14 that in itself is extraordinary -- but also as a British 15 citizen holding a British passport. 16 The evidence is clear that he was held in 17 incommunicado detention between October 2009 18 and May 2011. He was held in solitary confinement, with 19 no family contact whatever, no contact with anyone, for 20 instance other prisoners, other than guards who were 21 instructed to minimise contact, and his evidence, see 22 paragraph 63 of his statement, is he wasn't even allowed 23 to speak to his lawyer in that initial period in whose 24 presence he was but twice. 25 Solitary confinement came to an end in May 2011 when 28 1 in effect, according to my client, he did a deal, and 2 the deal was in effect he would ask his sister not to 3 picket or petition at the Qatari World Cup bid that was 4 then in progress in Switzerland in return for which 5 there would be an alleviation of his prison conditions, 6 family contact would be allowed and he would be allowed 7 to make calls to his family, and one can see that very 8 clearly documented at paragraphs 72 to 73. What my 9 client's further evidence is, is that solitary 10 confinement was effectively restored after the success 11 of the Qatari bid for the World Cup. 12 He then attempted to escape. There was a threat of 13 charges against him for his attempts to escape. 14 Thereafter he wasn't charged but remained in a form of 15 administrative detention. 16 I should probably at that juncture address the point 17 my Lord directed to Ms Carss-Frisk. I think one of the 18 very real issues in this case will be whether or not the 19 form of detention in question was administrative 20 detention subject to review by some form of bail 21 restriction or detention pursuant to a court order, and 22 I know my Lord is well aware that as matter of English 23 law administrative detention subject to bail is if the 24 underlying detention is unlawful capable of a claim of 25 false imprisonment, and indeed there is a very 29 1 substantial claim pending in relation to administrative 2 detention by the UK in such circumstances arising out of 3 the events in Libya. 4 Now, I mention all of this, and in particular the 5 incommunicado detention of this kind and duration 6 because it really goes to what the underlying essence of 7 this claim is. My client has a claim that he was in 8 substance subjected to a form of psychological torture. 9 These are not empty words. During this period, his 10 case was vigorously taken up by the UN special 11 rapporteur on torture, and his case has figured 12 prominently in various national country reports, and NGO 13 country risk reports from this period, from 2010 and 14 2011. The reference to the UN special rapporteur report 15 is at paragraph 1 footnote in our skeleton. 16 MR JUSTICE BLAKE: Do I have the report in the ... 17 MR DE LA MERE: I believe you do at the reference given in 18 the skeleton. 19 These are claims that, of course, in essence seek to 20 vindicate his civil rights, civil rights that are 21 consequent upon the international abhorrence of kidnap 22 and rendition, and even more particularly of arbitrary 23 detention of such severity, such stricture as to amount 24 to torture. 25 MR JUSTICE BLAKE: Is this special rapporteur engaged as 30 1 a result of any treaty obligations of the Emirate -- 2 MR DE LA MERE: I'm sorry, my Lord? 3 MR JUSTICE BLAKE: Is the function of the UN special 4 rapporteur engaged because of any treaty obligations of 5 the -- 6 MR DE LA MERE: Yes, the CAT to police the Convention 7 against torture. 8 MR JUSTICE BLAKE: Yes. 9 MR DE LA MERE: It is part of the apparatus -- 10 MR JUSTICE BLAKE: Qatar is a signatory to CAT. 11 MR DE LA MERE: As I understand it, yes. 12 MR JUSTICE BLAKE: But not to the ICCPR. 13 MR DE LA MERE: No. What is significant is that throughout 14 these episodes, compare and contrast, as we will see 15 when we come to State immunity, compare and contrast the 16 Jones case, the defendant has no necessary formal role 17 in this. He is not the captor. He is not the governor 18 of the prison at which the torture is being 19 administered. He is not the party who has exercised 20 a formal leaver of power. The Attorney General says it 21 is effectively his function to secure the treatment in 22 question. He is not like the Mallen case my learned 23 friend referred to via Jones. He is not in a situation 24 of someone flashing their badge, exercising power to 25 gain access before an abuse. 31 1 The essence of our case is that this is an 2 individual exercising his very considerable influence of 3 both forms to get what he wants. So the nub of the 4 question when we come to State immunity will be whether 5 the exercise of informal influence of real politik 6 influence by an individual wearing on any view two hats, 7 is also excused from scrutiny. No such issue arose in 8 Jones, and the issue is a thorny one. 9 What I am going to do, my Lord, then with those 10 introductory remarks by way of background, is I am going 11 to address the two bases of strike out in the order that 12 my learned friend addressed those, diplomatic immunity 13 first and then sovereign immunity. But before I do so, 14 can I emphasise that both points are of extreme 15 importance. For if the defendant loses for instance on 16 diplomatic immunity, but succeeds on State immunity, the 17 logical consequence will be that at least he is liable 18 to potential criminal proceedings in relation to the 19 psychological torture of my client, and that is because 20 the exemption from State impunity in Pinochet 21 necessarily exempts from liability for criminal 22 proceedings those officers of state, and it is a crime 23 defined by the misuse of state or power, involved in the 24 torture in question. 25 So if my learned friend is right that all of these 32 1 events are covered by State immunity, but wrong in 2 relation to diplomatic immunity, her client will be 3 exposed to potential criminal investigation for a crime 4 of universal jurisdiction. That is why both points are 5 of importance. And, of course, the diplomatic issue is 6 obviously of much wider importance to the defendant, 7 given the wider immunity it provides whether from 8 proceedings being called as a witness, tax and so on, 9 and so forth. 10 Now, on diplomatic immunity, the nub of 11 Ms Carss-Frisk's line is that effectively the 12 ministerial certificate issued on 4 January pursuant to 13 section 4 of the DPA now presents an open and shut case. 14 The way that it is put is that effectively that 15 certificate is conclusive proof of the fact that the 16 defendant is a diplomat. In truth we say this case 17 raises two groups of issues. 18 The first group of issues is about what is entailed 19 by being a diplomat who is in principle covered or 20 capable of being covered by an Article 31 and Article 39 21 immunity. Our case in substance is that in order to 22 benefit from these immunities, you have to be in 23 substance a diplomat. 24 Secondly, you have to be in post as such a diplomat 25 at the relevant time, the relevant time being clear from 33 1 Empson v Smith, being the time that the point falls to 2 be decided by the court. We say that issue, who is in 3 substance a diplomat, entails a functional test. 4 A functional test is, is the person intended to and do 5 they in fact undertake diplomatic functions? 6 A person cannot be appointed to a position simply in 7 addition to confer an immunity problem. You cannot have 8 a sham arrangement. Nor ultimately can immunity be 9 conferred if a person never in fact takes up a post, 10 even if they travel to the country in question. Nor is 11 it enough, in our submission, that if someone is 12 appointed to what the sending State considers to be 13 a diplomatic post if the functions undertaken are 14 clearly not diplomatic functions. 15 So we say that the job of a diplomat, whether or not 16 someone discharges it, has a justiciable substantive 17 content, and a justiciable substantive content supplied 18 primarily by Article 3 of the Vienna Convention, 19 considered in direct and necessary contradistinction to 20 Article 42. It is only functions of a certain kind that 21 justify the provision of an immunity, and an individual 22 must prove that he is indeed discharging such functions. 23 MR JUSTICE BLAKE: On that submission, one could have the 24 court exercising what you invite the court to do, 25 a functional approach, and the protocol department of 34 1 the FCO giving a certificate which is said to be 2 conclusive on the facts in the certificate that someone 3 has been appointed and recognised as having been 4 appointed as a diplomat. And, therefore, that approach 5 certainly opens up the possibility of two different 6 issues as to whether a person as a diplomat and, well -- 7 MR DE LA MERE: The first thing is -- 8 MR JUSTICE BLAKE: -- one voice doctrine becomes historic 9 then, does it not? 10 MR DE LA MERE: With respect, no. Firstly, for this reason. 11 The one voice doctrine is, in my submission, confined to 12 those circumstances where agreement is required. It is 13 confined to those issues like recognition of 14 a government, recognition of a mission, recognition of 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:
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