Khan, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs

An English court will refuse to entertain a claim which, in substance and practical effect, requires it to condemn the sovereign acts or policy of a foreign state. That remains so where the claim is framed as a question of domestic criminal law, statutory construction, or a hypothetical assessment of conduct by a notional UK national.

The court may exceptionally adjudicate on foreign sovereign acts in established circumstances, including grave breaches of clearly established international law. The exception did not apply where determining alleged secondary liability for intelligence-sharing would inevitably be understood as condemning United States drone operations and policy.

The claimant’s father was killed at a tribal council meeting in Pakistan by a drone strike believed to have been carried out by the CIA. The claimant sought judicial review concerning an alleged UK policy of providing locational intelligence to the United States for drone strikes.

He contended that GCHQ officers might thereby encourage or assist murder under the Serious Crime Act 2007, or be ancillary to war crimes or crimes against humanity under the International Criminal Court Act 2001. The Divisional Court refused permission for judicial review on non-justiciability and discretionary grounds. The central issue was whether the proposed domestic-law declarations would nevertheless require an English court to sit in judgment on the acts of the United States.

1. Permission to appeal was refused. The primary and secondary claims were fundamentally flawed because each necessarily involved serious criticism of the acts and policy of the United States. The court held that there were no exceptional circumstances permitting it to adjudicate on those foreign sovereign acts.

2. The principle that English courts do not sit in judgment on the legality, validity or acceptability of another state’s sovereign acts applied whether described as a limit of jurisdiction, non-justiciability, or judicial discretion. The distinction made no practical difference. The principle may be displaced in established exceptional circumstances, including a grave infringement of human rights or a breach of clearly established international law, but none was present.

3. The claimant’s proposed construction of the Serious Crime Act 2007 would require a hypothetical inquiry into whether a UK national operating the drone would commit murder and lack combatant immunity. Even if this avoided a formal finding about the criminal liability of CIA officers, it was a statutory legal fiction. In reality, a finding that the notional operator committed murder would inevitably, and rightly, be understood by the United States as condemning its officials and drone policy.

4. The secondary claim failed for the same reason. A finding that GCHQ officers risked ancillary liability under section 52 of the International Criminal Court Act 2001 would necessarily entail finding that the CIA operator committed a war crime or crime against humanity while implementing United States policy.

5. Rahmatullah v Secretary of State for Defence [2012] UKSC 48 was distinguishable. In that case the issue was the United Kingdom’s own obligations in relation to an apparently unlawful detention, without adjudicating upon a United States legal justification. The Court expressed no concluded view on the disputed construction of the 2007 Act, combatant immunity, or the availability of a civil declaration on criminality. Although permission was refused, the judgment could be cited as precedent.

• Court of Appeal (Civil Division): refused permission to appeal from the Divisional Court’s refusal of permission for judicial review: [2014] EWCA Civ 24.
• High Court, Queen’s Bench Division, Divisional Court: Moses LJ and Simon J refused permission to apply for judicial review on 21 December 2012, principally on non-justiciability and discretionary grounds. No citation was stated in the judgment.