Rahmatullah v The Ministry of Defence

Claims against UK officials for alleged complicity in torts committed by foreign personnel are not barred by state immunity merely because the foreign state would itself enjoy immunity. The traditional foreign act of state doctrine does not prevent an English court deciding whether foreign personnel acted unlawfully when that question is necessary to determine domestic private-law rights. Practical evidential difficulties do not make such issues non-justiciable.

Crown act of state may, however, provide a defence to claims under foreign law arising from detention abroad carried out pursuant to an established UK foreign or military policy. That defence is distinct from a rule of justiciability and is compatible with article 6 of the Convention where narrowly confined.

Yunus Rahmatullah claimed damages against the Ministry of Defence and the Foreign and Commonwealth Office arising from his detention by British forces in Iraq, transfer to United States custody, and subsequent detention and alleged mistreatment in Iraq and Afghanistan. Three anonymised Iraqi civilian claims raised similar preliminary issues.

The defendants relied on state immunity, foreign act of state and Crown act of state. Rahmatullah and Amanatullah Ali also sought judicial review requiring an investigation into their transfer and the failure to seek their return. The court determined whether the tort claims were barred and whether permission for judicial review should be granted.

1. State immunity. The State Immunity Act 1978 did not protect UK defendants from claims which required proof of unlawful acts by US personnel. The indirect-impleading authorities concerned proceedings affecting a foreign state's property. Jones v Ministry of Interior of Saudi Arabia [2007] 1 AC 270 was concerned with attribution of officials' acts to the foreign state and did not extend immunity to officials of another state.
2. The UN Convention on Jurisdictional Immunities of States and Their Property did not support the defendants' broad argument. Article 6(2)(b) was directed principally to proceedings affecting a foreign state's property, rights or legal interests. There was no evidence of customary international law extending immunity to proceedings against a different sovereign merely because findings might affect foreign interests.
3. Foreign act of state. The traditional doctrine concerning recognition of foreign laws, executive acts or judgments did not apply. Nor did the judicial-abstention principle in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888. Applying Shergill v Khaira [2014] 3 WLR 1, the court could and, where necessary to determine private legal rights, had to decide whether foreign agents had acted unlawfully. Evidential difficulties did not make the claims inherently unsuitable for judicial determination.
4. Crown act of state. The narrower Crown act of state defence applied, consistently with Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB), where detention abroad was authorised pursuant to a deliberate UK foreign or military policy and the claim arose under foreign law. The defence was not removed by the Crown Proceedings Act 1947 and was compatible with article 6 of the Convention. Whether the detention and transfers were policy-authorised remained to be established.
5. The claims in tort were therefore not barred by state immunity or foreign act of state. Claims concerning detention by UK forces would be barred if the defendants proved that the detention was authorised pursuant to a lawful policy. The court declined at that stage to determine the separate issue concerning wrongful transfers because it had not been properly pleaded or addressed. Permission was granted to proceed with the judicial review claim.

The judgment records earlier habeas corpus proceedings. The Court of Appeal granted a writ, and the Supreme Court upheld the relevant decisions: Rahmatullah v Secretary of State for Defence [2012] 1 WLR 1462 ; Rahmatullah v Secretary of State for Defence [2013] 1 AC 614 . Those decisions concern the same litigation and are not treated as cited authorities below.

The court was also bound on state immunity and foreign act of state by the Court of Appeal's decision in Belhaj v Straw [2014] EWCA Civ 1394 .