R v Reeves Taylor

The Supreme Court was required to interpret the phrase "person acting in an official capacity" in section 134(1) of the Criminal Justice Act 1988, which implements Article 1 of the UN Convention against Torture (UNCAT). The court held that those words are not confined to persons acting on behalf of a recognised de jure State. They can include a person who acts, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which, in territory it controls, exercises functions normally exercised by governments over civilian populations (that is, a de facto governmental authority). The exercise of governmental or quasi‑governmental functions is a core requirement; purely military activity absent governmental functions is insufficient.

Applying that legal test, the Court concluded that further factual and expert inquiry was required because the prosecution’s later expert material described NPFL control as military rather than administrative. For that reason the Supreme Court allowed the appeal on a narrow basis, quashed the Court of Appeal’s determination on the legal test and remitted the matter to the trial judge for reconsideration in the light of the new evidence and the Court’s guidance.

Background and procedural history.

• The appellant, Reeves Taylor, was charged with conspiracy to commit torture and seven substantive counts of torture contrary to section 134 Criminal Justice Act 1988, for alleged acts in Liberia in 1990 during the early phase of the conflict involving the National Patriotic Front of Liberia (NPFL).
• The legal question certified of general public importance was whether "person acting in an official capacity" in section 134(1) includes persons acting on behalf of an organisation that exercises or purports to exercise governmental functions (a de facto government) over territory where the conduct occurred.
• Sweeney J at the Central Criminal Court and then the Court of Appeal answered that the provision can cover persons acting on behalf of such de facto authority. The appellant appealed to the Supreme Court.

Issues framed.

1. What is the correct interpretation of "person acting in an official capacity" in section 134(1) CJA, read with Article 1 UNCAT?
2. Whether that phrase is confined to actors authorised by a de jure State or extends to persons acting for de facto authorities exercising governmental functions over territory they control.
3. Whether, on the available evidence, the matter should proceed to a jury or be dismissed at the preparatory hearing stage.

Court’s reasoning.

• The court applied treaty interpretation principles (Vienna Convention on the Law of Treaties, arts 31–32) and the requirement that domestic implementing legislation be interpreted consistently with the Convention. The ordinary meaning of the words, read in context and in light of UNCAT’s object and purpose, does not limit "official capacity" to persons acting for a de jure State.
• The Convention’s concern is official torture as distinct from purely private acts; that objective supports covering acts committed on behalf of de facto authorities who exercise governmental functions over civilian populations.
• Travaux, General Comments and subsequent practice of the Committee against Torture were considered. Those materials are mixed but some Committee decisions (notably Elmi) and later practice support that acts of de facto quasi‑governmental authorities can fall within Article 1. Academic commentary and earlier domestic decisions (in particular R v Zardad) also supported the broader reading.
• The court emphasised a limiting principle: the entity must exercise governmental or quasi‑governmental functions; mere military activity or ephemeral control is insufficient. The functions must be governmental in character (administration, law‑enforcement, provision of services), not merely the exercise of military force.
• Because the prosecution subsequently clarified that its expert used "control" in a military rather than administrative sense, the Supreme Court considered that further factual and expert material was necessary to determine whether the NPFL exercised the requisite governmental functions at the relevant times.

Disposition. The court allowed the appeal on a narrow basis, quashed the Court of Appeal’s determination of the legal test and remitted the matter to the trial judge for further consideration and evidence, permitting the appellant to renew an application to dismiss.

The Supreme Court allowed the appeal on a narrow basis. It held that "a person acting in an official capacity" in section 134(1) CJA (implementing Article 1 UNCAT) can include persons who act, otherwise than in a private capacity, for or on behalf of an organisation which in the territory it controls exercises functions normally exercised by governments over civilian populations (ie a de facto governmental authority). The exercise of governmental functions is a core requirement and is distinguishable from purely military activity. Because the prosecution subsequently clarified that its expert evidence referred to military rather than administrative control, the case was remitted to the trial judge for further factual and expert consideration and the appellant was permitted to renew a dismissal application within a fixed period.

Appeal from the Criminal Division of the Court of Appeal (Criminal Division) [2018] EWCA Crim 2843 which dismissed the appellant’s challenge to the trial judge’s legal ruling. Permission to appeal to the Supreme Court was granted on 13 February 2019; the Supreme Court allowed the appeal, quashed the Court of Appeal’s determination and remitted the matter to the trial judge.