R v Reeves Taylor

A person acts in an official capacity for the offence of torture under section 134(1) of the Criminal Justice Act 1988 when acting or purporting to act, otherwise than privately and individually, for an organisation which actually exercises governmental functions over civilians in territory under its control. The organisation need not be the state’s recognised or central government, and the rule applies in peace and armed conflict.

Actual governmental activity is essential. Merely purporting to govern, wielding military power or controlling territory through armed force is insufficient. The court must examine the practical reality, including the organisation’s structure, control, authority and performance of governmental functions. The continued existence of a central government does not prevent another organisation from constituting a de facto governmental authority within territory it controls.

The appellant faced one count of conspiracy to commit torture and seven substantive counts under section 134 of the Criminal Justice Act 1988. The alleged offences occurred in Liberia during the first Liberian civil war. The prosecution alleged that the National Patriotic Front of Liberia exercised de facto authority in the relevant territory and that the appellant acted officially on its behalf.

Sweeney J ruled that section 134 extended, during armed conflict, to persons acting non-privately as part of an authority-wielding entity. He later held that there was a case to answer. The Court of Appeal dismissed the appeal in [2018] EWCA Crim 2843, holding that the provision covered persons acting for organisations which exercised or purported to exercise governmental functions over civilians in controlled territory.

The Supreme Court considered the correct meaning of “person acting in an official capacity”, including whether actual governmental functions were required and whether military control was sufficient.

1. Disposition. The appeal was allowed unanimously, although Lord Reed dissented from the majority’s interpretation. The Court of Appeal’s determination was quashed and the matter remitted to the trial judge. The appellant was permitted to make a new dismissal application within 28 days.

2. Lord Lloyd-Jones, with whom Lady Hale, Lord Wilson and Lord Hodge agreed, held that section 134(1) of the Criminal Justice Act 1988 must bear the same meaning as article 1 of UNCAT because the section implemented the Convention. “Person acting in an official capacity” includes a person acting or purporting to act, otherwise than privately and individually, for an organisation which exercises functions normally exercised by governments over civilians in territory which it controls and where the relevant conduct occurs. The organisation need not act for the de jure government. The principle applies during peace and armed conflict.

3. Actual exercise of governmental functions is a core requirement. The Court of Appeal erred by extending the test to an organisation which merely purported to exercise governmental functions. Section 134 permits the individual to purport to perform official duties; it does not dispense with the requirement that the organisation’s functions be governmental in character.

4. Military power and territorial control alone are insufficient. The court must examine the reality on the ground, including the organisation’s structure, actual control, authority and performance of governmental functions. It must allow for local conditions and different governmental structures. Permanence is flexible, and an organisation’s doubtful long-term survival does not prevent it becoming a de facto government. The continued existence of a central government is also no bar.

5. The prosecution’s expert had clarified after the Court of Appeal hearing that the NPFL’s control was military rather than administrative. That distinction was material under the corrected test. Whether the appellant acted officially would ultimately be for the jury, but the dismissal application required reconsideration using the correct test and further expert evidence.

6. Lord Reed would also have allowed the appeal, but on the broader ground that, as applied to alleged conduct in 1990, official capacity required action on behalf of the state or with its consent or acquiescence. He relied on treaty context, state responsibility, legal certainty and the principle against retrospective expansion of criminal liability.

1. Supreme Court: Allowed the appeal, quashed the determination in [2018] EWCA Crim 2843 and remitted the matter for reconsideration under the corrected legal test and in light of further expert evidence.

2. Court of Appeal (Criminal Division): In [2018] EWCA Crim 2843, dismissed the appeal. It held that section 134 covered persons acting non-privately for an organisation which exercised or purported to exercise governmental functions over civilians in controlled territory.

3. Central Criminal Court: Sweeney J ruled that section 134 applied during armed conflict to persons acting non-privately as part of an authority-wielding entity. He subsequently held that the evidence, taken at its highest, disclosed a case to answer on every count.