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Published online by Cambridge University Press: 23 November 2020
On November 13, 2019, the U.K. Supreme Court issued a judgment in R v. Reeves Taylor, holding that members of non-state armed groups may, under certain circumstances, qualify as “officials” for purposes of § 134(1) of the Criminal Justice Act of 1988 (CJA). The Court's decision and reasoning represent an important contribution to case law interpreting the scope of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as concerns conduct by individuals who are not public officials at the time of the alleged abuse.
1 (2019) UKSC 51.
2 For a general overview of events during this period, see https://www.britannica.com/place/Liberia/World-War-II-and-after. Charles Taylor remained in power until 2003, when he stepped down and went into exile in Nigeria. Id. While still serving as president, he was indicted for war crimes and crimes against humanity in Sierra Leone by the Special Court for Sierra Leone. He was convicted of aiding and abetting crimes against humanity in 2012 and sentenced to 50 years in prison; in 2013, he was transferred to the United Kingdom to serve his sentence. See http://www.rscsl.org/Taylor.html; see also Prosecutor v. Charles Ghankay Taylor, Judgement No. SCSL-03-01-T, Special Court for Sierra Leone, Trial Chamber II (May 18, 2012), http://www.rscsl.org/Documents/Decisions/Taylor/1283/SCSL-03-01-T-1283.pdf.
3 The majority also briefly discussed international humanitarian law (IHL), or the law of armed conflict, which also prohibits torture. IHL was relevant given that the alleged conduct took place during a situation of armed conflict in Liberia, and the requirements for liability for torture under IHL are different from those set forth in the CAT and implemented in § 134 of the CJA. However, torture as a crime against humanity or war crime was only established as an offense under UK law for conduct alleged to have occurred on or after January 1, 1991. As a result, the alleged conduct in this case could only be prosecuted in the UK under § 134 of the CJA.
4 R v. TRA, supra note 1, ¶ 4.
5 Id. ¶ 5–7.
6 Id. ¶ 10. While the trial court's reasoning seems to have turned on the existence of an armed conflict, its judgment was consistent with an earlier ruling in R v. Zardad, which involved alleged acts of torture in Afghanistan and which determined that a “person acting in an official capacity” included individuals “acting for an entity which has acquired de facto effective control over an area of a country and is exercising governmental or quasi governmental functions in that area.” R v. Zardad, Judgment and Rulings Pursuant to a Preparatory Hearing Held Under s. 29 of the Criminal Procedure and Investigations Act 1996, Case No. T2203 7676 (Central Criminal Court) (Apr. 7, 2004), ¶ 38.
7 R v. TRA, Judgment, Case No. 201804553 C4, Court of Appeal (Criminal Division) (Dec. 21, 2018), ¶ 69.
8 The Committee against Torture is a body of independent experts established by Article 17 of the CAT to review periodic reports by states parties regarding their implementation of the CAT and, for those states parties that have provided their consent, to hear complaints of alleged torture. See CAT arts. 17–24.
9 For a discussion of the positions of France and Germany, see R v. TRA, supra note 1, ¶¶ 33 (quoting Burgers and Danelius) and 30.
10 Id. ¶ 30.
11 The Special Rapporteur and the members of the Committee against Torture serve in their personal capacities as experts. See Human Rights Commission resolution 1985/33 (Apr. 1, 1985) (establishing mandate); Human Rights Council resolution 34/19 (Apr. 7, 2017) (renewing mandate); art. 17(1) CAT (establishing committee of experts “who shall serve in their personal capacity”). Their views cannot be conflated with those of the states parties to the CAT, nor does their work necessarily reflect the implementation of the treaty by the parties, casting doubt that the work of either can serve as a source of evidence of subsequent practice.
12 R v. TRA, supra note 1, ¶ 76.
13 Id. ¶¶ 77–78.
14 See Dominic Casciani, “Torture charges against former Liberia leader's ex-wife dismissed,” BBC News (Dec. 6, 2019) (quoting Judge Sweeney), https://www.bbc.com/news/uk-50685426.
15 R v. TRA, supra note 1, ¶ 83.
16 In this regard, the implications of the majority's reasoning recall a split in U.S. courts hearing immigration cases, in which individuals seeking asylum or protection from removal may invoke the risk of being subjected to torture if removed. Some courts hearing claims of abuse by non-state actors in this context have interpreted “acquiescence” in torture by public officials to include situations in which government authorities are aware of a pattern of abuse by private actors and do not prevent the abuse—even if they are unable to control the conduct of these private actors. See, e.g., Dutton-Myrie v. Attorney General of the United States, 855 F. 3d 509 (3d Cir. 2017); Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011).
17 R v. TRA, supra note 1, ¶ 85.
18 Id.
19 Id. ¶ 86.
20 Lord Reed's dissenting opinion also points to implementing legislation by other states parties that limits the definition of torture to conduct by state officials—including Austria, which had proposed the clause at issue here—as evidence that the majority's decision was incorrect. See id., ¶ 90.