Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50 (20 December 2023)
Citation: Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50 (20 December 2023)
Rule of thumb: If person A is in country 1 sending communications/orders/instructions to a person B in a foreign country for unlawful things to be done to a third party, where is person A’s unlawful act said to have taken place? Person A is deemed to have broken the law in their own country (country) where the messages were sent from, and can be sued by the third party in country 1 or the foreign country.
Background facts: This case invoked the subject of public international law, police processes, and public services delicts/torts.
The basic facts were that Zubayadah was a Palestinian national who was detained in CIA black sites in six different countries, including Guantanamo Bay, and he was tortured there. Zubayadah claimed that the secret services of the UK provided information & questions which were put to Zubayadah.
Zubayadah raised a personal injury case against the UK Foreign Office & some other branches of Government, claiming false imprisonment, trespass to the person, negligence, & misfeasance in public office. In this case the facts were not argued. Zubayadah argued that the law of all the countries applied. The Foreign Office argued that it was the law of England & Wales governed them making this communication.
Court held: This was a split decision of the Court. The Court held that generally when a communication is made it is the law of the place where the communication arrives which applies. In this case the Court held that it was the law of the place where the communication was sent from which applied, and an exception to this was made.
Ratio-decidendi:
98. ‘Turning to consider the other side of the coin, there are substantial factors here which connect the torts with the United Kingdom. 99. First, while it is correct that the claimant is not a citizen of the United Kingdom, has no right of entry or residence here or, so far as is known, any other personal connection with the United Kingdom, he is suing in respect of torts which he alleges were committed by agents of the Secret Intelligence Service and the Security Service, and for which it is alleged that the UK Government in the person of the Foreign, Commonwealth and Development Office, the Home Office and the Attorney General is vicariously liable.
100. Secondly, the events which constitute the torts alleged against the UK Services were committed in part by the UK Services in England and Wales and in part by the CIA in the Six Countries. The way in which each tort is put in the claimant's pleading has been considered at paras 42-46 above. The significance of the relevant conduct of the CIA, in particular in inflicting injuries on the claimant in the Six Countries, as a relevant factor under section 12 has been considered at paras 92-97 above. The relevant conduct alleged against the UK Services is that, notwithstanding their knowledge that the claimant was being arbitrarily detained without trial at secret CIA detention and interrogation facilities, and that he was being subjected to extreme mistreatment and torture during interrogations conducted by the CIA, from at least May 2002 until at least 2006 they sent numerous questions to the CIA to be used in interrogations of the claimant for the purpose of attempting to elicit information of interest to the UK Services. It is further alleged that, in doing so, they did not seek any assurances that the claimant would not be tortured or mistreated and did not take any steps to discourage or prevent such torture or mistreatment being inflicted during interrogation. The judge accepted that the relevant acts and omissions of the UK Services in requesting information from the CIA were more likely than not to have taken place in England. He also accepted that they were committed by the UK Services for the perceived benefit of the United Kingdom.
101. Thirdly, the actions were taken by UK executive agencies acting in their official capacity in the purported exercise of powers conferred under the law of England and Wales (given the known location of the UK Services in London). The defendants are all emanations of the UK Government and were at all material times subject to the criminal and public law of England and Wales. 102. In our view, the claimant has established a compelling case in favour of the displacement of the general rule in the unusual circumstances of this case. We have no hesitation in accepting the submission that, on the basis of a comparison of the significance of the factors connecting the alleged torts with the Six Countries and with England and Wales, it is substantially more appropriate for the applicable law to be the law of England and Wales’.
Lord Lloyd Jones
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.