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Statutes – interpretation of statutory provisions – interpretation of section 134 (1) of the Criminal Justice Act – where public officials acting in an official capacity were charged with the offence of torture – where it was alleged that acting in an official capacity included a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory– whether the interpretation of the term person acting in an official capacity in section 134(1) of the Criminal Justice Act included a person who acted otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercised or purported to exercise the functions of government over the civilian population, whether in peace time or during armed conflict- Criminal Justice Act, section 134(1); Vienna Convention on the Law of Treaties,1969, article 31 (1).

International Humanitarian Law – crimes against humanity- torture – scope of - what was the scope of torture under article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, article 1.

Brief Facts:

The appellant was arrested in the United Kingdom in 2017 and charged with one count of conspiracy to commit torture and seven counts of torture, contrary to section 134 of the Criminal Justice Act 1988 (CJA). The charges related to events in the early stages of the first Liberian civil war in 1990 when an armed group, the National Patriotic Front of Liberia (NPFL), took control of parts of Liberia. Its leader, Charles Taylor, subsequently became President of Liberia in 1997. The point of law raised in the appeal, and certified by the court below, related to the correct interpretation of the term person acting in an official capacity in section 134(1) of the CJA.

The prosecution maintained that at the time and place of the alleged offences, the NPFL was the de facto military government with effective control of the relevant area. Charles Taylor and those acting for and with him, including the appellant, were therefore acting in an official capacity for, and on behalf of, the NPFL. The appellant denied involvement in the offences and asserted that at no time did she act in an official capacity for the NPFL, nor was the NPFL the de facto government authority in the relevant locations.

The appellant made an application to dismiss the charges at the Central Criminal Court. The court concluded that section 134 applied not only to entities tolerated by or acting under the authority of a government but also, in situations of armed conflict, to individuals who acted in a non-private capacity as part of an authority-wielding entity. The court ruled that there was a case to answer on all counts. The appellant appealed to the Court of Appeal, which dismissed the appeal, holding that section 134 CJA was not confined to individuals acting on behalf of a State. It held that section 134 covered any person who acted otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercised or purported to exercise the functions of government over the civilian population, whether in peace time or during armed conflict. The appellant appealed the decision to the Supreme Court.

Issues:

1. Whether the interpretation of the term person acting in an official capacity in section 134(1) of the Criminal Justice Act included a person who acted otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercised or purported to exercise the functions of government over the civilian population, whether in peace time or during armed conflict.
2. What was the scope of torture under article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?

Relevant provisions of the law

Criminal Justice Act 1988

Section 134-Torture

(1). A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

(2). A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if -

(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence -

(i) of a public official; or

(ii). of a person acting in an official capacity; and

(b). the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.

(6). A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

Article 1

1. For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Held by majority (with Lord Reed dissenting)

1. The words of article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and section 134 of CJA in their ordinary meaning were sufficiently wide to include conduct by a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercised de facto control. In particular, there was no justification for imposing the limitation on those words which would require the conduct to be on behalf of the government of the State concerned. On the contrary, the words in their ordinary meaning were apt to include conduct on behalf of a de facto authority which sought to overthrow the government of the State.
2. The reading of the provisions also conformed to their object and purpose. Particular significance was attached to the purpose of UNCAT in seeking to establish a regime for the international regulation of official torture as opposed to private acts of individuals. Torture perpetrated on behalf of a de facto governmental authority was clearly a matter of proper concern to the international community and within the rationale of the scheme. A person acting in an official capacity under section 134(1) of the CJA included a person who acted or purported to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercised, in the territory controlled by that organisation or body and in which the relevant conduct occurred, functioned normally exercised by governments over their civilian populations. It covered any such person whether acting in peace time or in a situation of armed conflict.
3. The exercise of governmental functions was a core requirement. It would be noted that the formulation of the principle on interpretation of article 1 of UNCAT and section 134 of the CJA differed from that of the Court of Appeal, which referred to a person acting for or on behalf of an organisation or body which exercised or purported to exercise the functions of government. Section 134(1) of the CJA referred to a person acting in the performance or purported performance of his official duties. The adjective purported had been transposed so as to refer to the function being exercised by the organisation or body. That was an error as the functions being exercised by the organisation or body had to be governmental in character. Purporting to exercise such functions would not be sufficient. Insurrectional forces engaged in fighting the forces of the central government of a State could nevertheless exercise sufficient governmental authority over territory and persons under their control for acts done on their behalf to be official acts for that purpose. The continued existence of a central government would not prevent an entity exercising the authority described above from being a de facto government in respect of the territory under its control.
4. If the matter proceeded to trial, the question whether the appellant acted in an official capacity as alleged in the indictment would be a matter for the jury and it would be open to the defence to argue that the evidence did not come up to the mark. However, the appeal arose out of a ruling at a preparatory hearing under section 31(3) of the Criminal Procedure and Investigations Act 1996 and the issue for the court at that hearing was the correct interpretation of the words person acting in an official capacity in section 134 of the CJA. The Court of Appeal expressed its conclusion on the legal test in different terms from those of the Central Criminal Court but, nevertheless, considered that the test the Central Criminal Court applied was not materially different on the facts of the case and that its ruling on the factual submission of no case to answer was not affected. Since the hearing in the Court of Appeal, however, the prosecution had served a further memorandum in which its expert witness clarified that his use of the term control in his evidence referred to military rather than administrative control over the area. In particular, he stated that NPFL were the de facto military authority but that military control was very different from administrative control. It was necessary for the matter to be remitted to the Central Criminal Court for it to reconsider it in the light of the further developments and in the light of further expert evidence.

Per Lord Reed (dissenting)

1. Applying the general rule to article 1 of UNCAT, the ordinary meaning of the phrase a public official or other person acting in an official capacity did not extend to a member of an insurgent group engaged in armed insurrection against the government of the country. That point did not admit of much elaboration. The ordinary meaning of the words a public official was reasonably clear, and would not apply to such a person. The words or other person acting in an official capacity would, in their ordinary meaning, extend to persons who were not public officials but who were acting in a similar capacity, by reason for example of the outsourcing of public functions to private agencies. The core idea seemed to be that the person in question was acting on behalf of the state. There was difficulty in applying the words acting in an official capacity to persons participating in an armed insurrection against the government.
2. Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) required the terms used in a treaty to be given their ordinary meaning in their context. The context, so far as UNCAT concerned the position of the state where the torture occurred, included in the first place the final sentence in article 1 of UNCAT, which excluded from the definition of torture, pain or suffering arising only from, inherent in or incidental to lawful sanctions. The reference to lawful sanctions supported the view that article 1 of UNCAT was concerned with conduct for which the state bore responsibility. It was far from obvious how the exclusion of lawful sanctions was to be applied if the conduct of insurgents controlling an area of territory fell within the scope of article 1 of UNCAT.
3. The territory under the jurisdiction of a state would ordinarily be understood as being the territory over which it had de jure control. If torture carried out by insurgents in territory under their de facto control fell within the scope of UNCAT, it followed that article 2(1) of UNCAT imposed an obligation (to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction) on states with which they could not comply: they could not take effective measures in relation to territory which they did not control. UNCAT could not sensibly be interpreted in a way which would have the effect of imposing an obligation on states with which they could not comply: lex non cogit ad impossibilia.
4. The only situations in which the actions of non-state actors would be relevant were where the state consented or acquiesced in them, or failed in its duty under article 2 of UNCAT to take effective measures to prevent them. Where State authorities or others acting in official capacity or under colour of law, knew or had reasonable grounds to believe that acts of torture or ill-treatment were being committed by non-state officials or private actors and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private actors consistently with UNCAT, the State bore responsibility and its officials should be considered as authors, complicit or otherwise responsible under the UNCAT for consenting to or acquiescing in such impermissible acts.
5. UNCAT would not normally apply to the conduct of insurgent forces within territory under their control. There appeared, therefore, to have been a development in the UN Committee against Torture (the Committee) interpretation of article 1of UNCAT in relatively recent times, which had in recent years been urging a number of states to amend their domestic law so as to conform to its current interpretation of article 1of UNCAT. That development could reflect wider changes. The period since the end of the Cold War had witnessed a proliferation of non-international armed conflict. In that context, the use of torture by non-state actors had become an increasingly serious problem. Against that background, to the extent that the Committee’s current approach to the interpretation of UNCAT departed from the meaning which might have been envisaged in 1984, that development might perhaps be argued to be an example of evolutionary interpretation.
6. That there had been a development in the Committee’s interpretation of article 1of UNCAT had to however be borne in mind when considering the relevance of the Committee’s interpretation to the present proceedings, which were concerned with events alleged to have occurred during 1990. An interpretation of UNCAT which was only adopted by the Commission in relatively recent times, long after the events in question, could not be applied when assessing the criminality of those events, bearing in mind the fundamental principle, recognised in both international and domestic law, of nulla poena sine lege (no penalty without a law). That principle had to be respected in relation to section 134 of the CJA, having regard to the Human Rights Act 1998 and the Convention right arising under article 7 of the European Convention on Human Rights (ECHR). Accordingly, even if article 1 of UNCAT might be interpreted, consistently with the Committee’s recent statements, as extending to the actions of non-state entities exercising quasi-governmental functions over which the state had no control, it did not follow that it should be interpreted in the same way when considering the criminality of actions which took place in 1990.
7. It was essential, both under the domestic law and under international law (for example, article 7 of the ECHR and article 15 of the ICCPR), that the principle of legal certainty should be respected, above all in criminal proceedings. As the law of the country had long recognised, that meant that criminal legislation whose meaning was unclear should be given a restrictive rather than an expansive interpretation. The fact that considerations of policy might be better served by a broad construction did not justify a departure from that principle. The appeal would have been allowed.

Appeal partly allowed.

Orders

i The matter would be remitted back to the Central Criminal Court for further consideration in the light of the new evidence from the prosecution expert and the judgment of the Supreme Court.

ii An order was made under rule 9.16(5), Criminal Procedure Rules that the appellant be permitted to make, within 28 days from the date on which judgment was given in the instant appeal, a new application to dismiss.

Relevance to the Kenyan situation Kenya acceded to UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1997 and though it didn’t ratify it, the same legal effect of becoming a party through ratification was achieved. The Constitution of Kenya, 2010 provides in article 2 (5) that any treaty or convention Kenya has ratified forms part of the law of Kenya.

In Kenya, there have been torture cases where persons acting under official capacity have been held liable for the offence of torture. In Kenneth Stanley Njindo Matiba v Attorney General [2017] eKLR, the court held that there were peculiar circumstances in the petitioner’s detention. For example, he was subjected to solitary confinement and was held in a block where condemned prisoners screamed and shouted at each other from dusk to dawn. Those conditions inflicted deep psychological wounds. There was an admission from the respondent in relation to solitary confinement and the petitioner’s stay in the block near the condemned prisoners. Therefore, the petitioner was subjected to torture, cruel and inhuman treatment which affected his physical, mental and psychological well-being. The court found that the petitioner‘s right to be free from torture, cruel and inhuman treatment under section 74(1) of the repealed Constitution was violated by agents of the State.

In Samuel Chege Gitau & 283 Others v Attorney General [2016] eKLR, the claimants stated that after the attempted coup d‘état of August 1, 1982, they were kept in prison custody without trial for months. They also averred that while in prison they were tortured, beaten, stripped naked and sustained permanent physical injuries. Additionally, they claimed to have been subjected to trials or court martial in which they were subjected to biased treatment and tortured to confess.The claimants were awarded Kshs. 1, 000, 000/= each for wrongful imprisonment, torture, inhuman and degrading treatment and violation of their rights to a fair hearing.

The ordinary effect of article 1 of UNCAT is therefore felt in Kenya from the above case law. The Kenyan case law may not have the same circumstances as the UK one, but the judgment herein is jurisprudential in that it expands the interpretation of article 1 to include situations of persons held to be acting under official capacity for acting on behalf of entities with de facto military government control of an area whether in peace time or during armed conflict.