The claimant’s father had been killed in Pakistan by a missile in a drone strike by the USA. He alleged that the strike had been supported by positional information supplied by the British intelligence agencies, and sought judicial review of the decisions leading to the strike, alleging that the actions were criminal. He sought a public ‘declaration that a GCHQ officer or other Crown agent who passes ‘locational intelligence’ to an agent of the US may commit an offence of ‘encouraging or assisting in a crime’ under sections 44-46 of the Serious Crime Act 2007′
Held: The request was refused. An English court could not adjudicate of the lawfulness of actions taken by a third party state. Any such investigation would be damaging to the national interest, and could be justified only in exceptional circumstances, which did not apply here.
Lord Dyson MR regarded the claim as non-justiciable, because: ‘The proposition, even if it is right, that a person may be guilty of secondary liability for murder under sections 44-46, although the principal could not, is no answer to the fundamental objection to the grant of a declaration: that it involves, and would be regarded ‘around the world’ … as ‘an exorbitant arrogation of adjudicative power’ in relation to the legality and acceptability of another sovereign power. … Even if the argument focused on the status of the attacks in North Waziristan (international armed conflict, armed conflict not of an international nature, pre-emptive self-defence) for the purposes of considering whether the United Kingdom employee might have a defence of combatant immunity, it would give the impression that this court was presuming to judge the activities of the United States.’ and ‘In my view, a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US. In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful. The fact that our courts have no jurisdiction to make findings on either of these issues is beside the point. What matters is that the findings would be understood by the US authorities as critical of them. Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country.’
Judges:
Lord Dyson MR, Laws, Elias LJJ
Citations:
[2014] EWCA Civ 24, [2014] WLR(D) 14, [2014] 1 WLR 872
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Crime, International
Updated: 14 June 2022; Ref: scu.519973