Decisions of British Courts during 2014 Involving Questions of Public or Private International Law

Abstract

The claimant’s father was killed in a missile strike launched from a drone that was believed to have been operated by the US Central Intelligence Agency (CIA). He sought permission to appeal the decision of the Divisional Court (Moses LJ and Simon J) refusing permission to apply for judicial review.1 In the event that permission were granted, the claimant sought a declaration that a UK national who kills a person in a drone strike in Pakistan is not entitled to rely on the defence of combatant immunity. Accordingly, when an officer of the UK Government Communications Headquarters (GCHQ) passes intelligence on the location of an individual to US authorities for use in drone strikes in Pakistan, he/she may commit the offence of ‘encouraging or assisting in [murder]’ under section 44-46 of the Serious Crime Act 2007 (SCA), as read with the jurisdictional provisions in section 52(2) and Schedule 4 of that Act. These provisions are ‘by no means straightforward’, but a plain reading suggests that an individual may be liable for encouraging or assisting an offence committed wholly or partly outside England and Wales: The claimant submitted (1) that on this construction of the SCA, which is supported by the authors of Simester & Sullivan’s Criminal Law,3 the question for the court is not whether the principal has actually committed an offence triable in England and Wales, but only whether ‘any conduct which the UK national is assisting would be within the jurisdiction of the English court if the notional principal were a UK national’;4and (2) neither the CIA nor GCHQ officers are entitled to combatant immunity, either because they are not combatants or because there is no international armed conflict in Pakistan between the US and those targeted by the drone strikes.5 The claimant accepted that in any individual case an official would not be guilty of an offence unless he had the requisite mens rea and the defence of reasonableness under section 50 SCA was not available, but contended that these issues ‘are not material for present purposes’ because the claim concerned the lawfulness of the Foreign Secretary’s policy and not the guilt of individual officials or the lawfulness of drone strikes under US law.6