The Court of Appeal upholds dismissal of judicial review application relating to the alleged sharing of intelligence with the US for use in drone strikes

In the recent decision of R. (on the application of Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24, the Court of Appeal refused to grant permission for judicial review in relation to the alleged sharing of "locational intelligence" with the US Government.

Upholding the decision at first instance, the claim was rejected on the basis that English courts did not "sit in judgment" upon the acts of foreign sovereign states except for in certain established and exceptional circumstances, which were not present in this case.

Facts

The claimant's father was a Pakistani tribal elder who, along with more than 40 other people, was killed in a US drone strike in North Waziristan. It was subsequently reported in media outlets such as The Sunday Times that the General Communications Headquarters (GCHQ), an agency for which the Secretary of State for Foreign and Commonwealth Affairs is responsible, provided "locational intelligence" to the US for use in drone strikes in places including Pakistan. The claimant's initial application for judicial review of "a decision to provide intelligence to the US authorities for use in drone strikes in Pakistan, among other places" was dismissed by the Divisional Court in December 2012. (please click here to view our earlier post on this case).

On appeal, the claimant sought reformulated relief in the form of a declaration that:

1. the actions of GCHQ officials in communicating such intelligence to the Central Intelligence Agency (CIA) could give rise to offences under sections 44-46 of the Serious Crime Act 2007 (the 2007 Act); or
2. if the defence of combatant immunity applied in such circumstances, the actions of GCHQ officials nevertheless gave rise to an offence under the International Criminal Court Act (the ICC Act), and accordingly the Defendant was under an obligation to formulate and publish a lawful policy setting out the circumstances in which such intelligence could be transferred.

Decision

In its judgment of 20 January 2014, the Court of Appeal refused permission to appeal and rejected the relief sought.

The Court held that the English courts did not sit in judgment on the sovereign acts of a foreign state, and emphasised that this included a prohibition against adjudication upon the legality, validity or acceptability of such acts, either under domestic law or international law.

Whether it was the case that the courts had no jurisdiction to sit in judgment on the acts of government of another country (i.e. cannot do so), or whether they will not do so as a matter of discretion, was held to be of no practical relevance.

The claimant submitted that the relief sought would not require the court to sit in judgment on the acts of a foreign state. He argued that for the purposes of the 2007 Act the English courts merely had to determine the hypothetical question of whether the actions of the US officials would have been unlawful had they been committed by UK nationals. The Court of Appeal, however, ruled that such a determination would necessarily require the Court to condemn the acts of CIA officials operating the drones and implementing the policy of the US government.

What mattered was that the findings would be understood by the US authorities as critical of them. Although such findings would have no legal effect, they would be seen as a serious condemnation of the US by an English court.

The Court also rejected the second set of relief sought by the claimant on the same grounds. The claimant alleged that the GHCQ officials ran the risk of committing an offence under section 52 of the ICC Act of conduct ancillary to crimes against humanity and/or war crimes. The Court held that the claimant was effectively inviting the Court to make a finding condemning the person who made the drone strike as guilty of committing a crime against humanity and/or a war crime. Again, as that person was a US official implementing US policy, such a finding would involve the English courts sitting in judgment of the US.

Comment

This case re-emphasises the basic position that as a matter of English law, English courts will not sit in judgment upon the acts of foreign sovereign states. When assessing this question, the judgment makes clear that the courts will have regard to the wider international context of the specific relief sought by the applicant.

The Court acknowledged that English law did recognise exceptions to this principle, although these would apply only in exceptional circumstances (which it was held were not present in this case). For example, the principle would not apply to foreign acts of state which are in breach of clearly established rules of international law or are contrary to English principles of public policy, as well as where there is a grave infringement of human rights. This area of law will continue to come under close scrutiny, and further cases will no doubt be brought to explore the parameters of these exceptions.

For further information, please contact Nusrat Zar, Partner, Andrew Cannon, Senior Associate, or your usual Herbert Smith Freehills contact.