The prosecution alleged torture by a member of an armed group during the Liberian civil war. For the majority, acting in an official capacity could include acting for a group that exercised governmental functions over a civilian population. Military control of territory alone was insufficient. New expert evidence meant that the judge had to reconsider the defence application to dismiss.
Reeves Taylor faced charges in the United Kingdom. This appeal concerned the legal meaning of acting in an official capacity and the evidence needed for the prosecution to proceed.
Section 134 came into force on 29 September 1988 and applies to later conduct. It requires the Attorney General’s consent, which was given. Subsection (1) makes it an offence for a public official or person acting in an official capacity, of any nationality, intentionally to inflict severe pain or suffering in the United Kingdom or elsewhere in the performance or purported performance of official duties. Subsection (2) covers infliction at the instigation, or with the consent or acquiescence, of such a person who is performing or purporting to perform official duties. The maximum penalty is life imprisonment.
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The proceedings below
The defence applied to dismiss the charges. Sweeney J first decided the legal test. He held that section 134 applied not only to entities tolerated by or acting under a state’s government, but also, in armed conflict, to individuals acting in a non-private capacity as part of an authority-wielding entity. He later held that the evidence, taken at its highest, was sufficient for a jury to conclude that the appellant had acted in that capacity and that the Front was such an entity. The Court of Appeal dismissed the appeal. It said the category was not confined to persons acting for a recognised state. It covered a person acting otherwise than privately for an organisation or body exercising or purporting to exercise governmental functions over the civilian population in territory it controlled, in peace or armed conflict. The Supreme Court granted permission to appeal on the certified question of the correct interpretation of “person acting in an official capacity”.
The majority interpretation
Lord Lloyd-Jones, with whom Lady Hale, Lord Wilson and Lord Hodge agreed, held that the domestic words must bear the same meaning as article 1 of the UN Convention against Torture. Applying the Vienna Convention rules, he considered that their ordinary meaning distinguished official from purely private conduct, not state from non-state activity. They could include a person acting for an entity exercising governmental control over civilians in territory under its de facto control.
The Convention’s purpose was not to create the prohibition of torture, but to strengthen an existing prohibition through domestic criminalisation, prevention and a prosecute-or-extradite system, so that official torturers would find no safe haven. That purpose did not justify reading the offence as limited to conduct attributable to a state. The drafting history was not conclusive, but it showed an intention to exclude purely private torture while covering official torture of international concern, including torture by a de facto authority. Decisions of the Committee against Torture were inconsistent, though some supported including non-state actors exercising de facto authority. State-responsibility principles and recognition practice did not supply a satisfactory limit: liability should not depend on whether an insurrection later succeeded or on whether a particular government was recognised.
The majority distinguished torture under the Convention from torture as a war crime or crime against humanity, which need not involve an official. Those international offences could not found these charges in any event, because the relevant United Kingdom provisions applied only to acts on or after 1 January 1991. The decision in R v Zardad was treated as supportive: the question was the reality of organisation, control and governmental or quasi-governmental functions.
Lord Lloyd-Jones formulated the principle as covering a person who acts or purports to act, otherwise than privately, for an organisation which, in territory it controls and where the conduct occurs, exercises functions normally exercised by governments over civilians, in peace or armed conflict. He corrected the Court of Appeal on an important point. The body must actually exercise governmental functions; merely purporting to do so is insufficient, although the individual may be performing or purporting to perform duties. Purely military activity must also be distinguished from governmental authority. Sweeney J’s reference to any authority-wielding entity in armed conflict was therefore too broad. Indicative features depend on the evidence of organisation, actual control and governmental functions, without imposing a rigid Western model or requiring likely long-term survival. A continuing central government does not prevent another body from being a de facto authority in territory it controls.
Why the case was remitted
After the Court of Appeal hearing, the prosecution expert clarified that his references to control meant military rather than administrative control. He said the Front had freedom of movement after government forces withdrew, but before June 1990 lacked a sustained presence, did not assign officials or provide security, and left much of the population in areas without consistent administrative authority. That distinction mattered to the governmental-function requirement. The majority therefore allowed the appeal only on the narrow basis that the judge should reconsider the matter with that evidence and the Supreme Court’s test.
Lord Reed’s dissent
Lord Reed would have allowed the appeal. In his view, the ordinary meaning of a public official or person acting in an official capacity did not extend to a member of an insurgent group fighting the government; the core idea was action on behalf of the state, or at least with its consent or acquiescence. He relied on the Convention’s reference to lawful sanctions, the obligation to take effective preventive measures in territory under a state’s jurisdiction, and the justification for universal jurisdiction where a state might be reluctant to prosecute its own officials. He considered the Committee’s broader approach to be a later development that could not be applied retrospectively to alleged conduct in 1990, having regard to legal certainty and the principle that there is no punishment without law.
Verdict: The majority allowed the appeal to the limited extent of setting aside the determination below and returning the matter to the judge. Reeves Taylor could renew her application to dismiss within 28 days. Lord Reed dissented on the legal test and would have allowed the appeal on his narrower interpretation.
Source: R v Reeves Taylor [2019] UKSC 51
