Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50

Abu Zubaydah, detained by the CIA and allegedly tortured at secret 'black sites' in six countries, sued UK security services for sending interrogation questions knowing torture would occur. The Supreme Court held English law applies under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995, displacing the general rule favouring the laws of the countries where injuries were sustained.

Facts

Abu Zubaydah, a Palestinian national, was captured in Pakistan in March 2002 and rendered by the CIA to secret detention facilities (‘black sites’) in Thailand, Poland, Morocco, Lithuania, Afghanistan, and Guantánamo Bay. He alleges he was subjected to extreme mistreatment and torture at these locations. The claimant contends that UK Security Services (the Security Service and Secret Intelligence Service) knew of his arbitrary detention and torture, yet from May 2002 until at least 2006, sent numerous questions to the CIA to be used during interrogations, expecting that torture would be used to extract answers. The claimant had no knowledge of or control over his location and was deliberately disoriented.

The Defendants

The defendants are the Foreign, Commonwealth and Development Office, the Home Office, and the Attorney General, as emanations of the UK Government alleged to be vicariously liable for the UK Services’ conduct. The claimant alleges torts including misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence.

Issues

The central issue was whether the applicable law governing the claimant’s tort claims was the law of England and Wales or the law of each of the six countries where the alleged torture occurred. This required interpretation of sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (‘PILA’).

Section 11: The General Rule

Section 11(2)(a) provides that for personal injury claims where elements of the tort occur in different countries, the applicable law is the law of the country where the individual sustained the injury. Under this general rule, the laws of the Six Countries would apply.

Section 12: Displacement of the General Rule

Section 12 allows displacement of the general rule if it is ‘substantially more appropriate’ for another country’s law to apply, based on a comparison of connecting factors.

Judgment

The High Court and Court of Appeal

Lane J at first instance held the applicable law was that of the Six Countries. The Court of Appeal reversed this, holding English law applied, but the Supreme Court found the Court of Appeal had also erred by focusing too narrowly on the UK Services’ conduct rather than the torts as a whole.

The Supreme Court’s Analysis

The majority (Lord Lloyd-Jones, Lord Stephens, Lord Kitchin, and Lord Burrows) conducted the section 12 exercise afresh. They identified factors reducing the significance of the connection to the Six Countries:

“First, … the claimant has been unlawfully rendered against his will to a series of foreign countries in succession in which he has been detained, interrogated and tortured. He did not even know in which country he was held at any given time.”

“Secondly, … the UK Services were entirely indifferent to where the claimant was being held; from their perspective the claimant’s geographical location was entirely immaterial.”

“Thirdly, the claimant was rendered to and held in each of the Six Countries by the CIA without any reference to the laws of those countries.”

The Court identified substantial factors connecting the torts with England and Wales: the UK Services acted in England, for UK benefit, as UK executive agencies exercising powers under English law and subject to UK criminal and public law.

“In our view, the claimant has established a compelling case in favour of the displacement of the general rule in the unusual circumstances of this case. We have no hesitation in accepting the submission that… it is substantially more appropriate for the applicable law to be the law of England and Wales.”

The Dissent

Lord Sales dissented, arguing the factors connecting the torts to the Six Countries were highly significant, particularly where the claimant sustained injuries and where the CIA agents acted. He considered the majority’s approach gave insufficient weight to the general rule and the statutory framework.

Implications

This judgment is significant for cases involving alleged UK complicity in extraterritorial mistreatment. It establishes that where UK officials act from England with knowledge of and complicity in foreign torture, and where the victim’s presence abroad was involuntary and unknown, English law may govern tort claims. The decision emphasises that the general rule under section 11(2)(a) can be displaced under section 12 in exceptional circumstances involving state accountability for human rights violations abroad.

Verdict: Appeal dismissed. The applicable law for determining the claimant’s tort claims is the law of England and Wales, displacing the general rule under section 11(2)(a) of the Private International Law (Miscellaneous Provisions) Act 1995 pursuant to section 12.

Source: Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50