R v Taylor [2019] UKSC 51

Agnes Reeves Taylor, ex-wife of former Liberian President Charles Taylor, was charged with torture under section 134 of the Criminal Justice Act 1988 for acts allegedly committed in 1990 as a member of the NPFL rebel group. The Supreme Court clarified the meaning of 'person acting in an official capacity'.

Facts

The appellant, Agnes Reeves Taylor, was arrested in the United Kingdom on 1 June 2017 and charged with one count of conspiracy to commit torture and seven counts of torture contrary to section 134 of the Criminal Justice Act 1988 (CJA). The charges related to events in Liberia in 1990 during the early stages of the first Liberian civil war, when the National Patriotic Front of Liberia (NPFL), led by Charles Taylor, sought to depose President Samuel Doe. The prosecution alleged that the NPFL was the de facto military authority in the relevant areas and that the appellant acted in an official capacity on its behalf.

The prosecution’s expert witness indicated that the NPFL had military control, though not necessarily administrative control, over much of Nimba County by early May 1990. The appellant denied involvement and disputed that the NPFL was the de facto government authority at the relevant times and places.

Issues

The Court of Appeal certified the following point of law of general public importance: what is the correct interpretation of the term ‘person acting in an official capacity’ in section 134(1) of the CJA 1988, and in particular whether it includes someone who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs.

Arguments

Appellant

Mr Steven Powles QC submitted that section 134 CJA and article 1 of the UN Convention Against Torture (UNCAT) apply only to those acting for or on behalf of the government of a State. He argued this was the ordinary meaning of the provisions, supported by the object and purpose of UNCAT, the travaux preparatoires, and the pronouncements of the UN Committee Against Torture. Consequently, section 134 did not apply to members of armed opposition groups fighting against the State.

Respondent

Mr David Perry QC submitted that section 134(1) CJA covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises the functions of government over the civilian population in the territory which it controls. This extended beyond formal State structures to cover armed groups exercising de facto governmental authority.

Judgment

The majority (Lady Hale, Lord Wilson, Lord Hodge, and Lord Lloyd-Jones) allowed the appeal on a narrow basis and remitted the matter to the trial judge. Lord Lloyd-Jones held that the ordinary meaning of the words ‘person acting in an official capacity’ was apt to include someone who holds an official position or acts in an official capacity in an entity exercising governmental control over a civilian population in a territory over which it holds de facto control. The dichotomy drawn was between official conduct and purely private conduct, not between State and non-State activity.

The Court examined the travaux preparatoires, academic commentary (including Nowak and McArthur, Burgers and Danelius, Gaeta, and Clapham), the decisions of the UN Committee Against Torture (particularly Elmi v Australia and SS v Netherlands), and the first-instance decision of Treacy J in R v Zardad. The Court approved Treacy J’s approach in Zardad, which looked at the reality of the situation and whether the entity exercised functions a government would exercise.

Lord Lloyd-Jones formulated the principle as follows: ‘A person acting in an official capacity’ includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations, whether in peacetime or armed conflict.

The Court emphasised that the exercise of governmental functions is a core requirement, and must be distinguished from purely military activity. The Court modified the Court of Appeal’s formulation, noting that the functions exercised must actually be governmental in character, not merely purported to be so. The Court also considered Sweeney J’s formulation too broad.

Given the prosecution’s expert’s subsequent clarification that his use of ‘control’ referred to military rather than administrative control, the Court remitted the matter for reconsideration.

Dissent

Lord Reed dissented, holding that the ordinary meaning of ‘a public official or other person acting in an official capacity’ does not extend to members of insurgent groups engaged in armed insurrection against the government. He emphasised the context of article 1 (including the reference to ‘lawful sanctions’ and article 2(1)’s requirement that States prevent torture in territory under their jurisdiction), the object and purpose of UNCAT (focused on situations where State responsibility is engaged), the drafting history, the original position of the Committee Against Torture, and the principle of legal certainty (nulla poena sine lege), particularly given that the alleged events took place in 1990.

Implications

The decision clarifies that section 134 of the CJA 1988 and article 1 of UNCAT are not limited to persons acting on behalf of a recognised State government. The offence of torture extends to persons acting in an official capacity for a de facto authority which exercises governmental functions over a civilian population in territory under its control. This is significant for prosecutions involving conduct in failed states, civil wars, and areas controlled by insurgent or rebel groups exercising quasi-governmental functions.

However, the Court emphasised important limitations: the entity must actually exercise governmental functions (not merely military control or purport to exercise such functions); purely military activity is insufficient; and the entity must have a sufficient degree of organisation, control, and authority. The long-term permanence of the entity is a flexible consideration, and the continued existence of a central government does not preclude recognition of a de facto authority over controlled territory.

The decision matters to prosecutors, defence practitioners, and human rights lawyers working on universal jurisdiction cases, and provides an authoritative interpretation likely to influence other common law jurisdictions. The dissent raises important concerns about legal certainty and the principle that criminal statutes should be interpreted restrictively, particularly where the events in question occurred decades before any evolving interpretation of the underlying international instrument.

Verdict: The appeal was allowed on a narrow basis. The Supreme Court quashed the determination of the Court of Appeal and remitted the matter to the trial judge for reconsideration in light of new evidence from the prosecution’s expert (clarifying that ‘control’ referred to military rather than administrative control) and the modified legal test formulated by the Supreme Court. The appellant was permitted to make a new application to dismiss within 28 days.

Source: R v Taylor [2019] UKSC 51