Government not liable in tort under Crown act of the State


Re: Rahmatullah (No 2) v Ministry of Defence & Anor; Mohammed & Ors v Ministry of Defence [2017] UKSC 1

These appeals concern the nature and content of the doctrine of Crown act of state in relation to the claim by the respondents of wrongful detention or mistreatment by UK or US forces in the course of conflicts in Iraq or Afghanistan. The Supreme Court unanimously allowed the Government’s appeals, holding that the doctrine of Crown act of state is applicable in these cases as the tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown and thus the Government cannot be liable.

This is because a Crown act of state is a prerogative act of policy in the field of international affairs, and the rules under the doctrine provide the Government with a a defence to a claim arising from acts of state committed abroad which are otherwise suitable for adjudication by a court. In the present cases, the respondents’ detention by HM forces and transfers out of British custody were steps taken as part of deliberately formed policy against suspected insurgents, in the context and furtherance of foreign military operations during a time of armed conflict, and were thus Crown acts of state for which the Government cannot be held liable in proceedings for common law damages.

Edward CravenRichard Hermer QC and Phillippa Kaufmann QC were involved in this case.