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Act of State

(1). What is it ?

That most noteworthy of modern jurists, Professor ECS Wade, suggested in an article in 1934 that :

“ An Act of State means an act of the Executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown.”

“Act of State in English Law : Its relations with International Law” ECS Wade

15 B.Y.B.I.L. 98 (1934) @ p.103

However, although this definition was expressly approved in the Court of Appeal in the leading case of Nissan v. the Attorney General (1967), when the case later reached the House of Lords, Lord Wilberforce had this to say of it :

“This is less a definition than a construction put together from what has been decided in various cases ; it covers as much ground as they do, no less, no more. It carries with it the warning that the doctrine cannot be stated in terms of a principle but develops from case to case ...”

Nissan v. the Attorney General [1970] AC (E) @ 231C

It would thus appear that the best the cases can really tell us is that the only effective definition of an act of state focuses on its effect rather than on its nature or quality.

(2) What is the effect of an “Act of State” ?

In the judgement of Fletcher Moulton LJ in Salaman v. Secretary of State for India (1906) that question is answered as follows:

“ An Act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled, or interfered with by municipal Courts. Its sanction is not that of the law, but that of sovereign power, and, whatever it be, municipal Courts must accept it, as it is, without question.”

Salaman v. the Secretary of State for India [1906] 1 KB 613@639

Equally in Johnstone v. Pedlar (1921) Lord Atkinson, in the House ([1921] AC 262 HL(I) @ p.278), cites his preferred definition as being that given by Lord Kingsdown in Secretary of State of India in Council v. Kamachee Boye Sahaba ( (1859) 13 Moo PCC 22@87; 15 ER 9 ). However, perhaps the most useful exposition for our purposes is given in what amounts to a useful summary of what many of the available cases have to say, as set out by JG Collier in his article “Act of State as a defence against a British Subject” :

“ According to a long line of cases, the effect of a successful plea of act of state by the Crown or its agents is to oust the jurisdiction of the courts. On this view, it is not a substantive defence, turning what would otherwise be a lawful act into an unlawful one, or a wrongful act into a rightful one, the only result is that, once the courts are satisfied than an act is truly an act of state, they must decline to take jurisdiction over any claim arising out of it.”

(1968) Cambridge Law Journal at p.118

The legal effect of successfully pleading ‘act of state’ would then seem to be that it should definitively estop any further proceedings being brought against the Crown or any of its servants or agents. Hence the next question which immediately presents itself for examination, given the apparently dramatic and finalistic consequence of such a successful plea, is naturally, against whom does the plea ‘act of state’ lie ?

(3) When and against whom can ‘Act of State’ be pled ?

The general rule has never been examined more thoroughly than in Nissan. That general view was exemplified best in the Opinion of Lord Reid again as follows :

“ Where an act of a servant of the Crown in this country infringes the rights of a British subject it has been settled law for centuries that it is no defence to plead that the act was ordered or ratified by the Crown or the Government. And since at least the decision of this House in Johnstone v. Pedlar [1921] 2 AC 262 it has, I think, been equally clear that an alien in this country - other than an enemy alien - is in the same position. ... The other case which is, I think , clear is where the act complained of was done against an alien outside Her Majesty’s dominion. Since Buron v. Denman (1848) 2 Ex. 167, it has been accepted that if the act was ordered or has since been ratified by the British Government the English courts cannot give redress to that alien. He may enlist the support of his own government who may make diplomatic representations, but he has no legal remedy in England.”

Nissan v. the Attorney General [1970] AC (E) 179 @ 270E

With this broadly founded analysis all of their Lordships were in general agreement. To summarise : whilst the Crown is able to maintain a plea of ‘Act of State’ against aliens, both friendly and enemy alike, in respect of acts done outside the Realm and its dominions overseas ; within them the plea holds good only as against an enemy alien. The Crown cannot maintain such a plea as against British subjects, nor even friendly aliens, who are deemed to benefit from a so-called ‘local allegiance’.

The only eventuality thus left unaccounted for is in respect of British subjects abroad, that is as regards acts done by the Crown, or subsequently ratified by it, outside of the Realm and its dominions overseas. It was over this category of plaintiff that their Lordships’ views diverged at least somewhat. Lord Reid again considered :

“ ... it, in my view, be a strange result if it were found that those who have struggled and fought through the centuries to establish the rights of the subject to be protected from arbitrary acts of the King’s servants have been completely successful with regard to acts done within the realm, but completely unsuccessful in gaining any legal protection for British subjects who have gone beyond the territorial waters of the King’s dominions.”

Ibid. @ p.207G

Lord Pearce inclined to a similar view but left the matter finally open, though not before citing Salmond on Torts :

“ A British subject owes allegiance to the Crown in whatever part of the World he may be ; it seems therefore that the Crown cannot plead act of state against him, wherever the wrong may have been committed.”

14th. edn. (1965) p.607, as per Lord Pearce Nissan [1970] AC 179 HL(E) @ p.225A

However, whatever the necessity or otherwise to have decided the point in Nissan, the question does not arise for determination in the present matter; since, as I shall now seek to establish, the doctrine of ‘act of state’ is only ever applicable in civil law matters, and has no applicable manifestation in the criminal law sphere as a mater of legal theory, as derived from fundamental first principles of the law which distinguishes the two jurisdictions.

(4) Does the doctrine of ‘act of state’ apply in the criminal law ?

The perspective of Sir James Fitzjames Stephen.

The English case law authority, on the application of the doctrine of ‘act of state’ as per all of the above cited authorities for example, is entirely limited to the field of civil law, ie where plaintiffs have sued the Crown in some guise or other for damages resulting from the actions of Crown servants or agents, typically those of soldiers in wartime. There is no recorded instance of its application in a criminal cause or matter. However, it must be conceded that given the many procedural impediments and restrictions placed upon the bringing of a criminal prosecution in this country, against any servant or agent of the Crown for acts performed whilst in exercise of office, some of which I have already discussed elsewhere in relation to the present informations, it could be argued that that lack of case law authority is not then necessarily conclusive of any procedural bar on the application of the doctrine to the sphere of the criminal law in theory.

However, there are also few if any text authorities on the question, which my researches have to date revealed, and none in the contemporary period. So I derive my best analysis from an examination of the subject by that most renowned of 19th century jurists and writers, Sir James Fitzjames Stephen, in his classical work “History of the Criminal Law” (1883), in which at one point he at least sets out expressly to address the question “whether the criminal law applies to what have been described as acts of state?”

Although at the outset I should state unequivocally that I disagree roundly with almost everything that the learned author has here to say on the subject, a jurist and philosopher of note from the ‘man is shaped by his experience of the ravages of life’ school of thought, it should be noted and borne in mind that Sir James (who sat for two years as a judge on the Queen’s Bench) was the son of a famous colonial under-secretary of state for India in the later half of the 19th century, having himself been but recently returned from there as a legal member of the Council in India. One could not find a background more steeped in the blood of British imperialism and colonial rule.

In any event, my true reason for recalling the views of Sir James Fitzjames Stephen, in a work dated 1883, is because he speaks from the perspective of one who died long before the Great War (1914-18) broke out and therefore before the ravages of both the global conflicts which raged across the surface of the Earth entire in the 20th century and which has so shaped the modern jurisprudence on the laws of war and introduced the international humanitarian code on the law of armed conflict. In any event it is, or I submit ought to be, instructive to see how far we have come, as a global community of nations, as international humanitarians sharing a commonly adopted customary and conventional appreciation of the role for law on the limitation of the barbarity of total warfare, since the imperialist hay-days of the Raj.

Having defined the term ‘act of state’, pretty much as above, Sir James then continues :

“ When an act of this sort is an act of open war, duly proclaimed, there can be no doubt at all that it does not amount to a crime. However unjust a war might be, and however cruelly it might be carried on, there can be no question that the acts done in such a war by the orders of military and naval commanders do not fall under the notice of the ordinary criminal law. If, for instance, the least favourable account of the conduct of Napoleon in ordering Turkish prisoners to be put to death at Jaffa in March 1799, be accepted as true, and if Napoleon had been an English general, I do not think that either he or those who carried out his orders could have been convicted of murder. ... If England were invaded, and if, for military reasons, unarmed prisoners after resistance had ceased were to be put to death by an English general, I do not think that a court of law would inquire whether his conduct was proper or not. As soon as it appeared that what was done was an act of war the mater would be at an end.”

James F. Stephen “History of the Criminal Law” (1883) Vol.II @ p.62

Now it would be easy enough for me and others to dismiss out of hand these comments of Sir James as the rabid ravings of an imperialist reactionary 19th century colonialist. In fairness, however, as I have already intimated his perspective was not merely altered from ours by time and place but also as having predated the ravages of the two great world wars of the last century, and of the humanitarian efforts of international jurists and legislators alike in the wake of those great depravities to break decisively with the very kind of ‘hands off’ approach to the subject so boldly expressed by Sir James. Specifically, of course, it is the very purpose of the third Geneva Convention on the Treatment and Protection of Prisoners of War to outlaw the very sort of conduct which Sir James here describes as being non-cognisable or in the modern parlance non-justiciable.

Perhaps, Sir James’ perspective on the role of law in war can be better appreciated when he goes on to express in candid terms the practical reasoning of a genuine Victorian statesman, as follows :

“ The prerogative of the Crown to declare war is undoubted, and the very essence of war is that it is a state of things in which each party does to the other all the harm they possibly can. To so-called ‘laws of war’ are mere practices usually observed between contending armies, but they impose, at most, moral and not legal duties.”

Ibid. again @ p.62

There would surely be a seat warmed up for Sir James in President Bush’s war cabinet were he to be snatched forward in time as per a Hollywood movie! It is indeed most fervently to be prayed that the development of the English common law, as for instance portrayed by the Attorney-General at Nuremberg, and as demonstrated by the incorporation of such treaties as the Geneva Conventions and genocide etc., has once and for all time eradicated the philosophy of ‘bellum ne scire jus’ (war knows no law) in the jurisprudence of this country, a legal perspective more redolent indeed of Cicero even than Hitler. Sir James then continues by considering the position that would pertain in the situation of an armed conflict short of a declared state of war, as follows :

“ I think that if such acts are done by public authority, or, having been done, are ratified by public authority, they fall outside the sphere of the criminal law. I think, for instance, that, if Sir Edward Codrington had been indicted for the murder of Turks killed by the fire of his ships at the battle of Navarino, he would have been entitled to be acquitted as soon as it appeared either that he had acted under orders, or that his conduct had been approved.”

Ibid. @p.63

It is doubtless the case that, had he been put to it, Vice-Admiral Sir Edward Codrington would have maintained his claim, as he had reported it to their Lordships of the Board of the Admiralty at the time of his return from the Mediterranean, that he had only opened fire at Navarino in self-defence and after the Turks had both opened fire first and had also been seen to have readied “fire-ships“ for sending at the Anglo-Franco-Russian fleet. Whatever, the factual merits of that claim, it is submitted that should a similar class of event transpire today, the notion that a plea of act of state could be drawn down over the whole of the incident to prevent any further judicial examination of the lawfulness of the conduct of those concerned, is inconsistent with the propositions advanced by this nation in its modern relations with other states.

Let me posit the case of a British gunnery officer having consciously ordered the shelling of an Argentine military field hospital during the course of the Falkalnds-Malvinas conflict, an allegation of which according to later media reports was thoroughly investigated by Scotland Yard detectives. Is it seriously to be contended that so long as the officer concerned could present evidence in court from his commander-in-the-field that he had acted under orders or of a subsequent and retrospective ratification by superiors back in England, that he should then be able to invoke a plea of ‘act of state’ so as to terminate his trial ? Such a thing is, of course, nowadays unthinkable and would amongst other things be entirely inconsistent with the propositions on the criminal liability of individuals to the incorporated laws of war as was expressed by the representatives of the Crown before the trial of the major German war criminals at Nuremberg.

Sir James goes on to attempt to explain or justify his rationale for extending the application of the doctrine to the sphere of the criminal law thus :

“ I do not know that the principle has ever been tested by a criminal prosecution, but it has been repeatedly affirmed in civil cases : and if a man is not even liable civilly for an act of state, it would seem to follow a fortiori that he cannot be liable criminally.”

Ibid. @ p.64

He then goes on to consider certain of the relevant civil case law in order to develop this theme. he starts with Buron v. Denman (1848) in which Captain Denman had been held not civilly liable for his actions in burning down the barracoons of a Spanish slave trader on the West Coast of Africa, because his actions had been subsequently ratified and approved of by the Crown in the shape of a letter signed, as it happens, by Sir James’s own father, James Stephen the then Under-secretary of State for the Colonies. But the question is does the brief, all be it bold and simple, logic of Sir James’s explanation hold water on closer examination ?

(5) Does the doctrine of ‘act of state’ apply in the criminal law ?

Application of ‘first principles’.

We know from the rules dealt with above on the utility of the plea of act of state that it is good as against aliens, whether friendly or enemy, whenever the acts complained of are committed outside of the realm and dominions, as was the case in Buron v. Denman. However, does it follow so simply from this that it is impossible to suppose that someone could be criminally liable for acts, perpetrated principally against enemy aliens in the course of an armed conflict, when they are not even civilly liable ? It is contended that in order to properly examine the logic of that assertion it is necessary to go right back to the first principles of law, which on the one hand distinguish the function of the civil as from the criminal law, and which on the other differentiates the position of aliens from that of subjects as respects the application of the doctrine.

Dealing with the latter issue first, the subjects of the Crown are deemed in law to have both duties and rights arising from and in consequence of their allegiance to the Crown. Their duties include the responsibility to take up arms in defence of the realm whenever lawfully required to do so by the Crown in time of war, and to pay over such moneys as are lawfully levied in tax upon them, both in time of war and peace. Their consequential rights include the right to the personal enjoyment of their life, liberty and property unless dispossessed thereof by lawful means, which in practice means the right to the administration of justice according to law and by due process. It is in consequence of this right that there can be no place for the application of the doctrine of act of state as a against a subject of the Crown, for otherwise it would effectively oust the constitutional principle of government subject to the rule of law, for which the subjects have fought so long and hard to establish.

Moving on to consider the former issue now, the fundamental difference that distinguishes the functions of the civil and the criminal law is that civil law exists to administer justice in settlement of disputes as between party and party, and so to thereby protect the rights of individuals one from the other . Whereas, the criminal law exists to govern the conduct of society as a whole, and so protect the rights of the ‘commonweal’ thereby to maintain the peace of the realm entire. Accordingly, even the victim of a crime is, in the eyes of the law, merely a witness to the commission of the offence, rather than a party to proceedings seeking justice. It is the Crown that brings the prosecution, but acting on behalf of the commonwealth of the realm, and not on behalf of the victim. Thus, in legal theory at least, is a trespass of the criminal as opposed to the civil law, an offence rather than a mere tort, and thus an injury to the peace of the realm entire, and not merely a breach of the rights of any individual within it.

When seen in this light, it is respectfully submitted that Sir James’ reasoning appears seriously wanting. For it can now be better appreciated by the reader, I hope, that whether the person injured by the act of the Crown owes it their allegiance, is of little or no consequence, where the act was a crime, since the trespass thereby committed is against the commonweal as a whole, and the individual injured person is merely a witness to the offence. By contrast, if the plaintiff in a civil suit cannot establish, whether by virtue of their nationality or because of a theory of ‘local allegiance’ in consequence of their place of residence, that they personally benefit from a legal right, won for the subjects of the Crown against the arbitrary acts of kings down through the centuries, then in an action between party and party, they may well be unable to sustain their legal standing to permit them to bring their cause of action.

To say otherwise would be to assert that a servant or agent of the Crown, if in the course of what is an act of state, were to unlawfully and deliberately kill an enemy alien, for example whilst in legal custody, he could none the less not be prosecuted for murder, since the estate of that deceased alien could not maintain a suit against the Crown for damages in respect of that unlawful killing in such circumstances. To assert such a thing is to diminish the role and function of the criminal law in society to that of merely resolving disputes between parties, and to ignore entirely the interests of the commonwealth of the subjects in seeing to it that the offenders against the peace of the realm be held accountable for their crimes.

If the plea of ‘act of state’ cannot ever be maintained against a plaintiff who is a British subject, then it is submitted, in the words of Sir James Stephen, a fortiori, it must follow that it can never hold good in any criminal proceedings, where the prosecutor is always more than a mere single British subject, but rather is the Crown itself acting on behalf of all British subjects together. It is therefore, respectfully contended that, from first principles, the doctrine of ‘act of state’ can have no application to the criminal jurisdiction.

Robert L. MANSON
Peace Campaigner
Brynymor , Parrog
NEWPORT,
Pembrokeshire.

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