Potential Further Issues

8.3 APPLICATION of the DOCTRINE of ‘ACT OF STATE’ to the CRIMINAL JURISDICTION.

Contention : that by applying the doctrine of ‘Act of State’, well established in the laws of tort,

to the criminal law instead, the jurisdiction of the Court to deal with the matter is ousted.

175 What is an ‘Act of State’ ?

That most noteworthy of 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

176 What is the effect of an ‘Act of State’ ?

“ 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 per Fletcher Moulton LJ

177 Against whom does the Plea ‘Act of state’ lie ?

“ 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 per Lord Reid.

178 The only category of Plaintiff which this analysis left out was as respects the case of acts done by the Crown, or subsequently ratified by it, against British subjects who were at the time outside of the Realm and its Dominions overseas. As to this case Lord Reid observed :

“ ... it, in my view, would 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

179 Does the doctrine ‘Act of State’ apply to the criminal jurisdiction ?

Having thus set out the bare parameters of the nature of the doctrine as established on the cases in the area of the laws of tort, the question that follows is whether there is any reason why this doctrine, or something similar, could not apply the criminal law as well.

180 Sir James Fitzjames Stephen in his famous 19th Century work “History of the Criminal Law” (1883) having addressed the issue directly on principle, all be it admittedly “principle” as perceived from the perspective of a chauvinistic jingoistic Victorian imperialist, and having come to the conclusion that any act undertaken by military personnel, whether in war time or otherwise, once ratified by the public authority, was manifestly beyond examination in a court of law, then at least attempted to explain or rationalise his view point 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.”

James Fitzjames Stephen “History of the Criminal Law” (1883) Vol.II @ p.64

181 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) (as cited in Nissan see above), in which Captain Denman RN 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 ?

182 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 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.

183 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.

184 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.

185 To say otherwise would be to assert that if a servant or agent of the Crown, 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, on the same logic that would prevent the estate of that deceased alien being able to 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.

186 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. For a fuller examination of the law on this topic, including a further look at the perspective of Sir James F. Stephen, as above, see now the further exposition in Background Document RLM 010.

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