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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 1913 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Ndiku MUTUA, Paulo NZILI, Wambugu NYINGI, Jane Muthoni MARA & Susan NGONDI
|- and -
|THE FOREIGN AND COMMONWEALTH OFFICE
Mr Robert JAY QC, Sir Michael WOOD, Mr Alex RUCK KEENE,
& Mr Jack HOLBORN
(instructed by Treasury Solicitors) for the Defendant
Hearing dates: 7th – 14th April 2011
Crown Copyright ©
The Honourable Mr. Justice McCombe :
(B) Procedural Principles to be applied
"a. the Court must consider whether the Claimants have a 'realistic' as opposed to a 'fanciful' prospect of success: Swain v Hillman  1 All ER 91.
b. A realistic claim is one that is more than merely arguable: ED&F Man Liquid Products v Patel  EWCA Civ 472 at .
c. In reaching its conclusion the court must not conduct a mini-trial: Swain v Hillman.
d. This does not mean that a court must take at face value everything that a claimant says in statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED&F Man Liquid Products v Patel  EWCA Civ 472 at .
e. However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)  EWCA Civ 550.
f. Although a case may turn out at trial not to be really complicated it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on a summary judgment hearing. Thus the court should hesitate about making a final decision without a trial, even when there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical 100 Ltd  FSR 3."
Adding to this Sir Andrew Morritt C said,
"To that summary I would add a reference to paragraph 107 of the speech of Lord Hope in Three Rivers DC v Bank of England No 3  2 AC 1, 264 where he said:
"Conversely, I consider that if one part of the claim is to go to trial it would be unreasonable to divide the history up and strike out the other parts of it. A great deal of time and money has now been expended in the examination of the preliminary issues, and I think that this exercise must now be brought to an end. I would reject the Bank's application for summary judgment." "
"Statements of case which are suitable for striking out on ground (a) includes those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides (Harris v Bolt Burden  L.T.L., February 2, 2000, BAILII:  EWCA Civ 3037, CA). A claim or defence may be struck out as not being a valid claim or defence as a matter of law (Price Meats Ltd v Barclays Bank Plc  2 All ER (Comm) 346, Ch D). However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact (Farah v British Airways, The Times, January 26, 2000, BAILII:  EWCA Civ 3052, CA referring to Barrett v Enfield BC  3 W.L.R. 83, HL;  3 All ER 193). A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence (Bridgeman v McAlpine-Brown January 19, 2000, unrep., BAILII:  EWCA Civ 524, CA). An application to strike out should not be granted unless the court is certain that the claim is bound to fail (Hughes v Colin Richards & Co  EWCA Civ 266;  PNLR 35, CA (relevant area of law subject to some uncertainty and developing, and it was highly desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts))."
(C) The Background to the Claims in Outline
(D) The Constitutional Arrangements
"We do hereby authorise, empower, and command the Governor to do and execute all things that belong to his said Office, according to the tenour of these our Letters Patent and of any Orders in Council relating to the territories formerly known as the East Africa Protectorate, save in so far as any provision of any such Order in Council may be repugnant to any of the provisions of these Our Letters Patent, and of such Commission as may be issued to him under the Royal Sign manual and Signet, and according to such instructions as may from time to time be given to him, under the royal Sign manual and Signet, or by Order in our Privy Council, or by Us through one of Our principal Secretaries of State, and to such laws as are now, or shall hereafter be in force in the Colony."
"… subject always to any conditions, provisos, and limitations prescribed by any Instructions under Our Sign Manual and Signet, to establish such Ordinances not being repugnant to the law of England, and to constitute such Courts and Officers, and to make such provisions and regulations for the proceedings in such Courts and for the administration of justice, as may be necessary for the peace, order, and good government of the Colony."
The same article conferred a gubernatorial power of veto to legislation and Article 11 went on to provide as follows:
"We do hereby reserve to Ourselves, Our heirs and successors, full power and authority, and Our and their undoubted right, to disallow any such Ordinances, and to signify such disallowance through one of Our Principal Secretaries of State. Every such disallowance shall take effect from the time when the same shall be promulgated by the Governor in the Colony."
Article 12 reserved to the King an additional power on the advice of the Privy Council to make laws and ordinances for the Colony. Article 24 reserved for the King the power to revoke, alter or amend the Letters Patent. Article 22 provided:
"And We do hereby require and command all Our officers and Ministers, civil and Military and all other the inhabitants of the Colony, to be obedient, aiding, and assisting unto the Governor, and to such person or persons as may from time to time, under the provisions of these Our Letters Patent, administer the Government of the Colony."
"Governors, in the exercise of their legal powers, are required to observe Her Majesty's Instructions. They may be given by Royal Sign Manual and Signet or conveyed less formally through a Secretary of State by despatch or telegram. And beyond that – a matter of constitutional law it is well understood that the secretary of state is entitled to intervene in any manner of administration within a Governor's authority, whether legal powers are involved or not."
Throughout the papers there are examples of formal instructions issued pursuant to Article 3 of the 1920 Letters Patent and other examples of less formal instructions and advice sought and/or given by letter or telegram from the Secretary of State or officials. The relevant Secretary of State was at all material times the Secretary of State for the Colonies. That office was held by the following during the relevant period: Mr. Oliver Lyttleton (October 1951 to July 1954), Mr. Alan Lennox-Boyd (July 1954 to October 1959) and Mr. Iain Macleod (October 1959 to October 1961).
"103. The governor is the single and supreme authority responsible to, and representative of, Her Majesty. He is by virtue of his commission and the Letters Patent or Order in Council constituting his office, entitled to the obedience, aid and assistance of all military, air force and civil officers; but although having the title of captain General or Commander-in-Chief, and although he may be a military or air force officer senior in rank to the officer commanding the troops or air force, he is not, except on special appointment from Her Majesty, invested with the command of Her Majesty's regular forces in the colony. He is not therefore entitled to … take the immediate direction of any military or air operations, nor except in cases of urgent necessity, to communicate directly with subordinate military or air force officers without the concurrence of the officer in command of the forces, to whom any such exceptional communication must be immediately notified.
154. When a governor who is not actually in command of Her Majesty's forces shall have occasion to report upon, or bring under the consideration of the Secretary of State for the Colonies, matters which involve military or air force as well as civil considerations, which require the concurrence or decision of the Secretary of State for Air, he should if there is an officer commanding military or air forces in the colony, first communicate with that officer respecting the matters in question, and, having obtained that officer's opinion or observations thereon, he shall transmit the same, with his own report, to the Secretary of State for the Colonies, and shall in every case furnish the officer commanding with a copy of any report he may make involving military or air force considerations. If the officer commanding considers that these reports require the consideration of the Secretary of State for War or Air, he will forward the duplicates with his observations by the same mail which conveys the original report to the Secretary of State for the Colonies.
155. Similarly, under the Queen's Regulations, when the officer commanding the troops or air force in the colony desires to bring to the notice of his military or air force superiors any matter which may involve civil as well as military or air force considerations, he will first communicate with the Governor with a view to obtaining his opinion thereon. He will transmit with his own report any opinion or observations he may thus obtain; and will in every case furnish the governor with a copy of any reports he may make on subjects other than military or air force discipline and routine. If the Governor considers that these reports require the consideration of the Secretary of State for the Colonies, he will forward the duplicates in the same mail which conveys the original report to the Secretary of State for War or Air, as the case may be."
It is thought that the earlier versions of these Regulations, which were not available, were likely to have been in similar form in their material parts.
"(i) General Erskine is charged with the conduct of all military measures required to restore law and order in Kenya. For this purpose he will exercise full command of all Colonial, Auxiliary, police and Security Forces in Kenya.
(ii) The Governor of Kenya will retain full responsibility for the government and administration of the Colony, but will give priority to such military and security measures as General Erskine may consider essential…
(iii) In the event of any difference of opinion between the Governor and the C-in-C it will be the duty of both to report the matter to the Colonial Office and the War Office respectively."
On 7 June 1953 General Erskine arrived in Kenya to take up his command.
"(1) There shall be a Governor and Commander-in-Chief in and over Kenya who shall be appointed by her Majesty by Commission under Her Sign Manual and Signet and shall hold office during Her Majesty's pleasure.
(2) The Governor shall have such powers and duties as are conferred or imposed upon him by or under this Order or any other law, and such other powers and duties as Her Majesty may from time to time be pleased to assign to him, and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office (including the exercise of any powers with respect to which he is empowered or required by this Order to act in his discretion) according to such instructions if any, as Her Majesty may from time to time see fit to give him;
Provided that the question whether the Governor has in any matter complied with such instructions shall not be enquired into in any court."
It will be noted that references to the Royal Sign Manual and Signet, Orders in Council and the Secretary of State have gone. That Order was in turn substantially revoked by the Kenya Order in Council 1963 which made preparations for independence which was to follow later that year. Section 21 of that Order made provision for instructions to the Governor in this form:
"The Governor shall have such functions as may be conferred upon him by or under this Constitution or any other law and such other functions as Her Majesty may assign to him and, subject to the provisions of this Constitution and, in the case of functions conferred upon him by any law, subject to the provisions of that law or any law amending that law, shall exercise all the functions of his office (including any functions that are expressed to be exercisable by him in his discretion) according to such instructions as her Majesty may give him:
Provided that the question whether or not the Governor has in any matter complied with such instructions shall not be enquired into in any court."
Section 63 provided this:
"The executive authority of the Government of Kenya shall be vested in Her Majesty and, subject to the provisions of this Constitution, may be exercised on behalf of her Majesty by the Governor, either directly or by officers subordinate to him."
"forced … to construct increasingly unorthodox and implausible arguments in an attempt to fix the Crown in right of the UK with the alleged torts of another".
"…nothing in this Act shall:-…
(b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of His Majesty's Government in the United Kingdom…or affect proceedings against the Crown in respect of any such liability as aforesaid…"
"(1) On and after 12th December 1963 (in this Act referred to as "the appointed day") Her Majesty's Government in the United Kingdom shall have no responsibility for the government of Kenya or any part thereof.
(2) No Act of Parliament of the United Kingdom passed on or after the appointed day shall extend, or be deemed to extend, to Kenya, or any part of Kenya, as part of the law thereof; and on and after that day the provisions of Schedule 1 to this Act shall have effect with respect to legislative powers in Kenya."
Immediately prior to 12 December 1963 a new constitution for the independent Kenya was enacted by the Kenya Independence Order in Council 1963. For 12 months Her Majesty the Queen remained head of state of the independent Kenya and it was provided that the executive authority of the Government of Kenya was to be exercised on behalf of Her Majesty by a Governor-General who was "Her Majesty's representative in Kenya": see section 2 of the 1963 Order (enacting the Constitution of Kenya) and sections 31 and 72 of the Constitution. However, the new reality was that the Governor-General acted on advice of Kenyan ministers to the exclusion of ministers in the UK Government.
(E) Factual evidence
"In summary, the FCO's position is that the weight of the documentary evidence does not support the Claimant's case in any of its formulations. It is, however, the case that the contemporary documentation rarely addresses the question before the Court in direct form, in large part because the questions that the Claimants now pose are largely ones that were simply never considered at the time. It is therefore necessary to proceed by reference to the mosaic of evidence."
"It also seems to me that for that purpose the skills and knowledge of Professor Elkins will be likely to be of assistance to the claimants and the court, but the scope of what she can be asked for that purpose is very much narrower than the scope set out in the application notice dated 12th October. She will be an expert in the sense that in many different cases only an expert can identify relevant factual evidence and obtain access to it in a form that can be put before the court. For example in the present case, what documents once did exist and what documents still do exist is a matter of fact but only somebody with the relevant historical expertise and skills would be able to identify the facts. Insofar as Professor Elkins were to do that, and I quote that just as a matter of example, then she would not be giving opinion evidence for which leave is required pursuant to CPR 35.4. That is a different form of expert evidence. It seems to me that for an exercise of that kind she could give evidence under paragraph 2 of the order of 24th June.
I have not seen a draft of a report from her. It may be that, when the defendant has identified the issues as it is intended that the defendant should, or even possibly by reference to correspondence that has already taken place in this case, it may be possible for Professor Elkins to give other evidence which would be relevant to a Part 24 hearing. However, the parties will have clearly in mind that insofar as the hearing in January pursuant to Part 24 is concerned, the court is not at that point trying the issues, see for example, Swain v Hillman and Three Rivers (No 3) in the House of Lords. If, on the other hand, any of the issues are being tried as a preliminary issue, then of course the usual situation would apply as in any trial as to what is or is not admissible evidence. But at present it seems to me that the claimants do have an order which would permit them to put in evidence from Professor Elkins, but not evidence which is opinion as to the merits of the case or any particular issue. If evidence from her on opinion is required, then it would be under CPR 35, but I am not minded to give permission, at this stage in any event, for such evidence. It seems to me that the issues must be clarified before the court can decide whether opinion evidence is relevant or not."
In his judgment of 13 December 2010, Langstaff J said,
"Tugendhat J dealt with the position of evidence which the claimants wished to call. That was the evidence of Professor Elkins. She had written one of the seminal texts in 2005. He accepted that her evidence was relevant in identifying documents or other material, but should not be admitted as expert evidence (that is evidence of opinion) as to what was to be inferred from those documents taken as a whole. Because of her familiarity with documents, she is thus able to identify documents which are likely to be of greatest use in the arguments of the respective parties. She has a greater facility for this than do the parties themselves because of her great experience gained over some ten years of looking through archives in the course of which she researched a text in which she has an interest. Plainly she makes efficient the process of identifying documents and material. It is important that I should remind myself that that is essentially her role. Her evidence has no particular value in this case, other than to identify relevant documents or to identify relevant witnesses who may be able to give effective and important testimony. Her position is very different from that of a witness who has herself directly seen something happen. It is also very different from the traditional role of an expert witness."
"The Defendant's Skeleton Argument is a reflection of a piece of historical writing that results from a cursory and partial reading of the "much relevant documentation [that] has always been in the public domain in London or in Nairobi". This is in some ways understandable as the defendant's Skeleton argument was not informed by the ten years of sustained research necessary to have a comprehensive understanding of the fragmentary files that do exist.
The defendant has hand-selected documents that support a now, de-bunked thesis that the British colonial brutalities perpetrated during the Mau Mau Emergency were the result of one-offs, rather than any kind of systematic effort authorized at the highest levels of British colonial governance. A comprehensive and sustained reading of the documents publically available does not support the defendant's Skeleton Argument. "
To similar effect is paragraph 16 of Professor Anderson's second statement:
"I have had the opportunity to read the historical analysis presented in the Defendant's skeleton argument. The Defendant's analysis is, in places inaccurate, and significantly fails to set out the evidence in full on a number of important points. I am concerned that this will leave the Court with an impression of the underlying facts which is misleading. I would want to deal with the Defendant's analysis point by point but in the time available I am only able to offer general comment."
Dr Bennett says this in paragraph 4 of his second statement:
"At the outset I wish to state that I agree with Prof Anderson in that the historical analysis presented in the Defendant's skeleton argument is one sided and incomplete. Its authors appear to have reconstructed events on the basis of a selective and incomplete reading of the available documentation with little knowledge of the historical context and without full appreciation of the range of sources and evidence which are available, including surviving witnesses to the events themselves. I wish to deal with the key points raised in order."
(F) Main Features of the Emergency
"June 1954. The War Council mandated forced villagization throughout the Kikuyu reserves (i.e. Kimabu, Fort Hall, Nyeri and Embu Districts). By the end of 1955 1,050,899 Kikuyu were removed from their scattered homesteads and forcibly relocated into one of 804 villages, comprising some 230,000 huts. Emergency villages were highly restrictive: they were surrounded by barbed wire, spiked trenches, and twenty four hour guard. Villagers were forced to labor on communal projects."
The fourth and fifth claimants were subjects of the villagisation programme. It is alleged that the fifth claimant, the late Mrs. Ngondi was subjected to what is said to have been one of the regular rapes perpetrated by soldiers and white settlers on the village women. While in the villages, it is said, each of them was identified as a Mau Mau sympathiser and was taken to Gatithi screening camp, and other locations, where each was subjected to further abusive treatment.
"Screening. Detainees were screened at the time of arrest, and multiple times during the course of detention until the time of release (many detainees were screened multiple times before being sent to a detention camp). Screening was a form of interrogation that (a) determined a suspect's level of indoctrination; (b) gathered intelligence for military and police operations; and (c) determined a suspect's screening category. From the start of the Emergency until October 1956, detainees were classified as "white," "grey," or "black." Beginning in October 1956, the classification system was altered, with letters (e.g. Z, Y, YY, and XR) and numbers (e.g. Z1 and Z1). Civilian and military personnel carried out screening operations; these screening operations took place in numerous locations, including in gazetted and un-gazetted screening centres, police stations, detention camps, and home guard posts. Detainees were required to labor whilst in the Pipeline. Detainees who refused to labor were sent to a Special Detention Camp, where they could be forced to labor."
Screening, therefore, appears to be relevant to all the claims.
"Dilution Technique. John Cowan, senior Prisons Officer of the Mwea Camps, initially conceived of the dilution technique in December 1956 at Gathigiriri Camp, one of the five camps on the Mwea plain, comprising what would be known as the Mwea camps. This technique involved isolating small numbers of detainees from the larger group, and systematically using force, together with confessed detainees, to exact compliance and cooperation. In March 1957, the dilution technique was systematized in the Mwea Camps under the leadership of Terence Gavaghan, and its methods disclosed to the Colonial Office. The Colonial Secretary approved of the dilution technique, along with the use of "compelling force." "
Her description of the "refinement" is in these terms: 
"Cowan Plan. Instituted in Hola Camp, the Cowan Plan was derived from the dilution technique. As with the Mwea Camps, the dilution technique was targeted at small batches of detainees (approximately 20) who were to be removed from the larger group and forced to work on the Hola irrigation scheme. "Should they refuse to work they would be manhandled to the site of work and forced to carry out the task", Cowan directed. The only significant difference between the earlier dilution technique practiced in the Mwea Camps and that which Cowan outlined in the Cowan plan was that the latter was written for internal distribution. The Cowan Plan led directly to the deaths of 11 detainees at Hola in March 1959."
"22. Participation of the British Army in Screening and Interrogation. The defendant's Skeleton Argument, paragraph 229, claims that there is no substantial evidence showing British army involvement in screening "other than in the most cursory inspection of passes and the like". It also suggests in paragraph 234 that there is no evidence to suggest that MIOs were attached to the camps. In addition, they deny that the British Army participated in the work of the MMIC or that MIOS and Special Branch jointly toured camps in order to screen and interrogate detainees.
23. In the brief time I have had to review the Hanslope Disclosure, the documents suggest that the defendant's claims as outlined in paragraph 229 and 234 are incorrect. I shall here refer to the witness statement of Dr. Huw Bennett who ably outlines the precise documents that, with the minimal of time, he has specifically identified that place the Army and its MIOs and FIAs in an active role in the screening of Mau Mau suspects and with an active role in the camps. It is important to note that this documentary evidence supports the extensive oral evidence from multiple sources that I collected over the course of my ten years of research. The witnesses I have interviewed, including former senior British colonial officers, gave testimony of the British Army actively participating in screening, or interrogation in screening centres, villages and detention camps.
24. In addition, I interviewed detainees who themselves spoke of the presence of "Johnnies" and "Ng'ombe" during their screening both within and outside of the detention camps, including the screening that took place in the MMIC. In effect, from the oral testimony from former detainees, as well as from some former British colonial officers, the "Johnnies" and "Ng'ombe" were part and parcel of the screening ordeals, both within and outside of the camps. " (Underlining in the original)
"The Dilution Technique
40. Baring and the Colonial Office made deliberate efforts to render the detention camp Pipeline more systematically brutal over time. This is evidenced by the systematic violence of the dilution technique, which culminated in the Cowan Plan, as evidenced in my first witness statement. The dilution technique as practised in the Mwea Camps was known to involve brutalities, as clearly noted by the Attorney General in a document that the Colonial Office files. This is also cited in my first witness statement.
41. The Kenya Government and the Colonial Office approved of the dilution technique, despite knowing that a detainee had been killed in Gathigiriri Camp as a result of the dilution technique. This death is cited in Defendant's Skeleton Statement, paragraph 269(g).
42. The recent Hanslope Disclosures provide an impressive array of documentation on the Mwea Camps, which outline clearly the consistent level of brutalities and crimes committed by British colonial officials using the dilution technique. These brutalities were committed after the death at Gathigiriri Camp and after the approval of the dilution technique by the Colonial Office. Given the limited time that I have had to review the Hanslope Disclosures, it is striking that the documents on the Mwea Camps and the dilution technique reveal a level of brutality that expands greatly upon my previous knowledge of gross irregularities in the camps."
I refer further to the document from the Attorney-General of Kenya later in this judgment.
(G) The Quark Case
"The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order to any other law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State."
SGSSI is a British Overseas Territory, now constituted under the British Overseas Territories Act 2002, but its constitution is apparently still governed by the 1985 Order. The similarity of section 4 of the Order to Article 3 of the 1920 Letters Patent will be noted.
"Any constitution, whether of a state, a trade union, a college a club or other institution seeks to lay down and define, in greater or lesser detail, the main offices in which authority is vested and the powers which may be exercised (or not exercised) by the holders of those offices. Thus if a question arises on what authority or pursuant to what power an act is done, it is to the constitution that one would turn to find the answer. Here, it is plain that the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom has no power or authority under the constitution of SGSSI (the 1985 Order, as amended) to instruct the Commissioner. Such power and authority can be exercised only by the Queen, who in this context is (and is only) the Queen of SGSSI. It is my view correct in constitutional theory to regard the Secretary of State as her mouthpiece and medium. This analysis points, in my view strongly, to the correctness of the Secretary of State's submission, … ."
Having examined the earlier authorities Lord Bingham decided that they did not determine the argument one way or the other, but he considered that the cases assisted the Secretary of State's argument to the extent that they showed that the existence of the exercise of powers by a paramount government did not preclude the recognition of the acts of a subordinate government as acts of the Crown in right of that subordinate government; and, moreover, in none of the cases had it been found necessary to examine facts pertaining to the motivation of the paramount government. Lord Bingham noted that the Court of Appeal had decided this question in the claimant's favour observing that there was considerable reservation of powers under the 1985 Order to the Secretary of State. Lord Bingham continued:
"… But this is not so. There is a considerable reservation of powers to Her Majesty, as Queen of SGSSI, but none to the Secretary of State. It went on to suggest, at para 50, borrowing the language of Laws LJ in Bancoult, that "it would be an abject surrender of substance to form to treat the instruction given by the Secretary of State on behalf of Her Majesty as one given in right of [SGSSI]". But I do not think the issue is properly to be regarded as a contest between substance and form: it turns on identifying the correct constitutional principle. While the court accepted (para 51) that the reason why a particular decision is taken cannot be determinative of the construction of the instruction, it held that the instruction had nevertheless to be construed in the context of a factual matrix which included the political and diplomatic context of the instruction. Here, there is no issue of construction. What is in issue is the constitutional standing of the instruction. The factual matrix might, I accept, be relevant if there were in a given territory no government, or no government worthy of the name, other than the United Kingdom government. There would be no government other than that of the United Kingdom Government on whose behalf an exercise of executive power could be made, no other government in right of which the Queen could act. But that is not this case. Here, there is nothing to displace the initial inference that the instruction was given by Her Majesty, through the Secretary of State, in right of the government of SGSSI."
"…The test for whether someone exercising statutory powers was exercising them as a United Kingdom public authority is in my opinion whether they were exercised under the law of the United Kingdom. In this case they were not. The acts of the Secretary of State in advising Her Majesty and communicating her instructions to the Commissioner had legal effect only by virtue of the Order, which is the constitution of SGSSI and not part of the law of the United Kingdom. The court is neither concerned nor equipped to decide in whose interests the act was done. …"
Lord Hope of Craighead's opinion is encapsulated in paragraphs 75, 76 and 79 of the speeches where he first said this in respect of the "substance versus form argument" that had commended itself to the Court of Appeal:
"In my opinion this construction places too much weight on the references in section 5 and elsewhere in the 1985 Order to the Secretary of State and too little weight on the references to Her Majesty. And the conclusion that it led to overlooks the constitutional reality. It was the constitution of SGSSI that provided the vehicle for the instruction. And it was the constitution of SGSSI that established the legal framework within which the instruction was given and which required the Commission to give effect to it."
Lord Hope continued:
"If one approaches the 1985 Order, as one should, as an instrument which sets out the constitution of SGSSI, the references that it makes to Her Majesty fall to be read as references to Her Majesty in the exercise of her rights as Head of State and Queen of the territory unless there is a clear indication to the contrary. As I have already said, that is the meaning that one would give to the first reference that is made to Her Majesty in section 5(1). I can see no good reason for altering the meaning of the phrase when she is referred to again in the same subsection or elsewhere in the 1985 Order just because the references on these occasions are to her giving instructions through a Secretary of State. These references reflect the constitutional reality that the government of SGSSI is subordinate to that of the United Kingdom. It is subject to instruction from time to time as to what it can and cannot do. But the constitutional reality is that, although the government of SGSSI is a subordinate government, it is nevertheless the government of the territory. The Secretary of State is not acting, when Her Majesty gives instructions under section 5(1), on behalf of her Majesty as Head of State of the United Kingdom. What he is doing is providing the vehicle by which, according to the constitution of SGSSI, instructions are given and other acts done by Her Majesty as its Head of State. "
Finally, His Lordship addressed the question of the motive with which the instruction had been given and said:
"But there is an underlying and, as I see it, an irremediable flaw in the argument. The reasons of policy that led to the giving of the instruction, or the motives that lay behind it, are irrelevant. The question is simply in what capacity was the instruction given by Her Majesty. The constitutional machinery provides the answer to it. It was that machinery that was being used to give the instruction. So it was in right of her position as Head of State of SGSSI that it was given by Her Majesty."
"Far from being an anterior question, it is in this context an irrelevant question".
Lord Nicholls held that the claimant's damages claim failed simply because the instruction had not been incompatible with Article 1 of the First Protocol. He considered that if the instruction had been incompatible the capacity in which it had been given would not have afforded a defence. In his view the only real issue was whether or not a convention right had been breached: see paragraph 47 of the speeches.
"This last clause from Roberts-Wray should be clarified. The 'intervention' referred to occurs within rather than without the existing constitutional structures. Thus, the Governor is entitled to seek political direction from the SofS for the Colonies (and in relation to matters of high importance the latter by constitutional convention might well seek similar political direction from Cabinet colleagues, either formally or informally), or may receive such direction unsolicited. The present litigation is strewn with examples of such occurrences.
The 'Secretary of State' referred to at page 339 of Roberts-Wray was, by constitutional convention, the SofS for the Colonies. Not merely did he act through the Kenyan Constitution, in constitutional terms he was exercising her Majesty's reserve powers under the Constitution. On House of Lords authority, the SofS for the Colonies was therefore discharging Her Majesty's governmental functions in right of the Colony.
The basic point is this. We are looking here at a hierarchy of instructions/direction/advice emanating from London, with formal Royal Instructions at the top tier and informal advice from the SofS for Colonies at the bottom, with several degrees of formality in between. However, the essential constitutional principle remains the same: that the executive decision, whether made under instruction from London or not, is always the decision of the Governor acting on behalf of Her Majesty in right of Kenya; and, furthermore, that the instruction from London, in so far as it may cause that decision to be made, is also always given in right of Kenya (and in so far as it does not, it has no legal force)."
"…But Her Majesty exercises her powers of prerogative legislation for a non-self-governing colony on the advice of her ministers in the United Kingdom and will act in the interests of her undivided realm, including both the United Kingdom and the colony: see Halsbury's Laws of England, 4th ed reissue, vol 6, para 716:
"The United Kingdom and its dependent territories within Her Majesty's dominions form one realm having one undivided Crown … To the extent that a dependency has responsible government, the Crown's representative in the dependency acts on the advice of local ministers responsible to the local legislature, but in respect of any dependency of the United Kingdom (that is, of any British overseas territory) acts of Her Majesty herself are performed only on the advice of the United Kingdom Government."
Having read Professor Finnis's paper, I am inclined to think that the reason which I gave for dismissing the cross-appeal in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs  1 AC 529, 551 was rather better than the reason I gave for allowing the Crown's appeal and that on this latter point Lord Nicholls of Birkenhead was right.
Her Majesty in Council is therefore entitled to legislate for a colony in the interests of the United Kingdom. No doubt she is also required to take into account the interests of the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom ministers, to prefer the interests of the United Kingdom."
In his paper Professor Finnis notes (plaintively) that the passage from Halsbury cited here by Lord Hoffmann had been specifically approved by Sir Robert Megarry V-C in Tito v Waddell (No 2)  Ch 106, at 231 and 306 and in the Indian Association of Alberta case  QB 892, 921-2, each of which had been cited in Quark without reference to these passages. All this, however (as the late Walton J would doubtless have said) is "nihil ad rem", since Quark is binding on me.
(H) (1) Transfer of liabilities of the Colonial Government on independence
"Subject to the provisions of this Ordinance, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject-
a) in respect of torts committed by its servants or agents;
b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and
c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this sub-section in respect of any act or omission of a servant or agent of the Crown, unless the act or omission would, apart from the provisions of this Ordinance, have given rise to a cause of action in tort against that servant or agent or his estate."
Section 34(1) of the Ordinance was in these terms: 
"(1) Nothing in this Ordinance shall apply to proceedings by or against, or authorise proceedings in tort to be brought against, Her Majesty in Her private capacity.
(2) Except as therein otherwise expressly provided, nothing in this Ordinance shall- …
…b) authorise proceedings to be taken against the Crown under or in accordance with this Ordinance in respect of any alleged liability of the Crown arising otherwise than in respect of Her Majesty's Government in the Colony, or affect proceedings against the Crown in respect of any such alleged liability as aforesaid; …"
"Where a territory became a republic on independence, the independence Order in Council transferred to the republic the property assets, and the rights liabilities and obligations under the law of the territory, of the Crown in right of the government of the territory; this was not necessary where the territory continued under the Crown after independence".
A footnote adds:
"Contrast eg Kiribati Independence Order 1979 (SI 1979/719), ss 9 and 10, with Solomon Islands Independence Order 1978, which includes no such provisions. Kiribati became a republic on independence, whereas Solomon Islands retained Her Majesty as Head of State".
"(1) All rights, liabilities and obligations of-
a) Her Majesty in respect of the Government of Kenya;
b) the Governor-General or any public officer in respect of the Government of Kenya on behalf of that Government; and
c) the Government of Kenya
shall on and after 12th December 1964 be rights, liabilities and obligations of the Government of the republic of Kenya.
(2) In this section, rights, liabilities and obligations include rights, liabilities and obligations arising from contract or otherwise (other than any rights referred to in section 25 of this Act.)"
The Kiribati Independence Order 1979 s.10 provided this:
"(1) All rights, liabilities and obligations of-
a) Her Majesty in respect of the Government of the Gilbert Islands; and
b) the Governor of the Gilbert Islands or the holder of any other office under the Crown in respect of the government of the Gilbert Islands on behalf of that Government, shall, as from Independence Day, be rights, liabilities and obligations of the Republic and, subject to the provisions of any law, shall be enforceable by or against the republic accordingly.
(2) In this section, rights, liabilities and obligations include rights, liabilities and obligations arising from contract or otherwise (other than any rights referred to in the preceding section and any rights, liabilities or obligations of Her Majesty arising under any treaty, convention or agreement with another country or with any international organisation."
"The rights, liabilities and obligations of the colonial government before 12th December 1963 remained intact not having been transferred from the Colonial Administration to the dominion Government or assumed by the Government of the Republic of Kenya. There can be no logical or legal reason for the independent government to assume liabilities not otherwise imposed by the 1963 Act."
"The Court's task in assessing this issue is a difficult one because whilst the answer is to be found in the common law, common law has never previously been asked to address this question. The Court is in uncharted territory".
I turn to this question now, although there remains an issue of limitation under Kenyan law, as the matter stood with regard to these claims in 1963, to which I return below.
"a. Neither the Kenya Independence Act 1963, nor any other UK statute or instrument, addresses the question of the succession of liabilities of the Colonial Administration for assaults against the Claimants. The question must therefore be resolved under the Common Law.
b. A source of the common law is customary international law, including principles on state succession.
c. In accordance with the principles of customary international law, private rights enjoyed by the local population are to be preserved as far as possible in all cases of state succession.
d. In accordance with the principles of customary international law relating to the creation of a new state in the context of decolonisation (the successor state), a liability of the colonial administration of the predecessor state in respect of tortious acts committed against the native population devolves to the predecessor state upon independence. Therefore, under the common law, the liability to compensate the Claimants for injuries inflicted by the Colonial Administration of the Crown in right of Kenya devolved to the Crown in right of the United Kingdom upon the independence of Kenya.
e. This conclusion is supported by the principle that English law should be interpreted as far as possible to ensure that the United Kingdom is not in breach of an international obligation. If the liability to compensate the Claimants for injuries inflicted by the Colonial Administration of the Crown in right of Kenya were not to devolve to the Crown in right of the United Kingdom upon the independence of Kenya, then the United Kingdom would have committed a breach of the European Convention on Human Rights and a breach of its obligations in customary international law.
f. By virtue of the foregoing, the Claimants are entitled to pursue claims for damages in tort against the Crown in right of the united Kingdom pursuant to section 2 of the 1947 Act, and the exception in section 40 (2) (b), read consistently with the principle of legality, does not apply because the "alleged liability of the Crown" arises "in respect of His Majesty's Government in the United Kingdom." "
"…the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament". (Emphasis added)
" [i]t has never been laid down that the conquering State takes over liabilities for wrongs which have been committed by the Government of the conquered country and any such contention appears to us to be unsound in principle."
"1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law."
(See also Halsbury's Laws of England 5th Edn. Vol. 61 paragraphs 2 - 9.) To establish a rule of customary international law (such as that for which the claimant contends) it needs to be shown that the relevant state practice is "both extensive and virtually uniform" (North Sea Continental Shelf Cases, (1969) ICJ Reports p.3, 44 paragraphs 74 and 77.)
"In the context of decolonialisation it has been accepted by predecessor states that liabilities for tortious acts of their colonial administrations in respect of the suppression of an insurrectional movement should be opposable to the predecessor state upon independence".
"First of all, this country's (Algeria's) accession to independence was preceded by a prolonged conflict during which a certain number of measures were taken by the French government in order, specifically, to prevent such accession to independence. It could not be envisaged, regardless of what the two countries' relationship might be in the future, that the Algerian authorities would agree to take over the obligations contracted in this way by the French state. Consequently, it is normal to consider that the litigation arising out of these measures, taken in order to quell the insurgency movements, does not involve the Algerian state pursuant to the Protocol. This is in line with a distinction made long ago by international law theorists who, whilst they accept that the successor State must take over part of its predecessor's liabilities, always exclude debts known as war or regime debts, that is to say debts that were incurred in order to prevent annexation or to oppose emancipation."
"[T]he totality of the rights and duties contracted by France on behalf of Algeria was transferred to the Algerian State on the date of its accession to independence. Thus, all the acts which, whoever may have been their authors, had been performed by the French authorities in the exercise of the powers which have now devolved upon the Algerian authorities, must be regarded as coming, at the date of independence, within the legal order of the new State. In cases of exces de pouvoir, actions brought against such acts concern the Algerian state and do not, therefore, fall within the competence of the tribunals of the French state. In so far as concerns contentious litigation regarding, in particular, claims for payment of sums a right to which is conferred by the legislation and regulations in application of which acts of the above-defined nature were performed, and claims for the reparation of loss due to faults committed by the authorities which took the action, the totality of the duties which, under these various heads, would have fallen on France on behalf of Algeria was transferred to Algeria on the day of its independence. Therefore actions regarding disputes in this second category must similarly be regarded as concerning the Algerian State and as having, in consequence, ceased to pertain to the jurisdiction of the French tribunals. However, the application of these general rules of interpretation would not have the effect of involving the transmission to the Algerian authorities of actions concerning either the measures taken especially and directly with the aim of checking any insurrectionary movements or acts which, by their nature and in particular because they concern public services which remain French or agents belonging to the French public service or seconded to it, produce their final effects within the French legal order."
"It has been taken for granted that a successor State is not liable for the delicts of its predecessor, but what remains unclear is whether the reference is to international delicts giving rise to State responsibility, or to torts in municipal law. Although a tort in municipal law may constitute an international delict, this is not necessarily the case; conversely, an international delict may not amount to municipal law tort. The failure to characterize the event properly has produced a defective jurisprudence on the part of international and municipal tribunals which have pronounced upon the effect of State succession upon international responsibility."
"…in pursuance or execution or intended execution of…any public duty or authority, or in respect of any alleged neglect or default in the execution of any such…duty or authority…".
So, the argument ran, these claims were already statute barred in Kenya at the date of independence and would not have survived so as to pass to either the new government of Kenya or (a fortiori) to the UK Government.
(I) (4) The July 1957 "Instruction"
"…the Claimants (and in particular the Third Claimant) reserve their position to argue that the Government of the United Kingdom is liable for the assaults perpetrated as a result of the application of the dilution technique on or after 16 July 1957. On or after that date all such assaults and in particular the Hola incident took place pursuant to the instruction issued by the Secretary of State for the Commonwealth [sic Colonies] in the circumstances particularised at paragraphs 15-19 above authorising the use of overwhelming force to punish recalcitrant detainees during the dilution process. Such force as was authorised included repeated beatings of detainees, on occasion to unconsciousness, knocking detainees to the ground and forcing sand into their mouths".
A copy of that part of the pleading containing paragraphs 15 to 19, as referred to here, is annexed as Appendix A to this judgment. A set of copy documents upon which the claim is based appears as Appendix B .
(J) (2) and (3) Liability of the UK Government for "having encouraged, procured acquiesced in or otherwise having been complicit in "a tortious system": (a) through "the British Army"; (b) through the Colonial Office
"If one man intentionally applies force directly to another, the [claimant] has a cause of action for assault and battery, or if you so please to describe it, in trespass to the person…"
He went on to say,
"…If he does not inflict injury intentionally but only unintentionally, the [claimant] has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care."
"…concerted action is required. Where one person instigates another to commit a tort they are joint tortfeasors; so are persons whose respective shares in the commission of a tort are done in furtherance of a common design…".
In Petrie v Lamont (1842) Car. Marsh. 93, 96 Tindal CJ said,
"All persons in trespass who aid, counsel, direct or join, are joint trespassers".
Somewhat fuller is that statement of Sargant LJ in The Koursk  P 124, 159 to this effect:
"The definition of joint tortfeasors in Clerk and Lindsell on Torts, 7th ed., pp. 59, 60, is as follows: "Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design. 'All persons in trespass who aid or counsel, direct, or join, are joint trespassers.' If one person employs another to commit a tort on his behalf, the principal and the agent are joint tortfeasors, and recovery of judgment against the principal is a bar to an action against the agent. But mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be concerted action towards a common end." And the discussion in Salmond on torts, 5th ed., p. 84, is to much the same effect. Stress is laid there on the feature that there must be responsibility for the same action, the imputation by the law of the commission of the same wrongful act to two or more persons at once. The examples given are under three heads: agency, vicarious liability and common action."
"In order to succeed on this formulation, the Claimants – having carefully defined the 'system' in which the 'British Army' allegedly participated – would need to demonstrate that:-
(i) Their revised pleaded case raises a cause of action with a real prospect of success.
(ii) The 'British army' did participate in the creation of such a system and/or performed acts which were both necessary and sufficient to amount to the creation of a 'system'.
(iii) The 'British Army' and the Colonial Administration, acting through their servants or agents, were pursuing a common object or goal in creating the posited 'system', namely a 'system' whose essential feature was the infliction of violence.
(iv) The perpetration of assaults of this nature was an integral and necessary part of the posited 'system', in the sense of flowing directly from statements of policy or decisions made by colonial Administration, which statements or decisions were themselves tortious (the tort would be complete as soon as damage was caused, and not before).
(v) The 'British Army' had a direct participation in (iii) above, in the sense of sharing in the making of such policies or decisions.
(vi) The 'British Army' was acting in right of the UK in participating in the creation of such a 'system'.
(vii) The existence of a direct casual link between the posited 'system' and the individual acts of assault perpetrated on the Claimants."
"…every officer in the police and in the Army should stamp at once on any conduct which he would be ashamed to see used against his own people… ".
"Despite knowing that their tact[ic] of asking for an end to brutalities was not working and, in fact, the level of brutality only increased over the course of the Emergency, as the recent Hanslope Disclosure supports, Erskine, Baring and Lennox Boyd never sought any other course of action. In fact, nearly all of their public declarations to end the brutalities took place early in the Emergency, that is during 1953. These declarations were made prior to the overwhelming amount of documentary and witness evidence available with regard to brutalities perpetrated by members of the British colonial administration and security forces".
"13. The FCO claim in paragraph 206 [of their skeleton argument] that General Erskine was only responsible for "the conduct of all military measures", therefore excluding detention camps, screening camps and other policy areas in "the civilian sphere". This distinction between the civil and military spheres is based upon a fundamental misunderstanding of the nature of counter-insurgency conflict, where the military are normally deeply involved in apparently civilian spheres, simply because the civilian agencies cannot function on their own. This was the case in Kenya, where General Erskine and his subordinates frequently exerted a decisive influence over civilian policy areas.
14. More specifically, the War Council, created in 1954, in which Erskine and his successors played a central role, approved military and civilian operations, including screening, interrogations, villagisation and detention policies in the knowledge that widespread abuses were ongoing. In addition, the Army played a central role in the Provincial and District Emergency Committees which I outline at para. 7 to 9 of my first statement. The records of the War Council, the Provincial and District Emergency Committees and the Intelligence Committees provide numerous examples to demonstrate significant military influence over civilian policy during the Emergency. Furthermore, military and civilian intelligence structures were intertwined to the point that Military Intelligence Officers were embedded in Police Special Branch but remained under the Military Chain of Command (a fact confirmed by Frank Kitson in his interview with the FCO's lawyers). I explain this in more detail below.
15. It is also of central importance to note that Erskine and his military successors retained full operational control over all Kenya security forces, regardless of where they were operating, throughout the Emergency. This included both the Police Special Branch and the Home Guard, both of whom were known by the Army to abuse detainees during interrogations and screenings."
As for the supposed cessation of army involvement in November 1956, Dr. Bennett says:
"At para 220 the FCO assert that the British Army ceased to play any role after 17 November 1956. This is incorrect. Whilst military operations came to an end on that date, the British Army continued to play a central role in the counter Emergency throughout the Emergency as follows:
i) The British Army retained ultimate operational control over all security forces throughout the Emergency, even after Police and Administration assumed responsibility for law and order in late 1956.
ii) The British Army continued to play a central role in the War Council and Provincial and District Emergency Committees and participated in all major decisions taken at each level.
iii) The British Army military intelligence operation worked hand in glove with Kenya Special Branch, including screening and interrogations in centres and detention camps. The Army had ultimate responsibility for intelligence policy.
iv) The British Army worked with Kenyan special forces on counter insurgency operations involving "pseudo-gangs". "
"We cannot, however, conclude this judgment without drawing attention once more to the activities of the so-called 'screening teams'. … From this case and others that have come to our notice it seems that it may be a common practice when a person is arrested in the commission of a terrorist offence, or on suspicion of such offence, for the police to hand him over to the custody of one of these teams where, if the accounts given are true, he is subjected to a 'softening up' process, with the object of obtaining information from him. To judge by the same, the function of a 'screening team' is to sift the good Kikuyus from the bad; but if that was its only function, there could not have been, in the instant case, any reason to send the appellant to such a team for he had been arrested in the actual commission of an offence carrying capital punishment. What legal powers of detention these teams have or under whose authority they act we do not know. The power to detain suspected persons given in Emergency Regulation No.3 would not seem to be exercisable in this case and the right of a police officer to detain in police custody pending trial … does not authorise the handing over of the person detained into some other custody. It has certainly been made clear to us by the disclaimer made to Mr Brookes for the Crown and respondent that the Attorney General is not in any way responsible for screening teams and there are some indications that they are not under the control of the police but are under administration officers. But, whatever the authority responsible, it is difficult to believe that these teams could continue to use methods of unlawful violence without the knowledge and condonation of the authority. Such methods are the negation of the rule of law which it is the duty of courts to uphold, and when instances come before the courts of allegations that prisoners have been subjected to unlawful criminal violence, it is the duty of such courts to insist on the fullest enquiry with a view to their verification or refutation."
Secondly, in Criminal Case No. 240 of 1954 (R v Muiru & ors) (10 December 1954) Cram J said:
"Looking at the evidence in this case that there exists a system of guard posts manned by headmen and chiefs and these are interrogation centres and prisons to which the Queen's subjects whether innocent or guilty are led by armed men without warrant and detained and as it seems tortured until they confess to the alleged crimes and are then led forth to trial on the sole evidence of those confessions, it is time that this Court declared that any such system is constitutionally illegal and should come to an end and these dens emptied of their victims and those chiefs and headmen exercising arbitrary power checked and warned."
"Governor Baring unsuccessfully tried to suppress publication of the judgment. When the judgment was published it attracted widespread attention in the United Kingdom and an investigation was ordered in Kenya, presided over by Judge Holmes. The Holmes Enquiry as this investigation became known, produced its report in two parts, dealing with the specific issues raised in the Cram judgment arising from the Ruthagathi case, and more generally with the operations of African Courts. As mentioned above, the President of the East African Court of Appeal subsequently wrote to the Governor on 11 March 1955 and asked for Part 1 of the Holmes report not to be published on the grounds that:
"This report as it stands will give the impression to the casual reader in Kenya that the criticisms of the judge in criminal case No. 240 of 1954 (Regina v Muiri & Others) have been answered, when in fact they have not; and will not satisfy the trained critic in London who will detect at a glance that no really searching enquiry has been made."
As a result, Part 1 of the Holmes Report was not published, with the agreement of the Secretary of State for the Colonies."
"It is averred that the Colonial Secretary and/or officials within the Colonial Office, encouraged, procured, acquiesced in or were otherwise unlawfully complicit in the torture and ill treatment inflicted upon the Claimants thereby making them liable as joint tortfeasors and the Defendant vicariously liable for the same torts…".
"It is averred that the acts of suppression set out in (c) above were all undertaken in the knowledge and with the intention that the system of abuse would be maintained".
"In addition to the Colonial Secretaries, several members of the Colonial Office were in direct, daily correspondence with the Kenya administration and members of the British government during the time of the State of Emergency…"
(K) (5) Negligence
"…it is averred that the Defendant owed a duty of care to take all reasonable and necessary steps to prevent the systemic use by the British Army and/or Colonial Administration of unlawful violence in the form of excessive force by members of the security forces responsible for enforcing law and order in the course of the Emergency, including in the detention camps, prisons and screening centres operated by and/or under the Colonial Administration. The said duty arose in law by reason of the Government's ultimate responsibility on behalf of the Queen for the Colony of Kenya and for the discharge of her duty of protection towards Her subjects therein. Further and/or alternatively it is averred that the Defendant assumed a responsibility for the Claimants by virtue of (i) the Government's ultimate responsibility as particularized above and/or (ii) their knowledge as to the abuses and/or (iii) their power to prevent such abuses."
"As a point of departure for any proper analysis of this claim, it needs, with respect, to be reformulated somewhat less ambitiously because:-
(i) it is not arguable that there could be a duty to take 'necessary steps'.
(ii) it is not arguable that the British Army systematically used unlawful violence vis-à-vis the Claimants, still less that it did or could have done so in any circumstance 'in the form of excessive force by members of the security forces'. These members, as the Claimants accept were servants or agents of the Colonial Administration.
(iii) the two formulations of the posited duty collapse into the first. It is not arguable that HMG in right of the UK voluntarily assumed responsibility for anything: it did nothing other than to create the basic constitutional structures for the Colonial Administration in the first place, and the matters relied on by the Claimants as suggesting that it did are only logically capable of being relevant to a duty arising on account of the Government's 'ultimate responsibility'. Further, such a voluntary assumption would require proof of actions taken in Kenya in right of the UK: any action was clearly in right of Kenya."
It is suggested in paragraph 349 that the claim could only be formulated thus:
"that HMG in right of the UK owed a duty to take reasonable care, including the taking of reasonable steps and measures, to safeguard British Subjects in the Colony and Protectorate of Kenya against the infliction of trespass to the person by servants or agents of the Colonial Administration and/or against breaches of any direct duties of care owed to them by the Colonial Administration."
It is submitted that, even as so revised, the claim does not have a real prospect of success, essentially because there is no relevant duty of care.
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably forsee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
Lord Bridge's words were:
"What emerges is that, in addition to the forseesability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other."
"The requisite additional feature that transforms what would otherwise be a mere omission, a breach at most of a moral obligation, into a breach of a legal duty to take reasonable steps to safeguard, or to try to safeguard, the person in question from harm or injury may take a wide variety of forms. Sometimes the additional feature may be found in the manner in which the victim came to be at risk of harm or injury. If a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise. Sometimes the additional feature may be found in the relationship between the victim and the defendant: (eg employee/employer or child/parent) or in the relationship between the defendant and the place where the risk arises (eg a fire on the defendant's land as in Goldman v Hargrave  1 AC 645). Sometimes the additional feature may be found in the assumption by the defendant of responsibility for the person at risk of injury (see Smith v Littlewoods Organisation Ltd  AC 241, 272, per Lord Goff of Chieveley). In each case where particular circumstances are relied on as constituting the requisite additional feature alleged to be sufficient to cast upon the defendant the duty to take steps that, if taken, would or might have avoided or lessened the injury to the victim, the question for the court will be whether the circumstances were indeed sufficient for that purpose or whether the case remains one of mere omission. "
"[t]his formulation [of the case] implicitly accepts that it would not avail the claimants to contend that HMG failed to take action within the existing constitutional framework, since such action would have been in right of Kenya and barred by s.40 of the Crown Proceedings Act 1947".
A little later (in paragraph 360) it was submitted that the claimants' case was
"…based upon the erroneous assertion that it [HMG in the UK] owed a duty to safeguard the Claimants from (i) the actions of the servants or agents of another entity (i.e. the Colonial Administration and (ii) the actions of its own servants or agents (i.e. "the British Army")".
Again, it was argued that,
"Action could only have been taken outside the existing constitutional structures if these had first been dismantled by primary or secondary legislation in Westminster, alternatively by further Letters Patent or orders in Council abrogating altogether the Colonial Administration".
"The duty to take reasonable steps to avoid that harm arises not just from its arguable reasonable foreseeability, but also from the fact that it was the Defendants' acts, which put them in that position of risking harm about which they had limited choice".
"This case does not fall on the "omissions" side of the somewhat imprecise boundary line separating liability for acts from liability for omissions. In a police case this distinction is important. Here the police are not sought to be made liable for failure to carry out their police duties properly. This is not a case such as Hill v Chief Constable of West Yorkshire  AC 53 where liability was sought to be imposed on the police in respect of an alleged failure to investigate the Sutcliffe murders properly. In the present case the police authorities were in possession of a gun and ammunition. They took the positive step of providing PC Laurent with access to that gun. Laurent did not break into the strongbox and steal the gun. The police authorities gave him the key. True, Laurent disobeyed orders taking the gun as he did. But the fact remains that the police authorities chose to entrust Laurent, who was on the island by himself, with ready access to a weapon and the ammunition needed for its use. The question is whether in taking that positive step the Government, through the police authorities, owed a relevant duty to Mr Hartwell.
The second feature of cardinal importance is that the alleged duty of care relates to entrusting PC Laurent with access to a hand gun and ammunition. Loaded handguns are highly dangerous weapons. They are easy to carry and potentially lethal. One would expect to find that in deciding whom to entrust with such weapons the police would, expressed in general terms, owe a duty to exercise reasonable care. This would not impose a special duty on police authorities. One would expect a like duty to exist on everyone who entrusts another with a loaded firearm. That is eminently fair and reasonable. The serious risks involved, if a gun is handed over carelessly, are obvious. The precautionary steps required of a careful person are unlikely to be particularly burdensome."
"…the expression means little more than that the court should only impose a duty of care if it considers it right to do so. It has been referred to as an exercise of judicial pragmatism, which is the same as judicial policy". As such it encompasses a wide range of considerations. At its narrowest, it focuses on justice and fairness between the parties. At a broader level, it will consider the reasonableness of a duty from the perspective of legal policy, focussing on the operation of the legal system and its principles. At a wider still but more controversial level, it may take account of the social and public policy implications of imposing a duty."
"I consider that subsequent decisions have shown that the underlying principle to be derived from the passage in the judgments of Lord Reid and Lord Diplock in the Dorset Yacht case relating to negligence in the exercise of a statutory discretion is that the courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials."
"It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or class of person to whom it is owed" ."
To similar effect, a few years later, is the judgment of Phillips LJ (as he then was) in Reeman v Dept. of Transport  PNLR 618, 625 where he said,
"When confronted with a novel consideration the court does not…consider these matters [foreseeability, proximity and fairness] in isolation. It does so by comparison with established categories of negligence to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether the finding of an existence of a duty of care would effect a significant extension to the law of negligence. Only in exceptional cases will the court accept that the interests of justice justify such an extension."
"My Lords, on 23 August 1628 George Villiers, Duke of Buckingham and Lord High Admiral of England, was stabbed to death by John Felton, a naval officer, in a house in Portsmouth. The 35-year-old Duke had been the favourite of King James I and was the intimate friend of the new King Charles I who asked the judges whether Felton could be put on the rack to discover his accomplices. All the judges met in Serjeants' Inn. Many years later Blackstone recorded their historic decision: "The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England."
That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride and the admiration of enlightened foreign writers such as Voltaire and Beccaria. In our own century, many people in the United States, heirs to that common law tradition, have felt their country dishonoured by its use of torture outside the jurisdiction and its practice of extra-legal "rendition" of subjects to countries where they would be tortured: see Jeremy Waldron, "Torture and Positive Law: Jurisprudence for the White House" (2005) 105 Columbia Law review 1681-1750.
Just as the writ of habeas corpus is not only a special (and nowadays infrequent) remedy for challenging unlawful detention but also carries a symbolic significance as a touchstone of English liberty which influences the rest of our law, so the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. Not only that: the abolition of torture, which was used by the state in Elizabethan and Jacobean times to obtain evidence admitted in trials before the Court of Star Chamber, was achieved as part of the great constitutional struggle and civil war which made the government subject to the law. Its rejection has a constitutional resonance for the English people which cannot be overestimated.
During the last century the idea of torture as a state instrument of special terror came to be accepted all over the world, as is witnessed by the international law materials collected by my noble and learned friend, Lord Bingham of Cornhill. Among the many unlawful practices of state officials, torture and genocide are regarded with particular revulsion: crimes against international law which every state is obliged to punish wherever they may have been committed."
i) The victims were all Her Majesty's subjects, owing allegiance to the Crown.
ii) The claimants were not residing in a foreign country but in a colony created by the Crown.
iii) The source of the risk of harm to the claimants was the Colonial Government itself. This is not a claim alleging a duty of government to protect a citizen against random acts of individuals: c.f. Van Colle v Chief Constable of Hertfordshire Police  UK HL 50.
iv) Responsibility for law and order was that of a senior British officer, responsible for all security forces in the Colony and reporting directly to the War Office in London.
v) The Colonial Government constantly sought and received advice from the Colonial Office and Cabinet in London.
vi) Advice was taken and given in the knowledge of widespread torture and the taking of positive steps to hinder prospective investigation of complaints.
vii) The UK Government was financing and underwriting the costs of the Colonial Administration in dealing with the Emergency.
viii) The UK Government was responsible in international law for the affairs of the colony. In this respect, Article 73 of the United Nations Charter requires that,
"Members of the United Nations which have or assume responsibilities for the administration of territories whose people have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and to this end:
(a) to ensure…their just treatment, and their protection against abuses…"
ix) This is a case involving torture where the UK owes a specific international duty to protect against it. Article 14 of the UN Convention against torture and other cruel, inhuman or degrading treatment (1987) provides:
"1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of a victim as a result of an act of torture, his dependents shall be entitled to compensation…".
(Of course, I note this Convention post-dates the events in this case by many years but it is only an echo of principles to be found in the European Convention on Human Rights and Fundamental Freedoms of 1950, which jurists from this country had played a significant part in drafting.)
Note 1 I make this obvious point simply because some media reports have given the erroneous impression that I was hearing the trial. [Back] Note 2 Reading the preamble to the Instructions, it appears that various other formal instructions had been given in the intervening period since the issue of the Letters Patent in 1920 and 1954 which made other amendments to the constitution (in March 1934, June 1935, April and December 1948, November 1951 and June 1953). However, my attention has not been drawn to these and I assume that they are not material. [Back] Note 3 Paragraphs 260-265. [Back] Note 4 See paragraph 8 of the witness statement of Mr Edward Inglett of 18 November 2010. [Back] Note 5 I am anxious at this stage to avoid any formal determination of the proper role for expert historians at any trial of this action. That issue has not been argued before me and seems to me to be a matter for later.
[Back] Note 6 Paragraph 24 of Professor Elkins’ first statement. [Back] Note 7 Loc cit. paragraph 32 [Back] Note 8 Loc. Cit paragraph 35 [Back] Note 9 Loc. Cit. paragraph 37. [Back] Note 10 See paragraphs 60 and 117-8 below. [Back] Note 11 See p. 11 of the paper, D5/80/1905 of the hearing bundles. [Back] Note 12 C.f. CPA 1948 ss. 2(1) and 40(2)(b). [Back] Note 13 See to similar effect s.12 of the Republic of Malawi (Constitution) Act 1966. [Back] Note 14 I refrain from quoting it because of my own word-processing difficulty in transposing the accents used in the French text into this judgment. [Back] Note 15 There is then the footnote: “Currently, it is not open to the Claimants to argue this basis of claim in view of the House of Lords decision in [Quark]”. [Back] Note 16 Clerk & Lindsell on Torts 20th Ed. (2010) paragraph 4-04 p. 274. [Back] Note 17 I noted Mr Hermer’s oral submission made in afternoon of Monday, 11 April 2011 as follows: “We say in fact there was a common design to commit torture”. [Back] Note 18 Footnote 12 on pages 15-16 of the skeleton argument said: “A useful historical parallel which illustrates the point would be the products of the policy directives of the Wannsee Conference held on 20th January 1942. It is not suggested that the Claimants need to prove atrocities on this level and scale, unparalleled in history, but it is submitted the “system” case does require proof of far more than violence that was widespread and frequent”. I agree that the parallel is useful. There could surely be little doubt that the prime movers at the 1942 conference would have been personally liable to their victims, for systematic torture, under an English law of tort. I must admit to personal surprise and regret, wherever legal liability may lie, that one reads about what happened in this British Colony so soon after the lessons of that historical parallel ought to have been well learnt. [Back] Note 19 See section (G) paragraph 60 above. [Back] Note 20 “Security forces” over which General Erskine had “full command”. [Back] Note 21 Paragraphs 33 and 34 of that statement. [Back] Note 22 Salomon v A. Salomon & Co. Ltd.  AC 22. (For non-lawyer readers, the case emphasises the distinction in law between a corporate body, such as a limited company, and its corporators or shareholders) [Back] Note 23 See paragraph 133, footnote 22 above. [Back] Note 24 Glaister v Appleby-in-Westmorland Town Council  EWCA Civ 1325 per Toulson LJ [Back] Note 25 Alcock v Chief Constable of S. Yorks Police  1 AC 310, 365. [Back] Note 26 Op Cit paragraph 8-17. [Back] Note 27 See paragraphs 142-3 above and paragraph 157 below. [Back]
Note 1 I make this obvious point simply because some media reports have given the erroneous impression that I was hearing the trial. [Back]
Note 2 Reading the preamble to the Instructions, it appears that various other formal instructions had been given in the intervening period since the issue of the Letters Patent in 1920 and 1954 which made other amendments to the constitution (in March 1934, June 1935, April and December 1948, November 1951 and June 1953). However, my attention has not been drawn to these and I assume that they are not material. [Back]
Note 3 Paragraphs 260-265. [Back]
Note 4 See paragraph 8 of the witness statement of Mr Edward Inglett of 18 November 2010. [Back]
Note 5 I am anxious at this stage to avoid any formal determination of the proper role for expert historians at any trial of this action. That issue has not been argued before me and seems to me to be a matter for later. [Back]
Note 6 Paragraph 24 of Professor Elkins’ first statement. [Back]
Note 7 Loc cit. paragraph 32 [Back]
Note 8 Loc. Cit paragraph 35 [Back]
Note 9 Loc. Cit. paragraph 37. [Back]
Note 10 See paragraphs 60 and 117-8 below. [Back]
Note 11 See p. 11 of the paper, D5/80/1905 of the hearing bundles. [Back]
Note 12 C.f. CPA 1948 ss. 2(1) and 40(2)(b). [Back]
Note 13 See to similar effect s.12 of the Republic of Malawi (Constitution) Act 1966. [Back]
Note 14 I refrain from quoting it because of my own word-processing difficulty in transposing the accents used in the French text into this judgment. [Back]
Note 15 There is then the footnote: “Currently, it is not open to the Claimants to argue this basis of claim in view of the House of Lords decision in [Quark]”. [Back]
Note 16 Clerk & Lindsell on Torts 20th Ed. (2010) paragraph 4-04 p. 274. [Back]
Note 17 I noted Mr Hermer’s oral submission made in afternoon of Monday, 11 April 2011 as follows: “We say in fact there was a common design to commit torture”. [Back]
Note 18 Footnote 12 on pages 15-16 of the skeleton argument said: “A useful historical parallel which illustrates the point would be the products of the policy directives of the Wannsee Conference held on 20th January 1942. It is not suggested that the Claimants need to prove atrocities on this level and scale, unparalleled in history, but it is submitted the “system” case does require proof of far more than violence that was widespread and frequent”. I agree that the parallel is useful. There could surely be little doubt that the prime movers at the 1942 conference would have been personally liable to their victims, for systematic torture, under an English law of tort. I must admit to personal surprise and regret, wherever legal liability may lie, that one reads about what happened in this British Colony so soon after the lessons of that historical parallel ought to have been well learnt. [Back]
Note 19 See section (G) paragraph 60 above. [Back]
Note 20 “Security forces” over which General Erskine had “full command”. [Back]
Note 21 Paragraphs 33 and 34 of that statement. [Back]
Note 22 Salomon v A. Salomon & Co. Ltd.  AC 22. (For non-lawyer readers, the case emphasises the distinction in law between a corporate body, such as a limited company, and its corporators or shareholders) [Back]
Note 23 See paragraph 133, footnote 22 above. [Back]
Note 24 Glaister v Appleby-in-Westmorland Town Council  EWCA Civ 1325 per Toulson LJ [Back]
Note 25 Alcock v Chief Constable of S. Yorks Police  1 AC 310, 365. [Back]
Note 26 Op Cit paragraph 8-17. [Back]
Note 27 See paragraphs 142-3 above and paragraph 157 below. [Back]