Ndiki Mutua and others v the Foreign and Commonwealth Office – read judgment
1 Crown Office Row’s Guy Mansfield QC acted for the Defendant, Henry Witcomb assisted by Maria Roche acted for the Claimants and Elizabeth-Ann Gumbel QC acted for intervener. None of them had anything to do with the writing of this post.
Although any claims regarding alleged acts of torture on Kenyan detainees during the 1950s state of emergency are technically time barred the High Court has allowed three of the claims to go ahead.
This was a trial of a preliminary issue in the Mau Mau detention camps case concerning the matter of limitation of claims for personal injury. In principle, the primary limitation periods in respect of the claims respectively ended in September 1960, 3 March 1962 and on dates in 1963 which are unclear. The period of delay was approximately fifty years in duration, i.e. from between 1960/1963 to the issue of these proceedings on 23 June 2009. The events to be investigated at any trial would extend back to 1952 at least, a period of 60 years or more by the likely date of trial.
The defendant Foreign Office argued that the majority of those on the defendant’s side who might have given material oral evidence on “policy making at the highest level” are now dead and that, therefore, in so far as the claimants seek to base their claims upon inferences from documents, the defendant would no longer be able to meet that case with the oral evidence of those who created or received such documents. At the heart of the matter was whether a fair trial is still possible after such a delay.
There is a provision under the Limitation Act 1980 giving the courts a discretion to extend this limitation period in certain circumstances. But where the court is minded to grant a long extension such as this it should take “meticulous care” in giving reasons for doing so.
There remains no outstanding issue as to the fact of those claimants’ injuries and the manner of their infliction, although legal responsibility on the part of the government in respect of alleged torts of assault and battery and negligence remains hotly contested. That will be decided at the main trial of this action, if the Foreign Office do not succeed in their appeal against this finding that the claims are not statute barred. Amongst the many detailed factual issues that will have to be tested and supported or refuted by witness and documentary evidence, are the following questions:
- Was there a system of torture and/or other ill-treatment of detainees, such as the claimants? If so, what was the role of the British Commanding Officers in either creating or maintaining such a system? In short, what did each know about mistreatment of detainees and when?
- Did the British Army commanders have either de jure or de facto control of officials and others serving in the detention facilities and villages, either in general or in particular in those in which each of the claimants suffered his or her injury?
- What (if anything) did the Colonial Office know about abuses to detainees occurring in detention facilities and elsewhere and when did it have such knowledge?
And so on. The Foreign Office argued that a fair trial of those issues would have required that the directing minds of the British and Colonial Administrations be available to give oral evidence and to react and respond to the inferences that the claimants say are to be drawn from the documents. The copious number of documents that have come to light in the course of investigating these allegations
demonstrate more than one side to the story sought to be advanced on behalf of the claimants and that the picture could only have been satisfactorily completed at a trial with witnesses from the highest echelons of government and the military who could explain the background to what had been written at the time. It is submitted that process is not now possible.
That is no longer feasible since it was the defendant’s case that all relevant witnesses who would have been able to give evidence as to matters of “high policy” from the civilian or military side are now dead. and therefore contended the defendants, a fair trial is not possible.
However the judge found that the difficulties advanced by the defendant on these matters were “more illusory than real”. As far as the difficulties of establishing vicarious liability are concerned, he observed that the law in this area is in a continuous state of development, particularly after the Court of Appeal’s judgment in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust  EWCA Civ 938. The law has progressed “well beyond” liability solely for employees doing precisely what they were employed to do and beyond the acts and defaults of employees under a contract of service (see my post on that decision here). As to the factual issues behind the torture allegations, it seemed to McCombe J that these could be “fairly and cogently” resolved largely by reference to the documents:
the trial court will be well aware of the limited availability of witnesses and of the caution that it must exercise in drawing inferences adverse to the defendant based upon the documents alone.
There was in his view ” an amply sufficient” documentary base to test both liability and the excessive use of force in the camps throughout the period of the emergency and what London’s reaction to that knowledge was for the purpose of resolving this aspect of the pleaded case.
Another consideration courts may take into account when exercising their discretion in lifting the limitation bar is the conduct of the defendant. In this case the judge considered that whatever the original suspicions of the claimants’ advisers may have been about concealing or removal of compromising evidence, there was nothing in the FCO’s management of the documentation that would weigh in the balance against them on this particular question. There will be more on this at a full trial if such a trial takes place, and McCombe J was therefore reluctant to say more than was necessary on this point for the resolution of this preliminary issue.
On the question of whether proper attempts were made by the defendant to investigate the incident at the time (another criteria for extending time), he considered that there was “good evidence” of attempts by both governments, throughout the emergency, to limit enquiries and investigations into abuses committed in the camps.
This I think is conduct that has some relevance to the exercise of my discretion under the section in favour of the claimants, although obviously it can only be a “make weight” over and above my view that I have reached that a fair trial of these issues on cogent evidence is still possible.
As for the claimants’ argument that Section 3 of the Human Rights Act 1998 triggered the government’s obligation under Article 3 to investigate credible allegations of torture, the judge referred to the Supreme Court’s conclusion in Re McCaughey  AC 725 that such a procedural obligation, even under the Convention, is not an obligation that continues indefinitely (Silih v Slovenia 49 EHRR 996 . The claimants contended that the discretion of the court under section 33 of the Act should be exercised now in such a manner as “to ensure the effective protection of the guarantees and underlying values of the Convention.” This met with a robust response. It was not for the court, which is considering an issue under section 33 of the 1980 Act, to form a view as to whether there was any need for a public investigation of the facts underlying that case or to take it into account in deciding whether to exercise the discretion under section 33:
In my judgment, the law of England has not yet progressed as far as the claimants would have me travel in this respect. The investigative obligation, to my mind, goes no further than that envisaged by the Supreme Court in McCaughey and it is not for a judge at first instance to predict further advances: see RJM v Secretary of State for Work and Pensions  1 AC 311, paragraph 64.
For these reasons, I do not consider that the ECHR has relevance to my decision under section 33 of the Act.
Nor did he find any customary rule of international law that prohibits the imposition in domestic law of just rule of limitation in civil actions, even in the case of alleged torture.
The Foreign Office will appeal this ruling, which it says has potentially “significant and far reaching legal implications”. The Guardian reports that “an estimated 2,000 other Kenyans – the survivors of more than 70,000 Mau Mau suspects who were imprisoned during the seven-year insurgency in the 1950s – are now expected to come forward to sue the British government,” and similar claims are expected from other parts of the world which were affected by conflict during the British retreat from empire.
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