The proceedings
10.
The appellant made an application to dismiss the charges pursuant to the
Crime and Disorder Act 1998, Schedule 3, paragraph 2. The application came before
Sweeney J at the Central Criminal Court in two stages. The parties agreed that the
judge should first hear argument as to the correct legal test of official capacity with
the intention that, once that ruling had been delivered, the defence could consider
whether to continue with a submission that there was no case to answer. The
application proceeded on the basis that a submission of no case to answer may
include the calling of evidence by the prosecution or the defence and that the
determination of such a submission would be a matter of law. The first part of the
dismissal application was heard on 26 and 27 March 2018. In his ruling dated 30
July 2018, Sweeney J concluded that section 134 “applies, not only to acting for
entities either tolerated by, or acting under the authority of the government of a state,
but also, in situations of armed conflict, to individuals who act in a non-private
capacity and as part of an authority-wielding entity”. Following this ruling, the
second part of the defendant’s dismissal application was heard on 4 October 2018.
On 10 October 2018 Sweeney J ruled that there was a case to answer on all counts.
In his reasons given in writing on 29 October 2018 the judge explained that, while
the questions whether the appellant was acting in a non-official capacity on behalf
of the NPFL and whether the NPFL was an authority-wielding entity would
ultimately be for the jury, the dismissal application turned on whether the evidence,
taken at its highest, was sufficient for a jury properly to so conclude. He held that it
was.
11.
The appellant appealed against the ruling dated 30 July 2018, made again
within the context of the preliminary hearing on 29 October 2018, to the Court of
Appeal which dismissed the appeal on 21 December 2018. It held that the category
of perpetrator defined as “a public official or person acting in an official capacity”
in section 134 CJA is not confined to those acting on behalf of a recognised state
but “covers any person who acts otherwise than in a private and individual capacity
for or on behalf of an organisation or body which exercises or purports to exercise
the functions of government over the civilian population in the territory which it
controls and in which the relevant conduct occurs. Furthermore, it covers any such
person whether acting in peace time or in a situation of armed conflict.” (para 69)
The Court of Appeal noted that it had expressed its conclusion in slightly different
language from that of Sweeney J in his ruling, but it considered that the test he
adopted and applied was not materially different on the facts of the case and that his
subsequent ruling on the factual submission of no case to answer was not affected
by the difference. Accordingly, the appeal was dismissed.
12.
On 13 February 2019 the Supreme Court (Lady Hale, Lord Reed and Lord
Kerr) granted permission to appeal.
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