Back to the Future: Tort’s Capacity to Remedy Historic Human Rights Abuses

C.R.G. Murray*

Key Words

Torture – Kenya Emergency – Personal Injuries – Limitation Period – Crown Immunities – Counterinsurgency

Abstract

A recent cluster of tort actions have challenged historic abuses of power by officials and soldiers engaged in late-colonial counter-insurgency operations. The preliminary judgments in Mutua, relating to the use of torture during the Kenya Emergency, produced a high-profile settlement by the UK Government and became the catalyst for much of the subsequent litigation. These judgments require a re-evaluation of competing claims which have long characterised this juncture of public and private law. They oblige us, however belatedly, to re-evaluate the impact in the context of the British Empire of A.V. Dicey’s assertion that tort is sufficient to provide redress for individual interests affected by wrongful state action, even in circumstances of emergency. They also challenge the orthodoxy, adopted by generations of public lawyers from the 1960s onwards, that a combination of Crown immunities and limited causes of action rendered Dicey’s account illusory. The outcome of the Mutua litigation, moreover, highlights the comparative failure of public law challenges to abuses of power in counter-insurgency contexts, from the Keyu case concerning extra-judicial killings during the Malaya Emergency to the controversy which has attended many of the human rights challenges related to UK military activities in Iraq between 2003 and 2011. Drawing upon archival materials released in the course of the Mutua litigation, this article first evaluates how administrators and soldiers approached legal constraints upon their conduct during the colonial emergencies of the 1950s and 1960s. Second, for all that Mutua showcases tort’s potential as a vehicle for addressing large-scale human rights abuses in the law of England and Wales, this article unpacks the ongoing efforts of the courts to restrict this litigation. This analysis of both the management of the Kenya Emergency and the recent end-of- Empire tort challenges assesses tort’s shortcomings in the 1950s and why it has since proven a rudimentary vehicle for tackling historic abuses of emergency powers.

* Reader, Newcastle Law School. My thanks to Christine Beuermann (Newcastle), Conall Mallory (Newcastle), Richard Mullender (Newcastle) and Aoife O’Donoghue (Durham) for their encouragement and comments upon earlier drafts of this article. Any errors remain my own. 1

In times of Emergency

Frank Corfield, a colonial administrator in Nairobi, spent 1959 agonising over an official account of the Kenya Emergency. He wanted to denounce John Whyatt, Kenya’s Attorney General at the outbreak of the Emergency, for his ‘immobile legal attitude’ which stymied efforts to institute special powers ‘until there was an actual emergency’.1 But he wondered whether he should also acknowledge that, in countering the Mau Mau insurgency, ‘much was done outside the law’.2 Subduing these scruples, he read his terms of reference as excluding official wrong-doing, and instead blamed doctrinaire attachments to legal processes for enabling unrest to flourish.3 As the UK scrambled to contain self- determination movements after the Second World War, apologists maintained that the British Empire spread ‘the values and standards of Britain’ to colonised peoples.4 Jaded colonial officials, however, placed diminishing value in legal niceties in their struggle to shore up the Empire. Those who opposed this approach had, according to Corfield, invested ‘legal processes with a “divinity” which they do not deserve’.5 He found a receptive audience in Sir Evelyn Baring, the Emergency-era Governor of Kenya, who thought ‘due legal process was a hazard, not a resource’ in a crisis.6 The considerable reliance upon ‘individual judgement’ of such officials under the UK’s governance model invited the subversion of legal processes.7 UK constitutional theorists were not oblivious to the problem; after all, as A.V. Dicey had insisted, ‘wherever there is discretion there is room for arbitrariness’.8 His adherents, however, contended that even wide-ranging official discretion in times of crisis could be effectively managed, chiefly through ministerial responsibility to Parliament.9 If specific abuses of power had harmed recognised individual interests, the ordinary rules and procedures of private law could provide a remedy. The first section of this article illustrates how, especially in the UK colonies, common law principles often weighed little upon administrators, and Parliament was a distant concern. Dicey’s prescription reinforced the illusion that executive action was subject to meaningful constraint. Dicey was unfazed by this disconnect between theory and practice, which developed during his lifetime; from repression in Ireland, to the Boer War to the First World

1 UK National Archives (UKNA), FCO 141/6595, F.D. Corfield (Government Commissioner, History of Mau Mau) to W.B. Havelock (Minister for Local Government, Health and Town Planning) (20 Feb 1959). 2 UKNA, FCO 141/6595, F.D. Corfield (Government Commissioner, History of Mau Mau) to E. Carey Francis (Alliance High School) (22 Apr 1959) para.2. 3 Colonial Office, Historical Survey of the Origins and Growth of Mau Mau (1960) Cmnd.1030, 237-238. 4 P. Mitchell, African Afterthoughts (Hutchinson, 1954) 275. 5 Colonial Office, n.3 above, 250. 6 J. Lonsdale, ‘Kenyatta’s Trials: Breaking and Making an African Nationalist’ in P.R. Cross (ed.), The Moral World of the Law (CUP, 2000) 196, 211. 7 C. Townshend, Making the Peace: Public Order and Public Security in Modern Britain (OUP, 1993) 42. See also T.R.S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (OUP, 2013) 119. 8 A.V. Dicey, An Introduction to the Study of the Constitution (8th Ed., first published 1915, Liberty Fund, 1982) 110. 9 D. Jackson, ‘Individual Rights and National Security: A Comparative Study’ (1957) 20 MLR 364, 364. 2

War he was prepared to afford the executive considerable latitude in maintaining imperial security.10 A veneer of legality, underscoring the Empire’s civilising mission, could sustain the ‘colonial hegemony’.11 Anything more might be dangerous.12 Many accounts highlight how Dicey’s ideas stymied legal constraints upon executive action,13 and contributed to the instrumentalisation of law across the British Empire.14 Drawing on this research and archive materials, the second section of this article evaluates how Diceyan theory suffused official thinking during the Kenya Emergency and operated to routinise abuses of power. The early-1950s saw increasing unrest amongst Kenya’s Kikuyu, Embu and Meru populations, fanned by decades of land dispossession to establish settler-run farms.15 Over-blown concerns about Communist influence over Kikuyu-led political movements, including the nascent Mau Mau, permeated alarmist situation reports.16 By 1952, colonial administrators feared the violent collapse of colonial rule; ‘law and order … had virtually disappeared from many parts of Kenya some months before the Emergency was declared’.17 If pre-Emergency levels of violence hardly sustained this apocalyptic appraisal, the resultant counter-insurgency helped to precipitate widespread unrest in Kenya’s Rift Valley and Central Provinces.18 It deepened the crisis and subverted Dicey’s rule-of-law homilies, being all-too- frequently characterised by extra-judicial killing, torture, inhuman and degrading treatment and rape as a weapon of war. Enforced villagisation and detention without trial affected hundreds of thousands suspected of Mau Mau proclivities.19

10 R.A. Cosgrove, ‘The Boer War and the Modernization of British Martial Law’ (1980) 44 Journal of Military History 124. Dicey notably disregarded his own theory and supported resistance to the state during the Home Rule crisis; see T. Bingham, ‘Dicey Revisited’ [2002] PL 39, 43. 11 B. Ibhawoh, ‘Stronger than the Maxim Gun Law; Human Rights and British Colonial Hegemony in Nigeria’ (2002) 72 Africa: Journal of the International African Institute 55, 55. 12 Mara Malagodi notes that Sir Ivor Jennings’ work in decolonising states was likewise characterised by the ‘strengthening of unconstrained and often unaccountable executives’; M. Malagodi, ‘Ivor Jennings’s Constitutional Legacy beyond the Occidental-Oriental Divide’ (2015) 42 JLS 102, 122 13 See T.R.S. Allan, ‘Legislative supremacy and the rule of law: democracy and constitutionalism’ (1985) 44 CLJ 111; D. Dyzenhaus, The Constitution of Law: Legality in a time of Emergency (CUP, 2006); K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (OUP, 2000). 14 See D. Lino, ‘The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context’ (2018) 81 MLR 739; J. Reynolds, Empire, Emergency and International Law (CUP, 2017) and A.W.B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP, 2001). 15 UKNA, FCO 141/6581, The Bell-Penfold Paper: The History of Political Movements and Unrest among Kikuyu, with their emergence into Mau Mau (4 Jun 1951) 3. See also J. Lonsdale, ‘The Moral Economy of Mau Mau: Wealth, Poverty & Civic Virtue in Kikuyu Political Thought’ in B. Berman and J. Lonsdale, Unhappy Valley: Conflict in Kenya & Africa, (James Currey, 1992) 315. 16 ibid., Bell-Penfold Paper, 2. See also F. Furedi, ‘The Social Composition of the Mau Mau Movement in the White Highlands’ (1974) 1 Journal of Peasant Studies 486. 17 Colonial Office, n.3 above, 243. 18 See A. Duffy, ‘Legacies of British Colonial Violence: Viewing Kenyan Detention Camps through the Hanslope Disclosure’ (2015) 33 Law and History Review 489, 492. 19 See D.M. Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire (Phoenix, 2006), C. Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Owl, 2006) and H. Bennett, Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency (CUP, 2012). 3

Kenya became independent in 1963 and the violent colonial-era conflict receded from public memory, in the UK at least. Any subsequent attempts to challenge the Crown’s conduct during the colonial era in Kenya’s courts would have faced the insurmountable obstacle of state immunity.20 There thus appeared to be no viable route to redress for the victims of Emergency-era abuses of power, and hagiographies were left to laud UK counter-insurgency practice’s supposed commitment to ‘minimal force’.21 In October 2012, however, the judgment in Mutua v Foreign and Commonwealth Office permitted thousands of claimants to pursue actions for battery and negligence against the UK Government for their treatment during the Kenya Emergency.22 The UK Government promptly settled the case, establishing a £19.9 million scheme which compensated 5228 Kenyans.23 The final section of this article evaluates whether this outcome somehow took challenges against notorious abuses of power back to the future. Whereas cases like Keyu,24 seeking an independent inquiry into killings by UK soldiers during the Malaya Emergency, were demonstrating the limitations of human rights approaches, a distinctly Diceyan approach, reliant upon ‘tort’s role in vindicating constitutional rights’, had come to the fore.25 Multiple copy-cat actions have since been launched, prompting calls for the UK Government to ‘restore its immunity from tortious action … arising out of … military deployment abroad’.26 Few of these successor actions, however, have enjoyed any measure of success, and preventing such cases would therefore be otiose. This work is by no means a history of the Kenya Emergency. Instead it traces the ‘genealogy’ of the contemporary disputes, seeking to understand how these recent decisions have been conditioned by the legal approaches which prevailed during the Emergency.27

Private Law Constraints

(i) Trespass to the Person: A Comforting Story

Dicey’s account of the rule of law maintained that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law’.28 His reliance upon private law to police this principle can be seen in his account of remedies where the principle is breached; ‘we may say that

20 See H. Fox, The Law of State Immunity (OUP, 2008) 78-84. 21 See J. Newsinger, British Counter-Insurgency from Palestine to Northern Ireland (Palgrave 2002) 1-2. 22 Mutua and Others v Foreign and Commonwealth Office [2012] EWHC 2678 (QB). 23 W. Hague, HC Deb., vol.563, col.1692 (6 Jun 2013). 24 Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69; [2016] AC 1355. 25 J. Varhus, Damages and Human Rights (Hart, 2016) 81. 26 Defence Committee, ‘Oral Evidence: Statute of Limitations – Veterans Protection’ (2018) HC 1224, Q171 (R. Ekins). 27 See D. Garland, ‘What is a ‘‘History of the Present’’? On Foucault’s Genealogies and their Critical Preconditions’ (2014) 16 Punishment & Society 365, 367-368. 28 Dicey, n.8 above, 110. 4 a person who has suffered a wrong obtains redress either when he gets the wrongdoer punished or when he obtains compensation for the damage inflicted upon him by the wrong’.29 Such a wrongdoer, he was adamant, could include any public official ‘from the Prime Minister down to a constable’.30 Judges solemnly pledged to award exemplary damages in tort to restrain ‘the arbitrary and outrageous use of executive power’31 and thereby ‘vindicate the strength of the law’.32 Court-ordered compensation for wrongful exercises of official power was, for Dicey, vital to keeping public authorities within their lawful bounds, and his work remains a touchstone for efforts to extend public authority liability in tort.33 Assault and battery jurisprudence, moreover, helped him to define the scope of individual rights in the absence of a codified constitution.34 Soldiers deployed to maintain law and order therefore enjoyed no special common law privileges or immunities. Lord Bowen, chairing an inquiry into the shooting of protesters at Featherstone Colliery in 1893, described a soldier engaged in supressing unrest as ‘only a citizen armed in a particular manner’.35 Dicey endorsed this approach, incorporating Lord Bowen’s interpretation into his analysis of the military’s legal responsibilities when responding to civil emergencies. Soldiers were ‘bound to withstand and put down breaches of the peace’ but also ‘liable to be called to account before a jury for the use of excessive, that is, of unnecessary force’.36 The possibility of prosecutions or tort actions as responses to excessive force was thought sufficient, in the words of another member of the Featherstone Inquiry panel, to prevent the army from becoming ‘a menace to civil liberty’.37 Indeed, for The Spectator, such was the concern for legal repercussions amongst the military that ‘it is almost impossible to get an officer to take the responsibility involved in ordering the men to fire’.38 In 2015, a Policy Exchange report posed the rhetorical question, ‘[w]hat place do peacetime concepts of “proportionality” have on the battlefield?’39 If the UK Armed Forces are operating to support civilian administration, including in counter-insurgency operations, however, the minimal-force doctrine theoretically attributed primacy to this supposedly ‘peacetime’ concern.40

29 ibid., 125. 30 ibid., 114. See also T. Cornford, Towards a Public Law of Tort (Routledge, 2008) 9-13. 31 Rookes v Barnard [1964] 1 AC 1129, 1223 (Lord Devlin). 32 Kuddus v Chief Constable of Leicestershire [2001] UKHL 29; [2002] AC 122, [89] (Lord Hutton). See also Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, [77] (Thomas LJ). 33 See Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4; [2018] AC 736, [32] (Lord Reed). 34 See G. Samuel, ‘Governmental Liability in Tort and the Public and Private Law Distinction’ (1988) 8 LS 277, 287-288. 35 C. Bowen, Report of the committee appointed to inquire into the circumstances connected with the disturbances at Featherstone on the 7th of September 1893 (1893) Cmnd.7234, 10. The Commissioners drew upon Lord Mansfield’s decision in Burdett v Abbot (1812) 128 ER 384, 403. 36 Dicey, n.8 above, 183. 37 Select Committee, Employment of Military in Cases of Disturbances (1908) HC 236, para.143 (Richard Haldane). 38 ‘The Soldiers and the People’ The Spectator (16 Sep 1893) 357. 39 R. Ekins, J. Morgan and T. Tugendhat, Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat (Policy Exchange, 2015) 8. 40 See D. Benest, ‘A liberal democratic state and COIN: The case of Britain, or why atrocities can still happen’ (2012) 14 Civil Wars 29, 32. 5

Failure to take necessary steps to restore order was, under military law, a derogation of duty on the part of a soldier; ‘During disturbances, it was a commander’s duty to open fire if he could not otherwise halt the violence, and he had to use enough force to be effective’.41 This position was reflected in official guidance issued in Kenya in the early 1950s; ‘the ultimate responsibility as to whether or not force should be used and, if so, to what degree, rested with the Officer in Charge’.42 For decades this legal position troubled officers ordered to tackle civil unrest. One pithily summarised his dilemma; ‘Shall I be shot for my forbearance by a court martial, or hanged for over zeal by a jury?’43 Use of too little force might fall foul of military law, whereas use of excessive force could result in a criminal prosecution (or personal liability in tort). The official account of how this circle was squared in Great Britain was that the increasing capabilities of the police negated the need for contentious peacetime military deployments after the General Strike of 1926.44 Although judges maintain that ‘[t]here is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions’,45 police forces with few firearms- wielding officers had less capacity than the military to kill, reducing the likelihood of excessive force.46 Such complacency was not the lot of the UK’s colonies, where Henry Maine endorsed the ‘virtually despotic’ use of force to maintain order.47 Nonetheless, ministers could still assuage concerns about abuses of power going unchecked in far-flung jurisdictions by maintaining that trespass to the person provided ‘a single form of procedure and guarantee’ across the Empire.48

(ii) From Martial Law to Emergency Code

As confident Victorian expansionism gave way to ‘the valley of the shadow’49 of global wars and imperial decline, security concerns became more prominent. In the public order context, the military became increasingly preoccupied with calibrating ‘an amount of force exactly proportioned to the

41 H. Bennett, ‘The Other Side of the COIN’ (2007) 18 Small Wars & Insurgencies 638, 644. 42 UKNA, FCO 141/6595, Minute 46/50, ‘The Use of Armed Force in Civil Disturbances’, Minutes of the Meeting of Provincial Commissioners (3-5 Oct 1950). 43 L. Radzinowicz, The History of English Criminal Law and its Administration from 1750 (Stevens & Sons, 1968) vol.IV, 151. 44 See N. Harvey, ‘Supporting Civilian Authority: What Role for the Military?’ (Politeia Autumn Address, 11 Oct 2011). 45 Hill v Chief Constable of West Yorkshire [1989] AC 53, 59 (Lord Keith). For an account of tort’s ‘watchdog’ function over armed police, see A.M. Linden, ‘Tort Law as Ombudsman’ (1973) 51 Canadian Bar Review 155, 161-162. 46 For the strains upon this romanticised account of policing in Great Britain, see P. Squires and P. Kennison, Shooting to Kill?: Policing, Firearms and Armed Response (Wiley, 2010). 47 H.S. Maine, The Effects of the Observation of India on Modern European Thought (John Murray, 1875) 33. See K. Mantena, Alibis for Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton University Press, 2010) 21. 48 See N. Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (University of Michigan Press, 2003) 111. 49 B. Porter, The Origins of the Vigilant State: The London Metropolitan Police Special Branch Before the First World War (Weidenfeld & Nicolson, 1987) 23. 6 necessities of the case’.50 Dicey’s solution was to abridge common law safeguards through statute; ‘Deeds of lawlessness and cruelty which in a period of civil conflict may be inspired by recklessness or passion … may be pardoned by the retrospective sympathy or partisanship of a … legislature’.51 In the context of the Empire’s self-governing colonies, grateful settler-dominated assemblies would retrospectively indemnify executive actors against legal challenges to their efforts to quell unrest amongst the colonised population, no matter how far such actions overran the supposed requirement of minimum force. One infamous example of such indemnity legislation covered the colonial authorities’ brutal response to the Morant Bay Rebellion in Jamaica in 1865. The London courts subsequently accepted that the Jamaican legislature’s retrospective legislative indemnity blocked a private prosecution in England against Governor Edward Eyre, who had led the brutal suppression of the unrest and used it as a pretext for the executive murder of political opponents. In Phillips v Eyre,52 Willes J dressed up these actions as steps ‘honestly done for the safety of the state’.53 The law governing military responses to colonial emergencies began to warp in the early twentieth century. In Marais,54 the Privy Council heard a challenge against the refusal of the Cape Colony’s courts to consider the legality of an arrest made under martial law powers employed during the Boer War. Lord Halsbury concluded that once the threshold of war or insurrection necessitating the invocation of martial law had been met, judges should not assess the proportionality of particular uses of force.55 Following Marais, the invocation of martial law in emergency situations all-but prevented tortious actions against the military for the duration of an emergency.56 Dicey’s putative restrictions became, at best, ‘theoretical’.57 Notwithstanding these developments, the repeated efforts to indict Governor Eyre and his subordinates ‘haunted the military authorities’,58 cooling their readiness to employ martial law in the expectation that their actions would subsequently be indemnified against later legal challenge.59 Daily life for colonial administrators, outnumbered amongst increasingly restive colonised populations, intensified efforts to strengthen the legal footing of emergency responses.60

50 W.S. Holdsworth, ‘Martial Law Historically Considered’ (1902) 18 LQR 117, 127. See also R v Nelson and Brand (1867) F Cockburn Sp Rep 69, 85 (Cockburn CJ’s Grand Jury Charge). 51 A.V. Dicey, A Leap in the Dark; or, Our New Constitution (John Murray, 1893) 87-88. 52 Phillips v Eyre (1870) LR 6 QB 1. 53 ibid., 16-17 (Willes J). 54 Marais v The General Officer Commanding the Lines of Communication [1902] AC 109. 55 ibid., 115. 56 H.E. Richards, ‘Martial Law’ (1902) 18 LQR 133, 137. In Burmah Oil the House of Lords ultimately recognised that the exercise of a prerogative power did not, of itself, exclude the need for compensation where property interests had been affected; see Burmah Oil Company v Lord Advocate [1965] AC 75, 156-157 (Lord Pearce). 57 R. Cosgrove, ‘The Boer War and the Modernization of British Martial Law’ (1980) 44 Journal of Military History 124, 124. See also Lino, n.14 above, 755. 58 G.R. Rubin, Private Property, Government Requisition and the Constitution, 1914-27 (Hambledon, 1994) 6. 59 See Richards, n.56 above, 134. 60 Hussain, n.48 above, 112. 7

The Irish War of Independence redefined the British Empire’s response to civil unrest. The UK Government promulgated a code of emergency powers; the Restoration of Order in Ireland Act 1920.61 Martial law was confined to a few counties, and was undermined by fresh legal challenges. In Egan v Macready,62 O’Connor MR ruled that invoking martial law to justify actions which exceeded the force necessary to restore order involved an exercise of the royal prerogative. Such a power could not circumvent the limits included in Parliament’s emergency legislation; ‘The Act is not merely enabling, but prohibitory. The military authority, like any other department of the State, is subject to the Supreme Court of the Realm’.63 This decision might have been criticised for hampering emergency responses,64 but in practical terms it simply increased the attractiveness of emergency codes. Martial law would be invoked again in the inter-war period, in response to the Arab Revolt in Palestine, and in parts of the Empire which were invaded during the Second World War, but Egan v Macready rendered these powers so ‘obscure and difficult’ that they were rapidly relegated to the constitutional background.65 Emergency codes were, in some respects, less enticing to the military than the magic formula of martial law plus indemnity. They appeared to increase constraints upon military action and required soldiers to engage in time-consuming legal processes. Reminiscing upon the Kenya Emergency, Sir Frank Kitson, once an intelligence officer in Central Province, lamented the days he wasted in April 1954 waiting to be called to give evidence in Kenya’s Supreme Court, only to see the accused Mau Mau members acquitted; the ‘interminable adjournments’ demonstrated the ‘cleavage between the men in the field and those in the rear areas’.66 Despite these frustrations, Kitson recognised that, provided they appeared impartial, legal processes would aid a military-led campaign in ‘maintaining the allegiance of the population’.67 Although counter-insurgency depended upon the authorities getting ‘sufficiently severe emergency regulations onto the statute book’,68 he appreciated that the façade of a functioning legal system could legitimate these emergency responses. Common-law principles became a propaganda tool.

61 See C.R.G. Murray, ‘Shifting Emergencies from the Political to the Legal Sphere: Placing the United Kingdom’s Derogations from the ECHR in Historical Context’ in M. Saul, A. Føllesdal and G. Ulfstein (eds.) The International Human Rights Judiciary and National Parliaments (CUP, 2017) 198, 202-203. 62 Egan v Macready and others [1921] 1 IR 265. 63 ibid., 275. 64 R.F.V. Heuston, Essays in Constitutional Law (Stevens & Sons, 1964) 162. For a different perspective upon the case, see Ewing and Gearty, n.13 above, 366. 65 UKNA, LCO 53/55, Judge Advocate General (F. Cassel) to Director of Personnel Services (G. Clive) (18 Feb 1930). 66 F. Kitson, Bunch of Five (Faber & Faber, 1977) 32. 67 F. Kitson, Low Intensity Operations: Subversion, Insurgency and Peacekeeping (Faber & Faber, 1971) 69. 68 ibid., 70. See D. Lowry, ‘Terrorism and Human Rights: Counter-Insurgency and Necessity at Common Law’ (1977-78) 53 Notre Dame Lawyer 49, 72-76. 8

Shattering the Diceyan Illusion

(i) Battling Demons: Torture, Detention Camps and Extra-judicial Violence

Dehumanising the enemy was a vital precursor to the colonial authorities’ counter-insurgency campaign. Packaging the insurgency as a psychosis, the “Mau Mau disease”, not only negated the need to address its underlying causes, but also justified broad measures against the Kikuyu, Embu and Meru as being susceptible to ‘ferocious freaks of magic’.69 Kitson gave a distinctly Boys’ Own twist to the campaign, opining that most soldiers ‘probably regarded the finding and disposing of gang members in the same way they would regard the hunting of a dangerous animal’.70 Once it was accepted that the Mau Mau embodied some primal evil, the authorities could instrumentalise the law to counter the threat.71 When Evelyn Baring proclaimed a state of emergency on 20 October 1952, days after he assumed residence in Government House, he was able to institute far-reaching powers which would directly affect hundreds of thousands of people for nearly eight years:

[P]olitical organisations were banned; prohibited areas were created; and provisions for detention without trial were enacted. The colonial authorities made unprecedented use of capital punishment and sanctioned harsh prison, so-called “rehabilitation”, regimes. Many of those detained were never tried, and the links of many with the Mau Mau were never proven. There was recognition at the time of the brutality of these repressive measures ...72

Efforts to reconstruct the role of law in such a campaign through archival sources often face significant hurdles, with extended-closure files and the weeding of embarrassing material distorting an already one-sided account of events.73 In the course of discovery for the Mutua case, however, some 300 boxes of documents relating to the Kenya Emergency were found at the storage facility at Hanslope Park and

69 Mitchell, n.4 above, 245. 70 Kitson, n.66 above, 13-14. Citing the limited, often home-made or stolen armaments used by the Mau Mau, Elkins has also likened the Emergency to ‘big-game hunting’, although without Kitson’s enthusiasm; Elkins, n.19 above, 4. 71 For a lurid parliamentary account of the Mau Mau oath, see Lord Ogmore, HL Deb., vol.178, col.1091 (29 Oct 1952). 72 W. Hague, HC Deb., vol.563, col.1692 (6 Jun 2013). Official accounts estimate the counter-insurgency’s death toll at roughly 11500 and recount a peak of just over 70000 detentions in internment camps. These figures are contested. Anderson regards the official death toll as a considerable underestimate, and maintains that the total number interned exceeded the officially reported “daily average”. See Anderson, n.19 above, 4-5. 73 See R. Thurlow, ‘The Historiography and Source Materials in the Study of Internal Security in Modern Britain (1885– 1956)’ (2008) 6 History Compass 147 and H. Butterfield, ‘Official History: Its Pitfalls and Its Criteria’ (1949) 38 Studies: An Irish Quarterly Review 129. 9 subsequently released to the UK National Archives.74 This trove exposes the ugly assumptions and imperatives which drove the daily management of the Emergency.75 The following examples are drawn from those papers to illustrate the nature of the counterinsurgency (including official attitudes towards legal constraints) and the role played by senior colonial officials and London.76 Having declared the Emergency the colonial administration simply reinstituted decade-old wartime powers.77 A scramble ensued to update these to the needs of crisis, with a senior official, Thomas Askwith, being dispatched to Malaya to learn lessons from ongoing counter-insurgency there. His August 1953 Report highlighted both the importance of winning “hearts and minds” amongst the colonised populace78 (emphasising being seen to maintain control over the police79) and of adopting special interrogation procedures.80 Torture was not treated as incompatible with close control of the security forces; they were both necessary facets of pacification.81 The priority in such a campaign was to stifle any stories of abuses. The Colonial Office enthusiastically disseminated best practice from across the Empire, including the creation of a Special Investigations Group in Cyprus in 1958 with the primary task of ‘issuing a prompt, positive and accurate denial of any false allegations’.82 True, the document paid lip service to the need to punish abuses of power, but this Group’s ‘over riding aim’ was to ‘buttress morale’ by ‘the prevention of allegations against the Security Forces’.83 When these suggestions reached Kenya, nearly seven years into its Emergency, one weary official simply scrawled ‘[p]erhaps the time has passed here?’84 The August 1953 Report did not introduce abusive interrogation into Kenya; soon after it was circulated General Erskine noted that ‘methods of torture’ were already ingrained in detainee screening.85 The aim was rather to import more productive techniques. Teams involved in assessing

74 See Mutua, n.22 above, [48]-[54]. 75 The account presented by these files might be unvarnished by a sympathetic review process, but focusing upon them magnifies the already-problematic positionality inherent in this research. As a result of the proscription of Mau Mau for decades after Kenya’s independence the historiography of the Emergency is already skewed towards outsider accounts; See M. Clough, Mau Mau Memoirs: History, Memory and Politics (Reinner, 1998) 81-82. 76 On the concealment of the Hanslope files, see D.M. Anderson, ‘Mau Mau in the High Court and the “Lost” British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?’ (2011) 39 Journal of Imperial and Commonwealth History 699. The materials explored below augment existing academic analyses of these files, including D.M. Anderson, ‘British abuse and torture in Kenya’s counter-insurgency, 1952-1960’ (2012) 23 Small Wars & Insurgencies 700. 77 The Emergency Regulations 1952, Government Notice 1155/1952, promulgated under the Emergency Powers Order in Council 1939. 78 UKNA, FCO 141/5666, T. Askwith (Commissioner for Community Development), ‘Detention and Rehabilitation Report’ (27 Aug 1953) para.14 and 22. 79 ibid., para.38. 80 ibid., para.40. Askwith’s public speeches at the time, as faithfully recorded in his memoirs, said nothing of torture, but included a euphemistic assertion that detainees could not be rehabilitated until they have ‘gone through the mill’; T. Askwith, From Mau Mau to Harambee: Memoirs and Memoranda of Colonial Kenya (J. Lewis (ed.), CUP, 1995) 103. 81 See M. Neocleous, ‘“A Brighter and Nicer New Life”: Security as Pacification’ (2011) 20 S&LS 191, 194-198 and A. Mumford, The Counter-Insurgency Myth: The British Experience of Irregular Warfare (Routledge, 2012) 7. 82 UKNA, FCO 141/5691, Secretary of State for the Colonies to Colonial Administrations (27 Apr 1959) para.3(a). 83 ibid., para.4(b). 84 ibid., marginal annotation. 85 UKNA, WO 32/15834, G. Erskine (GOC East Africa) to A. Head (Secretary of State for War) (10 Dec 1953) 3. 10 the degree of internees suspected Mau Mau involvement (the so-called screening pipeline) eagerly requested training from their counterparts in Malaya who, it was euphemistically put, ‘have a secret technique of examination which seems to produce spectacular results’.86 Sir Vincent Glenday’s subsequent report into screening camps, although largely exonerating the system, noted that even the term screening carried a ‘sinister implication’.87 London had been closely involved in Glenday’s appointment and terms of reference, ensuring that the inquiry was not, as Kenya’s Attorney General desired, judge-led and ‘re-cast so as to cover the law and practice relating to the … camps’.88 Successive Colonial Secretaries, Oliver Lyttelton and Alan Lennox-Boyd, travelled repeatedly to Kenya during the crucial first two years of the Emergency,89 and General Erskine ‘reported directly to the War Office’.90 The files illustrate that abuse in the camps was so prevalent that police officers had to be censured in court for handing over suspects to a nearby screening camp for “softening up” (beating with rifle butts).91 Law J even reported one member of the Kikuyu Home Guard for boasting to him about beating up detainees.92 Although such abuses were acknowledged within the colonial administration, the imperative remained to ‘sin quietly’.93 In mid-1955, following the large-scale round-ups in the Nairobi area as part of Operation Anvil,94 whole communities were screened and subsequently held for “rehabilitation” in works camps. The camp system was inadequate to the strain, with the Narok District Commissioner complaining that 260 babies and 234 other children were held in works camps in his district, without clear legal basis.95 Typhoid spread in the overcrowded and unsanitary conditions.96 Disease was a particular problem in the camps on Mageta and Saiyusi islands in Lake Victoria, which in 1952 had been regarded as dubious camp locations due to health concerns, but which were nonetheless constructed to take “hard core” Mau Mau due to the ease with which they could be secured. Having deflected queries from London

86 UKNA, FCO 141/5666, S.H. La Fontaine (Assistant Commissioner of Prisoners) to H.S. Potter (Chief Secretary) (21 Sep 1953) 2. 87 UKNA, FCO 141/6174, V. Glenday, ‘Inquiry into Screening Camps and Interrogation Centres under the Control of the Provincial Administration’ (28 Mar 1955) 2. 88 UKNA, FCO 141/6174, J. Whyatt (Attorney General) to E. Baring (Governor) (3 Jan 1955) para.3. 89 B. Berman, Control & Crisis in Colonial Kenya: The Dialectic of Domination (James Currey, 1990) 395. 90 H. Bennett, ‘Soldiers in the Court Room: The British Army’s Part in the Kenya Emergency under the Legal Spotlight’ (2011) 35 Journal of Imperial and Commonwealth History 717, 720. 91 UKNA, FCO 141/6211, E.H. Windley (Minister for African Affairs) to J. Cusack (Minister of Defence and Internal Security) (15 Jan 1955). 92 UKNA, FCO 141/6211, E.J. Law (Justice, Kenya High Court) to K. O’Connor (Chief Justice of Kenya) (17 Jan 1955). 93 B. Macintyre, ‘Britain in Kenya: If We are Going to Sin, Then We Must Sin Quietly’ The Times (8 Apr 2011) p.1. 94 The Emergency (Control of Nairobi) Regulations 1954, Government Notice 614/1954 and the Emergency (Control of Nairobi) (Amendment) Regulations 1954, Government Notice 1486/1954. These measures permitted the “evacuation” and internment of as many as 50,000 inhabitants of Nairobi for the purpose of screening them for Mau Mau links. 95 UKNA, FCO 141/5698, W.F.B Pollock-Morris (Narok District Commissioner) to E.W.M. Magor (Secretary for Defence) (27 May 1955) para.2. See F. Brockway, HC Deb., vol.555, col.473-474 (27 Jun 1956). 96 UKNA, FCO 141/5698, J. Cusack (Minister of Defence and Internal Security) to E. Baring (Governor) (19 Jan 1955). The Emergency (Control of Nairobi) Regulations were temporary, and had to be extended because the camps, in part due to Typhoid quarantines, struggled to process individuals and release or impose Delegated Detention Orders. 11 about these camps for years,97 awkward questions in the UK Parliament obliged the colonial leadership to investigate.98 A hasty report found that only 400 of 2400 prisoners were capable of work and an entire camp compound had been condemned by medical advisers.99 Officials glossed over the horrifying conditions and blamed them on the refusal of the detainees to work.100 In Westminster, responses to questions about children being subjected to hard labour and disease riddled camps were met with protracted investigations after which complaints were dismissed as being based upon ‘hearsay, on partisan opinion and personal prejudice’.101 The authorities’ abuses were not confined to the detention camps and police/military custody; ‘casual and haphazard’ violence and torture were employed across parts of Kenya.102 Just prior to the Emergency the Director of Intelligence and Security warned that some settler farmers intended to institute a reprisal policy of murdering ten Kikuyu for every one of their number murdered.103 Once the Emergency was in full swing, the general attitude of the officials on the ground is best expressed by Carruthers “Monkey” Johnston, the Provincial Commissioner responsible for administering the volatile Central Region for much of the Emergency; ‘95% of the Kikuyu have taken the Mau Mau oath in one form or another’.104 All were therefore fair game for ‘communal punishments’.105 Amongst the most serious of these were “food denial” measures, undertaken to starve the Mau Mau out of their forest hideaways, but which were pushed to the brink of causing a famine in Central Province. By July of 1955 the Central Province Emergency Committee bluntly reported that further measures could not be implemented, as there was ‘already insufficient food to feed the population’.106 Not even missionary schools provided safe havens for their pupils. When Leonard Beecher, Bishop of Mombasa, challenged the ransacking and forced interrogation of students at the Divinity School in Kiambu by O Company of the Kenya Regiment, the District Commissioner could only affirm the accuracy of the report and shrug that what had happened was ‘another example of the type of incident which I am afraid is inevitable even with normally well disciplined troops’.107

97 UKNA, FCO 141/5671, E. Baring (Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (27 Jan 1956). 98 See F. Brockway, HC Deb., vol.563, col.172 (23 Jan 1957). 99 UKNA, FCO 141/5671, J. Cusack, ‘Memorandum: Detention Camps Mageta and Saiyusi’ (19 Feb 1957) para.2 and 4. 100 UKNA, FCO 141/5671, J. Hayden Lewis (Commissioner of Prisons) to E.W.M. Magor (Secretary for Defence) (25 Jan 1957). 101 A. Lennox-Boyd, HC Deb., vol.558, col.1419 (31 Oct 1956). 102 Anderson, n.19 above, 293. See also B. Castle, HC Deb., vol. 568, col. 1879-1883 (16 April 1957). 103 UKNA, FCO 141/5894, E. Lloyd Parker (Director of Intelligence and Security) to J. Whyatt (Attorney General) (18 Sep 1952). 104 UKNA, FCO 141/6211, C.M. Johnston (Provincial Commissioner, Central Province) to E.H. Windley (Minister for African Affairs) (8 Oct 1954). 105 UKNA, FCO 141/5894, E.H. Windley (Minister for African Affairs) to E. Baring (Governor) (29 Jan 1954) para.2. 106 UKNA, FCO 141/6201, Minutes of Meeting of the Central Province Emergency Committee (21 July 1955). 107 UKNA, FCO 141/5692, F.A. Lloyd (District Commissioner Kiambu) to K.M. Cowley (Secretary for African Affairs) (14 Mar 1955) 1. 12

The lack of oversight of officials and soldiers further corroded discipline. Ndithini, to the south east of Nairobi, was far from the Emergency’s hot spots. One day in late 1955, whilst herding his goats, an off-duty Kenyan Police Sergeant, Kilonzo Munyao, came across what the files euphemistically describe as an “informal” work camp for women. When he protested about the treatment of the detainees he was held at the camp and his goats killed. After Kilonzo’s superiors secured his release and the camp closed, several of the women held there made allegations that they had been raped. When the case reached the desk of Kenya’s Attorney General, his response demonstrated remarkable complacency towards the substantive wrongdoing. Sergeant Kilonzo’s arrest was ‘probably illegal’ and, with a thoroughly Diceyan respect for property, ‘it seems clear that two of his goats were wrongly taken ... and they should be replaced or their worth restored to him’.108 The rape allegations, however, were ‘too dubious to warrant prosecution ... (although it is pretty obvious that the Headman took full advantage of the sexual opportunities that his position and the detention of a number of girls presented him with)’.109 The inexperienced District Officer John Nottingham, ultimately responsible for the area, was upbraided for presiding over ‘an illegal administrative tyranny’.110 Legalised tyranny, after all, was the order of the day.111

(ii) Marginalising Legal Oversight

The officials managing the Kenya Emergency appreciated that Dicey’s account of private law safeguards was detached from reality,112 but their aim was nonetheless to preserve its edifice for public consumption. Ministers in London could thus continue to laud the ‘high standards of proof required by British justice’ when a prominent former member of the Kenya African Union was acquitted of criminal charges, whilst in the same breath asserting that this was no basis for questioning the use of internment in this case.113 Kenya’s Law Officers drew official praise when they sustained this double- think and ‘made the machine work’.114 For all that the impact of the Emergency legal order was undoubtedly ‘blunt’ and ‘brutal’, it is thus difficult to characterise it as ‘unsophisticated’.115

108 UKNA, FCO 141/6205, E.N. Griffith-Jones (Attorney General) to E.H. Windley (Minister for African Affairs) (22 Mar 1956) 1. 109 ibid., 1. The files contain multiple examples of rape allegations receiving scant attention; UKNA, FCO 141/5921, D. MacPherson (Assistant Commissioner of Police) to A. Young (Commissioner of Police) (23 Dec 1954) para.1. See D.M. Anderson and J. Weis, ‘The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya 1952-60’ (2018) 36 Law and History Review 267. 110 ibid., 3. 111 See A. O’Donoghue, ‘Tyranny and Constitutionalism Beyond the State’ in R. Schütze (ed), Governance and Globalization: International Problems, European Solutions (CUP, 2018) 63. 112 See Ewing and Gearty, n.13 above, 416. 113 J. Profumo, HC Deb., vol.571, col.1428 (5 Jun 1957). 114 UKNA, FCO 141/6595, F.D. Corfield (Government Commissioner, History of Mau Mau) to E.N. Griffith-Jones (Attorney General) (11 Mar 1959) para.4. 115 Anderson, n.19 above, 7. 13

Techniques developed in Kenya for marginalising legal constraints drew upon, and refined, novel “British” approaches to counter-insurgency.116 In order to sustain his account of meaningful private law restrictions, Dicey had to ignore authorities which pointed to exclusions of official liability in the course of responses to war or insurrection (‘cases in which individuals sustain an injury for which the law gives no action’117). One pressing problem was that, prior to the Crown Proceedings Act 1947’s enactment, the Crown could assert immunity from liability in tort. Dicey dismissed this difficulty with his vision of private law constraints upon official action with little ceremony; ‘[T]he technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice’.118 Individual officials or soldiers remained open to legal challenge, supposedly securing their responsibilities. For Richards, however, the possibility of recovering damages from public servants who had abused their powers was ‘remote’.119 Vicarious liability was so underdeveloped that senior executive actors could not be held responsible unless the act in question was in effect theirs.120 There was little chance that the person directly responsible for the abuse, would have sufficiently deep pockets to make a legal action worthwhile (even if they could be identified). Moreover, as T.T. Arvind explains, even if an action could be commenced, it often proved difficult to build a case against an individual when the Crown owed no disclosure obligations in such proceedings; ‘[t]he evidence that a party needed to prove his case was often under the control of the Crown … and there was therefore no way to compel its production’.121 The corresponding Kenyan Crown Proceedings Ordinance was delayed until 1956, after the most serious phase of the fighting had subsided, curtailing opportunities for contemporary tort actions in Kenya’s courts. To this problem Ewing and Gearty add the failure of the courts to develop causes of action which enable public authorities to be held to account in tort, even where recognised legal interests had been infringed.122 The Crown Proceedings Act 1947 did not create special liabilities applicable to the Crown, it simply permitted its vicarious liability for torts committed by its agents. An example of the problem this poses for holding executive actors to account can be seen in the litigation surrounding the enforced removal of the Chagos Islanders from their homeland in the 1960s and 1970s to make way for the building of a military base:

116 See Mumford, n.81 above, 50. 117 Governor & Company of British Cast Plate Manufacturers v Meredith (1792) 4 T.R. 794, 797 (Buller J). 118 Dicey, n.8 above, 418. 119 Richards, n.56 above, 141. 120 Prior to the Crown Proceedings Act 1947 particular statutory provisions, such as the Ministry of Transport Act 1919, s.26, placed responsibility for particular acts upon specific ministers. 121 T.T. Arvind, ‘Restraining the State through Tort’ in T.T. Arvind and J. Steele, Tort Law and the Legislature (Hart, 2012) 405, 407. 122 See Ewing and Gearty, n.13 above, 14. 14

Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already established ... . But to make it a state tort requires a legal system in which the Crown, in private law, can do wrong; and this, apart from the Human Rights Act, we do not have.123

Having foreclosed the development of tort, Sedley LJ was obliged to conclude that the role of private law was at an end, meaning that any redress for the islanders became ‘a function of economic resources and political will, not of adjudication’.124 In the same vein, the courts’ failure to approach certain cases as ‘torturous rather than merely tortious’, by recognising a distinct tort of torture, arguably further restricts possibilities for seeking redress.125 As Carol Harlow concluded, specifically with regard to actions for misfeasance in public office, but equally applicable here; ‘[i]t is not that the common law cannot generate such an action, it is that the judges do not wish to develop it.’126 Publishing constraints also dampened law’s capacity to constrain abuses of power. Kitson may well have fulminated about the Mau Mau, ‘advised by their legal friends’, planting false stories about abuses to discredit the colonial regime,127 but throughout the Emergency extensive powers existed to silence the Kenyan press and to expel unwelcome foreign correspondents.128 Even though it was beyond the reach of these constraints, the UK media took little interest in abuses in Kenya. When parliamentary questions raised the profile of the issue the Colonial Office pleaded with newspapers not to run stories which could undermine counter-insurgency efforts.129 Persuasion was augmented with threats of defamation actions. The logic of contemporary defamation law operated to shield public officials against media investigations.130 As the owners of the Natal Witness found when they published accusations of physical abuse by the Resident Commissioner in Zululand in 1883; ‘It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct’.131 After the

123 Chagos Islanders v Attorney General and Her Majesty’s British Indian Ocean Territory Commissioner [2004] EWCA Civ 997, [22] (Sedley LJ). 124 ibid., [54]. 125 D. Hovell, ‘The Gulf Between Tortious and Torturous’ (2013) 11 JICJ 223, 227. 126 C. Harlow, Compensation and Government Torts (Sweet and Maxwell, 1982) 68. 127 F. Kitson, Gangs and Counter-Gangs (Barrie & Rockliff, 1960) 46. 128 See M. Osbourne, ‘“The rooting out of Mau Mau from the minds of the Kikuyu is a formidable task”: Propaganda and the Mau Mau War (2015) 56 Journal of African History 77 and F. Gadsen, ‘The African Press in Kenya, 1945-1952’ (1980) 21 Journal of African History 515. 129 See J. Lewis and P. Murphy, ‘“The Old Pals’ Protection Society”? The Colonial Office and the British Press on the Eve of Decolonisation’ in C. Kaul, Media and the British Empire (Palgrave Macmillan, 2006) 55, 58-60. 130 As Blackstone noted, words which ‘would not be actionable in the case of a common person, yet when spoken in disgrace of … high and respectable characters … amount to an atrocious injury’; W. Blackstone, Commentaries on the Laws of England (Clarendon Press, 1st ed., 1765-1769) vol.3, 123. 131 Davis & Sons v Shepstone (1886) 11 AC 187, 190 (Lord Herschell LC) (PC). 15

Second World War the Colonial Office made a point of approving libel actions by aggrieved officials, including repeated high-profile actions by Geoffrey Morton over the disputed facts surrounding his shooting dead of the insurgent Avraham Stern in Tel Aviv in 1942.132 In his summary for the jury in one of these cases, Lawson J declared that Morton was ‘striking a blow against the falsification of history’.133 Journalists covering the Kenya Emergency were well aware that the courts were yet to be overly concerned with the ‘chilling effect’ potential libel actions imposed upon the ‘coverage of important public matters’.134 In marked contrast to media coverage of the contemporaneous French repression of independence movements in Algeria and Indochina, Kenya was all but ignored.135 The ease with which the Crown was able to stifle opposing narratives about the Kenya Emergency for the duration of the fighting also set it apart from later conflicts in which UK Armed Forces faced non-state opponents.136 Legal oversight of the counter-insurgency in Kenya was therefore hollowed out. Concerns over abuses of power received a standard response that ‘it is not possible to fight a war within the concepts of British Justice Common Law’.137 Not that the security forces had to do so. They could rely on the full panoply of Emergency Regulations as legal basis for action far in excess of common law powers such as restoring order through proportionate force. The military was satisfied that there was no need, in light of these Regulations (with “shoot on sight” powers, for example, covering widely-drawn prohibited areas), to invoke martial law.138 Minimum force was thus quietly evicted from its place as the ‘central doctrinal principle’ of UK counterinsurgency campaigns.139 The special powers which had been adopted and the existing common law doctrines which shielded public officials generated a culture of impunity in the context of the Emergency, and once the veneer of legality had sustained the early phases of the counterinsurgency pressure built for even it to be stripped away. On 18 January 1955, under the cloak of a surrender offer to the rebels, London permitted Governor Baring to announce an “act of clemency” covering previous official wrongdoing committed. This amnesty

132 P. Bishop, The Reckoning (William Collins, 2014) 230-235. Only in the mid-1970s did the UK Government curtail public support for such libel actions unless there was evidence that the publication was malicious; UKNA FCO 15/4269 B.B. Hall, ‘Libel Actions by Ministers and Ex-Ministers: Note by the Treasury Solicitor’ (16 Oct 1975) para.7-8. 133 ‘Ex-detective wins £4,000 in libel case’ The Guardian (4 Feb 1972) 7. 134 Derbyshire County Council v Times Newspapers [1993] AC 534, 539 (Lord Keith). 135 F. Klose, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria (D. Geyer trans., UPP, 2013) 198. 136 Counter-propaganda became a major element of activity by the security services during the Northern Ireland conflict; see W.R. Matchett, ‘Security: Missing from the Northern Ireland Model’ (2015) 11 Democracy and Security 1, 10-11. By the time of the occupation of Iraq, it had become even more pronounced, as seen in the Chilcot Report’s criticism that checks civilian casualties were undertaken out of a ‘concern to rebut accusations’ against Coalition Forces; J. Chilcot, The Report of the Iraq Inquiry: Executive Summary (2016) HC 264, para.284. 137 UKNA, WO 276/430, Maj. G.C. Tedd (GSO3 Ops) to Col. R.M.P. Carver (Chief of Staff, East Africa Command) (4 Nov 1955) para.11 (deletion in text). 138 See W. Elliot, Report of the Parliamentary Delegation to Kenya (1954) Cmd.9081, para.39. 139 B.C. Reis, ‘The Myth of British Minimum Force in Counterinsurgency Campaigns during Decolonisation (1945-1970)’ (2011) 34 Journal of Strategic Studies 245, 255. 16 prevented prosecutions for prior abuses by any public servants acting in response to the Emergency.140 So zealously did senior officials cleave to this policy that the Amnesty would be cited for years to come as a means to exclude investigations into the factual accuracy of abuse claims.141

(iii) A few bad apples

If the amnesty and special powers were the headline measures ousting law from military operations in Kenya, much more day-to-day activity was directed towards this end. Governor Baring did not deny that abuse was taking place, but begged the Colonial Secretary ‘to realise the difficulty of controlling individual human beings working in the troubled area’.142 But instead of regaining control amidst the crisis, the Hanslope files showcase his efforts to undermine legal processes and discredit whistle blowers. Baring delegated much of the responsibility for preliminary investigations into abuse claims to Provincial and District Commissioners, who were often so concerned with the morale of forces in their areas that they worked assiduously to protect them from censure.143 “Monkey” Johnson, a Provincial Commissioner, was arguably the second most important figure in the administration of the Emergency after the Governor, given that he was responsible for the strategically important Central Province.144 He would actively deflect investigations into abuses; when even members of the settler community questioned the brutality of forces based in Central Province, he ridiculed their complaints.145 Governor Baring was consistently unreceptive towards abuse accusations.146 When Fitz de Souza, defence lawyer in many of the Mau Mau prosecutions, alleged that his clients had been abused, Baring insisted that the lawyer ‘has been constantly involved in a smear campaign against Security Forces since the start of the Emergency’.147 Internees were in an almost impossible bind. Most were illiterate, and the Governor reserved particular opprobrium for educated detainees, “the petitioners”, who ‘will cause us as much trouble as they can’.148 The authorities refused to investigate accounts of

140 See Duffy, n.18 above, 496. 141 UKNA, FCO 141/6193, C.M. Johnston (Provincial Commissioner, Central Province) to E.N. Griffith-Jones (Attorney General) (26 Jan 1956). 142 UKNA, FCO 141/6211, E. Baring (Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (20 Oct 1955) para.1. 143 See Anderson, n.19 above, 300. 144 Elkins, n.19 above, 266. 145 UKNA, FCO 141/6211, C.M. Johnston (Provincial Commissioner, Central Province) to E.H. Windley (Minister for African Affairs) (8 Oct 1954). 146 UKNA, FCO 141/5921, D. MacPherson (Assistant Commissioner of Police) to A. Young (Commissioner of Police) (23 Dec 1954) para.25. 147 UKNA, FCO 141/5692, E. Baring (Governor) to O. Lyttelton (Secretary of State for the Colonies) (5 Jul 1954) para.2. 148 UKNA, FCO 141/6454, E. Baring (Governor) to W.F. Coutts (Chief Secretary) (21 May 1959). 17 abuse smuggled from the camps as they constituted breaches of censorship rules.149 Claims by whistle- blowers were harder to dismiss. When a former prison administrator, Phillip Meldon, brought detainee abuse to public attention in the UK in January 1957,150 the colonial administration responded by assessing the possibility of a libel action151 and attempting to discredit him as a disgruntled former employee.152 More junior officials also set about discrediting witnesses and complainants, and developing informal approaches to “addressing” complaints which protected their standing with the security forces. One District Commissioner defended a senior Kikuyu Guard under police investigation for multiple violent and sexual offences, dismissing his victims as prostitutes and ensuring that he was moved to the Meru District when the weight of complaints against him in Nairobi became too great to ignore.153 Following reports of an uncooperative detainee being dragged behind a jeep by a District Officer, only for it to emerge that he had learning difficulties,154 officials sought to transfer the officer involved to another area.155 Such relocations avoided embarrassing public censure or punishment. Some egregious cases of abuse, however, could not be ignored. In June 1953 the 5th King’s African Rifles massacred 22 members of the Meru Guard at the village of Chuka, south-east of Mount Kenya. Investigations pointed to the leadership of the unit by Captain Gerald Griffiths playing a key role in the events, and suggested that the men involved were following his lead in torturing in murdering prisoners. That the victims of the ‘murder in cold blood’ at Chuka belonged to the Kenyan Home Guard made a high-profile response vital to recovering loyalist sentiment.156 General Erskine ensured that Griffiths was court martialled as an example, and following his conviction he was stripped of his rank and returned to Wormwood Scrubs prison to serve a seven-year sentence.157 There he encountered the future IRA leader Seán MacStíofáin, imprisoned for a botched seizure of arms from an Officer Cadet Corps depot. MacStíofáin, together with imprisoned Cypriot miliants, wanted to ‘give him a thumping’, but the opportunity did not arise.158 Instead, contemplating Griffiths’ predicament in his memoirs, MacStíofáin came to see him as the Crown’s fall guy; ‘Though we had no pity for him,

149 UKNA, FCO 141/5666, J. Hayden Lewis (Commissioner of Prisoners) to H.S. Potter (Chief Secretary) (23 Jun 1953) para.3. 150 See Elkins, n.19 above, 294-295. 151 UKNA, FCO 141/6166, R. Wainwright (Provincial Commissioner, Rift Valley) to L.F.G. Pritchard (Secretary for African Affairs) (1 Feb 1957) 3. 152 UKNA, FCO 141/6166, F. Crawford (Deputy Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (11 Feb 1957). 153 UKNA, FCO 141/6211, A.C. Small (District Commissioner Nairobi) to Officer-in-Charge, Nairobi Extra Provincial District (27 Jan 1955) para.7. 154 UKNA, FCO 141/6211, R. Symons-Thompson (District Officer Limuru) to F.A. Lloyd (District Commissioner Kiambu) (23 Aug 1955). 155 UKNA, FCO 141/6211, F.A. Lloyd (District Commissioner Kiambu) to K.M. Cowley (Secretary for African Affairs) (25 Aug 1955). 156 UKNA, FCO 141/6193, F. Crawford (Deputy Governor) to E.H. Windley (Minister for African Affairs) (18 Mar 1955) 2. 157 See Anderson, n.19 above, 259. 158 S. Mac Stíofáin, Memoirs of a Revolutionary (Cremonesi, 1975) 71. 18 it is nonsense to pretend that the torture of prisoners for information can be carried out on a large scale in any campaign without the knowledge and sanction of senior officers’.159 Griffiths was not the only white officer prosecuted for illegal violence during the Emergency. Abuse was so rife at the Mara River Camp, for example, that, after multiple investigations, an Assistant Superintendent of Prisons was convicted on two counts of assaulting internees in 1956.160 But no more than a fine resulted, and such prosecutions remained notably rare. Baring insisted that such abuses were isolated and not institutionalised,161 and Parliament was satisfied that, in general, ‘the troops in Kenya have shown a high sense of responsibility and application to duty’.162 The authorities in Kenya were refining the long-established imperial practice of rooting out “a few bad apples” to underline their diligence and attentiveness to the rule of law. James Epstein, reviewing the trials of Warren Hastings (1787-1795)163 and Thomas Picton (1806-1808),164 emphasised the salutary effect of a symbolic prosecution; ‘embodying colonial injustice in the person of one man, displacing the “fabric of colonial anxiety” onto an instance of extraordinary personal misrule, and thus allowing the reconstitution of imperial authority’.165 Finding such bad apples helped to purify of the Empire’s “civilising mission”.166 The leading figures in Kenya’s tragedy used this gambit to buy time. General Erskine saw the Griffiths’ court-martial as a way to restore the Army’s reputation in Kenya, but his control over the police and camp screening teams was more attenuated. He therefore pressed London for a ‘star turn’ to reassure the general populace of the professionalism of the police and camp authorities.167 He got one, when Arthur Young was recruited from the City of London Police as Kenya’s Commissioner of Police in March 1954. Young, however, did not get the latitude Erskine had recommended ‘to sack at least 20 or more senior officers’ to enable him to stamp his authority on Kenya’s police.168 The efforts of his small leadership team to address abuses of power were thwarted at every turn, with his Assistant Commissioner, Donald MacPherson, was writing angrily to Young about “Monkey” Johnston’s ‘direct interference with the affairs of my office’.169 MacPherson’s letter amounted to an ultimatum, concluding with the liberal-imperial message that ‘the

159 ibid., 71. 160 See UKNA, FCO 141/5692, E. Baring (Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (11 Dec 56). 161 ‘The system ... should not be discredited on account of a single act, however horrible’; UKNA, FCO 141/6211, E. Baring (Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (20 Oct 1955) para.26. 162 A. Head, HC Deb., vol.522, col.1611 (26 Jan 1954). 163 F.E. Smith, Famous Trials of History (Garden City, 1926) 163. See also Mantena, n.47 above, 22-25. 164 R v Picton (1810) 30 Howell’s State Trials 225 165 J. Epstein, ‘Politics of Colonial Sensation’ (2007) 112 Am. His. Rev. 712, 739. 166 See Klose, n.135 above, 178; and Elkins, n.19 above, 5. 167 UKNA, WO 32/15834, G. Erskine (GOC East Africa) to A. Head (Secretary of State for War) (10 Dec 1953) 3. 168 ibid., 3. 169 UKNA, FCO 141/5921, D. MacPherson (Assistant Commissioner of Police) to A. Young (Commissioner of Police) (23 Dec 1954) para.14. 19

Union Jack that flies over most Home Guard posts’ promises that ‘Justice will prevail’.170 Young resigned before 1954 was out, having been undermined from within the colonial administration, and MacPherson followed suit within a year.171 Within weeks of Young’s resignation the Governor declared an amnesty for all past acts by security forces, a confluence of events which drew rare queries from London. Baring brazenly replied that his administration’s ‘settled policy’ was to prosecute official abuses ‘whenever there was a case’.172 From 1957 onwards the Nairobi authorities faced a familiar problem for military-led counter- insurgencies, what to do with internees held in military detention after the fighting has died down. Thousands of individuals identified as being committed Mau Mau continued to languish in works camps on the basis that their release might reignite the insurgency. Then in March 1959 eleven detainees died in a single incident at Hola Camp. Despite frustrations that neither officials nor detainees were ‘making any real attempt to tell me the plain unvarnished truth’,173 the magistrate conducting the subsequent inquest concluded ‘that there was a very considerable amount of beating of detainees by warders with batons’.174 Kenya’s Attorney-General, Eric Griffith-Jones, refused to prosecute any warders. London was fully informed of these developments, even if Governor Baring continued to downplay the ‘prevalence’175 of the abuses. Until Hola the Colonial Office scarcely challenged Kenya’s authorities. Ministers had actively supported Baring by heading off parliamentary questions regarding credible reports of abuse.176 Even after the Hola scandal broke, Julian Amery, junior minister in the Colonial Office, informed Parliament that Griffith-Jones had investigated ‘and I do not find it within me to challenge his conclusion’.177 But the game was up. The Conservative Government had been forced by the Suez Crisis to face up to the UK’s changed place in the world, and Prime Minister Harold Macmillan was preparing to deliver his ‘Wind of Change’ speech, accelerating steps towards granting independence to the UK’s East African colonies.178 New leadership was needed to pilot Kenya towards independence, and both Baring and Griffith-Jones stood down. The Emergency ended in January 1960, and colonial rule outlasted it by less than four years.

170 ibid., para.28. 171 Anderson, n.19 above, 299-306. 172 UKNA, FCO 141/5921, Draft Letter from E. Baring (Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (5 Feb 1955). 173 UKNA, FCO 141/5651, W.H. Goudie, ‘Hola Inquest No.1 of 1959’ (6 May 1959) 26. 174 ibid., 25. 175 UKNA, FCO 141/6211, E. Baring (Governor) to A. Lennox-Boyd (Secretary of State for the Colonies) (24 Jan 1956). 176 See above, text accompanying n.101 and n.113. 177 HC Deb., vol.605, col.1433 (14 May 1959). 178 See H. Nissimi, ‘Mau Mau and the Decolonisation of Kenya’ (2006) 8 Journal of Military and Strategic Studies 1, 25- 27. 20

Righting Historic Wrongs

(i) The Public Law Void

Neither judicial review nor the UK’s international obligations in the 1950s provided effective constraints upon abuses of power during the Kenya Emergency. At the time, the most prominent international obligations applicable to an internal armed conflict were contained within Common Article 3 of the Geneva Conventions.179 The UK Government had serious concerns about the potential for this provision to hamper military operations across the Empire, and so delayed ratification of the 1949 Conventions and ensured that ‘soldiers knew virtually nothing about the international legal restraints on their actions’.180 The Geneva Convention Act 1957 ultimately granted the UK courts criminal jurisdiction over ‘grave breaches’ of Common Article 3 if the prohibited activities, including subjecting civilians or individuals rendered hors de combat to inhuman and degrading treatment, took place during an extraterritorial armed conflict.181 The Director of Public Prosecution’s permission, however, was required for prosecutions under the Act, with morale considerations potentially influencing this decision.182 The Geneva Convention Act offence, moreover, was not incorporated into domestic law until after the most intensive the military activity in Kenya had ended, calling the existence of an internal armed conflict into question.183 Then, as now,184 courts martial system was the most important setting for trials of alleged abuses as breaches of military discipline.185 The UK ratified the European Convention on Human Rights (ECHR) in October 1953.186 On ratification the reach of the ECHR was extended to cover Kenya.187 The Colonial Office appreciated the challenges that this extension posed for the Kenya Emergency, especially after a Parliamentary delegation highlighted ‘police malpractices’ in January 1954.188 The UK belatedly derogated from the ECHR in respect of Kenya four months later, suspending the effect of the right to liberty to coincide

179 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287 (1949). 180 H. Bennett, ‘The Other Side of the COIN’ (2007) 18 Small Wars & Insurgencies 638, 641. Training on the Geneva Conventions remained inadequate for decades; see Intelligence and Security Committee, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq (2005) Cm.6469, para.120. 181 Geneva Convention Act 1957, s.1(1). 182 ibid., s.1(3). 183 ibid., s.1(4) asserts that the UK Government’s statement that an armed conflict is existent is determinative of the issue. 184 See R. Kerr, ‘The UK in Basra and the death of Baha Mousa’ in D. Lovell (ed.) Investigating Operational Incidents in a Military Context: Law, Justice, Politics (Brill, 2015) 71. 185 The furore surrounding Royal Marine Sergeant Alexander Blackman’s conviction for the 2011 killing of a wounded Taliban insurgent, during military operations in Afghanistan, indicates the ongoing difficulties with military justice responses. See B. Stanford, ‘Once More unto the Breach: The deployment of British soldiers overseas and the UK’s Human Rights Obligations’ (2017) 22 Coventry LJ 80. 186 European Convention on Human Rights and Fundamental Freedoms, 213 UNTS 222 (1953). 187 ibid., Art 56. 188 See Elliot, n.138 above, para.36. 21 with the mass internment of individuals rounded up under Operation Anvil.189 This derogation would remain in place for the remainder of the Emergency, although the ECHR, or rather a dilution of it which administrators thought better fitting to the context of the colony, would be a prominent factor in the drafting of Kenya’s post-Emergency public order legislation.190 Notwithstanding the derogation, there was little chance of censure from Strasbourg. It was not until 1966, years after Kenya’s independence severed its connection to the ECHR, that the UK permitted individuals the opportunity to petition the ECHR institutions. Moreover, with many other ECHR states engaged in their own late- colonial conflicts, there was never much likelihood that an inter-state action would be instituted regarding the operations in Kenya.191 The fact that Article 2 (other than lawful acts of war) and Article 3 ECHR were non-derogable did not, therefore, faze officials, who were more concerned that the works camps breached the Forced Labour Convention.192 In cases like Ireland v United Kingdom,193 McCann194 and Al-Skeini195 these ECHR rights would eventually develop into meaningful constraints upon counter-insurgency operations.196 These developments, however, lay far in the future, and the collapse of the Iraq Historic Allegations Team highlights the continuing difficulties with grafting ECHR-compliant investigations onto the military justice system.197 Moreover, as Strasbourg concluded in Chagos Islanders, the Court cannot wish away constraints imposed on its jurisdiction in the context of historic colonial abuses.198 The UK’s EHCR obligations were therefore effectively neutered during the Kenya Emergency.199 Forty years after the end of that Emergency, Lord Hoffmann would proclaim that ‘[t]he principles of judicial review give effect to the rule of law’.200 In the 1950s, however, judicial review

189 See UKNA, PREM 11/696, O. Lyttelton (Secretary of State for the Colonies), Cabinet Briefing, ‘Kenya: Detention of Supporters of Mau Mau’ (8 Feb 1954), para.2. 190 UKNA, E.N. Griffith-Jones, ‘Draft Public Order Bill, 1959: Explanatory Note’ (2 Dec 1958) 1. The Attorney General was confident that Art 63(3) ECHR provided him wide latitude in interpreting the scope of rights in a colonial context. 191 Anderson, n.19 above, 5. The same could not be said of the UK’s campaign against the EOKA in Cyprus, which resulted in Greece initiating two inter-state ECHR actions; see Murray, n.61 above, 205-206. 192 Convention Concerning Forced or Compulsory Labour, International Labour Organisation Convention No.29 (1930). See D. Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940-70 (Palgrave, 2012) 23-30. 193 Ireland v United Kingdom (1979-80) 2 EHRR 25. 194 McCann v United Kingdom (1995) 21 EHRR 97. 195 Al-Skeini v United Kingdom (2011) 53 EHRR 18. 196 These extensions have drawn calls for the UK courts to ‘resisting the Strasbourg court’s misinterpretation of “jurisdiction”’; R. Ekins and G. Verdirame, ‘Judicial power and military action’ (2016) 132 LQR 206, 212. 197 The compatibility of the Team’s work with the ECHR requirements was upheld in R (Mousa) v Secretary of State for Defence (No.2) [2013] EWHC 1412 (Admin); [2013] HRLR 32, but its work was subsequently denounced in Parliament for having ‘far too little regard’ for military personnel; Defence Sub-committee, Who guards the guardians? MoD support for former and serving personnel (2017) HC 109, 4. 198 Chagos Islanders v United Kingdom (2013) 56 EHRR SE15, [62]-[65]. See C. Monaghan, ‘The Chagossians go to Strasbourg: Convention rights and the Chagos Islands - Chagos Islanders v United Kingdom (Application No.35622/04)’ [2013] EHRLR 314. 199 Mutua, n.22 above, [151]-[152]. 200 R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [73] (Lord Hoffmann). 22 remained all-but moribund, as the officials managing the Kenya Emergency recognised. The system of works camps, for example, was instituted with explicit regard to the limited oversight of internment during the Second World War exhibited in decisions such as Liversidge v Anderson.201 The subsequent development of judicial review corresponded with restrictive jurisprudence regarding tort actions against public authorities. The ‘policy-operational distinction’ developed in order to make it more difficult for claimants to use negligence law to challenge policy-level exercises of discretionary statutory powers.202 Lord Hoffmann’s extra-judicial writings, moreover, cautioned the courts against developing new heads of tort liability, which amounted to ‘creating a new head of public expenditure’.203 This shift towards public law therefore held many attractions for the executive; although judicial review can stop or prevent ‘an unlawful invasion of rights’, it ‘is indifferent both to corrective and distributive justice’.204 It was once thought that the emergence of damages against public authorities under EU law would ‘spillover’ into the remaining parts of UK public law.205 Outside the Human Rights Act context, however, the bulwarks against such extensions have so far held.206 Even under the Human Rights Act, the courts have been hesitant with regard to damages claims arising out of overseas military deployments. In Mohammed,207 for example, Lord Mance’s restrictive approach to Human Rights Act damages for alleged breaches of Article 5 ECHR by UK forces in Afghanistan made continuing the action unattractive for the claimants.208 Public inquiries offer another means for investigating historic abuse allegations. The Saville Inquiry into the events on Bloody Sunday showcased their capacity to piece together historic human rights controversies involving the UK’s agents.209 The overlapping Baha Mousa Inquiry into the death of an individual detained by UK forces occupying Iraq after the 2003 invasion demonstrated that such investigations could address UK military activities overseas.210 Pressure therefore grew for similar inquiries into abuses allegedly perpetrated during the UK’s decolonisation campaigns. Efforts to get the courts to mandate such inquiries culminated in the Keyu case, which challenged the UK Government’s refusal to institute an inquiry into the killing of 23 civilians by the Scots Guards at Batang Kali during the Malyan Emergency.211 These events, in December 1948, predated the ECHR,

201 Liversidge v Anderson [1942] AC 206. See UKNA, FCO 141/5666, E. Baring (Governor) to O. Lyttelton (Secretary of State for the Colonies) (23 Feb 1953). 202 R. Mullender, ‘Tort, Human Rights, and Common Law Culture’ (2003) 23 OJLS 301, 307. See Anns v Merton London Borough Council [1978] AC 728, 754 (Lord Wilberforce). 203 L. Hoffmann, ‘The Separation of Powers’ [2002] JR 137, 144. 204 J. Alder, ‘Restitution in Public Law: bearing the cost of unlawful state action’ (2002) 22 LS 165, 173-174. 205 P. Craig, ‘Once more unto the Breach: The Community, the State and Damages Liability’ (1997) 113 LQR 67, 89. 206 See H. Woolf, Protection of the Public – A New Challenge (Stevens & Sons, 1990) 57-58. Lord Hoffmann played a prominent role in maintaining these restrictions; O’Rourke v Camden LBC [1998] AC 188, 190. 207 Serdar Mohammed v Ministry of Defence [2017] UKSC 2; [2017] AC 821. 208 ibid., [220]. 209 Lord Saville, Report of the Bloody Sunday Inquiry (2010) HC 29-I to HC 29-X. 210 W. Gage, The Baha Mousa Public Inquiry Report (2011) HC 1452-I. 211 Keyu, n.24 above. 23 and so ‘Convention values’ could not provide a basis for the challenge.212 Without a Human Rights Act basis, the Supreme Court found that it was not unreasonable for the UK Government to refuse an inquiry.213 Lord Kerr lamented the potential ‘deficiency in our system of law’ for addressing historical wrongs that the case exposed.214 But even if Keyu had succeeded, public inquiries are rarely speedy and do not oblige the UK Government to compensate the victims of official wrongdoing.215 Moreover, the terms of such inquiries will often oblige their chairs to acknowledge, whatever wrongdoings they identify, that ‘the faults of some should not tarnish the reputation of the many’, reprising the “few bad apples” defence.216 The record of public law and public inquiries is therefore patchy, and the best that can be said is that the courts have ‘intermittently recognised the need for independent and impartial investigations into allegations of human rights abuse’.217 Successive UK Governments have strung out these processes, seemingly in the hope that some claimants (or, more likely, society) will lose interest. This dubious track record has prompted a renewed focus upon the tort liability of public authorities.218 When those seeking to challenge of the conduct of the Kenya Emergency initiated their claim in 2009, tort was the only game in town.

(ii) Reanimating Tort

In the summer of 2011 McCombe J (as he then was) issued his initial decision in Mutua, identifying the crux of the case as being whether the UK Government was ultimately responsible for the infliction upon the claimants of ‘physical mistreatment of the most serious kind, including torture, rape, castration and severe beatings’ during the Kenya Emergency.219 The UK Government initially raised multiple grounds for striking out the claims. It insisted, drawing on increasingly discredited jurisprudence on the divisibility of the Crown,220 that responsibility for any activities in Kenya stopped at the colony’s boundaries.221 As the above analysis illustrated, however, the Hanslope files demonstrated the Colonial Office and the War Office’s attentiveness to the Kenya Emergency. This

212 ibid., [242] (Lord Kerr). See Janowiec v Russia (2014) 58 EHRR 30, [159] and [186]. The Finucane case, in which the Supreme Court all-but obliged the UK Government to establish a public inquiry into Pat Finucane’s murder in 1989, illustrates the importance of the ECHR requirements; Re Finucane’s Application for Judicial Review [2019] UKSC 7. 213 ibid., [129] (Lord Neuberger). 214 ibid., [285] (Lord Kerr). 215 A. Williams, ‘The Iraq abuse allegations and the limits of UK law’ [2018] PL 461, 478-479. 216 Gage, n.210 above, para.1.35. 217 Williams, n.215 above, 476. 218 See, for example, C. Purshouse, ‘Arrested Development: Police Negligence and the Caparo “test” for duty care’ (2016) Torts LJ 1 and S. Tofaris and S. Steel, ‘Negligence Liability for Omissions and the Police’ (2016) 75 CLJ 128. On the ‘general ratcheting-up’ of tort remedies against public authorities, see C. Harlow, State Liability: Tort Law and Beyond (OUP, 2004) 126. 219 Mutua and Others v Foreign & Commonwealth Office [2011] EWHC 1913 (QB), [1]. 220 R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs [2006] 1 AC 529; [2005] UKHL 57. 221 Mutua, n.219 above, [50]. 24 nexus between London and Nairobi left the UK Government potentially liable for Emergency-era abuses perpetrated in Kenya, with McCombe J observing that the terms of the constitutional instruments in place at the time of the Emergency meant that many counter-insurgency activities could only be acts ‘in right of the UK’.222 The Government also argued that, on independence, Kenya assumed the foregoing liabilities of the colonial administration.223 McCombe J recognised that Kenya’s independence may have been accompanied by an assumption of liabilities by the new state, but concluded that it was at least arguable that independence did not relieve the UK of all liability (including vicarious liability) assumed during its administration of the colonial territory.224 This initial sparing took place before the Hanslope materials could be fully analysed.225 The Government thereafter accepted that four of the claimants had suffered severe mistreatment. The writing had been on the wall since the first judgment, in which McCombe J had concluded that there was ‘ample evidence even in the few papers that I have seen suggesting that there may have been systematic torture of detainees during the Emergency’, a summary sustained by a detailed analysis of the Hanslope materials. Conceding the point, however, kept such detailed analysis of torture’s place in the Emergency out of the pages of the law reports. It shifted the focus of the case away from the treatment of the claimants and onto responsibility for that treatment:

[T]he defendant did not dispute that he or she [the claimant] had suffered torture and other mistreatment at the hands of the Colonial Administration … . There remains, therefore, no outstanding issue as to the fact of those claimants’ injuries and the manner of their infliction, although legal responsibility on the part of Her Majesty’s Government in the United Kingdom remains hotly contested.226

It was to prove a costly concession. Many of the claimants would have struggled to establish the substance of their ill-treatment claims after such a long period of time, and there was no possibility that such hearings could be fair to the UK Government when so many witnesses were dead or documents missing.227 Responsibility for the purposes of vicarious liability, by contrast, could arguably be established by reference to the Hanslope paper trail.

222 ibid., [110]. 223 ibid., [70]. 224 ibid., [102]. See also Hovell, n.125 above, 237. 225 ibid., [32]. 226 Mutua, n.22 above, [27] (emphasis in the original). 227 See A v Hoare [2008] UKHL 6; [2008] 1 AC 844, [45] and AB v Ministry of Defence [2010] EWCA Civ 1317, [96]. 25

The 1955 amnesty did not exclude civil claims, as Griffith-Jones had tartly informed “Monkey” Johnston in 1956,228 but the claimants were nonetheless confronted by the ordinary three-year time limit for tort actions.229 Although Mutua was being heard over half a century after the events in question, the courts enjoy the discretion, when it is equitable to do so, to waive the ordinary time limit for actions in respect of personal injuries or death.230 The UK Government conceded ‘that delay on the claimants’ part in seeking to mount any claim was excusable, or at least understandable, until 2003’ because Mau Mau remained a banned organisation in Kenya until this date.231 It nonetheless maintained that the time-limit issue prevented the action from proceeding because the delay in bringing the action would prevent it from mounting an adequate defence. Some of the Armed Forces personnel, colonial administrators and UK Government officials involved in the response to the Kenya Emergency were still alive at the time of the case, including Sir Frank Kitson, but all were relatively junior in the 1950s. A then octogenarian Kitson ‘could not be expected to be a live witness at any trial’.232 The claimants countered that given the weight of evidence released from Hanslope Park during the discovery process, the case could be conducted on an entirely documentary basis. Some of the most high-profile historians of the Kenya Emergency had access to the Hanslope material and provided expert witness statements to the Court attesting that these files have ‘only served to confirm the impressions and conclusions that they had expressed in their earlier statements about what they see to be the complicity of the British Army and Government in the infliction of abuses upon detainees’.233 This evidence persuaded McCombe J that whether the perpetrators of these torts were ‘appointed and entrusted to further the “aims and purposes” of the UK government’ could be assessed ‘principally on documents’.234 Just as the circulation of abusive personnel around Kenya in the course of the Emergency uncomfortably mirrors the practices exposed in clerical abuse cases,235 it is appropriate that these cases provided much of the authority McCombe J needed to identify the arguable existence of UK Government control for the purposes of vicarious liability; ‘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’.236 A month after the Mutua decision, the Supreme

228 UKNA, FCO 141/6193, E.N. Griffith-Jones (Attorney General) to C.M. Johnston (Provincial Commissioner, Central Province) (30 Jan 1956). 229 Limitation Act 1980, s.11(4). 230 ibid., s.33. 231 Mutua, n.22 above, [34]. 232 ibid., [68]. 233 ibid., [48]. 234 ibid., [86]. 235 At the time of the Mutua decision, the leading cases were E v English Province of Our Lady of Charity [2012] EWCA Civ 938; [2013] 2 WLR 958 and Various Claimants v The Catholic Child Welfare Society [2010] EWCA Civ 1106. 236 Mutua, n.22 above, [80]. 26

Court ruled that vicarious liability depended upon a two-stage test, examining first the legal relationship between the defendant and the tortfeasor and a ‘close connection’ linking the defendant to the tortfeasor’s act or omission.237 Employing this test (as would have been required had the case proceeded to substantive hearing), the ‘akin-to-employment’ relationship between the UK Government and officials/soldiers serving in Kenya could sustain vicarious liability.238 Moreover, as the above account lays bare, the UK Government consistently acted ‘in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse’.239 McCombe J therefore decided that three of the five Kenyan claimants could proceed with their tort action against the UK Government, because the live question of vicarious liability in these cases could be assessed on the basis of existing documents.

(iii) A False Dawn?

The FCO’s decision to reach a settlement in Mutua was the culmination of an extended learning curve in contesting large-scale human rights abuse claims. Conceding the substance of the torture allegations prevented the spectacle of elderly Kenyan claimants having to recount what happened to them and precluded the judge raking over archived incidents in forensic detail. A decade earlier the UK Government had successfully defended the Chagos Islanders litigation, in many ways a prototype for Mutua, but at the cost of just such hearings and a near-800 paragraph appendix to Ouseley J’s judgment, cataloguing decades of official maltreatment and double-dealing.240 Even Keyu provided the claimants with acknowledgment by the Supreme Court that ‘the official UK Government case as to the circumstances of the Killings may well not be correct’, and thus something of a win for the claimants.241 A settlement of £19.9 million covering over 5000 claimants without admission of liability also appeared more cost effective than the near-£25 million spent investigating Baha Mousa’s death.242 Nonetheless, settling the litigation after these preliminary setbacks left the application of tort to historic abuses of power in flux, with the London courts’ approach to successor actions all-but ‘unreckonable’.243 Mutua came to be regarded as signal that the London courts could be open to similar claims, and a visible success by which solicitors firms could energise clients.

237 Various Claimants v The Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1, [19] (Lord Phillips). 238 ibid., [47] (Lord Phillips). See also P. Morgan, ‘Recasting Vicarious Liability’ [2012] CLJ 615, 624. 239 ibid., [86] (Lord Phillips). 240 Chagos Islanders v Attorney General [2003] EWHC 2222 (QB). See G. Scanlan, ‘The Chagos Islanders’ case – a question of limitation?’ (2007) 26 Civil Justice Quarterly 292. 241 Keyu, n.24 above, [137] (Lord Neuberger). See T.M. Poole and S.A. Shah, ‘A Very Successful Action? Historical Wrongs at Common Law’ (2016) LSE Legal Studies Working Paper No 17/2016, 20. 242 This includes £13.5 million spent on the Public Inquiry; Comptroller and Auditor General, Investigation into Government-Funded Inquiries (2018) HC 836, 19. 243 See K.N. Llewellyn, The Common Law Tradition: Deciding Appeals (Little, Brown & Co. 1960) 19-21. 27

Within months of the 2013 settlement, multiple copy-cat actions were in the works. At the more speculative end of the spectrum was a potential claim by Caribbean countries seeking redress for the UK’s historic involvement in slavery.244 New tort claims were instituted relating to UK military operations Kenya, Cyprus and Northern Ireland, the latter including a negligence action against Sir Frank Kitson (named as defendant alongside the Ministry of Defence) regarding alleged military collusion in a paramilitary murder whilst he was a senior officer during the Northern Ireland conflict.245 The Chief of the Defence Staff, General Sir Nicholas Carter, responded by informing the Defence Select Committee that Kitson was one of his heroes and that it ‘would be tragic if he were to pass without his name being properly cleared.’246 Proposals to restrict judicial oversight of military deployments had previously focused on restricting the application of the ECHR and preventing negligence actions by serving and former UK personnel.247 In light of these cases, however, Richard Ekins further proposes that ‘the Limitation Act should be changed to make it harder to bring civil proceedings so far after the fact’.248 Devika Hovell expressed additional concerns that tackling such claims ‘exclusively on the basis of tort may ultimately distort the applicable legal principles’, distracting from the human rights at issue.249 This final section of the article evaluates whether the post-Mutua case law sustains these concerns. In Kenya, Mutua spurred some 40000 new claimants into action. Whereas Mutua had involved personal injury actions by individuals making specific allegations of torture, the subsequent Kimathi litigation involved more wide-ranging allegations, including the impact of the counter-insurgency’s policy of villagisation.250 This policy confined entire rural communities to fortified villages in an effort to curtail Mau Mau influence and deny the movement support.251 Over a dozen preliminary judgments were issued between 2015 and 2018, with the first substantive judgments coming only in late 2018. Of these preliminary judgments, it suffices to note how four affected the scope of the litigation. First, as early as 2015, Stewart J laid down a marker that this case was clearly distinct from Mutua, by excluding the historians’ evidence in the earlier case on the basis that it ‘will distort the trial, focus on issues collateral to the main issues to be decided and cause prejudice to the Defendant’.252 Second, the

244 ‘Slavery Reparations: Blood Money’ The Economist (3 Oct 2013). 245 See O. Bowcott, ‘Former general sued over death of Catholic minibus driver during Troubles’ The Guardian (27 Apr 2015). Although the Northern Ireland cases are beyond the scope of this article, see also Flynn v Chief Constable of Northern Ireland [2018] NICA 3. 246 Defence Committee, ‘Oral Evidence: Work of the Chief of the Defence Staff’ (2018) HC 1562, Q88. 247 See Ekins, Morgan and Tugendhat, n.39 above, 8. 248 Ekins, n.26 above, Q171. See also J. Duke-Evans, R. Ekins, J. Marionneau and T. Tugendhat, The Collapse of the Kenyan Emergency Group Litigation: Causes and Consequences (Policy Exchange, 2018) 5. 249 Hovell, n.125 above, 244. 250 Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 1169 (QB), [167] (Stewart J). 251 See D. Percox, Britain, Kenya and the Cold War: Imperial Defence, Colonial Security and Decolonisation (Taurus, 2004) 62-63. 252 Kimathi and Others v Foreign & Commonwealth Office [2015] EWHC 3432 (QB), [58] 28 claimants were prevented from relying on the parliamentary record in such a way as to draw evidential inferences regarding the UK Government’s conduct. This interpretation of what constituted ‘questioning’ proceedings in Parliament253 made it more difficult for the claimants to establish the position of UK ministers with regard to the conduct of the Emergency.254 Third, the claimants argued that the revelation of the Hanslope documents during the Mutua litigation demonstrated a deliberate concealment by the UK Government of their right of action, restarting the limitation period.255 Stewart J rejected this contention, deliberate concealment was not proven and, in any event, potential concealment had related to evidence supporting claims, and not the claims themselves.256 As such, the claims could only proceed if the Court was prepared to exercise its discretion under section 33 of the Limitation Act 1980. Fourth, recognising that he only enjoyed discretion under that provision to exclude the three-year limitation period where personal injury was at issue, Stewart J ruled that causing fear (even of the immediate application of unlawful force) did not amount to a personal injury.257 Stewart J subsequently heard substantive arguments by particular test claimants, starting with the individuals designated TC34258 and TC20.259 Neither claim was successful. TC34’s claim concerned a series of alleged physical assaults by the authorities in and out of detention in the camp system between 1954 and 1959.260 TC20’s claim related to villagisation, but she could only contest the time bar on the basis of assault allegations, because only these amounted to personal injury claims.261 The vital distinction from Mutua was that the UK Government did not oppose these claims on the basis of responsibility, whilst accepting the claimant’s allegations of ill treatment.262 It instead maintained that as no papers or witnesses corroborated the claimants’ accounts, there was insufficient evidence to justify setting aside the limitation period, let alone prove the claims.263 Large sections of the judgments therefore address whether it would be fair to both parties to set aside the limitation period in deciding upon these claims, with Stewart J inevitably concluding that the loss of key documents and material witnesses meant that ‘there cannot now be a fair trial of any of the core allegations’.264 These judgments foreclosed the other Kimathi claims; without evidence connecting any claimants to documentary evidence of specific abuses the claims were not ‘capable of sailing’.265

253 Bill of Rights 1688, Article 9. 254 Kimathi and Others v Foreign & Commonwealth Office [2017] EWHC 3379 (QB); [2018] 4 WLR 48, [20]. 255 Limitation Act 1939, s.26. 256 Kimathi, n.250 above, [186]. 257 Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 1305 (QB), [37]. 258 Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 2066 (QB). 259 Kimathi and Others v Foreign & Commonwealth Office [2018] EWHC 3144 (QB). 260 Kimathi (TC34), n.258 above, [29]. 261 Kimathi (TC20), n.259 above, [13]-[15]. 262 Kimathi (TC34), n.258 above, [174]. 263 Kimathi (TC34), n.258 above, [100]-[101] and Kimathi (TC20), n.259 above, [30]. 264 Kimathi (TC34), n.258 above, [481] and Kimathi (TC20), n.259 above, [312]. 265 Kimathi (TC20), n.259 above, [317]. 29

Moreover, starting from the premise that the Court was ‘not engaged on a historical seminar or in an inquiry’, Stewart J openly questions the utility of tort actions as an ersatz mechanism for shedding light on decades-old conflicts.266 As follow up actions to Mutua, the potential for already diminishing returns in this regard was exacerbated by the use of pro forma claims documents, replete with leading questions.267 These mechanisms, employed to manage such complex group litigation on a conditional- fee-agreement basis, spoke more to the comodification of the claimants’ experiences than a concern for detailing and remedying specific allegations of wrongful activity by actors under the ultimate control of the UK Government. Although parts of the substantive judgments did explore aspects of policies such as villagisation,268 and the conditions at Manyani Camp,269 from a UK Government perspective this material had less potential to provoke public outcry than the torture claims in Mutua, going some way to explaining the FCO’s different approaches to these cases. These new details regarding the conduct of the counterinsurgency were, at best, incidental to the Court’s decision over whether to strictly apply the limitation period. The phase of litigation which followed Mutua extended beyond the Kenya Emergency. Sophocleous270 shifted the focus of the end-of-Empire tort challenges to the UK Armed Forces’ efforts to suppress the Ethniki Organosis Kyprion Agoniston (EOKA) insurgency in Cyprus in the 1950s. The claimants alleged that the UK Government ‘owed a duty to take reasonable and necessary steps to prevent use of excessive force, including torture, by the Security Forces during the course of security operations in Cyprus’.271 By the time this case was heard the UK Government’s lawyers were warming to the challenge presented by these tort actions, and a new defence team experimented with a novel approach to countering the claims. They invoked the double-actionability rule, first developed in Phillips v Eyre to defeat the action against Governor Eyre in England on that basis that, having been indemnified by the island’s legislature, no offence had been committed in Jamaica.272 Statutory provisions have seen this rule superseded in English law, but it still pertained in the 1950s.273 Unhappy with the prospect of wading through long-defunct elements of Cyprus’s private law to determine its application to the case, Kerr J declared himself satisfied that the so-called “flexible exception”274 to double actionability could apply to allow the substantive claims to be heard under English law.275 In the Court of Appeal Longmore LJ promptly overturned this ruling on the basis that it ‘has the flavour

266 Kimathi (TC34), n.258 above, [22]. 267 ibid., [76]. 268 Kimathi (TC20), n.259 above, [57]-[103]. 269 Kimathi (TC34), n.258 above, [306]-[337]. 270 Sophocleous v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 19 (QB). 271 ibid., [111] (Kerr J). 272 Phillips v Eyre (1870) LR 6 QB 1, 28-29 (Willes J). 273 Private International Law (Miscellaneous Provisions) Act 1995, s.10. 274 Boys v Chaplin [1971] AC 356, 391 (Lord Wilberforce). 275 Sophocleous, n.270 above, [185]. 30 of a time when English courts regularly ignored foreign law’.276 There is an irony about raising the spectre of procedural imperialism to thwart these claims, for the choice of substantive law determined the issue of limitation periods in favour of the two-year limit on such actions in place in Cyprus in the 1950s.277 This decision effectively blocked the claims, given the consequent statutory restrictions upon the courts’ capacity to disapply those restrictions.278 In Mutua several elements aligned to produce what is already being called ‘a lucky outcome’ for the claimants.279 First, the discovery of the Hanslope Park materials during the action put the UK Government off balance from the start. Reeling from these revelations, the Government’s decision to accept the substantive allegations but contest the UK’s responsibility for inflicting them played to the claims’ strengths. It allowed the claimants to insist that the issue of responsibility could be established on the basis of the wealth of documents hitherto uncovered, an effective repost to arguments that it would be unfair to the defence for the Court to waive the limitation period. The Hanslope papers were still being digested when the settlement was reached, but it must have weighed on the Government’s legal team that this was not a meticulously curated archive from which unedifying material had been excised. As the Government’s lawyers adjusted to the challenges which Mutua inspired, they began to develop effective responses. The decision in Kimathi to contest the allegations themselves turned the litigation into a protracted slog towards an inevitable end; since the alleged abuses against individuals were neither documented nor corroborated, it proved impossible to conduct fair hearings into such remote events. In Sophocleous, by contrast, double actionability has seemingly provided a more elegant means by which to terminate the litigation (as Willes J intended it would when he developed the rule in Phillips v Eyre). Stewart J, in particular, has been left in the lonely position of disappointing expectations which had been artificially inflated by the Mutua settlement. If these cases affirm that the deck remains stacked in the UK Government’s favour when facing colonial-era personal injury claims, they also undermine claims that a radical adjustment is needed to limitation periods to protect former military personnel from tort action. The courts would be even more sceptical towards extending limitation periods if personal liability was at issue, and all of these cases have seen the courts have consistent regard to the needs of elderly witnesses.

276 Sophocleous v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 2167, [55]. 277 Sophocleous, n.270 above, [199] (Kerr J). 278 Foreign Limitation Periods Act 1984, s.2. 279 M. Hasian and S. Muller, ‘Post-conflict peace initiatives, British Mau Mau compensation, and the mastering of colonial pasts’ (2016) 11 Journal of Multicultural Discourses 164, 177. 31

Conclusion

Colonial administrators did not find it hard to sideline private law constraints on executive action in responding to apparent crises. This is exemplified by the fact that the highest-profile case to reach the London courts from Kenya during the Emergency concerned lucrative bridge tolls on military traffic.280 But even with such banal subject matter Denning LJ managed a judicial aside capable of assuaging colonial authorities’ concerns that London-based judges would ever question their handling of the Emergency:

Just as with the English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending.281

Henry Maine’s Victorian account of imperial authorities tailoring legal rules to befit the state of development of a colonised society clearly retained its influence.282 When Corfield prepared his ‘second-rate’283 account of the initial phases of the Kenya Emergency he included an extended version of Lord Denning’s above adage, but excised its last sentence.284 Emergencies, for Corfield, were no time for limited government, especially when ‘the African in the mass has not yet achieved that respect of the law which is taken for granted in the legal processes the British have evolved to suit their needs’.285 This contempt for Kenyans, with their supposedly ‘primitive characteristics and proclivities’,286 permitted colonial administrators to slip the legal bonds upon official action. The Kenya Emergency shaped the counterinsurgency practice of UK Armed Forces for decades. Having employed detention without trial and “enhanced interrogation” as responses to the Emergency, the personnel involved spread these practices through the last outposts of the Empire and ultimately back to Northern Ireland.287 Kenya’s counter-insurgency also illustrated the usefulness of swathing these practices in a legitimating veneer of legalism.288 From this wreckage, Mutua provided

280 By contrast, Jomo Kenyatta’s effort to challenge his conviction for involvement in the Mau Mau before the Privy Council was summarily dismissed; Kenyatta and Others v The Queen [1954] 1 WLR 1053. 281 Nyali Ltd. v Attorney General (1956) 1 QB 1, 16. 282 See Maine, n.47 above, 36-37. 283 Anderson, n.19 above, 330. 284 Colonial Office, n.3 above, 251. 285 ibid., 250. 286 UKNA, E.N. Griffith-Jones, ‘Draft Public Order Bill, 1959: Explanatory Note’ (2 Dec 1958) 4. For a detailed account of colonial administrators treating the Mau Mau as ‘psycho-pathological’ disturbance, see J. McCulloch, Colonial Psychiatry and “The African Mind” (CUP, 1995) 64-77. 287 Lord Parker, Report of the Committee of Privy Counsellors appointed to consider Authorised Procedures for the Interrogation of Persons Suspected of Terrorism (1972) Cmnd. 4901, para.10. 288 See D. French, The British Way in Counter-Insurgency, 1945-1967 (OUP, 2011) 74-104. 32 the tantalising possibility that tort law had, belatedly, become responsive to such abuses. At the very least it had the effect of ‘exposing’ the conduct of the Emergency ‘to public view’.289 The potential impact upon Kenya-UK relations of a protracted private-law struggle, featuring revelations of colonial abuses inflicted upon so many now-elderly claimants, concentrated minds in the FCO. Settlement, drawing a line under the affair, was unsurprisingly more attractive than protracted litigation.290 Beyond the question of whether tort can address historic abuses, however, is whether it should do so. As Richards recognised during the Boer War, compensation is a pale substitute for officials and soldiers staying within established legal bounds in the first place.291 Tort, moreover, operates to compensate defined losses for defined wrongs;292 it is not a particularly effective vehicle for investigating the conduct of a counter-insurgency at half-a-century’s remove, especially when such a one-sided intervention potentially ‘rubs salt in the wounds’ of the victims of Mau Mau violence.293 As the Kimathi and Sophocleous cases have demonstrated, the London courts have been reluctant to commit to this new departure. Mutua might have reinvigorated part of the Diceyan constitution but, at least with regard to colonial-era abuses, it was back in town for one night only.

289 Linden, n.45 above, 168. 290 See W. Hague, HC Deb., vol.563, col.1695 (6 Jun 2013). 291 See Richards, n.56 above, 141. 292 A. Beever, Forgotten Justice: A History of Political and Legal Theory (OUP, 2013) 262. 293 Anderson, n.19 above, 342. 33