Case No. UKUT-00137-(IAC)

[2010] UKSC 15, which is a case concerned with Article 1F(a) of the Refugee Convention, and therefore, also Article 12(2)(a) of the Qualification Directive. Mr Mackenzie contra sted the situation in English domest ic law under which soliciting, inducing or inciting an offence would each constitute an “auxiliary” or “inchoate” offence, regardless of whether any primary offence was committed or attempted, with the position under the Rome Statute of the International Criminal Court (hereafter the ICC Statute) which makes it clear that under Article 25(3)(b ) ordering, soliciting or inducing the commission of a crime within the jurisdiction of the International C rimin al C ourt only give s rise to individual criminal responsibility if a crime in fact occurs or is attempted. The same, he says, is true under sub-paragraph s (c) and (d) in respect of aiding and abetting or in any other way contributing. Mr Mackenzie contrasts this with the situation in relation to genocide in respect of which it is clear from (e) of Article 2 5(3) that an offence is committed where a person directly and public incites others to commit genocide, without any reference to genocide actually having to be committed or attempted. 17. At paragraph 8 in JS Lord Brown endorse d the view of T o ulso n LJ in the Court of Appeal [2009] EWCA Civ 364 at paragraph 115, that the ICC Statute should now be the starting point for considering whether an applicant is disqualified from asylum by virtue of Article 1F(a). 18. Mr Mackenzie, of course, anticipa ted the argument that J S and its reliance on Article 25 of the ICC Statute was concerned with Article 1F(a) rather than 1F(c). He argued that there were four particular reasons why what was said by the Supreme Court in JS in this context was equally applicable to Article 1F(c) cases. 19. The first of these came from what was said by the Supreme Court in JS . When Lord Brown spoke at paragraph s 33 to 40 of his judgment concerning the correct approach to Article 1F this was not qualified by reference to 1F(a) in particular. At paragraph 33 of JS Lord Brown noted the ambit of Article 1F, referring to Article 12(3) of the Qualification Directive which we have set out above and also paragraphs (b), (c), and (d) of Article 25(3) of the ICC Statute, each of w hich, as he said, recognises that criminal responsibility is engaged by persons other than the person actually committing the crime. At paragraph 34 he referred also to the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the definition there of individual criminal responsib i lity. He noted the width of these provisions. He continued to refer to Article 1F rather than limiting what he said to Article 1F(a) at paragraph 35 and the fact that it disquali fied those who made “ a substantial contribution to” the crime, knowing that their acts or omissions will facilitate it. He bo r e in mind also what had been said by the ICTY Chamber in