Case No. UKUT-00376-(IAC)

of the conduct of the Iranian authorities in recent years and then narrates , over some thirty or so pages , various, sometimes repetitive, circumstances and considerations which she appears to have taken into account in determining whether the appellant ought to be excluded from the protection of the Refugee Convention by virtue of article 1F. It is not always easy to follow the thinking which lies behind this letter and a number of the considerations identified have no application to the appellant and her conduct. However, having the benefit of the skeleton argument prepared on behalf of the respondent , and having heard submissions from Ms Isherwood, we understand the respondent’s position to be this. Article 1F of the Refugee Convention provides as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the i nternational instruments drawn up to make provision in respect of such crimes;” 19. The meaning to be given to article 1F(a) is to be found in international law rather than domestic law and the guiding instrument is the Rome Statute of the International Criminal Court (“the ICC Statute”). 20. The respondent contended that the acts of torture admittedly perpetrated within the prison in which the appellant worked were of a nature and extent such as would fall within the definition of a crime against humanity, as set out in article 7 of the ICC Statute. Although it was not suggested that the appellant personally conducted any acts of torture, she fell to be held responsible in light of the terms of article 25 paragraph 3(c) which attached criminal responsibility to someone who: “For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;” 21. The Secretary of State’s contention was that the appellant facilitated the acts of torture which occurred in the part of the prison controlled by the Intelligence Service by her conduct in identifying those prisoners who were listed for interrogation and by taking them from the general part of the prison to the part controlled by the Intelligence Service. It was contended that the mental elements of intent and knowledge required for criminal responsibility by the ICC Statute were met in light of the terms of article 30, which provides as follows: 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this articl e, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shal l be construed accordingly.” 22. On the appellant’s own evidence she intended that those identified by her as corresponding to the names on the list should be transferred to the relevant part of the prison and she did this in the knowledge that they would be subjected to torture once she had done so. She personally undertook the transfer on various occasions. In these circumstances the respondent contended that on the evidence available it was clear that the appellant’s conduct facilitated what occurred, that she knew what the consequence for the prisoners of her participation would be and she had therefore made a substantial contribution to the acts of torture constituting a crime against humanity perpetrated in the prison. Relying on the authority of R (JS ( Sri Lanka )) v SSHD [2010] UK SC 15 , the respondent submitted that she was therefore correct to conclude that there were serious reasons for considering that the appellant had committed a crime against humanity and her decision should be upheld. 23. We shall look separately at the respondent’s submissions on the issue of duress later . The a ppellant’s o verarching p osition 24. On behalf of the appellant , Ms Pickup drew attention to the background material available describing the constitution and purposes of the Revolutionary Guard Corps. She drew attention to the various different functions which were encompassed within the organisation. She pointed out that it had security functions, military functions, economic functions, and political functions. She also emphasised the distinction to be drawn between the general body of the Revolutionary Guard and the much smaller and separate Intelligen ce Directorate within the group . She submitted that the appellant’s membership of the Revolutionary Guard alone would not be sufficient to attach responsibility for the commission of crimes against humanity. She submitted that given the wide ranging functions of the Corps it could not be said that membership equated to support for torture or that the appellant’s previous association would have given her knowledge of what took place in the section of the prison controlled by the Intelligence Service prior to her taking up her post. 25. That having been said, Ms Pickup did not challenge the respondent’s contention that the Iranian state had been responsible for crimes against humanity as defined in article 7 of the ICC Statute, nor did she suggest that the respondent was wrong in founding upon the acts of torture perpetrated within the prison for this purpose. Taking account of the guidance given in JS ( Sri Lanka ) and in AA-R ( Iran ) v SSHD [2013] EWCA Civ 835 , Ms Pickup accepted that, subject to other considerations, the appellant’s conduct met the test of facilitating the acts of torture by aiding and abetting their commission as defined in article 25 of the ICC Statute. Her contention was that the appellant had been acting under duress and was therefore not criminally responsible. Again, we shall look separately at Ms Pickup’s submissions on this point later. Our i nitial a ssessment 26. The respondent would only be entitled to conclude that the appellant was excluded from the protection of the Refugee Convention if the terms of article 1F(a) of that Convention applied. In the present case the respondent relies on the evidence of torture taking place within the area of the prison under the control of the Intelligence Service and contends that this conduct falls within the definition of a crime against humanity. As was correctly acknowledged, that requires an analysis of the meaning of a crime against humanity as specified in article 7 of the ICC Statute. So far as relevant to the present case , article 7 provides as follows : “1. For the purposes of this Statute ‘cri me against humanity’ means any of the following acts when commit ted as part of a widespread or systematic attack directed against any civilia n population, with knowledge of the attack: (f) Torture ; 2. For the purposes of paragraph 1: (a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple com mission of acts referred to in paragraph 1 against any civilia n population, pursuant to or in furtherance of a State or organi z ational poli cy to commit such attack; (e) ‘Torture’ means the intentiona l infliction of severe pain or suffering, whether physical or mental, u pon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inher ent in or incidental to , lawful sanctions;” 27. The first sentence of paragraph 1 of article 7 comprises what is known as the “chapeau” requirement, meaning that it covers or prefaces the particular provisions which follow. The available background evidence referred to in the respondent’s reasons for refusal letter , as taken along with the country expert reports relied upon by both the respondent and the appellant , vouch that the Iranian regime has been engaged in the brutal and systematic repression of civil society. The means through which that repression has been achieved include the widespread use of arbitrary detention of dissidents, activists and intellectuals accompanied by the routine use of torture to induce confessions which can be used in legal proceedings to support vague charges such as “propaganda against the state” and “endangering the security of the state”. We accept this evidence, none of which was challenged. The prison in which the appellant worked was one of those to which such political prisoners and dissidents were taken for the purposes of this detention. We also accept that acts of torture such as would fi t the definition in article 7 paragraph 1 (f) of the ICC Statute took place on a routine basis over many years within the prison where the appellant was employed. We accordingly hold that the “chapeau” requirement has been established and that the respondent was correct to conclude that crimes against humanity were committed in the prison. 28. In examining the appellant’s own involvement in such crimes w e recognise the importance of the distinction drawn by Ms Pickup between membership of, or association with, the general body of the Revolutionary Guard and membership of the Intelligence Directorate or Service. We see the force in her submissions concerning the wide range of functions undertaken by the Revolutionary Guard and we therefore do not accept that the appellant must have known of or approved of what was taking place at the prison prior to commencing her post. Mere membership of an organisation with such a diverse function as the Revolutionary Guard Corps could not be said to involve personal and knowing participation in persecutory conduct conducted by some of its elements – JS ( Sri Lanka ) Lord Hope at paragraph 44. 29. The appellant ’s own evidence was that she had no reason to be aware of the practices conducted in the section of the prison controlled by the Intelligence Service prior to her commencing employment but that she became aware of them after working within the institution for a short period of time. Although she may, perhaps , have been somewhat idealistic, given her age and background when being offered the post at the prison we accept the appellant’s evidence as to her appreciation of what her role would involve. We accept her consistent account that she only learned of the conduct of the Intelligence Service after commencing her employment. Nevertheless , it is plain that from shortly after commencing her service the appellant’s conduct contributed in a significant way to the Intelligence Service’s ability to pursue its purpose of committing a crime against humanity. On a regular basis over a period of years she was directly responsible for removing those prisoners listed for interrogation and ensuring that they were transferred directly to the separate torture facility, in the full knowledge of what would befall those individuals on being left there. In later years she had a supervisory and controlling function. Article 25 paragraph 3(c) of the ICC Statute brings home criminal responsibility to those who aid and abet for the purpose of facilitating the commission of a crime. Aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, it is not necessary to establish a common purpose –