In R (Medical Justice) v Secretary of State for the Home Department [2017] EWHC 2461 (Admin); [2017] 4 WLR 198, Ouseley J set out the history of these provisions and noted that: “The reference to acts carried out by terrorist groups is not part of the UNCAT definition, but was added following discussions between the SSHD and an NGO, Freedom from Torture; it was suggested by Sir Keir Starmer MP.” (at para 33) This, it is said on behalf of the appellant, demonstrates that the courts and the parties to these cases, including the Secretary of State, clearly understood that “person acting in an official capacity” for the purposes of article 1, UNCAT applies only to a person acting for or on behalf of a State. While this might, at first sight, appear to support the appellant’s case, I am unable to attach any great weight to it. The precise question in issue here was not under consideration. Moreover, in the particular context of immigration detention it was clearly desirable to include such an express provision for the benefit of persons who, because of their history, should not be detained. 62. We were informed that this is only the third occasion on which a prosecution has been brought in the United Kingdom pursuant to section 134, CJA. In R v Lama [2014] EWCA Crim 1729; [2017] QB 1171 the present issue did not arise. However, in my view considerable assistance is to be found in the first instance decision of Treacy J in R v Zardad, Case No T2203 7676, 7 April 2004. Zardad was charged with a conspiracy to torture in Afghanistan in circumstances where the substantive charge would have been that contrary to section 134, CJA. The case concerned the period between 1992 and 1996 when the Hezb-I-Islami faction was in control of Laghman Province. During that period Zardad was a chief commander of Hezb-IIslami and the military controller of the area of Sarobi. Zardad maintained that he was not a public official since there was a recognised government in Afghanistan at the relevant time and the group to which he belonged was not a part of that government and was actively opposed to it. The prosecution maintained that he was either a public official de jure or a person acting in an official capacity de facto. 63. At a preparatory hearing pursuant to section 29, Criminal Procedure and Investigations Act 1996, Treacy J considered that there was no evidence on which a jury could find that Zardad was a de jure public official. However, having surveyed the evidence of the degree of control exercised by Hezb-I-Islami, he continued: “It seems to me that what needs to be looked at is the reality of any particular situation. Is there sufficient evidence that HezbI-Islami had a sufficient degree of organisation, a sufficient Page 30