terms of wider application than article 1. The offence contrary to section 134(1) can
be committed only by a “public official or person acting in an official capacity”. He
further draws attention to the fact that both subsections 134(1) and (2) provide that
the public official or person acting in an official capacity must be acting in the
performance or purported performance of their official duties. He points to the fact
that the definition applies to torture both in the United Kingdom and elsewhere and
submits that it is hard to envisage that anyone could, in the United Kingdom, commit
an act of torture in the performance of their “official duties” unless they were acting
for or on behalf of the State. Anyone not acting either for or on behalf of the State
is, he submits, by definition, acting in a private and individual capacity and such
conduct, in the United Kingdom, would fall within the jurisdiction of ordinary
domestic criminal law and be prosecuted accordingly.
25.
The difficulty with the appellant’s approach is that it seeks to impose a gloss
on the ordinary meaning of the words of the two provisions. Those words are apt to
describe a person performing official administrative or governmental functions but
provide no suggestion that those functions must be performed on behalf of the
government of the State concerned. The dichotomy drawn by the provisions is
between official conduct and purely private conduct, not between State and nonState activity. While in most normal circumstances, such as those prevailing in the
United Kingdom to which the appellant refers, official conduct will usually be
performed on behalf of a State, it is necessary to consider the applicability of the
Convention in less stable situations, including those where more than one body may
be performing administrative or governmental functions within the territory of the
State. Unhappily, examples of such situations arise not infrequently. In my view the
words used do not support a limitation of the kind proposed. On the contrary, the
words “person acting in an official capacity” are apt to include someone who holds
an official position or acts in an official capacity in an entity exercising
governmental control over a civilian population in a territory over which it holds de
facto control.
Object and purpose
26.
It is well established that a treaty should be interpreted in accordance with
the ordinary meaning to be given to its terms in their context and in the light of its
object and purpose (Vienna Convention on the Law of Treaties, article 31(1)). It is
necessary, however, to sound a cautionary note at this point. While the object of
UNCAT was undoubtedly, in one sense, to end impunity for perpetrators of what
might be termed “official torture” it does not follow that the reading of the
Convention which would best avoid impunity must be adopted in all circumstances.
It is, rather, necessary to give effect to the words used in the light of the object and
purpose of the scheme created by the State parties to the Convention. Similarly, the
mere fact that a particular reading may be seen as a desirable development of the
law is not of itself a valid reason for adopting it. It is not for national courts engaged
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