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

Lookup NU author(s): Professor Colin MurrayORCiD



This is the authors' accepted manuscript of an article that has been published in its final definitive form by Routledge, 2019.

For re-use rights please refer to the publisher's terms and conditions.


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.

Publication metadata

Author(s): Murray C

Publication type: Article

Publication status: Published

Journal: King's Law Journal

Year: 2019

Volume: 30

Issue: 3

Pages: 426-458

Online publication date: 19/07/2019

Acceptance date: 01/07/2019

Date deposited: 16/08/2019

ISSN (print): 0961-5768

ISSN (electronic): 1757-8442

Publisher: Routledge


DOI: 10.1080/09615768.2019.1615747


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