House of Lords
|Session 2005 - 06|
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Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others
LORD BINGHAM OF CORNHILL
1. The issue at the heart of these conjoined appeals is whether the English court has jurisdiction to entertain proceedings brought here by claimants against a foreign state and its officials at whose hands the claimants say that they suffered systematic torture, in the territory of the foreign state. The issue turns on the relationship, in these circumstances, between two principles of international law. One principle, historically the older of the two, is that one sovereign state will not, save in certain specified instances, assert its judicial authority over another. The second principle, of more recent vintage but of the highest authority among principles of international law, is one that condemns and criminalises the official practice of torture, requires states to suppress the practice and provides for the trial and punishment of officials found to be guilty of it. Thus, like the Court of Appeal of Ontario in Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675, para 95, the House must consider the balance currently struck in international law
2. On 6 June 2002 Mr Jones, the claimant in the first action giving rise to this appeal, issued High Court proceedings against two defendants: the Ministry of Interior of the Kingdom of Saudi Arabia ("the Kingdom"), which (it is accepted) is for present purposes the Kingdom itself; and Lieutenant Colonel Abdul Aziz, sued as servant or agent of the Kingdom. He claimed aggravated and exemplary damages for assault and battery, trespass to the person, false imprisonment and torture in the Kingdom between March and May 2001. Permission was granted by Master Whitaker ex parte to serve the Kingdom out of the jurisdiction, and service was duly effected. Further permission was granted to serve Colonel Abdul Aziz, but he was not served. The Kingdom then applied to set aside service of the proceedings and to dismiss Mr Jones's claim on the ground of state immunity under the State Immunity Act 1978. On that ground, on 30 July 2003, Master Whitaker set aside service of the proceedings and refused permission to serve Colonel Abdul Aziz by an alternative method. With the master's permission, Mr Jones appealed to the Court of Appeal, contending that Part 1 of the 1978 Act was incompatible with article 6(1) of the European Convention on Human Rights.
3. Messrs Mitchell, Sampson and Walker are the claimants in the second action giving rise to this appeal. They issued High Court proceedings on 12 February 2004 against four defendants. The first two defendants were sued as officers in the Kingdom's police force. The third defendant was sued as a colonel in the Ministry of Interior of the Kingdom and deputy governor of a prison in which the claimants were confined. The fourth defendant was sued as head of the Ministry of Interior. They claimed aggravated damages for assault and negligence, contending that they had been subjected to torture by the first two defendants, which the third and fourth defendants had caused or permitted or negligently failed to prevent. On 18 February 2004 Master Whitaker refused the claimants' ex parte application to serve the proceedings out of the jurisdiction on the ground of state immunity under the 1978 Act. With the master's permission, the claimants appealed to the Court of Appeal.
4. The claimants in both actions have pleaded particulars of severe, systematic and injurious torture which they claim to have suffered, and annexed medical reports which appear to substantiate their claims. But the facts have not been investigated in these proceedings at all, and the stage has not been reached at which the defendants can be called on to answer these very serious allegations. The Kingdom has indicated through counsel that the allegations are denied.
5. In the Court of Appeal the Secretary of State for Constitutional Affairs intervened, supporting the legal submissions of the Kingdom. The Redress Trust intervened in support of the claimants. In the House, the Secretary of State again intervened for the same purpose. The Redress Trust, Amnesty International, Interights and Justice made joint submissions in writing.
6. The Court of Appeal dismissed Mr Jones's appeal against the dismissal of all his claims against the Kingdom, including his claim based on torture (but not including his claim in false imprisonment, which he had abandoned). But it allowed Mr Jones's appeal against refusal of permission to serve Colonel Abdul Aziz out of the jurisdiction by an alternative method, and it allowed the appeal of the three claimants in the second action against the refusal of permission to serve all four defendants out of the jurisdiction (save in respect of the claimants' allegations of negligence). The applications for permission to serve out of the jurisdiction in both actions were remitted to Master Whitaker for him to consider whether, in the exercise of his discretion, to grant permission to serve out. Mr Jones, the Kingdom and the claimants in the second action have all appealed against those parts of the Court of Appeal's orders which were adverse to them, save that none of the claimants has challenged the dismissal of his claims not based on torture. The main issues which the House must now resolve are twofold: first, whether the English court has jurisdiction to entertain Mr Jones's claim based on torture against the Kingdom; and secondly, whether it has jurisdiction to entertain the claims based on torture against Colonel Abdul Aziz in the first action and against the four defendants in the second.
7. Section 1(1) in Part 1 of the 1978 Act is headed "General immunity from jurisdiction" and provides:
The following provisions referred to, found in sections 2-11 of Part 1, specify proceedings in which a state is not immune. Section 14(1) provides that references to a state "include references to (a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government". Section 16(4) provides that Part 1 does not apply to criminal proceedings.
8. Part 1 of the 1978 Act represented a marked relaxation of the absolutist principle, described by Lord Atkin in Compania Naviera Vascongado v Steamship "Cristina"  AC 485, 490, as "well established" and "beyond dispute", that
It was a relaxation prompted partly by decisions such as The Philippine Admiral  AC 373 and Trendtex Trading Corpn v Central Bank of Nigeria  QB 529, and partly by the European Convention on State Immunity signed on behalf of seven European states, including the United Kingdom, in May 1972 (Cmnd 5081), which together showed that the British absolutist position had ceased to reflect the understanding of international law which prevailed in most of the rest of the developed world. As compared with the 1978 Act, the 1972 Convention was differently set out. It provided in article 15 that "A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within articles 1 to 14". But articles 1 to 14 covered very much the same ground as sections 2-11 of the 1978 Act. Much more recently, in the United Nations Convention on Jurisdictional Immunities of States and Their Property adopted by the General Assembly on 16 December 2004, the same approach is adopted. Article 5 provides that "A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention", and a number of exceptions are again specified. This Convention is not in force, and has not been ratified by the United Kingdom. But, as Aikens J observed in AIG Capital Partners Inc v Republic of Kazakhstan  EWHC 2239 (Comm),  1 All ER 284, 310, para 80,
9. Thus the rule laid down by section 1(1) of the 1978 Act is one of immunity, unless the proceedings against the state fall within a specified exception. This rule conforms with the terms of the international instruments already referred to. It also conforms with a number of domestic statutes elsewhere, such as section 1604 of the United States Foreign Sovereign Immunities Act 1976, section 3(1) of the Singapore State Immunity Act 1979, section 3(1) of the Pakistan State Immunity Ordinance 1981, section 2(1) of the South African Foreign States Immunities Act 1981, section 3(1) of the Canadian State Immunity Act 1982 and section 9 of the Australian Foreign States Immunities Act 1985. It is not suggested on behalf of Mr Jones that any of the exceptions in the 1978 Act covers his claim against the Kingdom for damages for mental and personal injury caused by torture inflicted there.
10. While the 1978 Act explains what is comprised within the expression "State", and both it and the 1972 European Convention govern the immunity of separate entities exercising sovereign powers, neither expressly provides for the case where suit is brought against the servants or agents, officials or functionaries of a foreign state ("servants or agents") in respect of acts done by them as such in the foreign state. There is, however, a wealth of authority to show that in such case the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state's right to immunity cannot be circumvented by suing its servants or agents. Domestic authority for this proposition may be found in Twycross v Dreyfus (1877) LR 5 Ch D 605, 618-619; Zoernsch v Waldock  1 WLR 675, 692; Propend Finance Pty Ltd v Sing (1997) 111 ILR 611, 669; R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147, 269, 285-286; Holland v Lampen-Wolfe  1 WLR 1573, 1583. Courts in Germany, the United States, Canada and Ireland have taken the same view: see Church of Scientology Case (1978) 65 ILR 193, 198; Herbage v Meese 747 F Supp 60 (1990), 66; Jaffe v Miller (1993) 13 OR (3d) 745, 758-759; Schmidt v Home Secretary of the Government of the United Kingdom (1994) 103 ILR 322, 323-325. The International Criminal Tribunal for the Former Yugoslavia has also taken the same view: Prosecutor v Blaskic (1997) 110 ILR 607, 707. In the UN Convention of 2004 already referred to, this matter is expressly addressed in article 2 where "State" is defined in (1)(b)(iv) to mean "representatives of the State acting in that capacity". It is further provided, in article 6(2)(b), that "A proceeding before a court of a State shall be considered to have been instituted against another State if that other State (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State".
11. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent of the state, had a sufficient connection with the state to entitle it to claim immunity for his conduct. But these are not borderline cases. Colonel Abdul Aziz is sued as a servant or agent of the Kingdom and there is no suggestion that his conduct complained of was not in discharge or purported discharge of his duties as such. The four defendants in the second action were public officials. The conduct complained of took place in police or prison premises and occurred during a prolonged process of interrogation concerning accusations of terrorism (in two cases) and spying (in the third). There is again no suggestion that the defendants' conduct was not in discharge or purported discharge of their public duties.
12. International law does not require, as a condition of a state's entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority. A state may claim immunity for any act for which it is, in international law, responsible, save where an established exception applies. In 2001 the International Law Commission promulgated Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Article 4 provides
The commentary on paragraph (2) of this article observes:
Article 7 takes the matter further:
This article also is considered in the commentary:
This approach was endorsed by the International Court of Justice in Democratic Republic of the Congo v Uganda (unreported), 19 December 2005, paras 213-214; see also James Crawford, The International Law Commission's Articles on State Responsibility, (2002), pp 106-109. The fact that conduct is unlawful or objectionable is not, of itself, a ground for refusing immunity. As Lord Wilberforce pointed out in I Congreso del Partido  1AC 244, 272: