Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another (Secretary of State for Constitutional Affairs and another intervening); Mitchell v Al-Dali;
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 2006 |
| Date | 14 June 2006 |
| Court | Queen's Bench Division |
(Master Whitaker)
Lord Phillips of Worth Matravers MR; Mance and Neuberger LJJ)
(Lords Bingham of Cornhill, Hoffmann, Rodger of Earlsferry, Walker of Gestingthorpe and Carswell)
State immunity — Jurisdictional immunity — Alleged violations of jus cogens — Torture — Claims for damages for torture committed outside forum State — Whether defendant State immune — General provision for immunity — Whether exception for jus cogens violation — State Immunity Act 1978, Sections 1(1) and 5 — Whether Section 1(1) of the Act should be read subject to implied exception for claims which alleged torture — Whether English courts having jurisdiction
State immunity — Jurisdictional immunity — Officials — Definition of State — Whether including officials — Whether officials acting in official capacity entitled to same immunity as State — Whether torture official act attracting immunity ratione materiae — Whether exception applying — State Immunity Act 1978 — Whether English courts having jurisdiction
State immunity — Human rights — Relationship between law of State immunity and human rights — State Immunity Act 1978 — Whether Act disproportionate — Whether Act inconsistent with a peremptory norm of international law prohibiting torture — Whether application of Act infringing claimants' right of access to a court under Article 6 of European Convention on Human Rights, 1950 — Whether English courts having jurisdiction to entertain claims — Whether States recognizing or giving effect to international law obligation to exercise jurisdiction over claims arising from alleged breaches of peremptory norms of international law — Sources of international law — Treaties — Judicial decisions — Reputed publicists — Whether recognizing exception to State immunity for torture cases in civil proceedings — Whether ancillary procedural rule entitling or requiring States to assume civil jurisdiction over other States in alleged torture cases
Human rights — Freedom from torture — Torture Convention, 1984 — Claimants alleging systematic torture by State officials while in custody of foreign State — Article 14 of Torture Convention, 1984 — Interpretation — Whether other States required to provide remedy for acts of torture committed outside their territory —Jus cogens prohibition of torture — Whether taking precedence over other rules of international law — Nature of State immunity international law rules — Whether States recognizing or giving effect to international law obligation to exercise jurisdiction over claims arising from alleged breaches of peremptory norms of international law — Whether entitlement to immunity when sued for torture
Human rights — Right of access to court — Kingdom of Saudi Arabia claiming immunity for itself and its officials — Whether immunity incompatible with claimants' right of access to court — European Convention on Human Rights, 1950, Article 6
Relationship of international law and municipal law — State Immunity Act 1978 — Interpretation — Human Rights Act 1998, Section 3 — Whether Section 1(1) of State Immunity Act 1978 could be read in way compatible with Convention rights — European Convention on Human Rights, 1950, Article 6 — Whether State Immunity Act 1978 could be interpreted in manner permitting immunity to be refused to Kingdom of Saudi Arabia and its officials in respect of torture claims — The law of England
Summary: The facts: — The claimants in two separate actions alleged that they had been systematically tortured while in official custody in the Kingdom of Saudi Arabia (‘the Kingdom’). They brought claims against the defendants for the resulting psychological damage suffered following their release and return to the United Kingdom.
On 19 July 2002, the claimant in the first action, Mr Jones, a British citizen, brought claims against the Ministry of the Interior of the Kingdom2 and its agent, Lieutenant Colonel Abdul Aziz, who had allegedly committed the acts of torture which took place between 16 March and 21 May 2001. Service of the claim was effected on the first but not on the second defendant. The Kingdom applied for the claim to be struck out on the ground that the Ministry and its agents were entitled to immunity under the State Immunity Act 1978.3
The claimants in the second action, Messrs Mitchell and Sampson, British citizens, and Mr Walker, a Canadian citizen, issued High Court proceedings against four defendants. The first two defendants were sued for allegedly committing acts of torture. The third and fourth defendants, respectively the deputy governor of the prison where the acts were alleged to have occurred and the Minister of the Interior, were sued for negligently failing to prevent this torture.
Held (by the High Court in respect of the first action): — The Kingdom's application for the claim to be struck out was allowed. The Court lacked jurisdiction. The application for service by an alternative method on Lieutenant Colonel Abdul Aziz was dismissed and the claim struck out.
(1) The State Immunity Act was intended to be a comprehensive code in respect of immunity from civil claims. Since none of the exceptions to immunity were applicable to the claims against the Kingdom, it was entitled to immunity under the general provisions of Section 1(1) (para. 13).
(2) The judgment of the European Court of Human Rights in Al-AdsaniINTL4 precluded a ruling that the State Immunity Act was incompatible with the European Convention on Human Rights (paras. 32–3).
(3) The immunity of the Kingdom extended to Lieutenant Colonel Abdul Aziz as part of the Saudi Arabian State under Section 14(1) of the Act. The
claim against the Kingdom was on the basis of vicarious liability for Lieutenant Colonel Abdul Aziz. Any other conclusion would undo the result reached in Al-Adsani (paras. 34–8).In the light of this decision, the High Court also held that the defendants in the second action were entitled to immunity. The claimants in both actions appealed and the appeals were heard jointly.
Held (by the Court of Appeal, unanimously): — The appeal was dismissed in relation to the claim against the Kingdom but allowed in relation to the actions against the individual defendants.
(1) A foreign State was immune from civil proceedings under the State Immunity Act 1978 for torture allegedly committed outside the United Kingdom. The Act was a comprehensive code. Although international law prohibited torture, the Act did not contain any express or implied exception to immunity in cases of torture. This immunity did not infringe a right of access to courts under Article 6 of the European Convention since the grant of immunity pursued a legitimate aim and was proportionate (paras. 13–16).
(2) The jus cogens nature of the prohibition on torture did not mean that a State no longer enjoyed immunity from civil proceedings in the courts of another State to that in which the alleged torture occurred. Recognition of such immunity did not sanction the torture or qualify its prohibition but it did qualify the jurisdictions in which the peremptory norm could be enforced. There was a distinction between principles of substantive international law and other issues, such as jurisdiction and immunity in civil proceedings in any particular jurisdiction (para. 17).
(3) Under Article 14(1) of the Torture Convention,5 the State responsible for providing civil redress in its legal system was the State whose official allegedly committed the torture either in its own State or abroad. There was no requirement for other States to provide civil redress (paras. 18–21).
(4) There were important distinctions between considerations governing a claim to immunity by a State in respect of itself and its serving Head of State and diplomats, which at common law enjoyed immunity ratione personae whatever the character of their acts, and a State's claim for immunity for its officials and agents, including former Heads of State and former diplomats, which was for immunity ratione materiae (paras. 23–7).
(5) The immunity of the State did not, however, extend to its officials in a case of this kind. Since the State Immunity Act 1978 made no express reference to the position of individual officials of the State, it was necessary to develop by analogy the principles which governed the extension of State immunity in respect of civil claims to State officials or agents. It was necessary to decide as a matter of first principle whether the cloak of State immunity should extend
to acts or omissions of ordinary State officials amounting to systematic torture (paras. 31, 44–5 and 93).(6) Some limitations on immunity with respect to officials were consistent with the approach adopted in some cases that drew a distinction between official and private acts, but that distinction was not always clear-cut or easy to apply. It had also been recognized that individuals could be held criminally responsible for offences against international law (paras. 45–68).
(7) Article 6(1) of the European Convention was prima facie engaged in a case such as the present. Any denial of access to English courts had to be shown to be in pursuit of a legitimate aim and proportionate. There were, however, important distinctions between a States claim to immunity ratione personae and to immunity ratione materiae in respect of a claim against one of its officials. For example, there was no settled international principle affording the State the right to claim immunity in respect of claims against its official (paras. 82–91).
(8) It was no longer appropriate to give blanket effect to a foreign State's claim to immunity ratione materiae in respect of a State official alleged to have committed acts of systematic torture...
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