Judicial Bias and Disqualification after Pinochet (No. 2)
| Author | Kate Malleson |
| DOI | http://doi.org/10.1111/1468-2230.00254 |
| Published date | 01 January 2000 |
| Date | 01 January 2000 |
the making of further enquiries. The Law Commission’s provisional proposal to
limit overriding interests based on occupation to the occupied land seems to repeat
the error made by the Court of Appeal in the Ashburn Anstalt case – namely, a
failure to distinguish the rights of the occupier from their mode of protection (ie,
the fact of occupation). It is to be hoped that the Court of Appeal’s decision in
Ferrishurst Ltd vWallcite Ltd will encourage the Law Commission to reconsider
its position.
Judicial Bias and Disqualification after Pinochet (No. 2)
Kate Malleson*
On 25 November 1998 the House of Lords ruled that the former head of state of
Chile, General Augusto Pinochet, did not enjoy immunity for arrest and extradition
in relation to crimes against humanity allegedly committed whilst in office.
1
At the
start of that hearing, the Court gave permission for Amnesty International (AI) to
act as interveners in the case. After judgment was given it became known that one
of the five judges, Lord Hoffman, was an unpaid director and chairperson of
Amnesty International Charity Limited (AICL), an organisation set up and
controlled by AI and that his wife was employed by AI. On the basis of this
information, General Pinochet applied to the House of Lords to set aside its earlier
decision on the grounds that the links between Lord Hoffmann and AI had not been
declared and were such as to give rise to the appearance of possible bias.
2
In
December 1998 a newly constituted panel of five law lords held unanimously that
the relationship between AI and Lord Hoffmann was such that he was
automatically disqualified from hearing the case and the judgment could not stand.
Although the House of Lords’ decision to set aside one of its own judgments was
unprecedented, this aspect of the case occupied little of the court’s time.
3
It was
agreed by all five judges, and conceded by the respondents, that the law lords had
the inherent jurisdiction to overturn the original decision on the basis that the order
was improperly made.
4
The arguments presented were therefore confined to
whether or not the failure of Lord Hoffmann to disclose his involvement with
AICL was such as to require that the decision should be set aside.
*Law Department, London School of Economics and Political Science
1 [1998] 3 WLR 1456, [1998] 12 CL 210.
2RvBow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No 2)
3 The decision to set aside a previous judgment and order a re-hearing should be distinguished from the
decision to depart from an earlier ruling; a power which the House of Lords has enjoyed, and
occasionally exercised, since 1966.
4 n 2 above, at 585.
January 2000] Pinochet (No. 2)
ßThe Modern Law Review Limited 2000 119
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