R (Alamieyeseigha) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber,Mr Justice Collins,Mr Justice silber |
| Judgment Date | 25 November 2005 |
| Neutral Citation | [2005] EWHC 2704 (Admin) |
| Docket Number | Case No: CO/9133/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2005 |
[2005] EWHC 2704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Collins
The Honourable Mr Justice Silber
Case No: CO/9133/2005
Edward Fitzgerald QC, Malcolm ShawQC and Joseph Middleton (instructed by Corker Binning) for the Claimant
Jonathan Fisher QC and Mark Lucraft (instructed by CPS, Ludgate Hill) for the Defendants
I. Introduction
The issue raised on this judicial review application is whether the decision to prosecute Diepreye Solomon Peter Alamieyeseigha ("the claimant") should be quashed on the grounds that he is entitled to sovereign immunity in his capacity as Governor and Chief Executive of Bayelsa State, which is a constituent part of the Federal Republic of Nigeria. The matter to be resolved is whether a Governor and Chief Executive of a state, which is a constituent part of the Federal Republic of Nigeria, is entitled to immunity in criminal proceedings brought in this country.
The claimant has been charged by the Crown Prosecution Service ("CPS") with three offences. In the first charge, the claimant is alleged to have received £420,000 into a bank account held at HSBC in London on or about the 14 December 2001 contrary to section 93C (1) (A) of the Criminal Justice Act 1988 as amended. The money, it is alleged, represented the proceeds of a corrupt payment received from an oil and property merchant in Nigeria.
In the second charge, the claimant is alleged to have money laundered the sum of £475,724 contrary to section 93C (1) (A) of the Criminal Justice Act 1988 as amended by paying into the account of a firm of solicitors (Nedd & Co) on or about the 22 March 2003, for use when purchasing a property at 68–70 Regents Park Road, London, N3. The CPS allege first that there is a clear association between the receipt of these funds by the claimant and the grant of valuable contracts awarded by Bayelsa state and second that the claimant abused his position as Governor to benefit personally from the award of contracts with Bayelsa State. The third charge relates to a cash sum of £920,000 which was found at the claimant's home on 15 September 2005. Again the CPS alleges that this sum represents the proceeds of criminal conduct contrary to section 327(1) of the Proceeds of Crime Act 2002.
On 7 October 2005, the applicant was released from custody on bail subject to a number of conditions, one of which was that he was not to go within three miles of any airport or port. Subsequently, the claimant made an unsuccessful application to Southwark Crown Court to vary the bail conditions so as to enable him to travel to Nigeria for four weeks to deal with the affair of Bayelsa. It is common ground that the claimant is entitled to immunity from prosecution in Nigeria at least while he remains as Governor of Bayelsa State.
The matter originally came in front of us as a habeas corpus application when an issue was raised as to whether such an application could be made by the claimant as he was then on bail. Mr Edward Fitzgerald QC for the claimant then applied to bring a claim by judicial review to quash the decision to prosecute the claimant. Mr Jonathan Fisher QC for the Crown Prosecution Service did not object to this course, which enables the claim of state immunity by the claimant to be resolved speedily and a resolution of this dispute at this stage would allow the claimant if successful in his challenge to the decision to prosecute him to avoid the delay and the cost of a trial. We note that in Jones v The Ministry of Interior [2004] EWCA Civ 1394, Mance LJ expressed the view in paragraph 10 that "claims to state immunity should be resolved at an early stage in the proceedings". We then proceeded to hear this matter as a judicial review application in relation to which we gave leave to the claimant to proceed against the CPS and Mr Fitzgerald agreed to lodge the appropriate application for judicial review. We also abridged all time periods and waived the need for an Acknowledgement of Service.
The claimant contends that he is entitled to state immunity but the CPS contend that Bayelsa is merely a constituent part of the Federal State, which is not entitled to state immunity and that the claimant, who can have no better claim to State Immunity than Bayelsa State, is also not entitled to it. The CPS's submissions accord with the understanding of the Foreign and Commonwealth Office of Her Majesty's Government, which issued a certificate under section 21 of the State Immunity Act 1978 ("the 1978 Act") dated 26 September 2005, which recorded, among other matters that:
"The Federal Republic of Nigeria is a State for the purposes of Part I of the Act. Bayelsa State is a constituent territory of the Federal Republic of Nigeria, a federal state for the purposes of part 1 of the Act. [The claimant] is the Governor and Chief Executive of Bayelsa State and is not to be regarded for the purposes of Part 1 of the Act as Head of State of the Federal Republic of Nigeria…".
The Attorney General for State of Bayelsa has stated in a witness statement that the claimant is entitled to state immunity but the Attorney General of the Federal Republic of Nigeria disagrees. The issue whether the claimant is entitled to State Immunity is essentially a question of law for the courts of this country on which the views of either Attorney General is not of any value but we should explain that apart from stating that the Attorney General for State of Bayelsa is "also an accomplice in the case against the [claimant]", the Attorney General of the Federal Republic of Nigeria has stated in a witness statement made in these proceedings dated 3 November 2005 that:
"The immunity enjoyed by [the claimant as Governor] does not extend beyond the shores of Nigeria…It is lawful for the Crown in the United Kingdom to arrest, detain and prosecute the Governor for money laundering offences….the only person that can lay claim to sovereign immunity is the President of the Federal Republic of Nigeria under the doctrine of sovereign immunity in international law and duly accredited Nigerian Diplomats under the Vienna Convention"
II. The Issues
The issue of state immunity in criminal proceedings was considered in R v Bow Street Magistratesex parte Pinochet (No3) [2000] 1 AC 142. At page 201G, Lord Browne-Wilkinson said:
"It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the process of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of a head of state persist to the present day; a head of state is entitled to the same immunity as the state itself"
While that statement may perhapsbe couched in terms which are somewhat too wide, it undoubtedly reflects the general approach to state immunity. A foreign state's claim of immunity for civil liability is now governed by statute in the form of the 1978 Act but Part I of the Act, which deals with immunity of a state in civil proceedings, does not apply to criminal proceedings (section 16(4)). Part I of the Act was enacted as part of the process by which the United Kingdom Government ratified various treaties, which dealt with civil (but not criminal) proceedings. Immunity from criminal proceedings is dealt with in section 20(1) of the 1978 Act, which applies immunity for criminal proceedings to "a sovereign or other head of State" (section 20(1) (a) of the 1978 Act).
Indeed, it is common ground that (a) if a State is entitled to immunity, the Head of that State is also therefore entitled to immunity (see section 20 of the 1978 Act), (b) the determination of the issue in this case as to whether the claimant is entitled to state immunity and that depends upon whether Bayelsa state should be accorded state immunity and so (c) the issue on this application is therefore whether Bayelsa State is entitled to state immunity. As I have explained, the claimant contends that it is so entitled but the defendants disagree.
The claimant contends correctly that there is authority that the Federal Unit of the state, which is what Bayelsa State is, can in certain circumstances partake of the sovereignty of the state as a whole and obtain State Immunity as was shown by the decision of the Court of Appeal in Mellenger v New Brunswick Development Corporation [1971] 1 WLR 604, which I will have to consider in some detail in paragraphs 23 to 28 below. Nevertheless, in the case of civil claims, Laddie J has held in BCCI v Price Waterhouse [1997] 4 All ER 108 that the head of a member of a Federation, in that case the Ruler of Abu Dhabi, was not entitled to immunity while the President of the entity of which Abu Dhabi formed part, namely the United Arab Emirates, was entitled to state immunity. There is no reason to beleive that a similar result would not have been reached if the claim in that case had been made in criminal rather than in civil proceedings. Thus, it does not follow that every part of a federal state is entitled to immunity from criminal proceedings but it is a case-sensitive decision if a particular member of a federal state can be regarded as a separate state so that its head becomes entitled to immunity from criminal proceedings
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