R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 1)
| Jurisdiction | England & Wales |
| Judgment Date | 28 October 1998 |
| Date | 28 October 1998 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Divisional Court
Before Lord Bingham of Cornhill, Lord Chief Justice, Mr Justice Collins and Mr Justice Richards
Extradition - sovereign immunity - former head of state
A former head of state enjoyed immunity from arrest and extradition proceedings in the United Kingdom in respect of public acts committed while he was head of state.
The Queen's Bench Divisional Court so held when:
1 Granting the applicant, Augusto Pinochet Ugarte, leave to move for judicial review of the decision of
(a) Mr Nicholas Evans, Bow Street Metropolitan Stipendiary Magistrate, to issue on October 16 a provisional warrant of arrest for the applicant under section 8(1) of the Extradition Act 1989 and of
(b) Mr R D Bartle, Bow Street Metropolitan Stipendiary Magistrate, to issue on October 22 a provisional warrant for the applicant's arrest under section 8(1).
2 Refusing to grant the applicant leave to move for judicial review by way of an order of mandamus in respect of the failure of the Secretary of State for the Home Department to cancel the warrant issued on October 16 under section 8(4) of the 1989 Act.
The court quashed both provisional warrants, but stayed its order on the second until determination of an appeal to the House of Lords.
The applicant had, in addition, on October 22 and 26, 1998 sought relief by way of habeas corpus. The court made no order on those applications.
The applicant was president of the government junta of Chile from September 11, 1973 until June 26, 1974 when he became head of state of the Chilean Republic until March 11, 1990. He was a Chilean national and had never been a Spanish citizen.
The first provisional warrant set out the accusation that between September 11, 1973 and December 31, 1983, he had murdered Spanish citizens in Chile within the jurisdiction of Spain.
The second provisional warrant, following the second Spanish international warrant of arrest which relied on events between 1973 and 1979 issued by the Spanish court, set out a number of allegations of (i) torture, (ii) conspiracy to commit torture, (iii) the taking of hostages, (iv) conspiracy to take hostages and (v) conspiracy to murder in a country to which the European Convention on Extradition applied.
Mr Clive Nicholls, QC, Miss Clare Montgomery, QC and Miss Helen Malcolm for the applicant; Mr Alun Jones, QC and Mr James Lewis for the Crown Prosecution Service, on behalf of the Spanish Government; Mr James Turner, QC, for the Home Secretary.
THE LORD CHIEF JUSTICE referred to the applicant's submissions made in respect of the first provisional warrant:
1 Issue was unlawful because the courts of the United Kingdom had no jurisdiction to exercise authority over the applicant as a former foreign sovereign. To that his Lordship would return.
2 The first provisional warrant was bad in law because, by virtue of section 2(1)(a), (b) and (3)(a) of the Extradition Act 1989 and section 9 of the Offences against the Person Act 1861, the offence described, related to the murder of Spanish citizens in Chile, which was not and had never been an extradition crime.
In his Lordship's judgment that second submission was correct and the provisional warrant of the October 16 was plainly bad. In so holding he made no criticism of the...
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