18 September 2009

FOURTH SECTION

Application no. 34356/06
by Ronald Grant JONES
against the United Kingdom
lodged on 26 July 2006

AND

Application no. 40528/06
by Alexander Hutton Johnston MITCHELL and Others
against the United Kingdom
lodged on 22 September 2006

STATEMENT OF FACTS

THE FACTS

1. This case concerns two applications. In the first, the applicant, Mr Ronald Grant Jones, is a British national who was born in 1953. He is represented before the Court by Mr G. Cukier, a lawyer practising in London with Kingsley Napley LLP. In the second, the applicants are Mr Alexander Hutton Johnston Mitchell, Mr William James Sampson and Mr Leslie Walker. They are also British nationals who were born in 1955, 1959 and 1946 respectively. Mr Sampson also has Canadian nationality. They are represented before the Court by Ms T. Allen, a lawyer practising in London with Bindmans LLP.

A.The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1.Proceedings brought by Mr Jones

3. On 15 March 2001, while he was living and working in the Kingdom of Saudi Arabia (“the Kingdom”), Mr Jones was slightly injured when a bomb exploded outside a bookshop in Riyadh. He alleges that the following day he was taken from hospital by agents of the Kingdom and unlawfully detained for 67 days. During that time he was tortured by a Lieutenant-Colonel Abdul-Aziz. In particular, he alleges he was beaten with a cane on his palms, feet, arms and legs; slapped and punched in the face; suspended for prolonged periods by his arms; shackled at his ankles; subjected to sleep deprivation and given mind-altering drugs.

Mr Jones returned to the United Kingdom where a medical examination found he had injuries consistent with his account and where he was diagnosed with severe post-traumatic stress disorder.

On 27 May 2002, Mr Jones commenced proceedings in the High Court against the Kingdom, the Ministry of Interior of the Kingdom and Lieutenant-Colonel Abdul-Aziz claiming damages inter alia for torture. In the particulars of claim he referred to Lieutenant-Colonel Abdul-Aziz as a servant or agent of the Kingdom. A Master of the High Court subsequently gave permission to serve the claim form out of the jurisdiction on the Kingdom and Lieutenant-Colonel Abdul-Aziz.

On 12 February 2003, the Kingdom applied to have the claim struck out. In his judgment of 30 July 2003, the Master held that the Kingdom was entitled to immunity under section 1(1) of the State Immunity Act 1978 (“the 1978 Act”: see relevant domestic law and practice at paragraph 20 below). He also held that Lieutenant-Colonel Abdul-Aziz was similarly entitled to immunity under that Act. Mr Jones appealed to the Court of Appeal (see paragraph 5 below).

2.Proceedings brought by Mr Mitchell, Mr Sampson and Mr Walker

4. Mr Mitchell and Mr Sampson were arrested in Riyadh in December 2000; Mr Walker was arrested there in February 2001. All three applicants allege that, while in custody, they were subjected to sustained and systematic torture, including beatings about the feet, arms, legs and head, and sleep deprivation. Mr Sampson alleges he was anally raped. The applicants were released and returned to the United Kingdom on 8 August 2003. Each obtained medical reports which concluded that their injuries were consistent with their accounts.

The applicants decided to commence proceedings in the High Court against the four individuals they considered to be responsible: two policemen, the deputy governor of the prison where they were held, and the Minister of the Interior who was alleged to have sanctioned the torture. They therefore applied for permission to serve their claim on the four individuals out of the jurisdiction. On 18 February 2004, this was refused by the same Master who had heard Mr Jones’s claim, on the basis of his previous ruling in respect of Mr Jones. The applicants appealed to the Court of Appeal with the leave of the Master.

3.The Court of Appeal judgment in the applicants’ conjoined appeals

5. On 28 October 2004 the Court of Appeal unanimously dismissed Mr Jones’s appeal from the decision of the Master to refuse permission to serve the Kingdom outside the jurisdiction. However, it allowed his appeal, and that of the other applicants, in respect of the refusal of permission to serve the individual defendants.

6. In respect of the immunity of the Kingdom, Lord Justice Mance, with whom Lord Phillips and Lord Justice Neuberger agreed, refused to depart from this Court’s ruling in Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001‑XI. In addition, Article 14(1) of the United Nations Convention Against Torture (“the Torture Convention”: see paragraph 24 below), which obliges a Contracting State to ensure in its legal system that a victim of an act of torture obtains redress, could not be interpreted as imposing an obligation on a State to provide redress for acts of torture when those acts were committed by another State in that other State.

7. In respect of the immunity of the individual defendants, a distinction had to be drawn between, on the one hand, immunity for the State itself, its serving head of State and diplomats and, on the other, immunity in respect of its ordinary officials, former heads of State and former diplomats. The former enjoyed immunity ratione personae, the latter only immunity ratione materiae. Therefore, Lord Justice Mance considered the case-law of the domestic courts and courts of other jurisdictions, which recognised State immunity in respect of acts of agents of the State. This case-law included the Court of Appeal’s judgment in Propend Finance Pty Ltd v. Sing [1997] ILR 611, where it was held that the effect of section 14(1) of the 1978 Act was to give State officials the same protection as that given to the State itself. However, neither Propend nor any of the other relevant cases was concerned with conduct which was to be regarded as outside the scope of any proper exercise of sovereign authority or with international crime, let alone with systematic torture. He did not accept that the definition of torture by the UN Torture Convention as an act by (or with the consent or acquiescence of) a public official or other person acting in an official capacity was fatal to the applicants’ claims:

“It seems doubtful that the phrase ‘acting in an official capacity’ qualifies the reference to ‘public official’. The types of purpose for which any pain or suffering must be inflicted ... would appear to represent a sufficient limitation in the case of a public official. Be that as it may, the requirement that the pain or suffering be inflicted by a public official does no more in my view than identify the author and the public context in which the author must be acting. It does not lend to the acts of torture themselves any official or governmental character or nature, or mean that it can in any way be regarded as an official function to inflict, or that an official can be regarded as representing the state in inflicting, such pain or suffering. Still less does it suggest that the official inflicting such pain or suffering can be afforded the cloak of state immunity...The whole tenor of the Torture Convention is to underline the individual responsibility of state officials for acts of torture...”

8. Lord Justice Mance did not consider it significant that Lieutenant-Colonel Abdul-Aziz had been described as the “servant or agent” of the Kingdom. Nor did he accept that general differences between criminal and civil law justified a distinction in relation to immunity. The House of Lords in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147 (“Pinochet (no. 3)”) had found there would be no immunity from criminal prosecution in respect of an individual officer committing torture in an official context: it was not easy to see why civil proceedings against an alleged torturer involved a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person. It was also incongruous that if an alleged torturer was within the jurisdiction he or she would be prosecuted pursuant to Article 5 of the Torture Convention, and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim. There was also no basis for assuming that, in such civil proceedings, a State could be made liable to indemnify or otherwise support one of its officials proved to have committed systematic torture. Claims against individual officials did not raise problems regarding execution against State property, as foreseen in the concurring opinion of Judges Pellonpää and Bratza in Al-Adsani, cited above.

9. The issue of whether any claim in the English courts against individuals could proceed was better determined not by reference to immunity, but by considering whether it was appropriate for the English courts to exercise jurisdiction. A number of factors ought be considered in the decision as to whether to exercise jurisdiction, including the sensitivity of the issues involved and the general power of the English courts to decline jurisdiction on the grounds that it was an inappropriate forum for the litigation. He added: “I do not see the difficult jurisdictional issues which such claims raise as a justification for possession by the foreign State of a blanket claim to immunity in respect of such an official or agent in a case of alleged systematic torture.”

10. In considering the impact of Article 6, Lord Justice Mance found important distinctions between a State’s claim to immunity ratione personae, at issue in Al-Adsani, and a State’s claim to immunity ratione materiae in respect of a claim against one of its officials. This included his finding (paragraph 7 above) that the settled international practice only related to the immunity of the State itself or to the immunity of individual officials for alleged misconduct that bore no relationship in nature or gravity to the international crime of systematic torture. It also included the further finding that civil proceedings against individual officials did not necessarily implead indirectly the State in question (see paragraph 8 above). Where, under Article 14 of the Torture Convention, a State had created a domestic remedy for torture in the State where that torture was committed, other national courts could be expected to refuse to exercise jurisdiction. But, where there was no adequate remedy in the State where the systematic torture occurred, it might be regarded as disproportionate to maintain a blanket refusal of recourse to the civil courts of another jurisdiction. Lord Justice Mance continued:

“I recognise, without expressing any concluded view, that it might, in some cases, be relevant to weigh the absence of any effective domestic remedy in the state of the alleged torture against the unlikelihood of the defendant playing any part in any proceedings in the state of suit, or being amenable to any type of enforcement there or elsewhere. But, if a state can be shown to have failed to provide an effective domestic remedy for alleged torture, this must on any view weaken its position in insisting on a claim to state immunity in respect of such a claim against one of its officials elsewhere.”

11. A final distinction was that while the courts of one State were not to adjudicate lightly upon the internal affairs of another State, there were many circumstances, particularly in the context of human rights, where national courts did have to consider and form a view on the position in or conduct of foreign States. Additionally, the act of state doctrine would cause courts to refrain from adjudication when there were no manageable standards for adjudication but allegations of systematic torture would be unlikely to raise such considerations.

12. Therefore, in allowing the applicants’ appeals in respect of the individual defendants and remitting them for further argument, Lord Justice Mance concluded:

“[I]t seems to me that any absolute view of immunity must at the very least yield in the face of assertions of systematic torture to a more nuanced or proportionate approach. As it is, having regard to the [European Convention on Human Rights], it is sufficient to decide this appeal that, whether issues of state immunity are or are not treated as theoretically separate from issues of jurisdiction in English law, the permissibility, appropriateness and proportionality of exercising jurisdiction ought to be determined at one and the same time. Such a conclusion reflects the importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights. It fits harmoniously with the position already achieved in relation to criminal proceedings. It caters for our obligation under article 6 of the [European Convention on Human Rights] not to deny access to our courts, in circumstances where it would otherwise be appropriate to exercise jurisdiction applying domestic jurisdictional principles, unless to do so would be in pursuit of a legitimate aim and proportionate.

...

I do not envisage that as a result of this judgment that England will become a forum of choice for the bringing of claims for torture committed throughout the world. First, it is always necessary in any English suit to establish some basis within ordinary domestic rules upon which it is technically possible for the English courts to exercise jurisdiction. Second, where such a basis exists, the appropriateness and proportionality of exercising such jurisdiction can arise as matters of discretion. I have in this judgment mentioned certain factors that could be relevant. They include considering whether there is a more suitable alternative forum as well as the general undesirability of adjudicating upon issues in this country, in circumstances under which a defendant is unlikely to appear here and in which any civil judgment is unlikely to be enforceable but which would involve sensitive investigation of activities of officials alleged to have taken place within a foreign state (cf paragraphs 80-81 and 86 above). Third, even where proceedings can be served here without obtaining leave to serve out of the jurisdiction, that will usually mean the defendant is here. If the defendant is only served while here transiently, then, as I have recognised in paragraph 81 above, the courts would need to consider competing considerations and possibly competing principles. Fourth, however powerful the desire to establish the fact of alleged torture, there are likely in practice to be limits to the extent to which claims for torture are brought in jurisdictions which have no connection with the alleged torture or the alleged individual torturer where no practical recourse is likely to follow.”

13. In his concurring judgment Lord Phillips concluded that: “whereas Saudi Arabia can invoke State immunity ratione personae in relation to civil proceedings for torture, it cannot aver that claims against individual officials for torture are cloaked with the State’s immunity ratione materiae.” On the approach of this Court, he commented:

“The distinction that I have drawn between immunity ratione personae and immunity ratione materiae was emphasised by the majority of the Grand Chamber when reaching their decision in Al-Adsani... Had the Grand Chamber been considering a claim for state immunity in relation to claims brought against individuals, I do not believe that there would have been a majority in favour of the view that this represented a legitimate limitation on the right to access to a court under Article 6(1). Had the Court shared the conclusions that we have reached on this appeal, it would have held that there was no recognised rule of public international law that conferred such immunity. Had it concluded that there was such a rule, I consider that it would have been likely to have held that it would not be proportionate to apply the rule so as to preclude civil remedies sought against individuals.”

4.The House of Lords’ judgment

14. The Kingdom appealed to the House of Lords against the decision of the Court of Appeal in respect of the individual defendants and Jones appealed against the decision of the Court of Appeal in respect of his claim against the Kingdom itself. On 14 June 2006, the House of Lords unanimously allowed the Kingdom’s appeal and dismissed Jones’s appeal.

15. Lord Bingham found there was a “wealth of authority” to show that a State was entitled to claim immunity for its servants or agents and the State’s right to immunity could not be circumvented by suing them instead. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent, had a sufficient connection with a State to entitle it to claim immunity for his conduct. But, in his view, these were not borderline cases. Lieutenant-Colonel Abdul-Aziz was sued as a servant or agent of the Kingdom and there was no suggestion that his conduct was not in discharge or purported discharge of his duties. The four defendants in the second case were public officials and the alleged conduct took place in public premises during a process of interrogation. Referring to the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (see paragraph 27 below) Lord Bingham found “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 latter should have been acting in accordance with his instructions or authority.” The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity. Lord Bingham could not accept that torture could not be a governmental or official act since, under Article 1 of the Torture Convention, torture had to be inflicted by or with the connivance of a public official or other person acting in an official capacity. There was a substantial body of authority showing that the courts of the United States would not recognise acts performed by individual officials as being carried out in an official capacity for the purposes of immunity if those acts were contrary to a jus cogens prohibition, such as the prohibition on torture. Lord Bingham found it unnecessary to examine those authorities since, as Judges Higgins, Kooijmans and Buergenthal had stated in their concurring opinion in Democratic Republic of the Congo v Belgium (Case concerning Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3 (see paragraph 28 below), this approach had not attracted the “approbation of States generally”.

Support for the view that States no longer enjoyed immunity in civil proceedings in respect of acts contrary to jus cogens could be found in the recommendation of the United Nations Committee Against Torture of 7 July 2005 in respect of Canada, the judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Furundzija (1998) 38 ILM 317 and that of the Italian Court of Cassation in Ferrini v. Germany (2004) Cass sez un 5044/04 (see, respectively, paragraphs 25, 29 and 31 below). For Lord Bingham, the first was of slight legal authority, the second was an obiter dictum, the third was not an accurate statement of international law.

16. Instead, for Lord Bingham, it was clear that a jus cogens prohibition did not automatically override all other rules of international law and breach of a jus cogens norm did not suffice to confer jurisdiction on another State’s courts: where State immunity was applicable, the national court had no jurisdiction to exercise. Article 14 of the Torture Convention did not confer universal civil jurisdiction, nor did the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (see paragraph 26 below) provide any exception from immunity for civil claims based on acts of torture. There was, finally, no evidence that States had recognised an international law obligation to exercise jurisdiction over claims arising from alleged breaches of peremptory norms of international law.

17. For these reasons, Lord Bingham agreed with the Court of Appeal that Jones’s claim against the Kingdom should have been dismissed. In respect of the individual defendants, the Court of Appeal had incorrectly departed from the ruling in Propend. He found:

“[T]here was no principled reason for this departure. A state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of state immunity. This error had the effect that while the Kingdom was held to be immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of Interior (the fourth defendant in the second action) was not, a very striking anomaly.

...

This first error led the court into a second: its conclusion [paragraph reference omitted] that a civil claim against an individual torturer did not indirectly implead the state in any more objectionable respect than a criminal prosecution. A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.”

In Lord Bingham’s view these errors came from a misreading of Pinochet (no. 3), in which the