R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 1)

A former Head of State retains immunity from United Kingdom criminal process only for acts performed in the exercise of functions which international law recognises as functions of a Head of State. Torture and hostage-taking are international crimes. They cannot constitute such functions merely because they were committed through governmental machinery or under colour of State authority.

Legislation establishing extraterritorial jurisdiction over torture and hostage-taking also displaces the domestic act of State doctrine. Political and diplomatic consequences remain matters for the Secretary of State when exercising the statutory discretion governing extradition.

Spanish proceedings alleged that the former President of Chile had ordered and procured a systematic campaign involving torture, hostage-taking, killings and disappearances. Metropolitan stipendiary magistrates issued provisional arrest warrants under the Extradition Act 1989. The Divisional Court quashed the warrants, holding that the respondent enjoyed continuing immunity for acts performed while Head of State, but stayed the quashing of the second warrant pending appeal.

The House considered whether a former Head of State was immune from arrest and extradition proceedings for acts committed through governmental agencies, and whether the act of State or non-justiciability doctrine independently barred the proceedings.

1. Appeal allowed by a majority of three to two. Lord Nicholls and Lord Steyn delivered substantive majority speeches. Lord Hoffmann agreed with Lord Nicholls. Lord Slynn and Lord Lloyd dissented and would have dismissed the appeal.

2. Per Lord Nicholls and Lord Steyn, section 20 of the State Immunity Act 1978, read with the Diplomatic Privileges Act 1964 and article 39(2) of the Vienna Convention, continued a former Head of State's immunity only for acts performed in the exercise of his functions as Head of State. International law, rather than the State's municipal law or its assertion of governmental authority, determined the scope of those functions.

3. Torture and hostage-taking had been condemned by international law and subjected to prosecution by national courts. They were not functions which international law recognised as functions of a Head of State. It made no difference that the allegation concerned orders given through police, military or intelligence agencies rather than acts committed personally. The alleged conduct therefore fell outside the statutory immunity.

4. Any residual immunity under customary international law could not be wider. International crimes of torture and hostage-taking could not be attributed exclusively to the State so as to exclude the alleged offender's personal criminal responsibility.

5. Per Lord Nicholls and Lord Steyn, the act of State doctrine did not bar the proceedings. Section 134 of the Criminal Justice Act 1988 and section 1 of the Taking of Hostages Act 1982 contemplated adjudication upon conduct abroad, including official conduct. Parliament had therefore displaced judicial abstention for those offences.

6. Lord Slynn and Lord Lloyd dissented. They considered that conduct under colour of sovereign authority remained official even when criminal, and that neither the relevant conventions nor domestic legislation clearly removed the established immunity of a former Head of State.

7. The diplomatic consequences of continuing or refusing extradition were for the Secretary of State under section 12 of the Extradition Act 1989, not for the courts when determining immunity.

1. House of Lords: Allowed the appeal by a majority of three to two and displaced the Divisional Court's ruling that the respondent enjoyed immunity from the criminal and extradition process.

2. Divisional Court of the Queen's Bench Division: Quashed the provisional warrants, including the second warrant on the ground of former Head of State immunity. It stayed the quashing of the second warrant pending appeal and certified the proper scope of that immunity as a point of law of general public importance.

3. Metropolitan stipendiary magistrates: Issued provisional warrants under section 8(1)(b) of the Extradition Act 1989 following Spanish international warrants. The first warrant alleged murder; the second included torture and hostage-taking.