Pinochet, In re

This petition challenged an earlier order of the Appellate Committee of the House of Lords of 25 November 1998 on the sole ground that one member of the Committee, Lord Hoffmann, had undeclared links with Amnesty International (AI) through his directorship and chairmanship of Amnesty International Charity Limited (AICL), an entity closely associated with AI. The House held that it had jurisdiction to set aside its own order where, through no fault of a party, the procedure has been unfair. Applying the nemo judex in sua causa principle and the authorities following Dimes, the House concluded that automatic disqualification applies where a judge has a relevant interest in the subject matter even if that interest is non-pecuniary. Because AI had intervened and thus effectively became a party, and because AICL and AI were so closely allied that Lord Hoffmann's directorship gave him an interest in the outcome, Lord Hoffmann was automatically disqualified. The earlier order of 25 November 1998 was set aside and a re-hearing before a differently constituted Committee was ordered.

The petition was brought by Senator Augusto Pinochet to set aside the House of Lords' order of 25 November 1998 which had restored a provisional extradition warrant issued on 23 October 1998 under the Extradition Act 1989 (see sections 8(1)(b) and 7(1)). The underlying proceedings concerned whether a former Head of State enjoys immunity from arrest and extradition for alleged crimes against humanity. After the Divisional Court quashed the warrant and stayed that quashing for appeal, the Appellate Committee heard the appeal and, by a majority, allowed it on the immunity point. Amnesty International was granted leave to intervene and actively supported the view that Pinochet had no immunity.

The petition to set aside the House's order alleged not actual bias but an appearance of bias arising from Lord Hoffmann's undeclared links with AI through AICL. The issues for the House were (i) whether the House has jurisdiction to rescind or vary its own order in such circumstances; (ii) whether Lord Hoffmann was disqualified either automatically (nemo judex in sua causa) or by reason of apparent bias; and (iii) whether Pinochet had elected to submit the objection to the Home Secretary so as to waive his right to seek relief from the House.

The House held that it had jurisdiction to set aside its own order where a party has been subjected to an unfair procedure through no fault of that party. The House reasoned that the principle that no man shall be a judge in his own cause extends beyond pecuniary interests; a judge who has a relevant non-pecuniary interest in the subject matter by reason of association with a party (here, through chairing AICL closely allied with AI) is automatically disqualified unless the interest has been disclosed and waived. Because AI intervened and effectively acted as a party seeking the same result as AICL's objects, Lord Hoffmann's directorship gave rise to automatic disqualification. The House rejected the submission that Pinochet had elected to rely on the Home Secretary's view and therefore waived his right to petition the House, noting that relevant facts were not known to Pinochet until after judgment. The remedy was to set aside the 25 November order and order a re-hearing before a differently constituted Committee.

The petition was allowed. The House confirmed it has jurisdiction to rescind or vary its own orders where a party has been subjected to an unfair procedure; it held that Lord Hoffmann was automatically disqualified by reason of his directorship of Amnesty International Charity Limited (closely allied to Amnesty International, a party by intervention), such that the earlier order of 25 November 1998 must be set aside and the appeal re-heard by a differently constituted Committee. Arguments of election, waiver and abuse of process were rejected because the relevant facts had not been known to Senator Pinochet before judgment.

Divisional Court (Queen's Bench Division) quashed the provisional warrant of 23 October 1998 (Lord Bingham C.J., Collins and Richards JJ.); leave to appeal to the Appellate Committee of the House of Lords; Appellate Committee delivered judgment on 25 November 1998 restoring the warrant; petition to set aside that order brought and allowed by the House (this decision) resulting in an order for rehearing before a differently constituted Committee. Neutral citation of this decision: [1999] UKHL 1.