R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2)

The House of Lords may use its inherent jurisdiction to set aside its own order where an unfair procedure, arising through no fault of a party, has caused injustice. It cannot reopen an appeal merely because the original decision may have been wrong.

A judge is automatically disqualified where the judge has a relevant interest in the proceedings. The interest need not be financial. It may arise from an active role in an organisation closely allied to a party and committed to the result sought by that party. No inquiry into actual bias, its likelihood or its appearance is then required. Unless the disqualification was waived after sufficient disclosure, the resulting decision is voidable and must be set aside.

R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) concerned a petition to set aside an order made by the House of Lords on 25 November 1998. That order had restored a provisional arrest warrant issued under the Extradition Act 1989 and had been made by a three-to-two majority.

Amnesty International had intervened in support of the appeal. After judgment, the petitioner discovered that Lord Hoffmann, a member of the majority, was a director and chairman of Amnesty International Charity Limited. That company was closely connected with Amnesty International and carried out its charitable work. No actual bias was alleged.

The central questions were whether the House could rescind its own order and whether Lord Hoffmann's undisclosed organisational connection created a disqualifying interest requiring the order to be set aside.

1. Disposition. The House unanimously allowed the petition, set aside its order of 25 November 1998 and directed that the appeal be reheard by a differently constituted Appellate Committee. Lord Browne-Wilkinson delivered the leading speech. Lord Goff gave concurring reasons, while Lord Nolan, Lord Hope and Lord Hutton agreed that the earlier order could not stand.

2. Inherent jurisdiction. Per Lord Browne-Wilkinson, the House, as the ultimate appellate court, possessed an unfettered inherent jurisdiction to correct injustice caused by its own order where no statute limited that power. The jurisdiction was confined to unfair procedure suffered through no fault of the affected party. It did not permit a concluded appeal to be reopened merely because the earlier decision was thought wrong.

3. Automatic disqualification. Per Lord Browne-Wilkinson and Lord Goff, the rule that no person may be a judge in their own cause applies where a judge is a party or has a relevant interest in the cause. In that category, disqualification follows without investigating actual bias, a real danger of bias or reasonable suspicion. Applying Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, the relevant interest was not confined to a pecuniary or proprietary interest.

4. Non-pecuniary organisational interest. Amnesty International had intervened to obtain a particular result. Its charitable company was, in practical terms, part of the same organisation and shared the relevant objectives. Lord Hoffmann's active position as the company's director and chairman therefore gave him a non-pecuniary interest in the outcome and automatically disqualified him. This exceptional rule did not disqualify every judge associated with a charity. Its critical features were the charity's close alliance with a party, the party's intervention to secure a particular result and the judge's active governing role in an organisation sharing that objective.

5. Consequences and limits. The finding involved no allegation or conclusion of actual bias. Because the connection had not been disclosed and validly waived, the decision was voidable and had to be set aside. It was unnecessary to decide whether the real-danger test in Reg v Gough [1993] AC 646 should be replaced or modified for ordinary apparent-bias cases.

6. No waiver or abuse. Per Lord Browne-Wilkinson, notifying the Home Secretary of the possible bias did not constitute election, waiver or abuse of process. The Home Secretary lacked power to set aside the House's order, and the petitioner had not acted with full knowledge of Lord Hoffmann's position or the connected company's constitution.

1. House of Lords, 15 January 1999: In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, the House unanimously set aside its earlier order and directed a rehearing before a differently constituted Appellate Committee.

2. House of Lords, 25 November 1998: By a majority of three to two, the House had allowed the appeal and restored the second provisional arrest warrant.

3. Queen's Bench Divisional Court: Lord Bingham of Cornhill CJ, Collins J and Richards J unanimously quashed the warrant of 23 October 1998 on the ground of former Head of State immunity. The order was stayed to permit an appeal.