R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)

The double criminality requirement for extradition is assessed at the date of the alleged conduct. Conduct must then have constituted the corresponding United Kingdom offence; later criminalisation cannot operate retrospectively.

A former head of state ordinarily retains immunity ratione materiae for governmental acts performed in office. That immunity is unavailable, however, for official torture committed after the United Kingdom, the requesting state and the official’s state became parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. The Convention’s duty to prosecute or extradite official torturers is incompatible with continuing functional immunity. Immunity remains available for ordinary murder and conspiracy-to-murder allegations outside that treaty regime.

Spain requested the extradition of Senator Pinochet, the former head of state of Chile, alleging a prolonged conspiracy involving torture, murder and hostage-taking. The Divisional Court quashed two provisional warrants. It held, in relation to the second warrant, that he enjoyed immunity as a former head of state.

An earlier House of Lords decision allowing the appeal by a majority, reported at [1998] 3 WLR 1456, was set aside because the Appellate Committee had not been properly constituted: [1999] 2 WLR 272. The appeal was reheard by seven Law Lords after Spain supplied expanded particulars and the Secretary of State issued authority to proceed under the Extradition Act 1989.

The central questions were whether the alleged conduct constituted extradition crimes under the double criminality rule and, if so, whether immunity ratione materiae protected a former head of state from extradition for that conduct.

1. Appeal allowed in part by a majority of six to one. Extradition proceedings could continue only in respect of torture and conspiracy to torture alleged to have occurred after 8 December 1988. Lord Goff of Chieveley dissented and would have dismissed the appeal.

2. Per Lord Browne-Wilkinson, with all the other Law Lords agreeing on this issue, the double criminality requirement in section 2 of the Extradition Act 1989 refers to the law in force when the alleged conduct occurred. The statutory scheme, including the committal inquiry and Schedule 1, required conduct-date criminality. Official torture abroad did not become an extra-territorial United Kingdom offence until section 134 of the Criminal Justice Act 1988 came into force on 29 September 1988.

3. Lord Hope of Craighead analysed the charges, and the other Law Lords accepted his analysis of extradition criminality. The alleged hostage-taking did not satisfy section 1 of the Taking of Hostages Act 1982. The threats were directed at detained persons to compel them through threatened harm to others, whereas the statute requires threats against a hostage to compel someone else. Most torture, attempted-murder and conspiracy charges also failed the conduct-date rule.

4. A serving head of state possesses immunity ratione personae. A former head of state retains only immunity ratione materiae for governmental acts performed in office. The majority held, for differing but overlapping reasons, that this functional immunity could not protect official torture committed after Chile, Spain and the United Kingdom had all become parties to the Torture Convention. Lord Browne-Wilkinson, Lord Hutton, Lord Saville of Newdigate, Lord Millett and Lord Phillips of Worth Matravers emphasised the incompatibility between immunity for official conduct and a treaty scheme requiring the prosecution or extradition of official torturers. Lord Hope relied more narrowly on the international character of systematic or widespread torture together with the Convention machinery.

5. Senator Pinochet retained immunity for murder and conspiracy-to-murder charges under the ordinary rules governing official acts. Lord Goff considered that treaty waiver of state immunity had to be express and that the Torture Convention contained no such waiver.

6. The drastic reduction in the charges required the Secretary of State to reconsider the authority to proceed. Any renewed proceedings required the magistrate to examine carefully whether the information supported post-8 December 1988 torture or conspiracy to torture.

1. House of Lords — rehearing: In R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [1999] UKHL 17, the House allowed the appeal in part by six votes to one. It substantially restricted the extraditable charges and required reconsideration of the authority to proceed.
2. House of Lords — first hearing and setting aside: The appeal was initially allowed by a three-to-two majority, reported at [1998] 3 WLR 1456. That decision was set aside because the Appellate Committee had not been properly constituted: [1999] 2 WLR 272.
3. Divisional Court: The court quashed both provisional warrants on 28 October 1998. The first warrant disclosed no extraditable offence. The second was quashed because the former head of state was held to enjoy immunity for the alleged official acts.