In re Pinochet (No.2)

The House held that it had power to set aside or vary an earlier order of the House in appropriate circumstances. The petition to set aside the order of 25 November 1998 succeeded because one member of the Appellate Committee, Lord Hoffmann, was automatically disqualified: he was a director and chairperson of Amnesty International Charity Limited (AICL), a body closely connected with Amnesty International which had intervened in the appeal. The disqualification was not based on any finding of actual bias but on the principle nemo judex in sua causa: a judge must not sit in a cause in which he has an interest. The court treated non-pecuniary interests capable of promoting a cause as sufficient in exceptional circumstances to attract automatic disqualification. Consequently the order of 25 November 1998 was set aside and a re-hearing was directed before a differently constituted Committee.

Background and facts:

• Senator Augusto Pinochet, former Head of State of Chile, was arrested in the United Kingdom under provisional warrants issued under the Extradition Act 1989 (section 8(1)(b)) following extradition requests from Spain alleging crimes against humanity committed while he was Head of State.
• The Queen's Bench Divisional Court quashed one provisional warrant and quashed a second warrant on the ground of Head of State immunity, but stayed the quashing to permit an appeal to the House of Lords on the scope of that immunity.
• The House heard the appeal in November 1998. Amnesty International (AI) was granted leave to intervene and actively supported the view that former Heads of State enjoy no immunity for crimes against humanity.

Nature of the application:

• Pinochet petitioned to set aside the House's order of 25 November 1998 (which had restored the second warrant) on the sole ground of apparent bias: that Lord Hoffmann's links with AI created an appearance of possible bias and/or required his disqualification.

Issues framed by the court:

1. Whether the House had jurisdiction to rescind its own order.
2. Whether Lord Hoffmann was disqualified by reason of his connections with organisations associated with Amnesty International, and if so whether that disqualification was automatic (nemo judex in sua causa) or depended on the test for apparent bias.
3. Whether Pinochet had elected or waived his right to challenge the House's order by making representations to the Home Secretary, and whether the petition was an abuse of process.

Court's reasoning and decision:

• The House accepted it had inherent jurisdiction to correct an earlier order where a party had been subjected to an unfair procedure, but emphasised this power would be exercised only in appropriate and exceptional cases.
• The court concluded that AI, by intervention, effectively became a party to the appeal and that AICL and AIL are closely connected with AI in practice. Lord Hoffmann's directorship and chairmanship of AICL gave him a non-pecuniary interest in the outcome because AICL and AI shared objectives (including procuring the accountability of those responsible for torture and other human-rights abuses). In these exceptional circumstances a non-pecuniary interest of that nature constituted automatic disqualification: the nemo judex rule was not confined to pecuniary interests.
• Because disqualification in such a case is automatic, there was no need to apply or re-examine the different tests for apparent bias (for example Reg. v. Gough or the reasonable apprehension test applied in other jurisdictions). The court also rejected the submission that Pinochet had elected the Home Secretary as the sole tribunal to decide the point; waiver/election did not apply because the Home Secretary had no power to set aside the House's order and Pinochet only learned of the full facts late.
• The House therefore set aside its order of 25 November 1998 and directed that the appeal be reheard by a differently constituted committee so that the decision would not stand where one member had been disqualified.

The petition was allowed. The House held that it had jurisdiction to rescind its earlier order and that Lord Hoffmann was automatically disqualified from participating because, as director and chairperson of Amnesty International Charity Limited, he had a non-pecuniary interest closely connected with Amnesty International which had intervened as a party; therefore the order dated 25 November 1998 was set aside and a rehearing ordered.

Queen's Bench Divisional Court (Lord Bingham C.J., Collins and Richards JJ.) quashed the provisional warrant of 23 October 1998 and certified a question for appeal to the House of Lords. The appeal was heard by the Appellate Committee in November 1998 and judgment was given on 25 November 1998. The petition to set aside that order was heard by the House and the reasons for setting aside were given 15 January 1999. Neutral citation of this decision: [1999] UKHL 52.