Re Pinochet

A judge is automatically disqualified where the judge has an active role in an organisation closely allied to a party and sharing that party’s non-pecuniary interest in obtaining a particular result. Automatic disqualification is not confined to financial or proprietary interests. It requires neither proof nor investigation of actual or apparent bias.

Subject to informed waiver, a decision in which a disqualified judge participated is voidable and must be set aside. The House of Lords possesses inherent jurisdiction to rescind its own order where an unfair procedure, arising through no fault of a party, has caused injustice. That jurisdiction does not permit reopening merely because the earlier decision is considered wrong.

Senator Pinochet petitioned the House of Lords to set aside its order of 25 November 1998. That order had, by a majority of three to two, restored a provisional warrant issued under the Extradition Act 1989. Amnesty International had intervened in support of the contention that Senator Pinochet lacked immunity from extradition proceedings.

After judgment, Senator Pinochet’s advisers discovered that Lord Hoffmann, a member of the majority, was a director and chairperson of Amnesty International Charity Limited. That company carried out charitable aspects of Amnesty International’s work and shared its relevant objectives. No actual bias was alleged.

The petition raised whether the House could set aside its own order and whether Lord Hoffmann’s undisclosed connection produced automatic disqualification or apparent bias. It also raised election, waiver and abuse of process.

1. The order was set aside unanimously and a rehearing directed. Lord Browne-Wilkinson delivered the leading speech. Lord Goff agreed and gave additional reasons. Lord Nolan, Lord Hope and Lord Hutton agreed that the decision of 25 November 1998 could not stand. The appeal was to be reheard by a differently constituted committee.

2. Per Lord Browne-Wilkinson, the House, as the ultimate appellate court, had inherent jurisdiction to correct injustice caused by one of its earlier orders. No statutory provision restricted that jurisdiction. It could be exercised where, through no fault of a party, an unfair procedure had occurred. It could not be used merely because the earlier decision was subsequently thought wrong.

3. Per Lord Browne-Wilkinson and Lord Goff, the governing principle was that no person may be a judge in their own cause. A judge who is a party or has a relevant interest in the cause is disqualified without any investigation into the likelihood or appearance of bias. The rule was not confined to pecuniary or proprietary interests. A non-pecuniary commitment to promoting a cause could suffice where that cause was being advanced by a party.

4. Amnesty International had participated in the appeal in active support of a particular outcome and therefore was, or had to be treated as, a party. Lord Hoffmann was director and chairperson of a charity closely connected with Amnesty International, carrying out part of its work and sharing its relevant objects. Per Lord Browne-Wilkinson, Lord Goff, Lord Hope and Lord Hutton, that relationship gave Lord Hoffmann a relevant interest and automatically disqualified him. This conclusion involved no finding of actual bias.

5. The ruling was confined to exceptional circumstances. Per Lord Browne-Wilkinson, a judge should normally recuse themselves or disclose the position where they take an active role as trustee or director of a charity closely allied to, and acting with, a party. Ordinary involvement with charitable work does not by itself produce automatic disqualification.

6. It was unnecessary to reconsider the apparent-bias test in Reg v Gough [1993] AC 646. Lord Hope observed that the different formulations used in England and Wales and Scotland were likely to produce substantially indistinguishable results. Each reflected the requirement that a tribunal be, and be seen to be, impartial.

7. The election, waiver and abuse arguments failed. The Home Secretary lacked power to set aside the House’s order and therefore was not an alternative tribunal capable of determining the petition. Moreover, election and waiver required a free and informed choice. Senator Pinochet’s advisers had lacked full knowledge of Lord Hoffmann’s position when representations were made to the Home Secretary.

1. House of Lords, 15 January 1999: The House unanimously gave reasons for setting aside its order of 25 November 1998 and directed a rehearing before a differently constituted committee.

2. House of Lords, 25 November 1998: By a majority of three to two, the House allowed the appeal and restored the provisional warrant of 23 October 1998. That order was set aside in the present proceedings.

3. Queen’s Bench Divisional Court: The court unanimously quashed the provisional warrant on the ground that Senator Pinochet was entitled to immunity. The order was stayed to permit an appeal to the House of Lords.