Jones v Al-Mamlaka Al-Arabiya As Saudiya (The Kingdom of Saudi Arabia) Ministry of Interior & Anor

A foreign state retains immunity from a civil claim in the United Kingdom for torture committed abroad where no statutory exception applies. The prohibition of torture as jus cogens does not itself remove that immunity. The position differs for individual officials: systematic torture cannot be treated as official state conduct attracting automatic immunity ratione materiae. A claim against an alleged torturer concerns personal responsibility and does not indirectly implead the state. At the service-out stage, the court must consider ordinary jurisdiction, forum and discretion, the availability of an effective remedy in the responsible state, and whether immunity is a legitimate and proportionate restriction under article 6. Ordinary official-conduct claims, including negligence, may remain immune.

Two sets of claimants alleged systematic torture in Saudi Arabia. Mr Jones sued the Kingdom and an individual official. Mr Mitchell and others sued four individual Saudi officials. The claims included assault, false imprisonment, negligence and torture, with psychological damage allegedly suffered in England.

Master Whitaker upheld the Kingdom’s immunity, treated the individual officials as protected by the same immunity, and refused permission to serve the officials out of the jurisdiction. The appeals concerned whether the Kingdom was immune in respect of the state claim and whether it could claim immunity for the officials’ alleged conduct.

1. State claim. The Kingdom was immune under section 1 of the State Immunity Act 1978. Section 5 did not apply because the alleged acts occurred in Saudi Arabia. The Court of Appeal was bound by its own decision in Al-Adsani v Government of Kuwait (No 2), (1996) 107 ILR 536, as reinforced by the Strasbourg decision, (2002) 34 EHRR 11. The fact that torture is prohibited by jus cogens did not remove the state’s civil immunity. Mr Jones’s claim against the Kingdom was therefore dismissed.
2. Individual officials. The immunity of a state itself, ratione personae, had to be distinguished from immunity claimed for officials, ratione materiae. The principle in Propend Finance Pty Ltd v Sing, [1997] 111 ILR 611, could protect officials against claims concerning ordinary state conduct. It did not create a blanket immunity for officials accused of systematic torture. Under the Torture Convention, identifying the public official who inflicted the torture established the public context and individual responsibility; it did not make torture an official state function. The reasoning in Pinochet, [2000] 1 AC 147, concerning criminal immunity supported that conclusion. The contrary civil observations in that case were not necessary to its decision and were rejected.
3. Jurisdiction and proportionality. The court considering service out had to examine the merits, ordinary domestic jurisdiction, the proper forum, forum non conveniens and any relevant discretion together with the immunity issue. It also had to consider whether the responsible state provided an effective remedy, whether recognising immunity pursued a legitimate aim, and whether it was proportionate under article 6 of the European Convention on Human Rights. The state’s sovereign interests, the connection with England, the defendant’s participation and the likelihood of enforcement remained relevant factors.
4. Particular claims. The negligence claims against the third and fourth defendants fell within the ordinary official-conduct principle in Propend and could not be served out on the material before the court. The position of Mr Jones’s non-torture allegations required further submissions. The fourth defendant’s torture liability also required consideration of whether there was a good arguable case of personal knowledge, instigation, consent or acquiescence.
5. Orders. The appeals concerning service out against the individual defendants were allowed and remitted to Master Whitaker for further determination. The appeal concerning the Kingdom was dismissed.

1. Court of Appeal (Civil Division) allowed the appeals concerning service out against the individual defendants and remitted those applications for further consideration, while dismissing Mr Jones’s appeal against the Kingdom.
2. High Court (Master Whitaker) upheld the Kingdom’s immunity, struck out Mr Jones’s claim against it, and refused permission to serve the individual defendants out of the jurisdiction.