Jones (Respondent) v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Appellants)Mitchell and others (Respondents) v. Al-Dali and others and Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Appellants)Jones (Appellant) v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) (Respondents) (Conjoined Appeals)

A foreign state is immune from a civil claim in the United Kingdom for torture allegedly committed by its officials abroad unless a recognised exception applies. The prohibition of torture is a peremptory norm, but it does not itself create universal civil jurisdiction or conflict with the procedural rule of state immunity.

Officials acting, or purporting to act, in an official capacity receive the same immunity as the state. Unlawful conduct, excess of authority and breach of instructions do not remove that protection. The United Nations Convention against Torture removes functional immunity for universal criminal proceedings, not civil damages claims. State immunity is an absolute preliminary jurisdictional bar which cannot be relaxed through judicial discretion.

The claimants alleged that Saudi public officials had systematically tortured them in Saudi Arabia. They sought damages from the Kingdom, its Ministry of Interior and individual police, prison and ministry officials. The allegations had not been investigated and were denied.

Master Whitaker upheld state immunity, set aside service on the Kingdom and refused permission to serve the individual defendants. The Court of Appeal, [2004] EWCA Civ 1394, upheld the Kingdom's immunity but allowed the torture claims against the individual officials to proceed to reconsideration of service.

In the conjoined appeals, the House considered whether the English courts had jurisdiction over civil torture claims against the foreign state and against officials whose alleged conduct occurred in its territory under colour of public authority.

1. Disposition. Lord Bingham and Lord Hoffmann delivered complementary leading speeches. Lord Rodger, Lord Walker and Lord Carswell agreed with both. The House unanimously dismissed Mr Jones's appeal concerning the Kingdom and allowed the Kingdom's appeal concerning the individual officials. Master Whitaker's orders were restored, with no order for costs.
2. The state itself. Per Lord Bingham and Lord Hoffmann, section 1(1) of the State Immunity Act 1978 establishes immunity unless a statutory exception applies. None applied. The prohibition of torture is a peremptory substantive norm, whereas immunity is a procedural rule concerning jurisdiction. The former does not automatically displace the latter. International law disclosed no accepted exception permitting universal civil jurisdiction over a foreign state for torture committed abroad. Article 14 of the United Nations Convention against Torture requires a civil remedy for torture within the forum state's jurisdiction; it does not create universal civil jurisdiction. The grant of immunity therefore pursued the legitimate aim of compliance with international law and was proportionate under article 6 of the European Convention on Human Rights.
3. The individual officials. Per Lord Bingham and Lord Hoffmann, established international law protects state servants and representatives under the same immunity as the state when they act in that capacity. The pleaded conduct occurred in official premises during official interrogation and was attributable to the Kingdom. Its illegality, or any excess of authority or contravention of instructions, did not make it private conduct. Construed against that international-law background, sections 1(1) and 14(1) of the State Immunity Act 1978 covered the officials.
4. Criminal and civil proceedings. Per Lord Bingham and Lord Hoffmann, R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) concerned universal criminal jurisdiction. The United Nations Convention against Torture necessarily removed functional immunity from criminal prosecution because official capacity forms part of the Convention definition of torture. It did not remove civil immunity. Official torture could not simultaneously be treated as official for the Convention and unofficial for civil immunity.
5. Nature of the bar. Per Lord Bingham and Lord Hoffmann, state immunity is an absolute preliminary bar where it applies. It is governed by law, not judicial discretion. Service outside the jurisdiction and forum non conveniens could not provide a discretionary halfway house.

1. House of Lords: In Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya [2006] UKHL 26, the House dismissed Mr Jones's appeal, allowed the Kingdom's appeal and restored Master Whitaker's orders.
2. Court of Appeal: In [2004] EWCA Civ 1394, reported at [2005] QB 699, the court upheld immunity for the Kingdom and the non-torture claims against the officials. It allowed the appeals concerning torture claims against individual officials and remitted the service applications to Master Whitaker.
3. High Court: Master Whitaker set aside service on the Kingdom and refused permission to serve the individual defendants on state-immunity grounds in orders dated 30 July 2003 and 18 February 2004.