Jones v Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others

The House held that, applying the State Immunity Act 1978 (Part 1), a foreign state is immune from civil suit in the United Kingdom unless a specified statutory exception applies; that immunity extends to acts performed by state officials in the exercise or purported exercise of their official functions; and that the jus cogens prohibition of torture, including the United Nations Convention against Torture, does not presently displace state immunity in civil proceedings brought in another state's domestic courts. The court accepted that article 6(1) ECHR may be engaged but concluded that the statutory grant of immunity was not disproportionate or otherwise shown to be incompatible with Convention rights. The appeals were therefore disposed of by dismissing the claimant's appeal and allowing the Kingdom's appeals in respect of state and official immunity.

Background and parties:

• Mr Jones and three other claimants issued proceedings in England seeking aggravated and exemplary damages for assault, battery, false imprisonment and particularly for severe and systematic torture allegedly inflicted by Saudi Arabian police and officials in Saudi territory.
• The defendants were the Kingdom of Saudi Arabia (Ministry of Interior) and individual Saudi officials (police officers and prison officials).

Procedural history:

• Proceedings were issued in 2002 and 2004. Master Whitaker set aside service and refused permission to serve out of the jurisdiction on the ground of state immunity under the State Immunity Act 1978. The claimants appealed to the Court of Appeal. The Court of Appeal allowed some applications for service out of the jurisdiction against individual defendants but dismissed the claims against the Kingdom. The Kingdom and the claimants appealed to the House of Lords on parts of the Court of Appeal's orders.

(i) Nature of the claim: The claimants sought civil remedies (damages) in England for torture and related torts allegedly committed by Saudi state officials in Saudi Arabia.

(ii) Issues framed by the court:

• Whether Part 1 of the State Immunity Act 1978 bars the English courts from entertaining civil claims against a foreign state and its officials for torture committed abroad;
• Whether article 6(1) of the European Convention on Human Rights (right of access to a court) is engaged and, if so, whether application of the 1978 Act is compatible with that right;
• Whether the peremptory norm against torture (jus cogens) and the United Nations Convention against Torture create an exception to state immunity in civil proceedings or otherwise require a different result;
• Whether, even if jurisdiction exists, the court should exercise judicial discretion (for example by refusing service out) in view of foreign relations and sensitive subject matter.

(iii) Court’s reasoning:

• The House analysed international law and treaties (including the Torture Convention and the UN draft Convention on State Immunity 2004) and relevant domestic and foreign authorities. It concluded that the State Immunity Act 1978 should be applied according to its plain terms: a state is immune unless an exception applies, and the Act does not contain an exception for civil claims of torture committed abroad.
• The Lords held that state immunity extends to officials acting in their official capacity and that it is a procedural rule of jurisdiction rather than a substantive rule which could be displaced merely because the substantive norm (prohibition of torture) is jus cogens.
• The court considered Strasbourg authority (Al-Adsani) and international precedent (including the Arrest Warrant decision of the International Court of Justice) and concluded there was no established international rule displacing immunity for civil suits alleging torture committed abroad. Consequently the grant of immunity was not shown to be disproportionate under article 6.
• The House rejected the Court of Appeal’s approach of treating individual officials differently from the state itself or of developing a discretionary, case-by-case exception for torture in civil proceedings.

Wider context: The Lords acknowledged the moral and legal seriousness of torture and the importance of victims obtaining redress, but emphasised that changes to the international law of state immunity (or to the statutory position) must come from treaties, state practice or Parliament rather than by unilateral judicial development.

Appeals allowed in part: the House dismissed the claimant Mr Jones's appeal and allowed the Kingdom's appeals. The rationale was that Part 1 of the State Immunity Act 1978 plainly grants immunity to states and to their officials acting in an official capacity and that neither article 6 ECHR nor the jus cogens prohibition of torture presently displaces that immunity in civil proceedings in the courts of another state; international law and treaty practice do not support a civil-law exception to state immunity for acts of torture committed abroad.

Master Whitaker refused permission to serve out of the jurisdiction and set aside service (30 July 2003; 18 February 2004). The Court of Appeal ([2004] EWCA Civ 1394; [2005] QB 699) dismissed parts of the claims against the Kingdom but allowed aspects of the claimants' applications to serve individual defendants out of the jurisdiction; these interlocutory appeals were further appealed to the House of Lords, which delivered judgment on 14 June 2006 ([2006] UKHL 26).