KL v R.

Between States party to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, immunity ratione materiae is unavailable for every alleged act of official torture within article 1. That result is not confined to systematic or widespread torture.

A breach of procedural obligations under the Convention does not revive that immunity or suspend the Convention. A United Nations expert’s immunity from personal arrest or detention may be waived retrospectively where that is the clear intention of the competent United Nations authority. A foreign compensation claim and consequential military disciplinary action do not establish autrefois convict unless they amount to a conviction by a competent court and criminal punishment for the same offence.

The appellant, a Nepalese army officer, was charged in England with two counts of torture contrary to section 134 of the Criminal Justice Act 1988, alleged to have occurred at an army barracks in Nepal in 2005.

He appealed interlocutorily from Sweeney J’s ruling of 29 October 2013 rejecting three submissions: immunity ratione materiae; immunity from arrest and detention arising from his then appointment as a United Nations military observer; and autrefois convict. The last submission relied on a Nepalese District Court compensation award concerning one complainant and subsequent Army disciplinary action.

The central issues were the scope and consequences of non-immunity for torture under the Convention, the effect of the United Nations waiver, and whether the Nepalese proceedings constituted a prior criminal conviction and punishment.

1. Appeal dismissed. The court held that the binding ratio of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147 was that, between States party to the Convention against Torture, immunity ratione materiae is incompatible with the Convention in respect of official torture as defined by article 1. It would otherwise be co-extensive with the offence. That rule extends to all official torture within article 1 and is not limited to torture on a systematic or widespread scale.

2. The court could construe article 6 of the Convention. The issues did not fall within the limits of non-justiciability concerning sovereign relations or unincorporated treaties. Nepal had been immediately notified of the appellant’s detention and its reasons. The court did not need finally to decide whether the later report of the preliminary inquiry was prompt, because any breach of article 6(4) could not restore immunity. The Convention gives the State in which the suspect is present the choice to extradite or submit the case for prosecution; it creates no hierarchy of jurisdictions or forum-conveniens rule. Nor had Nepal suspended the Convention under article 60 of the Vienna Convention on the Law of Treaties.

3. The Secretary-General’s waiver of the appellant’s United Nations immunity from personal arrest and detention was effective retrospectively. The Under Secretary-General knew of the arrest, questioning, charge and remand when the waiver was issued. In context, its purpose was to prevent immunity impeding the proceedings. No rule required retrospective effect to be stated expressly.

4. The plea of autrefois convict failed. The appellant had to establish the same offence, a conviction by a competent court and criminal punishment. The Nepalese proceedings under the Torture Compensation Act 1996 began and ended as a civil compensation claim. The District Court referred the appellant for departmental action but did not convict or punish him for a criminal offence. The subsequent Army process was dependent on that civil finding and was disciplinary, not an independent criminal adjudication.

• Court of Appeal (Criminal Division). Dismissed the interlocutory appeal on all three grounds.
• High Court (Sweeney J). At a preparatory hearing on 29 October 2013, rejected the appellant’s claims to immunity ratione materiae, United Nations immunity, and autrefois convict.