Case: R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147
Outcome: followed
Since ALRC 24 the House of Lords has considered the UK Immunity Act in connection with the well-publicized extradition proceedings against the former President of Chile, Augusto Pinochet Ugarte, reported as R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 3) [2000] 1 AC 147. The case was not directly concerned with the immunity of a serving head of state, but with that of a former head of state. However the broader question was also addressed. At 201-202 Lord Browne-Wilkinson said: It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of a head of state persists to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in a forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae. What then when the ambassador leaves his post or the head of state is deposed? The position of the ambassador is covered by the Vienna Convention on Diplomatic Relations (1961). After providing for immunity from arrest (article 29) and from criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador's privileges shall be enjoyed from the moment he takes up post; and paragraph (2) provides: "When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist." The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. Accordingly under article 39(2) the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private. In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state ... . Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office. (Original emphasis.) 57 His Lordship then went on to deal with what he described as a "strange feature" of the United Kingdom legislation which is also found in the Australian legislation. I will return to that matter at a later stage. Lord Goff of Chieveley dealt with head of state immunity at 209-210. His Lordship dealt firstly with the "strange feature" to which Lord Browne-Wilkinson had referred and continued at 210: ... (T)here seems to be no reason why the immunity of a head of a state under the Act should not be construed as far as possible to accord with his immunity at customary international law, which provides the background against which this statute is set ... . The effect is that a head of state will, under the statute as at international law, enjoy state immunity ratione personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae "in respect of acts performed (by him) in the exercise of his functions (as head of state)," the critical question being "whether the conduct was engaged in under colour of or in ostensible exercise of the head of state's public authority ... ." In this context, the contrast is drawn between governmental acts, which are functions of the head of state, and private acts, which are not. There can be no doubt that the immunity of a head of state, whether ratione personae or ratione materiae, applies to both civil and criminal proceedings. This is because the immunity applies to any form of legal process. 58 See also the observations of Lord Hope of Craighead at 240-241, Lord Hutton at 249-251, Lord Saville of Newdigate (concerning criminal jurisdiction only) at 265, Lord Millett at 268-269 and Lord Phillips of Worth Matravers at 280. It seems that both at common law and pursuant to the UK Immunity Act, heads of state enjoy general immunity in connection with acts performed in a public or private capacity. 68 The "strange feature" referred to by Lord Browne-Wilkinson and Lord Goff in Pinochet was the apparent general application of article 39 to a head of state in his or her private capacity. No doubt their Lordships' difficulties were caused by considerations such as those to which I have already referred. They pointed out that the original intention underlying the UK Immunity Act was that a foreign head of state, in his or her private capacity, enjoys immunity under that Act whilst he or she was in the United Kingdom. What, then, was to be the position of a head of state whilst he or she was not in the United Kingdom? I infer that the rules recognized at common law were to apply. I base this inference upon the reference in Lord Browne-Wilkinson's speech at 203 to the concern expressed in Parliament that the bill in its original form left "an unsatisfactory doubt about the position of heads of state who are not in the United Kingdom". The problem was resolved by extending the operation of article 39, presumably because it was always the intention that such heads of state have immunity. 69 I conclude that the Amir enjoys immunity from civil suit in this country, subject to the qualifications and exceptions which appear from the States Immunities Act, the Diplomatic Immunities Act and the Vienna Convention, none of which exceptions presently applies. The Amir is also immune from execution. 70 I will hear submissions as to appropriate orders and costs. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 5 December 2008 Counsel for the Plaintiff: Mr A Duffy Solicitor for the Plaintiff: Thynne &amp; Macartney Counsel for the Defendant: Mr A Crowe SC and Mr G Coveney Solicitor for the Defendant: Blake Dawson Date of Hearing: 18 September 2008 Date of Judgment: 5 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1842.html