Friday Law Report: Pinochet could not be extradited

30 October 1998

Regina v Bow Street Magistrates' Court and others, ex parte Ugarte

Queen's Bench Division, Divisional Court (Lord Bingham of Cornhill, Lord Chief Justice, Mr Justice Collins and Mr Justice Richards) 28 October 1998

A FORMER foreign head of state was immune from the civil and criminal process of the United Kingdom in respect of acts done in the exercise of his sovereign power.

The Divisional Court granted the applications of Augusto Pinochet Ugarte for judicial review of two provisional warrants for his arrest which had been issued under section 8(1)(b) of the Extradition Act 1989 at the request of Spain.

The applicant was the head of state of the Republic of Chile from September 1973 to March 1990, and was, at the present time, a life senator. The first provisional warrant alleged: "Between 11 September 1973 and 31 December 1983 within the jurisdiction of the Fifth Central Magistrates' Court of the national court of Madrid [he] did murder Spanish citizens in Chile within the jurisdiction of the government of Spain."

The second provisional warrant made the following accusations against the applicant: between 1 January 1988 and December 1992

(i) being a public official, intentionally inflicting severe pain or suffering on another in the performance or purported performance of his official duties;

(ii) being a public official, conspired with persons unknown to intentionally inflict severe pain or suffering on another in the performance or purported performance of his official duties;

between 1 January 1982 and 31 January 1992

(iii) he detained other persons (the hostages) and in order to compel such persons to do or to abstain from doing any act, threatened to kill, injure or continue to detain the hostages;

(iv) conspired with persons unknown to detain other persons (the hostages) and in order to compel such persons to do or to abstain from doing any act, threatened to kill, injure or continue to detain the hostages;

and between January 1976 and December 1992

(v) conspired together with persons unknown to commit murder in a convention country, all within the jurisdiction of Spain.

The applicant applied for judicial review by way of certiorari to quash both warrants, and applied for leave to move for judicial review of the failure of the Home Secretary to cancel the first warrant under section 8(4) of the 1989 Act.

Clive Nicholls QC, Clare Montgomery QC and Helen Malcolm (Kingsley Napley) for the applicant; Alun Jones QC and James Lewis (Crown Prosecution Service) for the Crown Prosecution Service and the Metropolitan Police; James Turner QC (Treasury Solicitor) for the Home Secretary.

Lord Bingham CJ said that the first warrant was bad in law because the murder of Spanish citizens in Chile was not an extradition crime. The offence specified was not within section 2(1)(a) of the 1989 Act because the murders had not been committed in Spain, nor did it fall within section 2(1)(b)(ii), since it was not an offence for which the United Kingdom could claim extra-territorial jurisdiction. Jurisdiction could only lie in respect of a murder committed abroad under section 9 of the Offences Against the Person Act 1861 if the alleged offender were a British citizen. Further, the condition in section 2(3)(a) was not satisfied because Spain's assertion of jurisdiction was based on the nationality of the victims rather than that of the offender.

The argument that the Home Secretary should have cancelled the first warrant was, however, unhesitatingly rejected. It was not the Home Secretary's duty to review the legal validity of the warrant.

The applicant's claim to sovereign immunity by virtue of the operation of international customary law, and by virtue of municipal law, both the common law and under the State Immunity Act 1978, was well founded: he was entitled to sovereign immunity as a former head of state from the civil and criminal process of the English courts in relation to any act done in the exercise of his sovereign power. That was conclusive against the second warrant, and, had it been necessary, against the first.