R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet

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R (Pinochet Ugarte) v Bow St Magistrate
Pinochet 11-09-1982.JPG
Chilean dictator Augusto Pinochet
CourtHouse of Lords
Full case nameR v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte
Decided25 November 1998
Citation(s)[1998] UKHL 41, [2000] 1 AC 61
Case history
Prior action(s)Augusto Pinochet Ugarte, [1999] 38 ILM 68 (Q.B. Div'l Ct. 1998)
Subsequent action(s)No 2 [2000] 1 AC 119. No 3 [1999] UKHL 17, [2000] 1 AC 147.
Court membership
Judge(s) sittingLord Slynn, Lord Hoffmann, Lord Steyn, Lord Nicholls, Lord Lloyd

R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary Magistrate [2000] 1 AC 61, 119 and 147 is a set of three UK constitutional law judgments by the House of Lords, on whether former Chilean dictator Augusto Pinochet could claim state immunity from torture allegations made by a Spanish court and therefore evade extradition to Spain. It affected international criminal law and human rights law.[1]

The first judgment enabled Pinochet to be deported.[2] But this was controversially set aside in the second judgment, R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) (Pinochet II) because Lord Hoffmann, as a director of Amnesty International, was accepted to have had the possibility of bias.[3] This resulted in a third case R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) (Pinochet III), which confirmed that Pinochet was not entitled to state immunity but that acts committed outside of British territories could only be prosecuted under national law if committed after the passing of section 134 of the Criminal Justice Act 1988 (which gave UK courts universal jurisdiction over crimes of torture).[4]

Facts[edit]

Pinochet was accused by a Spanish judge of torture, a crime under international law which can be prosecuted in any country under the doctrine of universal jurisdiction. The Spanish judge faxed an INTERPOL arrest warrant to London and Pinochet was arrested later that evening. Pinochet's lawyers argued that as Pinochet was head of state at the time of the alleged crimes he was immune from the jurisdiction of British courts. The Divisional Court ruled Pinochet had state immunity.

Judgment[edit]

Pinochet (No 1)[edit]

By a 3–2 majority, Lord Nicholls, Lord Hoffmann and Lord Steyn the House of Lords ruled that Pinochet did not have state immunity.

A key passage of the judgment reads:

... the development of international law since the Second World War justifies the conclusion that by the time of the 1973 coup d'état, and certainly ever since, international law condemned genocide, torture, hostage taking and crimes against humanity (during an armed conflict or in peacetime) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a Head of State.

Lord Slynn and Lord Lloyd dissented.

Pinochet (No 2)[edit]

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2)[5] was an English legal case which involved the unprecedented setting aside of a House of Lords judgment based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty International meant that a previous House of Lords judgment on the immunity of former Chilean dictator General Augusto Pinochet had to be set aside.[6]

Pinochet (No 3)[edit]

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) was a House of Lords judgment on the state immunity of Chilean President Augusto Pinochet. The judgment was necessary after the House of Lords ruling R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte was set aside when one of the judges in the case failed to disclose links to a human rights organization.[7]

See also[edit]

Notes[edit]

  1. ^ Byers, Michael, The Law and Politics of the Pinochet Case, 10 Duke J. of Comp. & Int'l L. p 416
  2. ^ [2000] 1 AC 61
  3. ^ [2000] 1 AC 119. "UK Politics Pinochet judge under pressure". BBC News. 1999-01-15. Retrieved 2010-05-10.
  4. ^ [2000] 1 AC 147
  5. ^ In re Pinochet, Oral Judgment: 17 December 1998, Oral Judgment: 17 December 1998 Archived 23 May 2012 at the Wayback Machine, [1999] UKHL 52
  6. ^ "A look at Lord Hoffmann". BBC News. 1998-12-17. Retrieved 2010-05-10.
  7. ^ "Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2); HL 15 Jan 1999". swarb.co.uk. 2015-06-30. Retrieved 2016-05-19.

References[edit]

  • Byers, Michael, The Law and Politics of the Pinochet Case, 10 Duke J. of Comp. & Int'l L. 415

External links[edit]