fallibilist

"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Monday, June 19, 2006

Jones v Saudi Arabia

As the House recently explained at some length in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2005] 3 WLR 1249, the extreme revulsion which the common law has long felt for the practice and fruits of torture has come in modern times to be the subject of express agreement by the nations of the world. This new and important consensus is expressed in the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775), which came into force in June 1987 and to which both the UK and the Kingdom (with the overwhelming majority of other states) are parties. It is common ground that the proscription of torture in the Torture Convention has, in international law, the special authority which the claimants ascribe to it. The facts pleaded by the claimants, taken at face value, like other accounts frequently published in the media, are sufficient reminder, if such be needed, of the evil which torture represents.

Last week the House of Lords decided Jones v Ministry of the Interior of Saudi Arabia. The claimants alleged that they were tortured by members of the Saudi Arabian police. Mr. Jones, for example, said that that in 2001 he was held in solitary confinement and systematically tortured for 67 days. The question for the House of Lords was whether (under the State Immunity Act 1978) the U.K. courts had any jurisdiction to hear any of their claims against the Saudi state. The Court of Appeal had held that they could sue the officers but that the Kingdom was protected by state immunity.

The House of Lords (the two main speeches being given by Lords Bingham and Hoffman) decision was to the effect that, in the words of Lord Hoffman, "both are so protected". The House in effect agreed with the decision of the European Court of Human Rights in Al-Adsani v United Kingdom (2001) 34 EHRR 273, where it was held that claims of torture were not a "peremptory norm" (or, even more obscurely, in legal Latin, a jus cogens) such as to take precedence over, and create an exception to, the usual rule of state immunity. The effect of the exception argued for by the claimants would be that the U.K. courts (and, by definition, the courts of every other state) were, in the words of Lord Hoffman again, "entitle[d] or perhaps require[d] states to assume civil jurisdiction over other states in cases in which torture is alleged." The House was not prepared to take such a step. Lord Hoffman's speech ends with a quotation from one of the great Irish judges of the 20th century, Kingsmill Moore J.: "safety lies only in universal rejection". In that case, the Irish Supreme Court had been concerned with revenue claims by foreign states*. But that aphorism perhaps sums up the impulse that led the House to decide as it did - why it was unwilling to tip the balance "between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other's jurisdiction" to the extent contended for by the claimants.

(*As an aside, the position in relation to that area of international law has moved on, as a result of developments at EU level, namely Council Regulation 1346/2000 on Insolvency Proceedings, in relation to which see
In the matter of Cedarlease Ltd. [2005] 1 I.R. 470; High Court, March 8th 2005.)

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