|
Neutral
Citation no. [2007] NIQB 108
|
Ref:
|
HIGF5970
|
|
|
|
|
Judgment:
approved by the Court for handing down
|
Delivered:
|
12/11/07
|
|
(subject
to editorial corrections)*
|
|
|
IN
THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
QUEEN’S BENCH DIVISION
________
BETWEEN:
MAIRTIN O’MUILLEOIR
PLAINTIFF;
-and-
MICHAEL
McDOWELL
DEFENDANT;
________
BETWEEN:
ROBIN LIVINGSTONE
PLAINTIFF;
-and-
MICHAEL
McDOWELL
DEFENDANT;
________
HIGGINS
LJ
[1]
The plaintiff Mairtin O’Muilleoir is the Managing
Director of the Andersonstown News Group and the plaintiff
Robin Livingstone is a Director of the same News Group.
The defendant in each action is the Minister for Justice,
Equality and Law Reform in the Government of Ireland.
On 22 May 2005 identical writs of summons were issued out
of the High Court of Justice in Northern Ireland, on
behalf of each plaintiff, against the defendant. The terms
of the writ of summons in each case are –
The
Plaintiff’s claim is for
1.
For (sic) damages for libel of and concerning him
published and broadcast by the Defendant his servants or
agents in a statement on the Internet in Northern Ireland
on or about the 13th day of January 2005 on the
website of the Department of Justice of the Government of
Ireland.
2.
An injunction restraining the Defendant by himself
his servants or agents from further publication of the
said libel.
[2]
On 5 July 2005 the Government of Ireland caused a Notice
of Motion to issue out of the High Court of Justice in
Northern Ireland, for an order that the defendant in these
proceedings is immune from the jurisdiction of the Courts
of the United Kingdom, by virtue of the provisions of the
State Immunity Act 1978. The notice of motion is grounded
in the affidavits of Dermot McCarthy, Secretary General to
the Government of Ireland of the Department of the
Taoiseach, and Paul Spring, a partner in the firm of Mills
Selig, Solicitors, instructed by the Chief State Solicitor
of Ireland, to act on behalf of the Defendant and the
Government of Ireland. In his affidavit Mr McCarthy
deposed that a meeting of the Government of Ireland took
place on 21 June 2005. At the meeting it was noted that
claims for damages for defamation had been made against
the defendant by the plaintiffs. It was also noted that
the claims related to a statement of the defendant in his
capacity as Minister for Justice, Equality and Law Reform
and when exercising the executive power of the State
within the meaning of Article 28 of the Constitution of
Ireland and that the statement of the defendant had been
obtained from the website of the Department of Justice,
Equality and Law Reform. In those circumstances Mr
McCarthy was instructed by the Government of Ireland, to
inform the Chief State Solicitor to plead sovereign
immunity in accordance with the law applicable in Northern
Ireland.
[3]
The Andersonstown News Group, through Daily Ireland Ltd.,
is publisher of a new daily newspaper entitled Daily
Ireland, which commenced distribution on 1 February 2005.
Plans to publish this new daily newspaper commenced in
June 2003. Mr O’Muilleoir deposed in his affidavit
that Andersonstown News Group, via the Bank of Ireland,
provided the majority of funding for the new newspaper.
[4]
On 13 January 2005 the defendant issued a statement under
his own name and which was promulgated on the website of
the Department of Justice, Equality and Law Reform. The
relevant parts of the statement were in the following
terms -
"Statement
issued by Michael McDowell, TD
Minister
for Justice, Equality and Law Reform
The
recent attribution of the Northern Bank robbery in Belfast
to the Provisional IRA was done by the Chief Constable of
the PSNI after careful consideration of the progress of
the investigation. It was done with a view to having
a political effect.
…..
I
have no reason at all to disbelieve or discount his
assessment on which the attribution was made.
….
Now,
concerning the Northern Bank heist, the IRA has been
making denials again. And, once more, that's been
good enough for Mr Adams. 'The IRA has said it
wasn't involved,' he said this week. 'I believe that
to be the case.'
Does
any sane person believe that the IRA or Sinn Fein would
now acknowledge that it had carried out the Northern Bank
robbery?
…..
There
is and can be no room in representative politics or in
governmental institutions anywhere on this island for any
political party allied to any group or body which:
·
Supports the use or threatened use of force
or violence
·
Possesses firearms or explosives
·
Violently resists An Garda Siochana or the
PSNI
·
Usurps the policing function in any part of
this island
·
Engages in robbery or theft
…..
The
small minority in the media who pander to the Provisional
agenda should always remind themselves of the fact that
the IRA Chief of Staff took an oath to deny involvement in
the IRA before a Dublin jury as part of a plan to cripple
media free speech and to get damages for being revealed
for what he was. They might also keep in their minds
the name of the witness who swore up against him and was
believed by that jury. He was found battered to
death near the border.
Small
wonder that the Provisionals are now backing a new daily
newspaper heavily featured in last week's An Phoblacht.
Will it be to Irish democracy what the Volkischer
Beobachter was to pre-WWII German democracy?
We
should not passively stand by as a naked plan to subvert
democracy by those who are allied to such a movement is
put into effect. We are being invited into the
Orwellian nightmare of the Provo parallel universe where
truth becomes falsehood, where words mean only what the
speaker wishes them to mean, and where common humanity is
expendable in pursuit of insatiable ideology.
Central
to this project is a plan to re-write history and to
baptise the most brutal, cowardly, blood-soaked, divisive,
anti-republican, sectarian, hate-driven and destructive
terror campaign as an heroic struggle for peace and human
rights. As the Provo propaganda machine gears itself
up to claim against all historical truth that they are the
party founded in 1905 by Arthur Griffith, we can see a
crazy 'centenary myth' developing before our eyes,
designed to fool those with short memories and no
knowledge of Irish history into believing a grotesque
falsehood. Why?
……
The
Massive Untruth
The
massive untruth at the heart of Sinn Fein is that it
claims to operate as an organisation wholly separate from
the IRA. In fact, as the Taoiseach has said
repeatedly, Sinn Fein and the IRA are two sides of one
coin. The Independent Monitoring Commission
concluded that there was an overlap at senior leadership
level between the IRA and Sinn Fein. That confirmed
what I had previously said about the presence of household
names on the Army Council.
……
Instead,
the Provos have by their actions opened up a gulf of
mistrust. They have successfully polarised Northern
politics at the expense of those who are reconcilers in
the centre ground.
The
true republican imperative of reconciling orange and green
has been set back for decades by their actions. The
door into exclusively democratic and peaceful politics is
open for them and will remain open. But it is not a
threshold which can be straddled or camped on by those who
want to put one foot into democracy while leaving the
other foot planted in terrorism.
Our
freedoms, our democracy and our future all depend on that
proposition. We must stand by the one and only
republic that we have – the state that was built by the
generation that won us our freedom and that has been
sustained since by democracy and the rule of law.
There is but one army entitled to be considered Oglaigh na
h-Eireann – the Defence Forces maintained by the
Oireachtas under Bunreacht na h-Eireann."
[5]
On 21 January 2005 the firm of solicitors acting on behalf
each plaintiff sent letters of claim on their behalf in
respect of the website publication to the defendant. The
letter was sent to him at the Department of Justice,
Equality and Law Reform in Dublin. This letter stated –
“We
act for Mr Mairtin O’Muilleoir who is one of a
number of persons who are promoting a new daily newspaper
called Daily Ireland Our clients are journalists and
business people of the highest standing and integrity who
have sought to bring peace and democracy to Northern
Ireland. Indeed Mr O’Muilleoir holds Public appointments
North and South. They are involved with an existing
award-winning business and have received written support
from the Taoiseach for their new venture. They resent very
much the gross and unwarranted slur that they are about to
publish a newspaper equivalent to the ‘Volkischer
Beobachter’ This was a Nazi newspaper, which supported a
regime guilty of some of the vilest crimes against
humanity that have ever been committed without the
slightest semblance of a justifiable cause.
Your
article amounts to an hysterical and biased condemnation
of the entire present day Republican movement. We note in
passing your facile attempts to claim to have
inherited the mantle of the only true Republicanism which
“won us our freedom” although in the War of
Independence the acts of the then IRA were no different in
principle from many of the acts condemned by you.
However,
my clients present complaints are not about the expression
of your views on Republicanism, however distorted
and selective they may be, but on the gross imputation
that they are supporters of Nazi ideas.
My
clients’ have never by act or omission endorsed or
countenanced the evils of Nazism, which they
regard with total abhorrence. They have never condoned or
endorsed the acts you recite and are utterly opposed to
violence.
They
have consistently and unswervingly sought to promote peace
and justice in Northern Ireland.
The
new newspaper will be completely independent of any
political party. It will strive towards the highest
standards of journalism and will work unremittingly for
the betterment of the entire community.
As
well as damaging their reputations and efforts to promote
peace your imputations have occasioned the utmost distress
and insult. You will be aware that the National Union of
Journalists has also strongly condemned your comments and
the increased personal safely risk that has been created.
We
must call upon you, without delay to agree to apologise
to them for this gross slur, in a form and in a
manner, which is acceptable to them.
Failing
this, proceedings will be issued without delay.”
[6]
On 23 March 2005 identical writs of summons were issued on
behalf of each plaintiff. The writs were sent to the
defendant’s constituency office address at Ranelagh in
Dublin and copied to the Chief State Solicitor of the
Government of Ireland. On 9 June 2005 the solicitor acting
on behalf of the plaintiffs served a Notice of each writ
of summons on the Chief State Solicitor in the Republic of
Ireland. On 14 June 2005 acceptance of service was
endorsed on each Notice by the Chief State Solicitor. On 5
July 2005 a Notice of Motion issued on behalf of the
Government of Ireland was served on each plaintiff seeking
an Order –
“that
the Defendant is immune from the jurisdiction of the
Courts of the United Kingdom by virtue of the provisions
of the State Immunity Act 1978.”
[7]
Dermot McCarthy is Secretary General to the Government of
Ireland and is authorised to swear an affidavit on behalf
of that Government. In his affidavit he deposed at
paragraph 2 (1)(b) –
“that
the said claim relates to a statement of Michael McDowell
in his capacity as Minister for Justice, Equality and Law
Reform and when exercising the executive power of the
State within the meaning of Article 28 of the Constitution
and obtained from the website of the Department of
Justice, Equality and Law Reform.”
[8]
In his replying affidavit Mr O’Muilleor deposed the
following. He is the Managing Director of the
Andersonstown News Group and that the idea of a new daily
newspaper entitled Daily Ireland was originated by him in
June 2003. The majority of the funding was provided by the
Andersonstown News Group via the Bank of Ireland. By
letter dated December 2004 the Taoiseach, Mr Aherne,
welcomed the development of the new newspaper. This
plaintiff has been a journalist for over 20 years. Between
1987 and 1997 he was a Sinn Fein representative on Belfast
City Council. In 1997 he left political life to take up a
full-time managerial position within the Andersonstown
News Group. He has worked consistently to support the
peace process and made clear that the newspaper Daily
Ireland would advocate against violence and support peace.
A number of threats to his life and that of employees of
the News Group have been made over the years. He considers
the remarks made by the defendant to represent a link
between himself and employees of Daily Ireland, with the
Irish Republican Army. He is not and never has been a
member of the Irish Republican Army. The link made by the
defendant has increased the risk to his life and that of
others employed by the News Group. Potential advertisers
have shunned the newspaper and the defendant’s remarks
have been the subject of other media interest. In support
of the threats made he details three incidents in
September and October 2004.
[9]
In his replying affidavit Mr Livingstone deposed that he
has been a journalist for over twenty years and the Editor
in Chief for the Andersonstown News Group during the past
five years and was involved in the early discussions that
led to the launch of Daily Ireland. He is an Irish
Nationalist who has never been a member of any political
organisation and has supported the peace process
constantly.
[10]
It was submitted by Mr Fee QC who, with Mr Cush appeared
on behalf of the defendant, that the defendant is immune
from suit in the jurisdiction of the United Kingdom.
They rely on the provisions of the State Immunity Act 1978
which protect the defendant.
[11]
Mr Lavery QC, who with Mr Keogh appeared on behalf of both
plaintiffs, submitted that the doctrine of state immunity
was not an absolute principle and did not apply to a
government official who was acting in a personal capacity
rather than an official capacity. Consequently the State
Immunity Act 1978 was not relevant. Alternatively he
submitted that the rights of the plaintiffs under Article
2 of the European Convention on Human Rights were engaged
and that such fundamental rights could not be overridden
by the State Immunity Act 1978. He relied on the series of
cases concerning the former President of Chile, Augustine
Pinochet. Mr Lavery QC submitted that these cases provided
authority for the proposition that neither statute nor
common law provided any immunity from prosecution for acts
of torture sanctioned by a former head of state. By
analogy, Mr Lavery submitted that any act which breaches
the right to life or creates a grave threat to life,
cannot be subject to state immunity, either at common law
or under the 1978 Act.
[12]
It was accepted by Mr Lavery QC that the incident referred
to as ‘the Northern Bank robbery’ and the Police
Service of Northern Ireland Chief Constable’s
attribution of it to the Irish Republican Army, were
matters of legitimate public comment by the defendant in
his official capacity as Minister of Justice, Equality and
Law Reform of the Government of Ireland. But the
additional words published by the defendant about the
Daily Ireland newspaper ( and by implication about the
plaintiffs ) were so inflammatory that they could only be
regarded as a political tirade by the defendant in his
personal capacity and not an official publication by the
Government of Ireland about the matter. In addition they
were irrelevant to the Chief Constable’s views about the
incident and contrary to the support given by the
Taoiseach to the launch of the newspaper.
[13]
Mr Fee QC submitted that the statement by the defendant
was made in his capacity as Minister for Justice, Equality
and Law Reform. He referred to the affidavit of the
Secretary General of the Government of Ireland that the
statement was made in that capacity and to the fact that
it was published on the official website of the
Department. In relation to the plaintiffs’ Article 2
rights, Mr Fee QC submitted that no evidence had been put
forward by Mr Livingstone relating to any threat to his
life. In relation to Mr O’Muilleor the only evidence
adduced was one line in his affidavit in which he deposed
that he believed that the ‘linkage made by Mr McDowell
to have increased the risk to my life and others employed
by the Newspaper Group’. The three police messages
warning of a threat all pre-dated the date of the
defendant’s statement. Even if the Article 2 rights of
the plaintiffs were engaged by the statement, the doctrine
of state immunity does not offend the Convention rights,
which must be interpreted to give recognition and effect
to customary international law including state immunity.
[14]
At common law, a foreign sovereign state and its head of
state were entitled to claim immunity from the
jurisdiction of the courts of the United Kingdom in any
action brought against it. No distinction was drawn
between actions which arose from the official acts of the
foreign state (acta jure imperii) and those which arose
from its commercial activities (acta jure gestionis).
In 1972, the United Kingdom signed the European
Convention on State Immunity. This Convention draws a
distinction between actions relating to official acts and
those relating to commercial activities. From 1976 Courts
of the United Kingdom adhered to this distinction. The State
Immunity Act of 1978, which replaces the rules of common
law, maintains that distinction between the two classes of
case. The Act provides for certain exceptions to the
doctrine of state immunity. When these exceptions
apply the common law (or other statutue ) may govern
the issue whether the foreign state is entitled to
immunity.
[15]
The State Immunity Act 1978 makes new provision with
respect to proceedings in the United Kingdom by or against
other States. It also makes provision for giving effect to
judgments made against the United Kingdom in the courts of
other countries that are parties to the European
Convention on State Immunity, as well as extending
immunities and privileges under the Diplomatic Privileges
Act 1964 to heads of state and their families and
servants. Part I is relevant for the purposes of this
summons, Section 1 of which provides –
1
(1) A State is immune from the
jurisdiction of the courts of the United Kingdom except as
provided in the following provisions of this Part of this
Act.
(2)
A
court shall give effect to the immunity conferred by this
section even though the State does not appear in the
proceedings in question.
[16]
It is noteworthy that the court shall apply and give
effect to the doctrine of immunity, even though the state
does not appear in the proceedings and take issue with the
jurisdiction of the court. In this instance the issue as
to jurisdiction is taken, both by the defendant and the
Government of Ireland.
The
link made by the defendant has increased the risk to his
life and that of others emplooyed d. In Deceember 2004 the
g of Artby the by
[17]
Sections 2 to 11 specify proceedings in which a sovereign
state is not immune to the jurisdiction of the court.
Section 16 provides for certain exclusions including those
from criminal proceedings ( see section 16(4) ). For
example a state is not immune in proceedings in respect of
which it has submitted to the jurisdiction of the courts
of the United Kingdom ( Section 1(1) ) or in relation to
commercial transactions entered into by the state (Section
3(1)(a) ). It is not suggested that any of the statutory
exceptions apply in this instance.
[18]
Section 14 provides that the immunities and privileges
conferred by Part I of the Act, apply to a foreign state
and define what is included in the references to a
‘State’. Section 14 provides –
(1)
The immunities
and privileges conferred by this Part of this Act apply to
any foreign or commonwealth State other than the United
Kingdom; and references to a State include references to—
(a)
the sovereign or other head of that State in his public
capacity;
(b)
the government of that State; and
(c)
any department of that government,
but
not to any entity (hereafter referred to as a “separate
entity”)
which is distinct from the executive organs of the
government of the State and capable of suing or being
sued.
(2)
A
separate entity is immune from the jurisdiction of the
courts of the United Kingdom if, and only if—
(a)
the proceedings relate to anything done by it in the
exercise of sovereign authority; and
(b)
the circumstances are such that a State (or, in the case
of proceedings to which section 10 above applies, a State
which is not a party to the Brussels Convention) would
have been so immune.”
[19]
Thus the immunities and privileges conferred by Part I of
the State Immunity Act 1978 apply to a department of a
foreign government. The Department of Justice, Equality
and Law Reform of the Government of Ireland is such a
department. Therefore the Department of Justice, Equality
and Law Reform is immune from the jurisdiction of this
court by virtue of the provisions of the State Immunity
Act 1978.
[20]
The doctrine of state immunity and the State Immunity Act
1978 were considered by the House of Lords in Holland v
Lampen-Wolfe 2000 1 WLR 1573. This was a libel action
in which the Government of the United States of America
asserted state immunity on behalf of an education services
officer at a US Armed Forces base in England. The
plaintiff was a University Professor, and also an American
citizen, who taught at the base and who alleged the
education services officer had libelled her in a
memorandum. The House of Lords upheld the claim for state
immunity at common law. In his opinion Lord Hope said at
page 1575 -
“The
immunity which is accorded by English law to foreign
states in civil proceedings is the
subject of two separate regimes. The first is that laid
down by Part I of the State Immunity Act 1978, by which a
foreign state is immune from the jurisdiction of the
United Kingdom courts unless one of a series of exceptions
to immunity in sections
2 to 11 applies. The only exception on which
the plaintiff seeks to rely in this case is that which is
to be found in section
3 of the Act, which relates to commercial
transactions and contracts to be performed in the United
Kingdom. The second regime is that under the common law.
It applies to all cases that fall outside the scope of
Part I of the Act. It is also necessary in this case to
consider section
16(2) of the State Immunity Act 1978, as this
section disapplies Part I of that Act where the
proceedings relate to "anything done by or in
relation to the armed forces of a state while present in
the United Kingdom"
In the
same case Lord Millet dilated further on the nature of
state immunity when he said at page 1583 -
“It
is an established rule of customary international law that
one state cannot be sued in the courts of another for acts
performed jure imperii. The immunity does not derive from
the authority or dignity of sovereign states or the need
to protect the integrity of their governmental functions.
It derives from the sovereign nature of the exercise of
the state's adjudicative powers and the basic principle of
international law that all states are equal. The rule is
"par in parem non habet imperium:" see I
Congreso del Partido [1983] 1 A.C. 244, 262,
per Lord Wilberforce. As I explained in Reg.
v. Bow Street Metropolitan Stipendiary Magistrate, Ex
parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147,
269, it is a subject-matter immunity. It operates to
prevent the official and governmental acts of one state
from being called into question in proceedings before the
courts of another. The existence of the doctrine is
confirmed by the European Convention on State Immunity
(1972) (Cmnd. 5081), the relevant provisions of which are
generally regarded as reflecting customary international
law. In according immunity from suit before the English
courts to foreign states the State Immunity Act 1978 and
the common law give effect to the international
obligations of the United Kingdom.”
Where the
immunity applies, it covers an official of the state in
respect of acts performed by him in an official capacity.
In the present case, it is common ground that at all
material times the defendant acted in his capacity as an
official of the United States Department of Defense, being
the department responsible for the armed forces of the
United States present in the United Kingdom. The United
States has asserted immunity on behalf of the defendant.
Dr. Holland has not challenged the proposition that, if
the United States is entitled to the immunity it claims,
that immunity bars the present proceedings.
[21]
Mr Lavery QC accepted that these passages represented the
law relating to state immunity and that the doctrine
protects an official of the state in respect of acts
performed in an official capacity. However Mr Lavery QC
submitted that the statement issued by the defendant was
couched in terms which rendered it a statement made in the
defendant’s personal capacity and could not be regarded
as an official publication of the Government of Ireland.
The
statement was issued through the official website of the
Department of Justice, Equality and Law Reform. It was
headed – ‘Statement issued by Michael McDowell, TD
Minister for Justice, Equality and Law Reform’. Those
facts in themselves provide strong support for the
suggestion that this was a statement issued in the
defendant’s official capacity. However the affidavit of
the Secretary General in which he refers to a meeting of
the Government of Ireland at which it was noted that the
plaintiffs’ claims relate to a statement of the
defendant in his capacity as Minister for Justice,
Equality and Law Reform and when exercising the executive
power of the State within the meaning of Article 28 of the
Constitution of Ireland, is proof conclusive that the
statement was so issued. Thus the Government of Ireland is
entitled to assert and claim immunity from the
jurisdiction of this court under the State Immunity Act
1978.
[22]
It was submitted by Mr Lavery QC that even if the
Government of Ireland and the defendant came within the
terms of the State Immunity Act 1978 (and/or the Common
Law principles relating to immunity) nevertheless this
court should not grant immunity where the act giving rise
to the cause of action has breached or could potentially
breach the rights of the plaintiffs under Article 2 of the
European Convention on Human Rights, now enshrined in our
domestic law. Article 2 provides that ‘everyone’s
right to life shall be protected by law’. It was
submitted that this fundamental right could not be
overridden by either statute or common law. The 1978 Act
was to be construed along with the European Convention and
the Human Rights Act 1998 like any other legislative
provision. In any event it was submitted that the immunity
granted, either by the 1978 Act or common law, was not
absolute and could not be relied on in every circumstance.
Reliance was placed on ‘the Pinochet series of cases’.
However I do not find these cases are comparable or of any
assistance. They did not fall within Part 1 of the 1978
Act. Rather they were criminal proceedings related to the
United Nations Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment 1984.
[23]
Mr Fee QC submitted that no evidence of an increased risk
to the Plaintiff Mr O’Muilleior had been demonstrated as
arising from the statement issued by the defendant and the
three incidents referred to in his affidavit pre-dated the
date of the statement. The other plaintiff Mr M
Livingstone had not sought to argue that any risk to life
or limb arose. Mr Lavery QC countered that the risk to the
latter plaintiff, arose through his association with Mr
O’Muilleoir and the newspaper. Mr Fee QC relied on
Holland v Lampen-Wolfe, supra, and passages in the
opinions of Lord Hope and Lord Millett to the effect that
the doctrine of state immunity did not offend Article 6 of
the European Convention on Human Rights, which affords
everyone the right to a fair trial for the determination
of his civil rights and obligations. It was noted that it
is state immunity that is protected and that Article 6 is
not an absolute right. Reference was also made to three
decisions of the European Court of Human Rights in Fogarty
v United Kingdom 2002 34 EHRR 12, McElhinney v Ireland 12
BHRC 114 and Al-Adsani v United Kingdom 12 BHRC 88, in
which the European Court upheld the views expressed in
Holland v Lampen-Wolfe, that the doctrine of state
immunity did not breach Article 6 of the Convention. In
Al-Adsani the plaintiff brought proceedings in England for
compensation against the government of Kuwait and a
Kuwaiti national. It was alleged that the plaintiff was
tortured in Kuwait by Kuwaiti nationals in state buildings
and later threatened in England should he take action or
give publicity to his allegations. It was held that
Article 6 should be considered along with generally
accepted and recognised rules of public international law
and the comity of nations. It is sufficient to refer to
paragraph 3 of the head-note which states -
“The
grant of sovereign immunity to a state in civil
proceedings pursued the legitimate aim of complying with
international law to promote comity and good relations
between states through the respect of another state's
sovereignty. Moreover, the convention, including art 6,
ought not to be interpreted in a vacuum and should so far
as possible be interpreted in harmony with other rules of
international law of which it formed part, including those
relating to the grant of state immunity. Accordingly
measures taken by a contracting state which reflected
generally recognised rules of public international law on
state immunity did not in principle impose a
disproportionate restriction on the right of access to
court as embodied in art 6(1). Just as the right of access
to court was an inherent part of the fair trial guarantee
in that article, so some restrictions on access had
likewise to be regarded as inherent, such as those
limitations generally accepted by the community of nations
as part of the doctrine of state immunity. Furthermore,
although the prohibition of torture had achieved the
status of a peremptory norm in international law, the
instant case concerned not the criminal liability of an
individual for alleged acts of torture, but the immunity
of a state in a civil suit for damages in respect of acts
of torture within the territory of that state.
Notwithstanding the special character of the prohibition
of torture in international law, there was no firm basis
for concluding that, as a matter of international law, a
state no longer enjoyed immunity from civil suit in the
courts of another state where acts of torture were
alleged. Accordingly the 1978 Act, which granted immunity
to states in respect of personal injury claims unless the
damage was caused within the United Kingdom, was not
inconsistent with those limitations generally accepted by
the community of nations as part of the doctrine of state
immunity. Thus the application by the English courts of
the provisions of the 1978 Act to uphold Kuwait's claim to
immunity did not amount to an unjustified restriction on
the applicant's access to court. It followed that there
was no violation of art 6(1) (see paras 52–67, post); R
v Evans,
ex p Pinochet Ugarte (No
3) (1999)
6 BHRC 24 considered.”
[24]
The substance of Mr Lavery’s submission was that
Parliament could not have intended that acts of murder or
threats thereof or other breaches of human rights could
fall within the immunity afforded by the 1978 Act. The
immunity is one from the jurisdiction of the court. It
seems to me that in reality Mr Lavery’s argument is that
the plaintiffs should not be denied access to the courts
of the United Kingdom, that is, an Article 6 issue, in the
context of an alleged risk to life, which is protected by
Article 2. I shall assume that the contents of the
statement do give rise to the alleged increased threat to
life. In Al-Adsani the plaintiff alleged torture, if not
attempted murder, followed by threats. The European Court
held that such did not prevent the government of Kuwait
from enjoying the immunity afforded by the 1978 Act.
[25]
The State Immunity Act 1978 was considered by the House of
Lords in Jones and others v Ministry of Interior Al-Mamlaka
Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia )
and others 2006 UKHL 26. In this case several British
nationals brought proceedings in England for compensation
for, inter alia, alleged torture by servants or agents of
the Kingdom of Saudi Arabia. The particulars of claim,
which were denied, alleged severe, systematic and
injurious torture and the medical reports, annexed to the
statement of claim, appeared to substantiate those claims.
None of the claims fell within the exceptions specified in
Part 1 of the 1978 Act. It was contended that to uphold
the claim for immunity put forward by the Kingdom of Saudi
Arabia would be incompatible with the plaintiffs’ rights
under Article 6 of the Convention to have access to a
court to determine their rights and that the grant of
immunity for acts of torture, is precluded by
international law and the UN Convention. The House of
Lords affirmed the decision of the Master upholding the
claims to state immunity made on behalf of the Kingdom of
Saudi Arabia and the individual state agents. In his
opinion Lord Bingham, with which the other Law Lords
agreed, expressed the following views –
“14. To
succeed in their Convention argument (and the onus is
clearly on them to show that the ordinary approach to
application of a current domestic statute should not be
followed) the claimants must establish three propositions.
First, they must show that article 6 of the Convention is
engaged by the grant of immunity to the Kingdom on behalf
of itself and the individual defendants. In this task they
derive great help from Al-Adsani v United Kingdom
(2001) 34 EHRR 273 where, in a narrowly split decision of
the Grand Chamber, all judges of the European Court of
Human Rights held article 6 to be engaged. I must confess
to some difficulty in accepting this. Based on the old
principle par in parem non habet imperium, the rule of
international law is not that a state should not exercise
over another state a jurisdiction which it has but that
(save in cases recognised by international law) a state
has no jurisdiction over another state. I do not
understand how a state can be said to deny access to its
court if it has no access to give. This was the opinion
expressed by Lord Millett in Holland v Lampen-Wolfe
[2000] 1 WLR 1573, 1588, and it seems to me persuasive. I
shall, however, assume hereafter that article 6 is
engaged, as the European Court held. Secondly, the
claimants must show that the grant of immunity to the
Kingdom on behalf of itself and the individual defendants
would deny them access to the English court. It plainly
would. No further discussion of this proposition is called
for. Thirdly, the claimants must show that the restriction
is not directed to a legitimate objective and is
disproportionate. They seek to do so by submitting that
the grant of immunity to the Kingdom on behalf of itself
or its servants would be inconsistent with a peremptory
norm of international law, a jus cogens applicable erga
omnes and superior in effect to other rules of
international law, which requires that the practice of
torture should be suppressed and the victims of torture
compensated.
…………..
17. The
claimants' key submission is that the proscription of
torture by international law, having the authority it
does, precludes the grant of immunity to states or
individuals sued for committing acts of torture, since
such cannot be governmental acts or exercises of state
authority entitled to the protection of state immunity
ratione materiae. In support of this submission the
claimants rely on a wide range of materials including: the
reasoning of the minority of the Grand Chamber in Al-Adsani
v United Kingdom (2001) 34 EHRR 273; observations by
members of the House in R v Bow Street Metropolitan
Stipendiary Magistrate, Ex p Pinochet Ugarte (No 1)
[2000] 1 AC 61 and (No 3) [2000] 1 AC 147
(hereinafter Pinochet (No 1) and Pinochet (No
3)); a body of United States authority; the decision
of the International Criminal Tribunal for the former
Yugoslavia in Prosecutor v Furundzija (1998) 38 ILM
317; the decision of the Italian Court of Cassation in Ferrini
v Federal Republic of Germany (2004) Cass sez un
5044/04; 87 Rivista di diritto internazionale 539; and a
recommendation made by the Committee against Torture to
Canada on 7 July 2005. These are interesting and valuable
materials, but on examination they give the claimants less
support than at first appears.
18. The
Grand Chamber's decision in Al-Adsani is very much
in point, since it concerned the grant of immunity to
Kuwait under the 1978 Act, which had the effect of
defeating the applicant's claim in England for damages for
torture allegedly inflicted upon him in Kuwait. The
claimants are entitled to point out that a powerful
minority of the court found a violation of the applicant's
right of access to a court under article 6 of the European
Convention. The majority, however, held that the grant of
sovereign immunity to a state in civil proceedings pursued
the legitimate aim of complying with international law to
promote comity and good relations between states through
the respect of another state's sovereignty (para 54); that
the European Convention on Human Rights should so far as
possible be interpreted in harmony with other rules of
international law of which it formed part, including those
relating to the grant of state immunity (para 55); and
that some restrictions on the right of access to a court
must be regarded as inherent, including those limitations
generally accepted by the community of nations as part of
the doctrine of state immunity (para 56). The majority
were unable to discern in the international instruments,
judicial authorities or other materials before the court
any firm basis for concluding that, as a matter of
international law, a state no longer enjoyed immunity from
civil suit in the courts of another state where acts of
torture were alleged (para 61). While noting the growing
recognition of the overriding importance of the
prohibition of torture, the majority did not find it
established that there was yet acceptance in international
law of the proposition that states were not entitled to
immunity in respect of civil claims for damages for
alleged torture committed outside the forum state (para
66). It is of course true, as the claimants contend, that
under section 2 of the 1998 Act this decision of the
Strasbourg court is not binding on the English court. But
it was affirmed in Kalogeropoulou v Greece and Germany
(App No 50021/00) (unreported) 12 December 2002, when the
applicant's complaint against Greece was held to be
inadmissible, and the House would ordinarily follow such a
decision unless it found the court's reasoning to be
unclear or unsound, or the law had changed significantly
since the date of the decision. None of these conditions,
in my opinion, obtains here.
……………
28. It
follows, in my opinion, that Part 1 of the 1978 Act is not
shown to be disproportionate as inconsistent with a
peremptory norm of international law, and its application
does not infringe the claimants' Convention right under
article 6 (assuming it to apply). It is unnecessary to
consider any question of remedies.”
Lord
Hoffman in his concurring opinion expressed the following
view –
“39. The
argument in support of this submission involves three
steps. First, article 6 of the European Convention on
Human Rights (hereafter "the Convention")
guarantees a right of access to a court for the
determination of civil claims and that right is prima
facie infringed by according immunity to the Kingdom.
Secondly, although the right is not absolute and its
infringement by state immunity is ordinarily justified by
mandatory rules of international law, no immunity is
required in cases of torture. That is because the
prohibition of torture is a peremptory norm or jus cogens
which takes precedence over other rules of international
law, including the rules of state immunity. Thirdly,
section 3 of the Human Rights Act 1998 (hereafter "HRA")
requires a court, so far as it is possible to do so, to
read legislation in a way which is compatible with the
Convention rights. This can be done by introducing an
implied exception. I do not accept any of these steps in
the argument but will postpone consideration of the first
and third until I have discussed the second.”
[26]
If a case alleging such torture attracts immunity, is a
claim associated with an alleged breach of Article 2
either generally or in the context of creating a risk or
increased risk to life exceptional, or so exceptional as
to be distinguishable in principle. I do not think so. The
instant case whether it be associated with a breach of
Article 2 of the Convention or a risk or increased risk
thereof, is no different in principle and the Government
of Ireland is entitled to claim state immunity under the
1978 Act in respect of the statement issued by the
defendant. It should be remembered that the plaintiffs
could issued proceedings in the Republic of Ireland.
[27]
Therefore the Government of Ireland and the defendant as a
Minister thereof, are immune from the jurisdiction of this
court and are entitled to the order sought in the Notice
of Motion, namely that the Defendant is immune from the
jurisdiction of the Courts of the United Kingdom in these
proceedings, by virtue of the provisions of the State
Immunity Act 1978.
