All England Law Reports 10 January 2007 HL Jones v Kingdom of Saudi Arabia 113 a Jones v Ministry of Interior of the Kingdom of Saudi Arabia and another (Secretary of State for Constitutional Affairs and others intervening) b Mitchell and others v Al-Dali and others [2006] UKHL 26 HLJones v Kingdom of Saudi Arabia c HOUSE OF LORDS LORD BINGHAM OF CORNHILL, LORD HOFFMANN, LORD RODGER OF EARLSFERRY, LORD WALKER OF GESTINGTHORPE AND LORD CARSWELL 24–27 APRIL, 14 JUNE 2006 d Constitutional law – Foreign sovereign state – Immunity from suit – Right to a fair trial – Civil claims against foreign state and state officials for damages for torture in foreign state – Whether foreign state immune from suit – Whether state officials immune from suit – Whether immunity from suit breach of right to a fair trial – State Immunity Act 1978, s 1 – Human Rights Act 1998, Sch 1, Pt I, art 6 – United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment e 1984, art 14. The claimant in the first action, J, issued High Court proceedings against the Kingdom of Saudi Arabia and A, a Saudi official. He claimed aggravated and exemplary damages for assault and battery, trespass to the person, false imprisonment and torture in the Kingdom. The Kingdom applied to set aside f service of the proceedings and to dismiss J’s claim on the ground of state immunity under the State Immunity Act 1978. Section 1(1)a of that Act provided that a state was immune from the jurisdiction of the courts of the United Kingdom (except as provided in Pt I of the Act). On that ground, the master set aside service of the proceedings on the Kingdom and refused g permission to serve A, who had not been served, by an alternative method. J appealed to the Court of Appeal, contending that Pt I of the 1978 Act was incompatible with the right of access to the court guaranteed by the right to a fair trial contained in art 6b of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights h Act 1998). The claimants in the second action issued High Court proceedings against four defendants. The first two defendants were sued as officers in the Kingdom’s police force. The third defendant was sued as a colonel in the Ministry of Interior of the Kingdom and deputy governor of a prison in which the claimants had been confined. The fourth defendant was sued as head of the Ministry of Interior. They claimed aggravated damages for assault and j negligence, contending that they had been subjected to torture in the Kingdom by the first two defendants, which the third and fourth defendants had caused or a Section 1, so far as material, is set out at [7], below b Article 6, so far as material, provides: ‘(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . .’ All England Law Reports 10 January 2007 114 All England Law Reports [2007] 1 All ER permitted or negligently failed to prevent. The master refused the claimants’ a application to serve the proceedings out of the jurisdiction on the ground of state immunity under the 1978 Act. The claimants appealed to the Court of Appeal. The Court of Appeal dismissed J’s appeal against the dismissal of all his claims against the Kingdom on the ground of state immunity, but allowed his appeal against refusal of permission to serve A out of the jurisdiction by an alternative method. It allowed the appeal of the three claimants in the second action against b the refusal of permission to serve all four defendants out of the jurisdiction (save in respect of the claimants’ allegations of negligence). The applications for permission to serve out of the jurisdiction in both actions were remitted to the master. J appealed against the dismissal of his claims against the Kingdom and the Kingdom appealed against the refusal of state immunity for the individual defendants in both cases. J and the other claimants relied on the proscription of c torture by the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 to which both the United Kingdom and the Kingdom were parties. Article 14c of the Torture Convention provided that each state party was to ensure in its legal system that the victim of an act of torture obtained redress and had an enforceable right to d fair and adequate compensation. They contended, inter alia, that the proscription of torture by international law precluded the grant of immunity to states or individuals sued for committing acts of torture since such could not be governmental acts or exercises of state authority entitled to the protection of state immunity. e Held – The Kingdom and the individual defendants were protected by state immunity under Pt I of the 1978 Act. On the assumption that art 6 of the European Convention was engaged by the grant of state immunity, the grant of immunity did deny the claimants access to the English court. The claimants’ argument was that the restriction was not directed to a legitimate objective and f was disproportionate as the grant of immunity was inconsistent with a peremptory norm of international law superior in effect to other rules of international law which required that the practice of torture should be suppressed and the victims of torture compensated. However, although the Torture Convention had established a universal criminal jurisdiction it did not provide for universal civil jurisdiction. Article 14 of the Torture Convention g required a private right of action for damages only for acts of torture committed in territory under the jurisdiction of the forum state. Moreover, there was no evidence that states had recognised or given effect to an international law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor was there any consensus h of judicial or learned opinion that they should. That lack of evidence was not neutral: since the rule on immunity was well understood and established, and no relevant exception was generally accepted, the rule prevailed. It followed that Pt I of the 1978 Act had not been shown to be disproportionate. It was not for a national court to develop international law by unilaterally adopting a version of j that law which however desirable was simply not accepted by other states. There was no basis to deny immunity to individuals who were alleged to have committed acts of torture because torture could not constitute an official act. A state would incur responsibility in international law if one of its officials, under c Article 14 is set out at [16], below All England Law Reports 10 January 2007 HL Jones v Kingdom of Saudi Arabia 115 colour of his authority, tortured a national of another state, even though the acts a were unlawful and unauthorised. The same act could not be official for the purposes of the definition of torture but not for the purposes of immunity. The Court of Appeal had been wrong to depart from the principle that a foreign state was entitled to claim immunity for its servants as it could if sued itself. Accordingly, J’s appeal would be dismissed and the Kingdom’s appeal would be b allowed (see [13]–[15], [17], [24]–[36], [40], [41], [46], [63], [64], [78], [79], [81], [85], [101]–[105], below). Al-Adsani v Government of Kuwait (1996) 107 ILR 536 followed. Al-Adsani v UK (2001) 12 BHRC 88, R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [1999] 2 All ER 97 and Democratic Republic of the Congo v Belgium (Case concerning Arrest Warrant of 11 April 2000) c [2002] ICJ Rep 3 considered. Notes For the International Human Rights Codes, see 8(2) Halsbury’s Laws (4th edn reissue) paras 103, 104, for jurisdiction under International Conventions and for d state immunity and the meaning of state, see 18(2) Halsbury’s Laws (4th edn reissue) paras 809, 826, 827. For the State Immunity Act 1978, s 1, see 10 Halsbury’s Statutes (4th edn) (2001 reissue) 830. For the Human Rights Act 1998, Sch 1, Pt I, art 6, see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 706. e Cases referred to in opinions A v Secretary of State for the Home Dept (No 2) [2005] UKHL 71, [2006] 1 All ER 575, [2005] 3 WLR 1249. Al-Adsani v Government of Kuwait (1996) 107 ILR 536, CA. f Al-Adsani v UK (2001) 12 BHRC 88, ECt HR. Alcom Ltd v Republic of Colombia [1984] 2 All ER 6, [1984] AC 580, [1984] 2 WLR 750, HL. Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675, Ont CA; affg (2002) 124 ILR 427, Ont SC. Buchanan (Peter) Ltd v McVey [1954] IR 89, [1955] AC 516n, Ir SC. g Cabiri v Assasie-Gyimah (1996) 921 F Supp 1189, US DC (SD NY). Capital (AIG) Partners Inc v Republic of Kazakhstan [2005] EWHC 2239 (Comm), [2006] 1 All ER 284, [2006] 1 WLR 1420. Church of Scientology Case (1978) 65 ILR 193, Germ SC. Cia Naviera Vascongada v Steamship Cristina [1938] 1 All ER 719, [1938] AC 485, HL. h Democratic Republic of the Congo v Belgium (Case concerning Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3, ICJ.