UK: Pinochet round two
01 March 1999
There was no euphoria when on 24 March the House of Lords reaffirmed its earlier decision that as a former head of state, Pinochet was not immune from prosecution or extradition for international crimes such as torture (see Statewatch Vol 8 no 6). Satisfaction that the advance in international human rights law represented by the previous decision had not been lost was tempered by the dramatic reduction in the number of charges surviving the Lords' judgement. The realisation that Pinochet could not be tried in Britain or Spain for the crimes he committed in the worst period of the repression, from 1973 to 1976, muted the celebrations over the fact that he could still be tried at all.
On 17 December 1998 an extraordinary panel of law Lords set aside the order of the House of Lords ruling that Pinochet was not immune from legal process. In their reasons, given on 15 January, they ruled that Lord Hoffmann, whose vote was decisive in the 3:2 split, was automatically disqualified from hearing the case under the principle that "a man may not be the judge in his own cause" by virtue of his directorship in Amnesty International Charity Ltd, a company wholly controlled by Amnesty International, which was an intervenor represented by counsel in the case, arguing for Pinochet's extradition. They directed a rehearing before a differently constituted panel. Hoffmann was severely criticised and there were calls for his resignation, but there is a belief that he carried the can for the others, who knew about his directorship and discounted it as unimportant.
The rehearing started on 18 January before a panel of seven judges, including four of those who had overset the previous decision, and lasted twelve days. The Crown Prosecution Service, on behalf of the Kingdom of Spain, perhaps unsurprisingly, lost confidence in the immunity argument and put at the front of their case a new argument, that Pinochet was responsible for many crimes committed before the coup, when the issue of immunity did not arise. They relied on new Spanish evidence. Pinochet's team were thus forced to come up with an argument other than immunity to defeat the new stratagem. What they came up with proved a winner. Pinochet's team presented arguments on extradition law asserting that Pinochet could not be extradited for something which was not a crime in the UK when he did it. Clare Montgomery QC argued that it was unfair that he should be extradited for something for which he could not now be prosecuted in the UK, since torture only became an extra-territorial offence (one punishable in the UK wherever committed) in 1988, when the Criminal Justice Act brought the Torture Convention into force in Britain. The Lords (with the exception of Lord Millett) were strongly attracted by this argument, and summarily rejected the counter-argument that crimes against humanity were universally punishable under common law before the 1984 Torture Convention, or that based on the plain words of the Extradition Act, which requires only that such behaviour would now constitute a crime under UK law.
The hasty, cursory way the counter-arguments on extradition were dealt with, and the evident gratitude with which, during the hearing, the Lords seized on and expanded Pinochet's arguments based on the date the offences were committed, led to widespread suspicion that the Lords were anxious to find a resolution to the case which let Pinochet out without doing any more damage to the prestige of the House of Lords as the world's senior common-law court. This resolution had the merit of retaining the ground-breaking human rights-based judgment of the previous panel, too. All the Lords urged home secretary Jack Straw to think again about the wisdom of granting a further authority to proceed, in the light of the vastly reduced charges (only one substantive torture charge, and parts of two conspiracy to torture charges, all post-1988). The argument that the murders committed at Pinoche