Ex Parte Pinochet

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respect of acts committed while he was head of state.

*119 Regina v. Bow Street Metropolitan Stipendiary The quashing of the second warrant was stayed
Magistrate and Others, ex pending an appeal to the House of Lords by the
parte. Pinochet Ugarte (No. 2) prosecuting authorities on the issue of the immunity
[1999] 2 W.L.R. 272 enjoyed by a former head of state. Before the main
hearing A.I., a human rights body which had
House of Lords campaigned against the applicant, obtained leave to
intervene in the appeal and was represented by
HL counsel in the proceedings. The appeal was allowed
by a majority of three to two and the second warrant
Lord Browne-Wilkinson , Lord Goff of was restored pending a decision by the Home
Chieveley , Lord Nolan , Secretary whether to issue an authority to proceed
Lord Hope of Craighead and Lord Hutton pursuant to section 7(1) of the Act. Subsequently the
applicant's advisers discovered that one of the judges
1998 Dec. 15, 16; 17; 1999 Jan. 15 who had been part of the majority was, although not a
member of A.I., an unpaid director and chairman of
Natural Justice--Bias--Judge in own cause--Request A.I.C. Ltd., a charity which was wholly controlled by
for extradition of former head of state for human A.I. and carried on that part of its work which was
rights crimes--Applicant claiming immunity--Human charitable. One of the objects of A.I.C. Ltd. was to
rights body joined as party to proceedings--Judge procure the abolition of torture, extra-judicial
unpaid director and chairman of charity closely execution and disappearance. The Home Secretary
linked to human rights body--Connection not signed the authority to proceed.
disclosed to parties--Whether judge automatically
disqualified--Whether appearance of bias On a petition by the applicant for the House of Lords
to set aside its previous decision on the ground of
The applicant, a former head of state of Chile who apparent bias on the part of the judge: -
was on a visit to London, was arrested under warrants
issued pursuant to section 8(1) of the Extradition Act Held, granting the petition, that as the ultimate court
1989 following receipt of international warrants of of appeal the House had power to correct any
arrest issued by a Spanish court alleging various injustice caused by one of its earlier orders; that the
crimes against humanity, including murder, hostage- fundamental principle that a man may not be a judge
taking and torture, committed during the applicant's in his own cause was not limited to the automatic
period of office and for which he was knowingly disqualification of a judge who had a pecuniary
responsible. The Divisional Court quashed the interest in the outcome of a case but was equally
warrants on the ground, inter alia, that as a former applicable if the judge's decision would lead to the
head of state he was immune from arrest and promotion of a cause in which he was involved
extradition proceedings in the United Kingdom in together with one of the parties; that, although the
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

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judge could not personally be regarded as having [1926] A.C. 586, H.L.(E.) .
been a party to the appeal, A.I., which had been a
party with the interest of securing the extradition of Law v. Chartered Institute of Patent Agents
the applicant to Spain, and A.I.C. Ltd. were both [1919] 2 Ch. 276
parts of a movement working towards the same
goals; that in order to maintain the absolute
London and North-Western Railway Co. v.
impartiality of the judiciary *120 there had to
Lindsay (1858) 3 Macq. 99, H.L.(Sc.) .
be a rule which automatically disqualified a judge
who was involved, whether personally or as a
McGovern v. Attorney-General [1982] Ch. 321;
director of a company, in promoting the same causes
[1981] 2 W.L.R. 222; [1981] 3 All E.R. 493
in the same organisation as was a party to the suit;
and that, accordingly, the earlier decision of the
House would be set aside (post, pp. 132D, 134B-E, Reg. v. Altrincham Justices, Ex parte N.
135A-F, 139B-140A, 142E-143F, 146E-F). Pennington [1975] Q.B. 549; [1975] 2 W.L.R. 450;
[1975] 2 All E.R. 78, D.C. .
Dimes v. Proprietors of Grand Junction Canal (1852)
3 H.L.Cas. 759, H.L.(E.) applied. Reg. v . Fraser (1893) 9 T.L.R. 613, D.C. .
Decision of the House of Lords [2000] 1 A.C. 61 Reg. v. Gough [1993] A.C. 646; [1993] 2 W.L.R.
[1998] 3 W.L.R. 1456; [1998] 4 All E.R. 897 set 883; [1993] 2 All E.R. 724, H.L.(E.) .
aside.
Reg. v. Inner West London Coroner, Ex parte
The following cases are referred to in their Dallaglio [1994] 4 All E.R. 139, C.A. .
Lordships' opinions:
Reg. v. Rand (1866) L.R. 1 Q.B. 230
Bradford v. McLeod, 1986 S.L.T. 244
Rex v. Sussex Justices, Ex parte McCarthy [1924]
Broome v. Cassell & Co. Ltd. (No. 2) [1972] A.C. 1 K.B. 256, D.C. .
1136; [1972] 2 W.L.R. 1214; [1972] 2 All E.R. 849,
H.L.(E.) . Sellar v. Highland Railway Co., 1919 S.C.(H.L.)
19, H.L. (Sc.) .
Dimes v. Proprietors of Grand Junction Canal
(1852) 3 H.L.Cas. 759, H.L.(E.) . Webb v. The Queen (1994) 181 C.L.R. 41
Doherty v. McGlennan, 1997 S.L.T. 444 The following additional cases were cited in
argument:
Frome United Breweries Co. Ltd. v. Bath Justices

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Amnesty International, Ex parte, The Times, 11 [1955] 1 Q.B. 41; [1954] 3 W.L.R. 415; [1954] 2 All
December 1998, D.C. . E.R. 850, D.C. .
Auckland Casino Ltd. v. Casino Control *121 Reg. v. Chairman of the Town Planning
Authority [1995] 1 N.Z.L.R. 142 Board, Ex parte Mutual Luck Investment Ltd. (1995)
5 H.K.P.L.R. 328
B. v. W. (Wardship: Appeal) [1979] 1 W.L.R.
1041; [1979] 3 All E.R. 83, H.L.(E.) . Reg. v. Devon County Council, Ex parte Baker
[1995] 1 All E.R. 73; 91 L.G.R. 479, C.A. .
B.O.C. New Zealand Ltd. v. Trans Tasman
Properties Ltd. [1997] N.Z.A.R. 49 Reg. v. Khan (Sultan) [1997] A.C. 558; [1996] 3
W.L.R. 162; [1996] 3 All E.R. 289, H.L.(E.) .
Campbell and Fell v. United Kingdom (1984) 7
E.H.R.R. 165 Reg. v. Nailsworth Licensing Justices, Ex parte
Bird [1953] 1 W.L.R. 1046; [1953] 2 All E.R. 652 ,
De Cubber v. Belgium (1984) 7 E.H.R.R. 236 D.C. .
Gregory v. United Kingdom (1997) 25 E.H.R.R. Reg. v. Radio Authority, Ex parte Bull [1998]
577 Q.B. 294; [1997] 3 W.L.R. 1094; [1997] 2 All E.R.
561, C.A. .
Hauschildt v. Denmark (1989) 12 E.H.R.R. 266
R. v. S.(R.D.) (1997) 151 D.L.R. (4th) 193
Holm v. Sweden (1993) 18 E.H.R.R. 79
Reg. v. Secretary of State for the Environment,
Ex parte Kirkstall Valley Campaign Ltd. [1996] 3 All
Kennedy and Carhill, In the marriage of (1995)
E.R. 304
F.L.C. 92-605
Reg. v. Secretary of State for the Home

Langborger v. Sweden (1989) 12 E.H.R.R. 416
Department, Ex parte Doody [1994] 1 A.C. 531;
[1993] 3 W.L.R. 154; [1993] 3 All E.R. 92, H.L.
Pfeifer and Plankl v. Austria (1992) 14 E.H.R.R.
(E.) .
692
Thomas v. University of Bradford (No. 2) [1992]

Porter v. Magill (1997) 96 L.G.R. 157, D.C.
1 All E.R. 964
.
Petition
Reg. v. Camborne Justices, Ex parte Pearce

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This was an application by Senator Augusto Pinochet International's charitable objectives: see McGovern v.
Ugarte to set aside the decision of the House of Lords Attorney-General [1982] Ch. 321 . For an
(Lord Nicholls of Birkenhead, Lord Steyn and Lord example of how the non-charitable parts of Amnesty
Hoffmann; Lord Slynn of Hadley and Lord Lloyd of International have continuously campaigned against
Berwick dissenting) of 25 November 1998 allowing the applicant: see Ex parte Amnesty International,
an appeal by the Commissioner of Police of the The Times, 11 December 1998 .
Metropolis and the Government of Spain against a
decision of the Divisional Court (Lord Bingham C.J., A failure of disclosure is a relevant factor in deciding
Collins and Richards JJ.) dated 28 October 1998 whether justice was seen to be done although it does
granting an order of certiorari to quash a warrant not necessarily vitiate the decision. It cannot be
issued pursuant to section 8(1) of the seriously suggested that there is a duty on the
Extradition Act 1989 at the request of the applicant's *122 solicitors to trawl around for
Central Court of Criminal Proceedings No. 5, information and request disclosure: see Shetreet,
Madrid, by Ronald Bartle, Bow Street Metropolitan Judges on Trial (1976), pp. 305-306, 308, 311;
Stipendiary Magistrate. The ground of the application In the marriage of Kennedy and Carhill (1995)
was that the links between Lord Hoffmann and F.L.C. 92- 605 .
Amnesty International, an intervener in the
proceedings, were such as to give the appearance that
It is doubtful whether the test established in Reg. v.
he might have been biased against the applicant.
Gough [1993] A.C. 646 , of a real "danger of
Leave to intervene was given to Amnesty
bias" meets the objective of the common law rule
International.
which is to preserve the appearance of non-bias
rather than the fact of non-bias as determined by the
The facts are stated in the opinion of Lord Browne- court (see how the test in Gough has been
Wilkinson. interpreted in, for example, Reg. v. Inner West
London Coroner, Ex parte Dallaglio [1994] 4 All E.R.
Clive Nicholls Q.C., Clare Montgomery Q.C., Helen 139 , 151, 161). The court cannot rely on its
Malcolm, James Cameron and Julian knowledge of the integrity of the judge concerned to
B.Knowles for the applicant. outweigh the appearance of bias to the eye of the
bystander. The reference point must remain the
Montgomery Q.C. The jurisdiction of the reasonable observer. This is consistent with the test
House to hear the application was not in any real laid down under article 6(1) of the European
dispute. The decision had international implications Convention for the Protection of Human Rights and
and required acceptance by the wider international Fundamental Freedoms (1953) (Cmd. 8969): see
community. The links between the judge and Harris, O'Boyle, Warbrick, Law of the European
Amnesty International, which were not disclosed Convention on Human Rights (1995), p. 235;
prior to the hearing and not known to the applicant's Hauschildt v. Denmark (1989) 12 E.H.R.R. 266
legal advisors, were such as to undermine confidence ; Langborger v. Sweden (1989) 12 E.H.R.R. 416
in the decision. For examples of Amnesty and Holm v. Sweden (1993) 18 E.H.R.R. 79 .

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Impartiality and independence are different concepts,

one is sub group of the other. The position under The appropriate test is whether a fair minded
article 6(1) should be the position under English law: observer with knowledge of the relevant facts would
see Reg. v. Sultan Khan [1997] A.C. 558 and have a suspicion of bias. Non-disclosure alone is a
Porter v. Magill (1997) 96 L.G.R. 157 . procedural impropriety which is sufficient to raise
such suspicion.
The New Zealand courts have preferred to follow
the Australian case of Webb v. The Queen (1994) 181 Alun Jones Q.C., David Elvin, James Lewis,
C.L.R. 41 rather than Reg. v. Gough [1993] Campaspe Lloyd-Jacob and James Maurici
A.C. 646 : see B.O.C. New Zealand Ltd. v. for the Commissioner of Police and the Government
Trans Tasman Properties Ltd. [1997] N.Z.A.R. of Spain. The applicant raised the issue of bias with
49 . For the Canadian approach see: Reg. v. S. the Secretary of State before issuing the present
(R.D.) (1997) 151 D.L.R. (4th) 193 . The court petition. Very strong representations were made to the
in Reg. v. Gough [1993] A.C. 646 was not Secretary of State urging him to disregard the
referred to the Australian authorities nor even to the decision of the House and refuse to issue an authority
Scottish case of Bradford v. McLeod, 1986 S.L.T. to proceed. All the facts which the *123
244 . applicant relies on now were known to his advisers
then yet the submissions to the Secretary of State
A high standard should apply to the higher courts. At suggest that he is the only person who can uphold
the lower levels local interests can involve everyone this point.
in the area at the higher level there is no need for any
conflict of interest. In effect by taking that course of action the
applicant had elected to pursue his grievance before
The applicant could not be said to have waived any the Secretary of State rather than the House: see
objection he had to the judge by his subsequent Auckland Casino Ltd. v. Casino Control Authority
actions. The connection with Amnesty International [1995] 1 N.Z.L.R. 142 ; Reg. v. Nailsworth
was not a matter of public record and the parties had Licensing Justices, Ex parte Bird [1953] 1 W.L.R.
been entitled to assume there was no such 1046 ; Thomas v. University of Bradford (No. 2)
connection. Even if there was a waiver there is the [1992] 1 All E.R. 964 and Reg. v. Camborne
issue of public interest in seeing that the judiciary is Justices, Ex parte Pearce [1955] 1 Q.B. 41 . It
acting fairly and a duty on the House to see that was only after the Secretary of State had made his
confidence is maintained. decision that the current petition was issued. This
raises issues of waiver, abuse of process and
The application cannot be regarded as an abuse of acquiescence.
process by reason of delay. Between the date of
knowledge of the connection to the point of issuing The applicant's advisers had denied having any
proceedings there were practical problems and time knowledge of the link between the judge and
was spent in investigating the facts. Amnesty International yet it is clear that at least two

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of them had some knowledge of the connection. That Human Rights and Fundamental Freedoms reflects
is surely relevant to the discretionary aspects of relief principles already deeply embodied in the common
because if one is complaining about non-disclosure law. Accordingly, nothing of substance is added by
one should have regard to ones own position. invocation of article 6(1). This can be seen from
consideration of the two interrelated elements of
Applying the "real danger of bias" test laid down in article 6(1), the requirements for a tribunal which is
Reg. v. Gough [1993] A.C. 646 to the facts in both independent and impartial. The requirement of
the case it was clear that there was no such danger. independence has an objective test and focuses on the
The duty of disclosure is subsumed in the structural and compositional aspects of the tribunal.
Gough test. The test propounded in Reg. v. S. Impartiality means lack of prejudice or bias and has a
(R.D.) (1997) 151 D.L.R. (4th) 193 of a subjective test.
"reasonable apprehension of bias" is effectively the
same as the Gough test. That case also establishes The European Court of Human Rights has not
that it is accepted that a judge brings his attitudes, suggested that there is a duty of disclosure. It has said
experiences and views to the job. that if there is a ground for concern (after
consideration of the objective and subjective tests)
The judge's involvement with the Amnesty the judge must withdraw. As such it is the equivalent
International charity is an embodiment of his broader of the actual bias test under English law as described
approach to the law which he brings to his decision in Reg. v. Gough [1993] A.C. 646 : see
making. Being against torture can hardly be regarded Campbell and Fell *124 v. United Kingdom
as bias. The applicant's real objection is to the judge's (1984) 7 E.H.R.R. 165 ; De Cubber v. Belgium
perceived liberal instincts. The fact that the subject (1984) 7 E.H.R.R. 236 ; Gregory v. United
matter of the complaint has a personal link with an Kingdom (1997) 25 E.H.R.R. 577 , 584; Reg. v.
organisation which has interests in the outcome of the Devon County Council, Ex parte Baker [1995] 1 All
decision is not determinative of there being a "real E.R. 73 , 88; Reg. v. Secretary of State for the
danger" of bias: see Reg. v. Chairman of the Town Environment, Ex parte Kirkstall Valley Campaign
Planning Board, Ex parte Mutual Luck Investment Ltd. [1996] 3 All E.R. 304 . The European Court
Ltd. (1995) 5 H.K.P.L.R. 328; Reg. v. Secretary of Human Rights has ruled that the right to an
of State for the Environment, Ex parte Kirkstall impartial tribunal may be waived: see Pfeifer and
Valley Campaign Ltd. [1996] 3 All E.R. 304 . Plankl v. Austria (1992) 14 E.H.R.R. 692 .
New Zealand, Canada and Hong Kong have all Reg. v. Secretary of State for the Home Department,
applied and followed the Gough approach. See Ex parte Doody [1994] 1 A.C. 531 and B. v. W.
also the discussion in Shetreet, Judges on Trial (Wardship: Appeal) [1979] 1 W.L.R. 1041 were
(1976), pp. 305-306. straightforward cases of failure to disclose evidence
and do not have any wider application.
Elvin following. The requirement of article
6(1) of the European Convention for the Protection of The Gough test concerns the appearance of

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bias to a reasonable observer not to one of the parties.

Auckland Casino Ltd. v. Casino Control The provision of an impartial tribunal is a duty and
Authority [1995] 1 N.Z.L.R. 142 and Reg. v. S. cannot therefore be waived. Rights can be waived not
(R.D.) (1997) 151 D.L.R. (4th) 193 are both duties: see Pfeifer and Plankl v. Austria (1992) 14
consistent with the Gough test. E.H.R.R. 692 .
Peter Duffy Q.C., Owen Davies and David The House has indulged in no investigation of the
Scorey for Amnesty International. There are background facts. The House cannot therefore
many differences between Amnesty International and declare on what actually occurred and has to deal
Amnesty International Charity Ltd.: see McGovern v. only with the appearance of what occurred. A judge
Attorney-General [1982] Ch. 321 . For the sum must not hear a case involving a matter which a
total of Amnesty International's activities which are charity of which he is a director is sworn to abolish in
charitable see Reg. v. Radio Authority, Ex parte Bull circumstances where a company closely related to
[1998] Q.B.294 . that charity is an intervener in the case.
Amnesty International supports the position of The duty of disclosure is established by practice. It
challenging trials vitiated by bias. The issue is: what is not just one of the incidents of a fair trial but lies at
constitutes bias? It is in the public benefit for judges the heart of the matter: see Reg. v. Devon County
to be involved with charities. It cannot be that if a Council, Ex parte Baker [1995] 1 All E.R. 73 .
judge is involved with a charity which is concerned The test must be that information should be disclosed
with grave human rights violations he is thereby which would give rise to the apprehension of bias on
excluded from sitting in a case in which human rights the part of a reasonable man in the shoes of one *125
issues arise. The issue of disclosure only arises if of the parties. That is a free standing ground on
there is an issue which needs to be disclosed. Is it which relief should be granted. Reg. v. Secretary of
necessary or desirable that a ritual should be gone State for the Home Department, Ex parte Doody
through whereby judges disclose their connections [1994] 1 A.C. 531 and B. v. W.(Wardship:
with every human rights body? Charitable objectives Appeal) [1979] 1 W.L.R.1041 show that a
are by definition nonpolitical and in the public failure to disclose relevant information can
interest. A judges relationship with a charity and undermine a decision.
support for its objectives should not be investigated
or under suspicion.
There is an important distinction between the
appearance of bias (the actuality) and the
Montgomery Q.C. in reply. The whole apprehension of bias (the subjective view). Reg. v.
argument about waiver or election is based on the Gough [1993] A.C. 646 has plainly been
false premise that the Secretary of State is an misunderstood as it is taken to mean that the relevant
alternative remedy to petitioning the House. They are issue is only the actuality rather than the appearance.
in fact parallel remedies involving different standards However, it is the appearance of bias to the public
and tests. and the party concerned which is relevant. If that fear

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of bias is justified, even if knowledge of the facts

would vitiate that fear, then the test of bias has been In October 1998 Senator Pinochet was in this
satisfied. In the instant case the judge was identified country receiving medical treatment. In October and
or apparently identified with the policy objectives of November 1998 the judicial authorities in Spain
one side's case: see Reg. v. S.(R.D.) (1997) 151 issued international warrants for his arrest to enable
D.L.R. (4th) 193 , 227. That appearance of bias his extradition to Spain to face trial for those alleged
cannot stand. offences. The Spanish Supreme Court has held that
the courts of Spain have jurisdiction to try him.
Their Lordships took time for consideration. 17 Pursuant to those international warrants, on 16 and 23
December 1998. Their Lordships granted the October 1998 metropolitan stipendiary magistrates
application for reasons to be given later. 15 January issued two provisional warrants for his arrest under
1999. Lord Browne-Wilkinson. section 8(1)(b) of the Extradition Act 1989 .
Senator Pinochet was arrested. He immediately
My Lords, applied to the Queen's Bench Divisional Court to
quash the warrants. The warrant of 16 October was
quashed and nothing further turns on that warrant.
Introduction
The second warrant of 23 October 1998 was quashed
by an order of the Divisional Court of the *126
This petition has been brought by Senator Pinochet
Queen's Bench Division (Lord Bingham of Cornhill
to set aside an order made by your Lordships on 25
C.J., Collins and Richards JJ.) However, the quashing
November 1998. It is said that the links between one
of the second warrant was stayed to enable an appeal
of the members of the Appellate Committee who
to be taken to your Lordships' House [2000] 1 A.C.
heard the appeal, Lord Hoffmann, and Amnesty
61 on the question certified by the Divisional
International ("A.I.") were such as to give the
Court as to "the proper interpretation and scope of the
appearance that he might have been biased against
immunity enjoyed by a former head of state from
Senator Pinochet. On 17 December 1998 your
arrest and extradition proceedings in the United
Lordships set aside the order of 25 November 1998
Kingdom in respect of acts committed while he was
for reasons to be given later. These are the reasons
head of state."
that led me to that conclusion.
As that question indicates, the principle point at issue

Background facts
in the main proceedings in both the Divisional Court
and this House was as to the immunity, if any,
Senator Pinochet was the head of state of Chile from enjoyed by Senator Pinochet as a past head
11 September 1973 until 11 March 1990. It is alleged of state in respect of the crimes against humanity for
that during that period there took place in Chile which his extradition was sought. The Crown
various crimes against humanity (torture, hostage Prosecution Service ("C.P.S.") (which is conducting
taking and murder) for which he was knowingly the proceedings on behalf of the Spanish
responsible. Government) while accepting that a foreign head of

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state would, during his tenure of office, be immune greatest importance for the purposes of the present
from arrest or trial in respect of the matters alleged, application. Amnesty International ("A.I."), two other
contends that once he ceased to be head of state his human rights bodies and three individuals petitioned
immunity for crimes against humanity also ceased for leave to intervene in the appeal. Such leave was
and he can be arrested and prosecuted for such crimes granted by a committee consisting of Lord Slynn,
committed during the period he was head of state. On Lord Nicholls and Lord Steyn subject to any protest
the other side, Senator Pinochet contends that his being made by other parties at the start of the main
immunity in respect of acts done whilst he was head hearing. No such protest having been made A.I.
of state persists even after he has ceased to be head of accordingly became an intervener in the appeal. At
state. The position therefore is that if the view of the the hearing of the appeal A.I. not only put in written
C.P.S. (on behalf of the Spanish Government) submissions but was also represented by counsel,
prevails, it was lawful to arrest Senator Pinochet in Professor Brownlie, Michael Fordham, Owen Davies
October and (subject to any other valid objections and *127 Frances Webber. Professor
and the completion of the extradition process) it will Brownlie addressed the committee on behalf of A.I.
be lawful for the Secretary of State in his discretion supporting the appeal.
to extradite Senator Pinochet to Spain to stand trial
for the alleged crimes. If, on the other hand, the The hearing of this case, both before the Divisional
contentions of Senator Pinochet are correct, he has at Court and in your Lordships' House, produced an
all times been and still is immune from arrest in this unprecedented degree of public interest not only in
country for the alleged crimes. He could never be this country but worldwide. The case raises
extradited for those crimes to Spain or any other fundamental issues of public international law and
country. He would have to be immediately released their interaction with the domestic law of this
and allowed to return to Chile as he wishes to do. country. The conduct of Senator Pinochet and his
regime have been highly contentious and emotive
The court proceedings matters. There are many Chileans and supporters of
human rights who have no doubt as to his guilt and
The Divisional Court having unanimously quashed are anxious to bring him to trial somewhere in the
the provisional warrant of 23 October on the ground world. There are many others who are his supporters
that Senator Pinochet was entitled to immunity, he and believe that he was the saviour of Chile. Yet a
was thereupon free to return to Chile subject only to third group believe that, whatever the truth of the
the stay to permit the appeal to your Lordships' matter, it is a matter for Chile to sort out internally
House. The matter proceeded to your Lordships' and not for third parties to interfere in the delicate
House with great speed. It was heard on 4, 5 and 9-12 balance of contemporary Chilean politics by seeking
November 1998 by a committee consisting of Lord to try him outside Chile.
Slynn of Hadley, Lord Lloyd of Berwick, Lord
Nicholls of Birkenhead, Lord Steyn and Lord This wide public interest was reflected in the very
Hoffmann. However, before the main hearing of the large number attending the hearings before the
appeal, there was an interlocutory decision of the Appellate Committee including representatives of the

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world press. The Palace of Westminster was picketed a very limited extent) his legal advisers were aware
throughout. The announcement of the final result of any connection between Lord Hoffmann and A.I.
gave rise to worldwide reactions. In the eyes of very until after the judgment was given on 25 November.
many people the issue was not a mere legal issue but Two members of the legal team recalled that they had
whether or not Senator Pinochet was to stand trial heard rumours that Lord Hoffmann's wife was
and therefore, so it was thought, the cause of human connected with A.I. in some way. During the
rights triumph. Although the members of the Newsnight programme on television on 25
Appellate Committee were in no doubt as to their November, an allegation to *128 that effect
function, the issue for many people was one of moral, was made by a speaker in Chile. On that limited
not legal, right or wrong. information the representations made on Senator
Pinochet's behalf to the Home Secretary on 30
The decision and afterwards November drew attention to Lady Hoffmann's
position and contained a detailed consideration of the
relevant law of bias. It then read:
Judgment in your Lordships' House was given on 25
"It is submitted therefore that the Secretary of State
November 1998. The appeal was allowed by a
should not have any regard to the decision of Lord
majority of three to two and your Lordships' House
Hoffmann. The authorities make it plain that this is
restored the second warrant of 23 October 1998. Of
the appropriate approach to a decision that is affected
the majority, Lord Nicholls and Lord Steyn each
by bias. Since the bias was in the House of Lords, the
delivered speeches holding that Senator Pinochet was
Secretary of State represents the senator's only
not entitled to immunity: Lord Hoffmann agreed with
domestic protection. Absent domestic protection the
their speeches but did not give separate reasons for
senator will have to invoke the jurisdiction of the
allowing the appeal. Lord Slynn and Lord Lloyd each
European Court of Human Rights."
gave separate speeches setting out the reasons for
After the representations had been made to the
their dissent.
Home Office, Senator Pinochet's legal advisers
received a letter dated 1 December 1998 from the
As a result of this decision, Senator Pinochet was
solicitors acting for A.I. written in response to a
required to remain in this country to await the
request for information as to Lord Hoffmann's links.
decision of the Home Secretary whether to authorise
The letter of 1 December, so far as relevant, reads as
the continuation of the proceedings for his extradition
follows:
under section 7(1) of the Extradition Act 1989. The
"Further to our letter of 27 November, we are
Home Secretary had until 11 December 1998 to make
informed by our clients, Amnesty International, that
that decision, but he required anyone wishing to
Lady Hoffmann has been working at their
make representations on the point to do so by the 30
international secretariat since 1977. She has always
November 1998.
been employed in administrative positions, primarily
in their department dealing with press and
The link between Lord Hoffmann and A.I. publications. She moved to her present position of
programme assistant to the director of the media and
It appears that neither Senator Pinochet nor (save to audio visual programme when this position was

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established in 1994. Lady Hoffmann provides had any other role in Amnesty International's
administrative support to the programme, including interventions in the case of Pinochet. Lord Hoffmann
some receptionist duties. She has not been consulted is not a member of Amnesty International. In
or otherwise involved in any substantive discussions addition, in 1997 Lord Hoffmann helped in the
or decisions by Amnesty International, including in organisation of a fund raising appeal for a new
relation to the Pinochet case." building for Amnesty International U.K. He helped
organise this appeal together with other senior legal
On 7 December a man anonymously telephoned figures, including the Lord Chief Justice, Lord
Senator Pinochet's solicitors alleging that Lord Bingham. In February your firm contributed£1,000 to
Hoffmann was a director of the Amnesty this appeal. You should also note that in 1982 Lord
International Charitable Trust. That allegation was Hoffmann, when practising at the Bar, appeared in
repeated in a newspaper report on 8 December. the Chancery Division for Amnesty International
Senator Pinochet's solicitors informed the Home U.K."
Secretary of these allegations. On 8 December they Further information relating to A.I.C.L. and its
received a letter from the solicitors acting for A.I. relationship with Lord Hoffmann and A.I. is given
dated 7 December which reads, so far as relevant, as below. Mr. Alun Jones for the C.P.S. does not contend
follows: that either Senator Pinochet or his legal advisers had
"On further consideration, our client, Amnesty any knowledge of Lord Hoffmann's position as a
International have instructed us that after contacting director of A.I.C.L. until receipt of that letter.
Lord Hoffmann over the weekend both he and they
believe that the following information about his Senator Pinochet's solicitors informed the Home
connection with Amnesty International's charitable Secretary of the contents of the letter dated 7
work should be provided to you. Lord Hoffmann is a December. The Home Secretary signed the authority
director and chairperson of Amnesty International to proceed on 9 December 1998. He also gave
Charity Ltd. ('A.I.C.L.'), a registered charity reasons for his decision, attaching no weight to the
incorporated on 7 April 1986 to undertake those allegations of bias or apparent bias made by Senator
aspects of the work of Amnesty International Ltd. Pinochet.
('A.I.L.') which are charitable under U.K. law.
A.I.C.L. files reports with Companies House and the On 10 December 1998, Senator Pinochet lodged the
Charity Commissioners as required by U.K. law. present petition asking that the order of 25 November
A.I.C.L. funds a proportion of the charitable activities 1998 should either be set aside completely or the
undertaken independently by *129 A.I.L. opinion of Lord Hoffmann should be declared to be
A.I.L.'s board is composed of Amnesty International's of no effect. The sole ground relied upon was that
Secretary General and two Deputy Secretaries Lord Hoffmann's links with A.I. were such as to give
General. Since 1990 Lord Hoffmann and Peter Duffy the appearance of possible bias. It is important to
Q.C. have been the two directors of A.I.C.L. They are stress that Senator Pinochet makes no allegation of
neither employed nor remunerated by either A.I.C.L. actual bias against Lord Hoffmann; his claim
or A.I.L. They have not been consulted and have not is based on the requirement that justice should be

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seen to be done as well as actually being done. There

is no allegation that any other member of the A.I.L. is an English limited company incorporated to
committee has fallen short in the performance of his assist in furthering the objectives of A.I. and to carry
judicial duties. out the aspects of the work of the international
headquarters which are not charitable.
Amnesty International and its constituent parts
A.I.C.L. is a company limited by guarantee and
Before considering the arguments advanced before also a registered charity. In McGovern v. Attorney-
your Lordships, it is necessary to give some detail of General [1982] Ch. 321 , Slade J. held that a
the organisation of A.I. and its subsidiary and trust established by A.I. to promote certain of its
constituent bodies. Most of the information which objects was not charitable because it was established
follows is derived from the directors' reports and for political purposes; however the judge indicated
notes to the accounts of A.I.C.L. which have been put that a trust for research into the observance of human
in evidence. rights and the dissemination of the results of such
research could be charitable. It appears that A.I.C.L.
A.I. itself is an unincorporated, non-profit-making was incorporated on 7 April 1986 to carry out such of
organisation founded in 1961 with the object of the purposes of A.I. as were charitable. Clause3 of
securing throughout the world the observance of the the memorandum of association of A.I.C.L. provides:
provisions of the Universal Declaration of Human "Having regard to the statute for the time being of
Rights in regard to prisoners of conscience. It is Amnesty International, the objects for which the
regulated by a document known as the statute of company is established are: (a) To promote research
Amnesty International. A.I. consists of sections in into the maintenance and observance of human rights
different countries throughout the world and its and to publish the results of such research. (b) To
international headquarters in London. Delegates of provide relief to needy victims of breaches of human
the sections meet periodically at the international rights by appropriate charitable (and in particular
council meetings to coordinate their activities and to medical, rehabilitational or financial) assistance. (c)
elect an international *130 executive To procure the abolition of torture, extra-judicial
committee to implement the council's decisions. The execution and disappearance ..."
international headquarters in London is responsible to
the international executive committee. It is funded Under article 3(a) of A.I.C.L. the members of the
principally by the sections for the purpose of company are all the elected members for the time
furthering the work of A.I. on a worldwide basis and being of the international executive committee of
to assist the work of sections in specific countries as Amnesty International and nobody else. The directors
necessary. The work of the international headquarters are appointed by and removable by the members in
is undertaken through two United Kingdom general meetings. Since 8 December 1990 Lord
registered companies, Amnesty International Ltd. Hoffmann and Mr. Duffy have been the sole
("A.I.L.") and Amnesty International Charity Ltd. directors, Lord Hoffmann at some stage becoming the
("A.I.C.L."). chairperson.

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human rights by torture and otherwise in the courts of

There are complicated arrangements between the Chile. It records that "no one was convicted during
international headquarters of A.I., A.I.C.L. and A.I.L. the year for past human rights violations. The
as to the discharge of their respective functions. From military courts continued to claim jurisdiction over
the reports of the directors and the notes to the annual human rights cases in civilian courts and to close
accounts, it appears that, although the system has cases covered by the 1978 Amnesty law." It also
changed slightly from time to time, the current records "Amnesty International continued to call for
system is as follows. The international headquarters full investigation into human rights violations and for
of A.I. are in London and the premises are, at least in those responsible to be brought to justice. The
part, shared with A.I.C.L. and A.I.L. The conduct of organisation also continued to call for the abolition of
A.I.'s international headquarters is (subject to the the death penalty." Again, the report stated that
direction of the international executive committee) in "Amnesty International included references to its
the hands of A.I.L. A.I.C.L. commissions A.I.L. to concerns about past human rights violations against
undertake charitable activities of the kind which fall indigenous peoples in Chile and the lack of
within the objects of A.I. The directors of A.I.C.L. accountability of those responsible." Therefore
then resolve to expend the sums that they have A.I.C.L. was involved in the reports of A.I. urging the
received from A.I. sections or elsewhere in funding punishment of those guilty in Chile for past breaches
such charitable work as A.I.L. performs. A.I.L. then of human rights and also referring to such work as
reports retrospectively to A.I.C.L. as to the moneys being part of the work that it supported.
expended and A.I.C.L. votes sums to A.I.L. for such
part of A.I.L.'s work as can properly be regarded as The directors of A.I.C.L. do not receive any
charitable. It was confirmed *131 in the remuneration. Nor do they take any part in the
course of argument that certain work done by A.I.L. policy-making activities of A.I. Lord Hoffmann is not
would therefore be treated as in part done by A.I.L. a member of A.I. or of any other body connected with
on its own behalf and in part on behalf of A.I.C.L. A.I.
I can give one example of the close interaction In addition to the A.I. related bodies that I have
between the functions of A.I.C.L. and A.I. The report mentioned, there are other organisations which are
of the directors of A.I.C.L. for the year ended 31 not directly relevant to the present case. However, I
December 1993 records that A.I.C.L. commissioned should mention another charitable company
A.I.L. to carry out charitable activities on its behalf connected with A.I. and mentioned in the papers,
and records as being included in the work of A.I.C.L. namely, "Amnesty International U.K. Section
certain research publications. One such publication Charitable Trust " registered as a company under
related to Chile and referred to a report issued as an number 3139939 and as a charity under 1051681.
A.I. report in 1993. Such 1993 report covers not only That was a company incorporated in 1995 and, so far
the occurrence and nature of breaches of human as I can see, has nothing directly to do with the
rights within Chile, but also the progress of cases present case.
being brought against those alleged to have infringed

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The parties' submissions

Conclusions
Miss Montgomery in her very persuasive
submissions on behalf of Senator Pinochet contended 1. Jurisdiction
(1) that, although there was no exact precedent, your
Lordships' House must have jurisdiction to set aside
As I have said, the respondents to the petition do not
its own orders where they have been improperly
dispute that your Lordships have jurisdiction in
made, since there is no other court which could
appropriate cases to rescind or vary an earlier order
correct such impropriety; (2) that (applying the test in
of this House. In my judgment, that concession was
Reg. v. Gough [1993] A.C. 646 ) the links
rightly made both in principle and on authority.
between Lord Hoffmann and A.I. were such that there
was a real danger that Lord Hoffmann was biased in
In principle it must be that your Lordships, as the
favour of A.I. or alternatively (applying the test in
ultimate court of appeal, have power to correct any
Webb v. The Queen (1994) 181 C.L.R. 41 )
injustice caused by an earlier order of this House.
that such links give rise to a reasonable apprehension
There is no relevant statutory limitation on the
or suspicion on the part of a fair minded and
jurisdiction of the House in this regard and therefore
informed member of the public that Lord Hoffmann
its inherent jurisdiction remains unfettered. In
might have been so biased.
Broome v. Cassell & Co. Ltd. (No. 2) [1972] A.C.
1136 your Lordships varied an order for costs
*132 On the other side, Mr. Alun Jones accepted that
already made by the House in circumstances where
your Lordships had power to revoke an earlier order
the parties had not had a fair opportunity to address
of this House but contended that there was no case
argument on the point.
for such revocation here. The applicable test of bias,
he submitted, was that recently laid down by your
However, it should be made clear that the House will
Lordships in Reg. v. Gough and it was
not reopen any appeal save in circumstances where,
impossible to say that there was a real danger that
through no fault of a party, he or she has been
Lord Hoffmann had been biased against Senator
subjected to an unfair procedure. Where an order has
Pinochet. He further submitted that, by relying on the
been made by the House in a particular case there can
allegations of bias in making submissions to the
be no question of that decision being varied or
Home Secretary, Senator Pinochet had elected to
rescinded by a later order made in the same case just
adopt the Home Secretary as the correct tribunal to
because it is thought that the first order is wrong.
adjudicate on the issue of apparent bias. He had
thereby waived his right to complain before your
Lordships of such bias. Expressed in other words, he 2. Apparent bias
was submitting that the petition was an abuse of
process by Senator Pinochet. Mr. Duffy for A.I. (but As I have said, Senator Pinochet does not allege that
not for A.I.C.L.) supported the case put forward by Lord Hoffmann was in fact biased. The contention is
Mr. Alun Jones. that there was a real danger or reasonable

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apprehension or suspicion that Lord Hoffmann might 525. I will call this "automatic disqualification."
have been biased, that is to say, it is alleged that there
is an appearance of bias not actual bias. In Dimes v. Proprietors of Grand Junction
Canal (1852) 3 H.L.Cas. 759 , the then Lord
The fundamental principle is that a man may not be a Chancellor, Lord Cottenham, owned a substantial
judge in his own cause. This principle, as developed shareholding in the defendant canal which was an
by the courts, has two very similar but not identical incorporated body. In the action the Lord Chancellor
implications. First it may be applied literally: if a sat on appeal from the Vice-Chancellor, whose
judge is in fact a party to the litigation or has a judgment in favour of the company he affirmed.
financial or proprietary interest in its outcome then he There was an appeal to your Lordships' House on the
is indeed sitting as a judge in his own cause. In that grounds that the Lord Chancellor was disqualified.
case, the mere fact that he is a party to the action or Their Lordships consulted the judges who advised, at
has a financial or proprietary interest in its outcome is p. 786, that Lord Cottenham was disqualified from
sufficient to cause his automatic disqualification. The sitting as a judge in the cause because he had an
second application of the principle is where a judge is interest in the suit. This advice was unanimously
*133 not a party to the suit and does not accepted by their Lordships. There was no inquiry by
have a financial interest in its outcome, but in some the court as to whether a reasonable man would
other way his conduct or behaviour may give rise to a consider Lord Cottenham to be biased and no inquiry
suspicion that he is not impartial, for example as to the circumstances which led to Lord Cottenham
because of his friendship with a party. This second sitting. Lord Campbell said, at p. 793:
type of case is not strictly speaking an application of "No one can suppose that Lord Cottenham could
the principle that a man must not be judge in his own be, in the remotest degree, influenced by the interest
cause, since the judge will not normally be himself he had in this concern; but, my Lords, it is of the last
benefiting, but providing a benefit for another by importance that the maxim that no man is to be a
failing to be impartial. judge in his own cause should be held sacred. And
that is not to be confined to a cause in which he is a
In my judgment, this case falls within the first party , but applies to a cause in which he
category of case, viz. where the judge is disqualified has an interest." (Emphasis added.)
because he is a judge in his own cause. In such a
case, once it is shown that the judge is himself a party On occasion, this proposition is elided so as to omit
to the cause, or has a relevant interest in its subject all references to the disqualification of a judge who is
matter, he is disqualified without any investigation a party to the suit: see, for example, Reg. v. Rand
into whether there was a likelihood or suspicion of (1866) L.R. 1 Q.B. 230 ; Reg. v.
bias. The mere fact of his interest is sufficient to Gough [1993] A.C. 646 , 661. This does not
disqualify him unless he has made sufficient mean that a judge who is a party to a suit is not
disclosure: see Shetreet, Judges on Trial disqualified just because the suit does not involve a
(1976), p. 303; De Smith, Woolf and Jowell, Judicial financial interest. The authorities cited in the
Review of Administrative Action, 5th ed. (1995), p. Dimes case show how the principle

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developed. The starting-point was the case in which a tax purposes, to carry out part of the functions of A.I.
judge was indeed purporting to decide a case in those parts which were charitable which had
which he was a party. This was held to be absolutely previously been carried on either by A.I. itself or by
prohibited. That absolute prohibition was then A.I.L. Lord Hoffmann is a director and chairman of
extended to cases where, although not nominally a A.I.C.L., which is wholly controlled by A.I., since its
party, the judge had an interest in the outcome. members (who ultimately control it) are all the
members of the international executive committee of
The importance of this point in the present case is A.I. A large part of the work of A.I. is, as a matter of
this. Neither A.I., nor A.I.C.L., have any financial strict law, carried on by A.I.C.L. which instructs
interest in the outcome of this litigation. We are here A.I.L. to do the work on its behalf. In reality, A.I.,
confronted, as was Lord Hoffmann, with a novel A.I.C.L. and A.I.L. are a close-knit group carrying on
situation where the outcome of the litigation did not the work of A.I.
lead to financial benefit to *134 anyone. The interest
of A.I. in the litigation was not financial; it was its However, close as these links are, I do not think it
interest in achieving the trial and possible conviction would be right to identify Lord Hoffmann personally
of Senator Pinochet for crimes against humanity. as being a party to the appeal. He is closely linked to
A.I. but he is not in fact A.I. Although this is an area
By seeking to intervene in this appeal and being in which legal technicality is particularly to be
allowed so to intervene, in practice A.I. became a avoided, it cannot be ignored that Lord Hoffmann
party to the appeal. Therefore if, in the took no part in running A.I. Lord Hoffmann, A.I.C.L.
circumstances, it is right to treat Lord Hoffmann as and the executive committee of A.I. are in law
being the alter ego of A.I. and therefore a judge in his separate people.
own cause, then he must have been automatically
disqualified on the grounds that he was a party to the Then is this a case in which it can be said that Lord
appeal. Alternatively, even if it be not right to say that Hoffmann had an "interest" which must lead to his
Lord Hoffmann was a party to the appeal as such, the automatic disqualification? Hitherto only pecuniary
question then arises whether, in non-financial and proprietary interests have led to automatic
litigation, anything other than a financial or disqualification. But, as I have indicated, this
proprietary interest in the outcome is sufficient litigation is most unusual. It is not civil litigation but
automatically to disqualify a man from sitting as criminal litigation. Most unusually, by allowing A.I.
judge in the cause. to intervene, there is a party to a criminal cause or
matter who is neither prosecutor nor accused. That
Are the facts such as to require Lord Hoffmann to be party, A.I., shares with the government of Spain and
treated as being himself a party to this appeal? The the C.P.S., not a financial interest but an interest to
facts are striking and unusual. One of the parties to establish that there is no immunity for ex-heads of
the appeal is an unincorporated association, A.I. One state in relation to crimes against humanity. The
of the constituent parts of that unincorporated interest of these parties is to procure Senator
association is A.I.C.L. A.I.C.L. was established, for Pinochet's extradition and trial a non-pecuniary

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interest. So far as A.I.C.L. is concerned, clause 3(c) been automatically disqualified because of his non-
of its memorandum provides that one of its objects is pecuniary interest in establishing that Senator
"to procure the abolition of torture, extra-judicial Pinochet was not entitled to immunity. Indeed, so
execution and disappearance." A.I. has, amongst much I understood to have been conceded by Mr.
other objects, the same objects. Although A.I.C.L., as Duffy.
a charity, cannot campaign to change the law, it is
concerned by other means to procure the abolition of Can it make any difference that, instead of being a
these crimes against humanity. In my opinion, direct member of A.I., Lord Hoffmann is a director of
therefore, A.I.C.L. plainly had a non-pecuniary A.I.C.L., that is of a company which is wholly
interest, to establish that Senator Pinochet was not controlled by A.I. and is carrying on much of its
immune. work? Surely not. The substance of the matter is that
A.I., A.I.L. and A.I.C.L. are all various parts of an
*135 That being the case, the question is whether in entity or movement working in different fields
the very unusual circumstances of this case a non- towards the same goals. If the absolute impartiality of
pecuniary interest to achieve a particular result is the judiciary is to be maintained, there must be a rule
sufficient to give rise to automatic disqualification which automatically disqualifies a judge who is
and, if so, whether the fact that A.I.C.L. had such an involved, whether personally or as a director of a
interest necessarily leads to the conclusion that Lord company, in promoting the same causes in the same
Hoffmann, as a director of A.I.C.L., was organisation as is a party to the suit. There is no room
automatically disqualified from sitting on the appeal? for fine distinctions if Lord Hewart C.J.'s famous
My Lords, in my judgment, although the cases have dictum is to be observed: it is "of fundamental
all dealt with automatic disqualification on the importance that justice should not only be done, but
grounds of pecuniary interest, there is no good reason should manifestly and undoubtedly be seen to be
in principle for so limiting automatic disqualification. done:" see Rex v. Sussex Justices, Ex parte McCarthy
The rationale of the whole rule is that a man cannot [1924] 1 K.B. 256 , 259.
be a judge in his own cause. In civil litigation the
matters in issue will normally have an economic Since, in my judgment, the relationship between A.I.,
impact; therefore a judge is automatically A.I.C.L. and Lord Hoffmann leads to the automatic
disqualified if he stands to make a financial gain as a disqualification of Lord Hoffmann to sit on the
consequence of his own decision of the case. But if, hearing of the appeal, it is unnecessary to consider
as in the present case, the matter at issue does not the other factors which were relied on by Miss
relate to money or economic advantage but is Montgomery, viz. the position of Lady Hoffmann as
concerned with the promotion of the cause, the an employee of A.I. and the fact that Lord Hoffmann
rationale disqualifying a judge applies just as much if was involved in the recent appeal for funds for
the judge's decision will lead to the promotion of a Amnesty. Those factors might have been relevant if
cause in which the judge is involved together with Senator Pinochet had been required to show a real
one of the parties. Thus in my opinion if Lord danger or reasonable suspicion of bias. But since the
Hoffmann had been a member of A.I. he would have disqualification is automatic and does not depend in

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any way on an implication of bias, it is unnecessary facts of this present case are exceptional. The critical
to consider these factors. I do, however, wish to make elements are (1) that A.I. was a party to the appeal;
it clear (if I have not already done so) that my (2) that A.I. was joined in order to argue for a
decision is not that Lord Hoffmann has been guilty of particular result; (3) the judge was a director of a
bias of any kind: he was disqualified as a matter of charity closely allied to A.I. and sharing, in this
law automatically by reason of his directorship of respect, A.I.'s objects. Only in cases where a judge is
A.I.C.L., a company controlled by a party, A.I. taking an active role as trustee or director of a charity
which is closely allied to and acting with a party to
*136 For the same reason, it is unnecessary to the litigation should a judge normally be concerned
determine whether the test of apparent bias laid down either to recuse himself or disclose the position to the
in Reg. v. Gough [1993] A.C. 646 ("is there in parties. However, there may well be other exceptional
the view of the court a real danger that the judge was cases in which the judge would be well advised to
biased?") needs to be reviewed in the light of disclose a possible interest.
subsequent decisions. Decisions in Canada, Australia
and New Zealand have either refused to apply the test Finally on this aspect of the case, we were asked to
in Reg. v. Gough , or modified it so as to state in giving judgment what had been said and done
make the relevant test the question whether the within the Appellate Committee in relation to
events in question give rise to a reasonable Amnesty International during the hearing leading to
apprehension or suspicion on the part of a fairminded the order of 25 November. As is apparent from what I
and informed member of the public that the judge have said, such matters are irrelevant to what we
was not impartial: see, for example, the High Court have to decide: in the absence of any disclosure to the
of Australia in Webb v. The Queen, 181 C.L.R. parties of Lord Hoffmann's involvement with A.I.,
41 . It has also been suggested that the test in such involvement either did or did not in law
Reg. v. Gough in some way impinges on the disqualify him regardless of what happened within
requirement of Lord Hewart C.J.'s dictum that justice the Appellate Committee. We therefore did not
should appear to be done: see Reg. v. Inner West investigate those matters and make no findings as to
London Coroner, Ex parte Dallaglio [1994] 4 All E.R. them.
139 , 152a-b. Since such a review is
unnecessary for the determination of the present case, Election, waiver, abuse of process
I prefer to express no view on it.
Mr. Alun Jones submitted that by raising with the
It is important not to overstate what is being decided. Home Secretary the possible bias of Lord Hoffmann
It was suggested in argument that a decision setting as a ground for not authorising the extradition to
aside the order of 25 November 1998 would lead to a proceed, Senator Pinochet had elected to choose the
position where judges would be unable to sit on cases Home Secretary rather than your Lordships' House as
involving charities in whose work they are involved. the arbiter as to whether such bias did or did not
It is suggested that, because of such involvement, a exist. Consequently, he submitted, Senator Pinochet
judge would be disqualified. That is not correct. The had waived his right to petition your Lordships and,

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by doing so immediately after the Home Secretary points at issue.

had rejected the submission, was committing an
abuse of the process of the House. Lord Goff of Chieveley.
*137 This submission is bound to fail on a number My Lords, I have had the opportunity of reading in
of different grounds, of which I need mention only draft the opinion prepared by my noble and learned
two. First, Senator Pinochet would only be put to his friend, Lord Browne-Wilkinson. It was for the like
election as between two alternative courses to adopt. reasons to those given by him that I agreed that the
I cannot see that there are two such courses in the order of your Lordships' House in this matter dated
present case, since the Home Secretary had no power 25 November 1998 should be set aside and that a
in the matter. He could not set aside the order of 25 rehearing of the appeal should take place before a
November and as long as such order stood, the Home differently constituted Committee. Even so, having
Secretary was bound to accept it as stating the law. regard to the unusual nature of this case, I propose to
Secondly, all three concepts - election, waiver and set out briefly in my own words the reasons why I
abuse of process - require that the person said to have reached that conclusion.
elected etc. has acted freely and in full knowledge of
the facts. Not until 8 December 1998 did Senator
Like my noble and learned friend, I am of the
Pinochet's solicitors know anything of Lord
opinion that the principle which governs this matter
Hoffmann's position as a director and chairman of
is that a man shall not be a judge in his own cause -
A.I.C.L. Even then they did not know anything about
nemo judex in sua causa: see Dimes v. Proprietors of
A.I.C.L. and its constitution. To say that by hurriedly
Grand Junction Canal, 3 H.L.Cas. 759 , 793,
notifying the Home Secretary of the contents of the
per Lord Campbell. As stated by Lord
letter from A.I.'s solicitors, Senator Pinochet had
Campbell the principle is not confined to a cause to
elected to pursue the point solely before the Home
which the judge is a party, but applies also to a cause
Secretary is unrealistic. Senator Pinochet had not yet
in which he has an interest. Thus, for example, a
had time to find out anything about the circumstances
judge who holds shares in a company which is a
beyond the bare facts disclosed in the letter.
party to the litigation is caught by the principle, not
because he himself is a party to the litigation (which
Result he is not), but because he has by virtue of his
shareholding an interest in the cause. That was indeed
It was for these reasons and the reasons given by my the ratio decidendi of the famous Dimes case
noble and learned friend, Lord Goff of Chieveley, itself. In that case the then Lord Chancellor, Lord
that I reluctantly felt bound to set aside the order of Cottenham, affirmed an order granted by the Vice-
25 November 1998. It was appropriate to direct a Chancellor granting relief to a company in which,
rehearing of the appeal before a differently unknown to the defendant and forgotten by himself,
constituted committee, so that on the rehearing the he held a substantial shareholding. It was decided,
parties were not faced with a committee four of following the opinion of the judges, that Lord
whom had already expressed their conclusion on the Cottenham was disqualified, *138 by reason

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of his interest in the cause, from adjudicating in the that not only was A.I.C.L. deeply involved in the
matter, and that his order was for that reason voidable work of A.I., commissioning activities falling within
and must be set aside. Such a conclusion must follow, the objects of A.I. which were charitable, but that it
subject only to waiver by the party or parties to the did so specifically in relation to research publications
proceedings thereby affected. including one relating to Chile reporting on breaches
of human rights (by torture and otherwise) in Chile
In the present case your Lordships are not concerned and calling for those responsible to be brought to
with a judge who is a party to the cause, nor with one justice. It is in these circumstances that we have to
who has a financial interest in a party to the cause or consider the position of Lord Hoffmann, not as a
in the outcome of the cause. Your Lordships are person who is himself a party to the proceedings or
concerned with a case in which a judge is closely who has a financial interest in such a party or in the
connected with a party to the proceedings. This outcome of the proceedings, but as a person who is,
situation has arisen because, as my noble and learned as a director and chairperson of A.I.C.L., closely
friend has described, Amnesty International ("A.I.") connected with A.I. which is, or must be treated as, a
was given leave to intervene in the proceedings; and, party to the proceedings. The question which arises is
whether or not A.I. thereby became technically a whether his connection with that party will (subject
party to the proceedings, it so participated in the to waiver) itself disqualify him from sitting as a judge
proceedings, actively supporting the cause of one in the proceedings, in the same way as a significant
party (the Government of Spain, represented by the shareholding in a party will do, and so require that
Crown Prosecution Service) against another (Senator the order made upon the outcome of the proceedings
Pinochet), that it must be treated as a party. must be set aside.
Furthermore, Lord Hoffmann is a director and
chairperson of Amnesty International Charity Ltd. Such a question could in theory arise, for example,
("A.I.C.L."). A.I.C.L. and Amnesty International Ltd. in relation to a senior executive of a body which is a
("A.I.L.") are United Kingdom companies through party to the proceedings, who holds no shares in that
which the work of the International Headquarters of body; but it is, I believe, only conceivable that it will
A.I. in London is undertaken, A.I.C.L. having been do so where the body in question is a charitable
incorporated to carry out those purposes of A.I. organisation. He will by reason of his position be
which are charitable under U.K. law. Neither Senator committed to the well-being of the charity, and to the
Pinochet nor the lawyers acting for him were aware fulfilment by the charity of its charitable objects. He
of the connection between Lord Hoffmann and A.I. may for that reason properly be said to have an
until after judgment was given on 25 November interest in the outcome of the litigation, though he
1998. has no financial interest, and so to be disqualified
from sitting as a judge in the proceedings. The cause
My noble and learned friend has described in lucid is "a cause in which he has an *139 interest," in the
detail the working relationship between A.I.C.L., words of Lord Campbell in the Dimes case, at
A.I.L. and A.I., both generally and in relation to p. 793. It follows that in this context the relevant
Chile. It is unnecessary for me to do more than state interest need not be a financial interest. This is the

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view expressed in Shetreet, Judges on Trial Lord Hoffmann had an interest in the outcome of the
(1976), p. 310, where he states that "[a] judge may present proceedings and so was disqualified from
have to disqualify himself by reason of his sitting as a judge in those proceedings.
association with a body that institutes or defends the
suit," giving as an example the chairman or member It is important to observe that this conclusion is, in
of the board of a charitable organisation. my opinion, in no way dependent on Lord Hoffmann
personally holding any view, or having any objective,
Let me next take the position of Lord Hoffmann in regarding the question whether Senator Pinochet
the present case. He was not a member of the should be extradited, nor is it dependent on any bias
governing body of A.I., which is or is to be treated as or apparent bias on his part. Any suggestion of bias
a party to the present proceedings: he was on his part was, of course, disclaimed by those
chairperson of an associated body, A.I.C.L., which is representing Senator Pinochet. It arises simply from
not a party. However, on the evidence, it is plain that Lord Hoffmann's involvement in A.I.C.L.; the close
there is a close relationship between A.I., A.I.L. and relationship between A.I., A.I.L. and A.I.C.L., which
A.I.C.L. A.I.C.L. was formed following the decision here means that for present purposes they can be
in McGovern v. Attorney-General [1982] Ch. regarded as being, in practical terms, one
321 , to carry out the purposes of A.I. which organisation; and the participation of A.I. in the
were charitable, no doubt with the sensible object of present proceedings in which as a result it either is, or
achieving a tax saving. So the division of function must be treated as, a party.
between A.I.L. and A.I.C.L. was that the latter was to
carry out those aspects of the work of the Lord Nolan.
international headquarters of A.I. which were
charitable, leaving it to A.I.L. to carry out the
My Lords, I agree with the views expressed by noble
remainder, that division being made for fiscal
and learned friends, Lord Browne-Wilkinson and
reasons. It follows that A.I., A.I.L. and A.I.C.L. can
Lord Goff of Chieveley. In my judgment the decision
together be described as being, in practical terms, one
of 25 November had to be set aside for the reasons
organisation, of which A.I.C.L. forms part. The effect
which they give. I would only add that in any case
for present purposes is that Lord Hoffmann, as
where the impartiality of a judge is in question the
chairperson of one member of that organisation,
appearance of the matter is just as important as the
A.I.C.L., is so closely associated with another
reality.
member of that organisation, A.I., that he can
properly be said to have an interest in the outcome of
*140 Lord Hope of Craighead.
proceedings to which A.I. has become party. This
conclusion is reinforced, so far as the present case is
concerned, by the evidence of A.I.C.L. My Lords, I have had the advantage of reading in
commissioning a report by A.I. relating to breaches draft the speeches which have been prepared by my
of human rights in Chile, and calling for those noble and learned friends, Lord Browne-Wilkinson
responsible to be brought to justice. It follows that and Lord Goff of Chieveley. For the reasons which
they have given I also was satisfied that the earlier

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decision of this House cannot stand and must be set "The law remains unaltered and unvarying today,
aside. But in view of the importance of the case and and, although it is obvious that the extended growth
its wider implications, I should like to add these of personal property and the wide distribution of
observations. interests in vast commercial concerns may render the
application of the rule increasingly irksome, it is none
One of the cornerstones of our legal system is the the less a rule which I for my part should greatly
impartiality of the tribunals by which justice is regret to see even in the slightest degree relaxed. The
administered. In civil litigation the guiding principle importance of preserving the administration of justice
is that no one may be a judge in his own cause: nemo from anything which can even by remote imagination
debet esse judex in propria causa. It is a principle infer a bias or interest in the judge upon whom falls
which is applied much more widely than a literal the solemn duty of interpreting the law is so grave
interpretation of the words might suggest. It is not that any small inconvenience experienced in its
confined to cases where the judge is a party to the preservation may be cheerfully endured. In practice
proceedings. It is applied also to cases where he has a also the difficulty is one easily overcome, because,
personal or pecuniary interest in the outcome, directly the fact is stated, it is common practice that
however small. In London and North-Western counsel on each side agree that the existence of the
Railway Co. v. Lindsay (1858) 3 Macq. 99 the disqualification shall afford no objection to the
same question as that which arose in Dimes v. prosecution of the suit, and the matter proceeds in the
Proprietors of Grand Junction Canal, 3 H.L.Cas. ordinary way, but, if the disclosure is not made, either
759 was considered in an appeal from the through neglect or inadvertence, the judgment
Court of Session to this House. Lord Wensleydale becomes voidable and may be set aside."
stated that, as he was a shareholder in the appellant
company, he proposed to retire and take no part in the As my noble and learned friend, Lord Goff of
judgment. The Lord Chancellor said that he regretted Chieveley, said in Reg. v. Gough [1993] A.C.
that this step seemed to be necessary. Although 646 , 661, the nature of the interest is such that
counsel stated that he had no objection, it was public confidence in the administration of justice
thought better that any difficulty that might arise requires that the judge must withdraw from the case
should be avoided and Lord Wensleydale retired. or, if he fails to disclose his interest and sits in *141
judgment upon it, the decision cannot stand. It is no
In Sellar v. Highland Railway Co., 1919 S.C.(H.L.) answer for the judge to say that he is in fact impartial
19 the same rule was applied where a person and that he will abide by his judicial oath. The
who had been appointed to act as one of the arbiters purpose of the disqualification is to preserve the
in a dispute between the proprietors of certain administration of justice from any suspicion of
fishings and the railway company was the holder of a partiality. The disqualification does not follow
small number of ordinary shares in the railway automatically in the strict sense of that word, because
company. Lord Buckmaster, after referring to the the parties to the suit may waive the objection. But no
Dimes and Lindsay cases, gave this further investigation is necessary and, if the interest is
explanation of the rule, at pp. 20-21: not disclosed, the consequence is inevitable. In

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practice the application of this rule is so well Freedoms makes no distinction between civil
understood and so consistently observed that no case and criminal cases in its expression of the right of
has arisen in the course of this century where a everyone to a fair and public hearing within a
decision of any of the courts exercising a civil reasonable time by an independent and impartial
jurisdiction in any part of the United Kingdom has tribunal established by law.
had to be set aside on the ground that there was a
breach of it. Your Lordships were referred by Miss Montgomery
in the course of her argument to Bradford v. McLeod,
In the present case we are concerned not with civil 1986 S.L.T. 244 . This is one of only two
litigation but with a decision taken in proceedings for reported cases, both of them from Scotland, in which
extradition on criminal charges. It is only in the most a decision in a criminal case has been set aside
unusual circumstances that a judge who was sitting in because a full-time salaried judge was in breach of
criminal proceedings would find himself open to the this principle. The other is Doherty v. McGlennan,
objection that he was acting as a judge in his own 1997 S.L.T. 444 . In neither of these cases
cause. In principle, if it could be shown that he had a could it have been said that the sheriff had an interest
personal or pecuniary interest in the outcome, the in the case which disqualified him. They were cases
maxim would apply. But no case was cited to us, and where the sheriff either said or did something which
I am not aware of any, in which it has been applied gave rise to a reasonable suspicion about his
hitherto in a criminal case. In practice judges are well impartiality.
aware that they should not sit in a case where they
have even the slightest personal interest in it either as The test which must be applied by the appellate
defendant or as prosecutor. courts of criminal jurisdiction in England and Wales
to cases in which it is alleged that there has been a
The ground of objection which has invariably been breach of this principle by a member of an inferior
taken until now in criminal cases is based on that tribunal is different from that which is used in
other principle which has its origin in the requirement Scotland. The test which was approved by your
of impartiality. This is that justice must not only be Lordships' House in Reg. v. Gough [1993] A.C.
done; it must also be seen to be done. It covers a 646 is whether *142 there was a real
wider range of situations than that which is covered danger of bias on the part of the relevant member of
by the maxim that no one may be a judge in his own the tribunal. I think that the explanation for this
cause. But it would be surprising if the application of choice of language lies in the fact that it was
that principle were to result in a test which was less necessary in that case to formulate a test for the
exacting than that resulting from the application of guidance of the lower appellate courts. The aim, as
the nemo judex in sua causa principle. Public Lord Woolf explained, at p. 673, was to avoid the
confidence in the integrity of the administration of quashing of convictions upon quite insubstantial
justice is just as important, perhaps even more so, in grounds and the flimsiest pretexts of bias. In Scotland
criminal cases. Article 6(1) of the European the High Court of Justiciary applies the test which
Convention on Fundamental Rights and was described in Gough as the reasonable

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suspicion test. In Bradford v. McLeod, 1986 S.L.T. function in that context.

244 , 247 it adopted as representing the law of
Scotland the rule which was expressed by Eve J. in Although the tests are described differently, their
Law v. Chartered Institute of Patent Agents [1919] 2 application by the appellate courts in each country is
Ch. 276 , 289: likely in practice to lead to results which are so
"Each member of the council in adjudicating on a similar as to be indistinguishable. Indeed it may be
complaint thereunder is performing a judicial duty, said of all the various tests which I have mentioned,
and he must bring to the discharge of that duty an including the maxim that no one may be a judge in
unbiased and impartial mind. If he has a bias which his own cause, that they are all founded upon the
renders him otherwise than an impartial judge he is same broad principle. Where a judge is performing a
disqualified from performing his duty. Nay, more (so judicial duty, he must not only bring to the discharge
jealous is the policy of our law of the purity of the of that duty an unbiased and impartial mind. He must
administration of justice), if there are circumstances be seen to be impartial.
so affecting a person acting in a judicial capacity as
to be calculated to create in the mind of a reasonable
As for the facts of the present case, it seems to me
man a suspicion of that person's impartiality, those
that the conclusion is inescapable that Amnesty
circumstances are themselves sufficient to disqualify
International has associated itself in these
although in fact no bias exists."
proceedings with the position of the prosecutor. The
prosecution is not being brought in its name, but its
The Scottish system for dealing with criminal appeals interest in the case is to achieve the same result
is for all appeals from the courts of summary because it also seeks to bring Senator Pinochet to
jurisdiction to go direct to the High Court of justice. This distinguishes its position fundamentally
Justiciary in its appellate capacity. It is a simple, one- from that of other bodies which seek to uphold
stop system, which absolves the High Court of human rights without extending their objects to issues
Justiciary from the responsibility of giving guidance *143 concerning personal responsibility. It
to inferior appellate courts as to how to deal with has for many years conducted an international
cases where questions have been raised about a campaign against those individuals whom it has
tribunal's impartiality. Just as Eve J. may be thought identified as having been responsible for torture,
to have been seeking to explain to members of the extra-judicial executions and disappearances. Its aim
council of the chartered institute in simple language is that they should be made to suffer criminal
the test which they should apply to themselves in penalties for such gross violations of human rights. It
performing their judicial duty, so also the concern of has chosen, by its intervention in these proceedings,
the High Court of Justiciary has been to give to bring itself face to face with one of those
guidance to sheriffs and lay justices as to the individuals against whom it has for so long
standards which they should apply to themselves in campaigned.
the conduct of criminal cases. The familiar
expression that justice must not only be done but
But everyone whom the prosecutor seeks to bring to
must also be seen to be done serves a valuable
justice is entitled to the protection of the law,

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however grave the offence or offences with which he with the reasoning and conclusion of Lord Browne-
is being prosecuted. Senator Pinochet is entitled to Wilkinson, and I wish to add some observations on
the judgment of an impartial and independent tribunal this issue.
on the question which has been raised here as to his
immunity. I think that the connections which existed In the middle of the last century the Lord
between Lord Hoffmann and Amnesty International Chancellor, Lord Cottenham, had an interest as a
were of such a character, in view of their duration and shareholder in a canal company to the amount of
proximity, as to disqualify him on this ground. In several thousand pounds. The company filed a bill in
view of his links with Amnesty International as the equity seeking an injunction against the defendant
chairman and a director of Amnesty International who was unaware of Lord Cottenham's shareholding
Charity Ltd. he could not be seen to be impartial. in the company. The injunction and the ancillary
There has been no suggestion that he was actually order sought were granted by the Vice-Chancellor
biased. He had no financial or pecuniary interest in and were subsequently affirmed by Lord Cottenham.
the outcome. But his relationship with Amnesty The defendant subsequently discovered the interest of
International was such that he was, in effect, acting as Lord Cottenham in the company and brought a
a judge in his own cause. I consider that his failure to motion to discharge the order made by him, and the
disclose these connections leads inevitably to the matter ultimately came on for hearing before this
conclusion that the decision to which he was a party House in Dimes v. Proprietors of Grand Junction
must be set aside. Canal, 3 H.L.Cas. 759 . The House ruled that
the decree of the Lord Chancellor should be set aside,
Lord Hutton. not because in coming to his decision Lord
Cottenham was influenced by his interest in the
My Lords, I have had the advantage of reading in company, but *144 because of the importance
draft the speech of my noble and learned friend, Lord of avoiding the appearance of the judge labouring
Browne-Wilkinson. I gratefully adopt his account of under the influence of an interest. Lord Campbell
the matters (including the links between Amnesty said, at pp. 793-794:
International and Lord Hoffmann) leading to the "No one can suppose that Lord Cottenham could
bringing of this petition by Senator Pinochet to set be, in the remotest degree, influenced by the interest
aside the order made by this House on 25 November that he had in this concern; but, my Lords, it is of the
1996. I am in agreement with his reasoning and last importance that the maxim that no man is to be a
conclusions on the issue of the jurisdiction of this judge in his own cause should be held sacred. And
House to set aside that order and on the issues of that is not to be confined to a cause in which he is a
election, waiver and abuse of process. In relation to party, but applies to a cause in which he has an
the allegation made by Senator Pinochet, not that interest. Since I have had the honour to be Chief
Lord Hoffmann was biased in fact, but that there was Justice of the Court of Queen's Bench, we have again
a real danger of bias or a reasonable apprehension or and again set aside proceedings in inferior tribunals
suspicion of bias because of Lord Hoffmann's links because an individual, who had an interest in a cause,
with Amnesty International, I am also in agreement took a part in the decision. And it will have a most

250,051
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salutary influence on these tribunals when it is known 232: "any direct pecuniary interest, however small, in
that this High Court of last resort, in a case in which the subject of inquiry, does disqualify a person from
the Lord Chancellor of England had an interest, acting as a judge in the matter.' The principle is
considered that his decree was on that account a expressed in the maxim that nobody may be judge in
decree not according to law, and was set aside. This his own cause (nemo judex in sua causa). Perhaps the
will be a lesson to all inferior tribunals to take care most famous case in which the principle was applied
not only that in their decrees they are not influenced is Dimes v. Proprietors of Grand Junction Canal
by their personal interest, but to avoid the appearance (1852) 3 H.L.Cas. 759 , in which decrees
of labouring under such an influence." affirmed by Lord Cottenham L.C. in favour of a canal
company in which he was a substantial shareholder
In his judgment in Reg. v. Gough [1993] A.C. were set aside by this House, which then *145
646 , 659 my noble and learned friend, Lord proceeded to consider the matter on its merits, and in
Goff of Chieveley, made reference to the great fact itself affirmed the decrees. Lord Campbell said,
importance of confidence in the integrity of the at p. 793: 'No one can suppose that Lord Cottenham
administration of justice, and he said: could be, in the remotest degree, influenced by the
"In any event, there is an overriding public interest interest that he had in this concern; but, my Lords, it
that there should be confidence in the integrity of the is of the last importance that the maxim that no man
administration of justice, which is always associated is to be a judge in his own cause should be held
with the statement of Lord Hewart C.J. in Rex v. sacred.' In such a case, therefore, not only is it
Sussex Justices, Ex parte McCarthy [1924] 1 K.B. irrelevant that there was in fact no bias on the part of
256 , 259, that it is 'of fundamental the tribunal, but there is no question of investigating,
importance that justice should not only be done, but from an objective point of view, whether there was
should manifestly and undoubtedly be seen to be any real likelihood of bias, or any reasonable
done.'" suspicion of bias, on the facts of the particular case.
Then referring to the Dimes case, he said, at The nature of the interest is such that public
p. 661: confidence in the administration of justice requires
" ... I wish to draw attention to the fact that there that the decision should not stand."
are certain cases in which it has been considered that Later in his judgment Lord Goff said, at p. 664f,
the circumstances are such that they must inevitably agreeing with the view of Lord Woolf, at p. 673f, that
shake public confidence in the integrity of the the only special category of case where there should
administration of justice if the decision is to be be disqualification of a judge without the necessity to
allowed to stand. Such cases attract the full force of inquire whether there was any real likelihood of bias
Lord Hewart C.J.'s requirement that justice must not was where the judge has a direct pecuniary interest in
only be done but must manifestly be seen to be done. the outcome of the proceedings. However I am of
These cases arise where a person sitting in a judicial opinion that there could be cases where the interest of
capacity has a pecuniary interest in the outcome of the judge in the subject matter of the proceedings
the proceedings. In such a case, as Blackburn J. said arising from his strong commitment to some cause or
in Reg. v. Rand (1866) L.R. 1 Q.B. 230 , belief or his association with a person or body
involved in the proceedings could shake public

250,051
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confidence in the administration of justice as much as Widgery and Deane J. in respect of a non-pecuniary
a shareholding (which might be small) in a public interest is found in the earlier judgment of Lord
company involved in the litigation. I find persuasive Carson in Frome United Breweries Co. Ltd. v. Bath
the observations of Lord Widgery C.J. in Reg. v. Justices [1926] A.C. 586 , 618 when he cited
Altrincham Justices, Ex parte N. Pennington [1975] with approval the judgments of the Divisional Court
Q.B. 549 , 552: in Reg. v. Fraser (1893) 9 T.L.R. 613 . Lord
"There is no better known rule of natural justice Carson described Fraser's case as one:
than the one that a man shall not be a judge in his "where a magistrate who was a member of a
own cause. In its simplest form this means that a man particular council of a religious body one of the
shall not judge an issue in which he has a direct objects of which was to oppose the renewal of
pecuniary interest, but the rule has been extended far licences, was present at a meeting at which it was
beyond such crude examples and now covers cases in decided that the council should oppose the transfer or
which the judge has such an interest in the parties or renewal of the licences, and that a solicitor should be
the matters in dispute as to make it difficult for him instructed to act for the council at the meeting of the
to approach the trial with the impartiality and magistrates when the case came on. A solicitor was
detachment which the judicial function requires. so instructed, and opposed the particular licence, and
Accordingly, application may be made to set aside a the magistrate sat on the bench and took part in the
judgment on the so-called ground of bias without decision. The court in that case came to the
showing any direct pecuniary or proprietary interest conclusion that the magistrate was disqualified on
in the judicial officer concerned." account of bias, and that the decision to refuse the
A similar view was expressed by Deane J. in licence was bad. No one imputed mala fides to the
Webb v. The Queen, 181 C.L.R. 41 , 74: magistrate, but Cave J., in giving judgment, said: 'the
"The area covered by the doctrine of question was, What would be likely to endanger the
disqualification by reason of the appearance of bias respect or diminish the confidence which it was
encompasses at least four distinct, though sometimes desirable should exist in the administration of
overlapping, main categories of case. The first is justice?' Wright J. stated that although the magistrate
disqualification by interest, that is to say, cases where had acted from excellent motives and feelings, he still
some direct or indirect interest in the proceedings, had done so contrary to a well settled principle of
whether pecuniary or otherwise, gives rise to a law, which affected the character of the
reasonable apprehension of prejudice, partiality or administration of justice."
prejudgment ... The third category is disqualification
by association. It will often overlap the first and I have already stated that there was no allegation
consists of cases where the apprehension of made against Lord Hoffmann that he was actually
prejudgment or other bias results from some direct or guilty of bias in coming to his decision, and I wish to
indirect relationship, experience or contact with a make it clear that I am making no finding of actual
person or persons *146 interested in, or bias against him. But I consider that the links,
otherwise involved in, the proceedings." (My described in the judgment of Lord Browne-
emphasis.) Wilkinson, between Lord Hoffmann and Amnesty
An illustration of the approach stated by Lord

250,051
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International, which had campaigned strongly against

General Pinochet and which intervened in the earlier
hearing to support the case that he should be
extradited to face trial for his alleged crimes, were so
strong that public confidence in the integrity of the
administration of justice would be shaken if his
decision were allowed to stand. It was this reason and
the other reasons given by Lord Browne-Wilkinson
which led me to agree reluctantly in the decision of
the Appeal Committee on 17 December 1998 that the
order of 25 November 1998 should be set aside.
Representation
Solicitors:Kingsley Napley ;Crown Prosecution

Service, Headquarters ;Bindman & Partners .
Petition granted. (B. L. S. )
(c) Incorporated Council of Law Reporting For

England & Wales
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[2000] 1 A.C.

119 FOR EDUCATIONAL USE ONLY Page 1

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respect of acts committed while he was head of state.

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Reg. v. Secretary of State for the Home

Thomas v. University of Bradford (No. 2) [1992]

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Impartiality and independence are different concepts,

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bias to a reasonable observer not to one of the parties.

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of bias is justified, even if knowledge of the facts

As that question indicates, the principle point at issue

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seen to be done as well as actually being done. There

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human rights by torture and otherwise in the courts of

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(Cite as: [2000] 1 A.C. 119)

The parties' submissions

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(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

by doing so immediately after the Home Secretary points at issue.

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(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

(Cite as: [2000] 1 A.C. 119)

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.