The House of Lords gave reasons for setting aside an order made on 25 November 1998 (Law Report, 1 December 1998), in which the majority had held that Senator Augusto Pinochet Ugarte was not entitled to immunity, as the former head of state of Chile, in respect of crimes against humanity for which his extradition was sought by the Spanish Government. Amnesty Inter-national (AI) had been granted leave to intervene in those proceedings.
The application to set aside their Lordships' order was made after the applicant's legal advisers had learned that Lord Hoffmann, who had agreed with Lord Nicholls and Lord Steyn that he was not entitled to immunity, was a director of Amnesty International Charity Ltd (AICL), a charitable company incorporated to carry out such purposes of AI as were charitable, although he was not actually a member of AI.
Clive Nicholls QC, Clare Montgomery QC, Helen Malcolm, James Cameron and Julian Knowles (Kingsley Napley) for the applicant; Alun Jones QC, David Elvin, Campaspe Lloyd-Jacob and James Maurici (Crown Prosecution Service) for the Crown Prosecution Service; Peter Duffy QC, Owen Davies and David Scorey (Bindman & Partners) for Amnesty International.
Lord Browne-Wilkinson said that there was no dispute that in principle the House of Lords, as the ultimate Court of Appeal, had power to correct any injustice caused by an earlier order of the House where, through no fault of a party, he or she had been subjected to an unfair procedure.
There was no allegation that Lord Hoffmann was in fact biased, only that there was an appearance of bias.
The fundamental principle was that a man might not be judge in his own cause. That principle might be applied literally, so that the mere fact that he was a party to the action or had a financial or proprietary interest in its outcome was sufficient to cause his automatic disqualification, or where he was not a party and had no financial interest in its outcome, but in some other way his conduct or behaviour might give rise to a suspicion that he was not impartial.
The present case fell within the first category. In such a case, once it was shown that the judge was a party to the cause or had a relevant interest in its subject matter, he was disqualified without any investigation into whether there was a likelihood of suspicion or bias.
Close as the links between AI and AICL were, it would not be right to identify Lord Hoffmann personally as being a party to the appeal. He was closely linked to AI but he was not in fact AI. The question then arose whether the case was one in which it could be said that Lord Hoffmann had an "interest" which must lead to his automatic disqualification.
Hitherto only pecuniary and proprietary interests had led to automatic disqualification. The present litigation was, however, most unusual. It was criminal, not civil, litigation and, by allowing AI to intervene, there was a party to a criminal cause or matter who was neither prosecutor nor accused. AI shared with the government of Spain and the CPS not a financial interest, but an interest to establish that there was no immunity for ex-heads of state in relation to crimes against humanity.
There was no good reason in principle for limiting automatic disqualification to cases involving a pecuniary interest. Had Lord Hoffmann been a member of AI he would, therefore, have been automatically disqualified. It could make no difference that, instead of being a direct member of AI, he was a director of AICL, a company wholly controlled by AI and carrying on much of its work.