Guest Post: Removing the cloak of immunity – the Director of Public Prosecutions for England and Wales accepts no immunity from criminal investigation into torture

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

Last week saw the discontinuation of alleged Bahraini torture survivor FF’s judicial review of the Director of Public Prosecutions for England and Wales (DPP) decision not to authorise a criminal investigation into the alleged involvement of Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, in torturing persons involved in the political protests in Bahrain in April 2011. Unfortunately, since the DPP withdrew from the case just prior to the court hearing there does not appear to be a final judgement, only this 2013 directions hearing judgement which  sets out the parties’ submissions.

As background, FF took part in Bahraini political protests in February and March 2011 which resulted in him being allegedly badly beaten by police and held without charge. In July 2012 a dossier prepared by the European Center for Constitutional and Human Rights (ECCHR) alleged that Prince Nasser was directly involved in the torture of detained prisoners linked to the same political protests FF participated in. In addition to being the son of the King of Bahrain, Prince Nasser also holds the position of Commander of the Royal Guard.

The ECCHR’s dossier was handed to the British police which in turn lead the Crown Prosecution Service for England and Wales (CPS) to indicate in August 2012 that Prince Nasser would enjoy personal immunity under Section 20 of the State of Immunity Act 1978 since Prince Nasser was a member of the Bahraini royal household and/or functional immunity pursuant to section 1 of the same act in relation to any conduct in his role as Commander of the Royal Guard.

Following a request for review of the CPS’s decision, the CPS Special Crime and Counter Terrorism division indicated in September and October 2012 that Prince Nasser did not enjoy personal immunity under Section 20 (1) (b) of the 1978 Act as his household was independent from that of his father, the King of Bahrain. It maintained however, that Prince Nasser still enjoyed functional immunity under Section 1 of the 1978 Act based on his position as Commander of the Royal Guard of Bahrain

FF sought judicial review of the CPS’s decision submitting that Section 1 of the 1978 Act does not apply to criminal proceedings. He cited in support Pinochet III and Jones v Saudi Arabia, both of which he argued supported his contention that public officials of foreign states have no functional immunity from criminal process in relation to the international crime of torture.  FF argued therefore that prosecution of Prince Nasser for torture committed in Bahrain would be possible in UK courts pursuant to the extraterritorial criminal jurisdiction under Section 134 of the Criminal Justice Act 1988. In January 2013 FF was granted judicial review permission.

As mentioned above, the matter was due to be heard in the High Court of England and Wales on 7 October 2014, roughly one year and 10 months after permission for judicial review was granted. However shortly before, the DPP appears to have accepted that Prince Nasser does not enjoy immunity from torture allegations and withdrew from the case.

Without a final judgment it is difficult to see exactly how the DPP would have argued its case. The DPP’s position appears to rely on Prince Nasser’s position as Commander of the Royal Guard as that of a public official. However, it is difficult to see how this would shield Prince Nasser from a criminal investigation. For example, looking at Pinochet III, the House of Lords found that the Torture Convention applied to all “public officials” irrespective of position. As has been repeatedly stated, when it comes to criminal allegations, as the late, great Lord Bingham put it in Jones v. Saudi Arabia torture has a “special authority” Based on this “special authority” the CPS’s position on functional immunity may well have been untenable.

It is also interesting to note that the initial review by the CPS lead to the conclusion that Prince Nasser would not enjoy personal immunity based on him not being part of the Bahraini family, as his household was separate- again not recognising the “special authority” criminal allegations of torture enjoy.

Alongside the apparent lack of proper application of case law on immunity and torture, one of the biggest concerns coming from this case is the length of time taken by the DPP to withdraw. This delay has the practical effect of potentially hampering the investigation since at the very least a delay of almost two years is unlikely to have helped the investigation. However, as a starting point the police will have the ECCHR dossier and presumably FF’s evidence to rely on.

On a positive note, the CPS has now set another important precedent in acknowledging the lack of immunity for criminal investigations into torture allegations in England and Wales. For this case specifically, the DPP’s decision to withdraw unblocks the investigation and should allow the police to begin to investigate- whether this leads to any arrests, charges or trials is obviously a completely different matter. It should be noted that prosecution of torture allegations under universal jurisdiction in uncommon but not unheard of in England and Wales, see for example the 2005 prosecution and conviction of Faryadi Zardad for  torture related charges in Afghanistan ,and the charging of Nepalese Army Officer Colonel Kumar Lama currently awaiting trial on torture charges relating to civil unrest in Nepal in 2005. For future cases, it is hoped this decision serves as a precedent to ensure similar delays are avoided and allegations of torture can be acted upon quickly in order to properly investigate such claims.

It is of course important to stress that there is no case against Prince Nasser; no evidence has been assessed and no investigation conducted. What will happen in this case is unknown. However the importance of this case derives not only from the opportunity of an investigation into torture allegations in Bahrain but also its clear demonstration that the concept of no immunity for allegations of torture now exists not only amongst academics and the upper echelons of the judiciary  but also amongst the ‘grass roots’ of criminal investigation decision makers- the police and CPS. This acknowledgment, it is hoped, ensures that when it comes to criminal allegations of torture, wherever they are alleged to have occurred, those implicated can no longer don the cloak of immunity in England and Wales.