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.