Pinochet in London
Unique case will fascinate a new generation of readers
The Pinochet case is unique in English legal history. It was the first and last time that a law lord sat as a member of the UK’s final court of appeal while disqualified as a matter of law. It was the first and last time that the law lords set aside one of their own judgments and ordered a re-hearing. And the three rulings delivered by the House of Lords in that case were the first by any court in the United Kingdom to be shown live on television.
I explain how I obtained permission to broadcast the judgments — but not the hearings — in my first (and last)1 contribution to a learned journal. Other courts have followed the law lords’ example, changing for ever the way that senior judges communicate with the public.
The Pinochet case was also “responsible for dragging the English legal system, with an element of kicking and screaming, into the late 20th century”, Professor David Sugarman said in a lecture this week. “It was a major factor in the decision to parachute in Lord Bingham as the new senior law lord to ensure the court was better managed and the subsequent relocation of the court outside the Palace of Westminster and the creation of the current Supreme Court.”
Sugarman’s lecture is the precursor to a forthcoming book, which it has taken him 25 years to research and write. He conducted more than 250 interviews with victims, NGOs, activists, judges, lawyers, politicians, government officials and journalists
Alas, the one person who declined to be interviewed is the law lord who sat while disqualified. Lord Hoffmann wouldn’t speak to me either, though there was one tantalising weekend 25 years ago when he seemed to be thinking about it. I summed up what we knew about the saga in a column published in 2009. Some 10 years later, Lord Hope gave us an insider’s account.
In his lecture this week, Sugarman tells us that Pinochet was originally seen as a straightforward case. The former Chilean dictator was challenging attempts to extradite him from the UK to Spain, where he faced charges of torture and hostage-taking. Put simply, the law lords had to decide whether, as a former head of state, he had immunity from arrest and extradition. Lord Bingham and two other judges had decided in the divisional court that he did — and this was the Spanish prosecutor’s appeal.
Sugarman takes up the story:
It was in these circumstances that Lord Browne-Wilkinson, the new senior law lord, decided that he could safely absent himself from the case to attend the reconstitution of the European Court of Human Rights, leaving the arrangements for, and the chairing of, the case to Lord Slynn, his deputy…
Having determined the composition of the court, Lord Slynn’s next big decision was whether to let in the would-be intervenors and, if so, on what terms… On receiving the petition from Amnesty International et al to intervene, Lord Slynn seized on the fact that Professor Ian Brownlie, Oxford’s Chichele Professor of Public International Law, was their lead counsel — someone his lordship believed to be very able and thought could be helpful. He decided that Amnesty International et al should be allowed in, thereby taking the bait that the human rights coalition had laid for him…
Shortly after it was decided to let in Amnesty International et al, Lord Slynn inquired of the clerk to the judicial office, “Doesn’t Lenny Hoffmann’s wife work at, or used to work for, Amnesty International?”, adding “now that we’ve permitted Amnesty International to intervene, that might be a problem.”
Lord Slynn asked the clerk to have a word with Lord Hoffmann and apparently Lord Hoffmann was adamant that his wife’s association with Amnesty International had nothing to do with the case and he dismissed the matter more-or-less out of hand.
The clerk reported this to Lord Slynn, suggesting that if he was still unhappy perhaps Lord Slynn should have a word with Lord Hoffmann himself. Subsequently, Lord Slynn told the clerk that he had spoken with Lord Hoffmann and, receiving the same response as the clerk, believed that it was now up to Lord Hoffmann’s judgement. It was on this basis that the case proceeded, with Lord Slynn assuming that Lord Hoffmann would make a statement prior to, or at the outset of, the case.
On the evening of the decision in Pinochet 1, Newsnight, the BBC current affairs programme, broadcast an item during which Jeremy Paxman, its anchorman, talked to a Chilean senator. The senator claimed that Lord Hoffmann was biased, and that Pinochet 1 was bad.
Pinochet’s people immediately smelt blood. The following morning Pinochet’s London solicitor called the judicial office to say his clients were very concerned and that he was seeking clarification of Lord Hoffmann’s connections with Amnesty. He hinted that they were considering asking the law lords to review and nullify Pinochet 1 and wondered whether such a thing was possible and if so how, given that this was uncharted territory…
Having considered the matter further, the clerk determined that, whilst a challenge of this sort was unprecedented, procedurally it was entirely a matter for the law lords to decide on the merits of the application. Further, like any other petition for leave to appeal, it could be looked at on the papers and did not require an oral hearing…
Meanwhile, Pinochet’s solicitors requested information from Amnesty’s solicitors as to Lord Hoffmann’s links to the organisation. Amnesty’s solicitors responded in a letter dated 1 December 1998 detailing Lady Hoffmann’s employment in an administrative role at Amnesty International’s international secretariat…
On 7 December, there was a new and jaw-dropping revelation. An anonymous phone call to Pinochet’s solicitors alleged that Lord Hoffmann was a director of the Amnesty International Charitable Trust…
Pinochet’s lawyers duly petitioned the law lords to set aside the decision in Pinochet 1 because of Lord Hoffmann’s involvement as a director and chairperson of Amnesty International’s charitable arm. Their petition went to Lord Browne-Wilkinson as the senior law lord and as someone who had not sat in Pinochet 1.
There was no public hearing of the petition. The law lords discussed it among themselves and, deeply embarrassed by the infelicity of one of their colleagues, decided they would have to hear it. It was agreed that it should be heard by an appeal committee of five law lords who were not involved in Pinochet 1 and that it should be arranged as soon as possible. This second case is known as Pinochet 2.
The revelation of Lord Hoffmann’s directorship provoked as much shock, amazement and incredulity as Pinochet’s arrest. In my view, it is from this point onwards that institutional survival becomes an overriding concern for the judicial committee. There is a significant closing of ranks as the case becomes an exercise in damage limitation…
What exactly the other parties to the case — notably Amnesty and their legal representatives — knew or ought to have known, and what impact this had on the issue of Lord Hoffmann’s failure to disclose, received almost no attention, at least in public. Privately however it was the cause of a painful episode of acrimony, contention, recrimination and soul-searching within and as between Amnesty International, Amnesty UK, Human Rights Watch and the other members of the human rights coalition…
How, it was asked, could Amnesty International of all organisations — the organisation that authored the Manual on Fair Trials, the authoritative guide to international and regional standards for fair trials — have permitted this to happen…
All this underlines the complex, murky world of judicial recusal, then and now — posing problems, professional and ethical, that merit deeper attention but which both the law lords and the legal profession chose to sweep under the carpet.
In Pinochet 3, as in Pinochet 1, the law lords decided that Pinochet had no immunity from prosecution and so could be extradited. But none of the seven law lords who sat in Pinochet 3 had sat in the first appeal and their reasoning was entirely different.
In the end, Pinochet was never handed over to Spain. Doctors persuaded the home secretary Jack Straw that the former dictator was too ill to stand trial and he was flown home, rising from his wheelchair to acknowledge the crowds as soon as he was safely back on Chilean soil. The story was over — but the repercussions remain.
In addition to Sugarman’s book, Philippe Sands will be publishing a book called Pinochet in London in April next year. Having covered the story from beginning to end for BBC News, I look forward to reading them both.
A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
 PL 178. I discovered that they send you plenty of reprints but no money.