Lessons from the Pinochet Case – UK Constitutional Law Association

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Does the judge who hears a case affect the outcome and, particularly, in the U.K.’s top court? This is a question that has received increasing attention of late. In this blog post, I utilise my research on the behind-the-scenes proceedings in the Pinochet case (1998-99) to address this question, stressing the role of the judges’ personal values, ideologies and emotions, the culture of the court, and the interplay between law and politics in shaping the outcome of cases.

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The Pinochet Case

The 1998 arrest in London of General Augusto Pinochet, Chile’s former dictator, by a Spanish magistrate on charges of egregious human rights crimes, and the legal proceedings that followed his arrest, were unprecedented and historic. It was the first time that a former head of state had, while travelling abroad, been arrested on charges of genocide and crimes against humanity, and where a claim to immunity was rejected by a national court. Surprising almost everyone, Britain’s top court rewrote the rules that protected world leaders from prosecution after they leave office.

Its cause célèbre status was magnified when Lord Hoffmann, who delivered the deciding vote when the case first came before the Appellate Committee, was found not to have disclosed in public his links with Amnesty International, an intervenor in these proceedings. The case was reheard on the grounds that this failure disqualified him from sitting, the Committee’s acceptance of the petition for rehearing being unprecedented in modern times (David Sugarman, “The Hidden Histories of the Pinochet Case” (2024) 51 Jr. Law and Society 459-490).

The Home Secretary, Jack Straw, received over 70,000 letters about Pinochet’s arrest and its aftermath, reflecting the intense public interest in the case. Almost everyone seemed to have a strong opinion on the Pinochet dictatorship, and the General’s arrest and extradition. It is implausible that the Law Lords themselves had no opinion on the matter. However, the case was not driven solely by how individual Law Lords were disposed to the Pinochet dictatorship. At the forefront, of course, was the question of the immunity of a former head of state. This was not simply an issue of black letter law; rather it involved taking a position on the character of international law, the balance of power and authority in the field of international law, the dominant assumptions about international legal relations, and the ability of international law to eclipse traditional sovereign interests (the judicialization of politics). Also relevant was the role of the UK’s top court in the run-up to the incorporation of the European Convention of Human Rights into UK law – specifically, the extent to which its judges were free to update and push forward the boundaries of law.

By way of illustration, I draw largely on my interviews with the Law Lords, carried out during and shortly after the case.

Pinochet 1 (R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte [2000] 1 AC 61).

Lord Slynn, the acting Senior Law Lord in Pinochet 1 and the first Law Lord to deliver his judgment, concluded that Pinochet retained his immunity. In my interview with him, he elaborated on the basis of his decision:

“[There are] legal … , international, and moral reasons in favour of … retaining … a well-established principle of international law … unless states have indicated that it ought to go….I am in favour of judges being creative. We … [did] it in the European Court all the time… But … this is not a situation [for judicial creativity because] … we would have been really interfering with the role of states and governments and we ought to leave it to them to decide.” (David Sugarman, ‘Interview with Lord Slynn’ 2001).

Lord Lloyd was the second judge to speak and, he too, upheld Pinochet’s immunity. When we met, he explained his belief in the overriding sovereignty of nation states and in comity. For him, departing from the traditional view on state immunity threatened international relations. Viscount Montgomery, who Lord Lloyd both knew to be a Pinochet supporter and saw as well informed about Chile, regularly enquired about the case, warning him that Pinochet’s detention might threaten Chile’s fragile transition to democracy (David Sugarman, ‘Interview with Lord Lloyd’ 2002).

Lord Nicholls was the first to decide differently. My research revealed how his decision adopted his long-held principle to ‘let equity prevail’ – namely, to approach law with a measure of common sense, humanity, and determination to see justice done. Accordingly, “when a legal proposition evokes an immediate response of ‘that cannot be right’, judges should carefully consider … bringing the law up to date by recognising that the time had come for change”. He saw this principle as applicable to Pinochet’s claim to immunity. Consistent with this was his view that, as a court of last resort, the UK’s top court should update the common law in response to changed times (Lord Nicholls, Let Equity Prevail (D&M Heritage Press, 2015) 133-135).

Lord Steyn decided that Pinochet’s immunity could not stand. He disclosed to me how his decision was:

“influenced heavily by the story … developed in detail by Christopher Greenwood [counsel for Spain].”

He admitted to:

“niggling doubts … about whether we could do this, whether there wasn’t such a strong received view that this couldn’t be done, which overrode my instincts…[But] Greenwood clinched it for me. It was an organic development – and, as far as I’m concerned, an inevitable one.” (David Sugarman, ‘Interview with Lord Steyn’ 2001. On the influence of counsel on the Law Lords, see Alan Paterson, Final Judgement (Hart, 2013), ch. 2).

Lord Hoffmann merely agreed with Lords Nicholls and Steyn, and, unusually and uncharacteristically, declined to deliver his own judgment. The final decision was, therefore, 3:2 against Pinochet. Both the majority and minority opinions suggested strong personal preferences. I doubt that the majority saw themselves as creating a movement of radical reform – rather, that they were working with, not against, the historical forces.

The judicial proceedings and their outcomes were also significantly shaped by the largely pre-modern nature, institutional logic, and operation of the Appellate Committee (Robert Hazell, Graham Gee, Kate Malleson, and Patrick O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (CUP, 2015). That this would cause difficulties and embarrassment was especially evident with respect to Pinochet 1. Lord Slynn was persuaded that the initially proposed composition of the panel scheduled to hear it was insufficiently strong. The Clerk to the Committee suggested that they select the five most senior Law Lords who were available. Lord Slynn agreed. While done with the best of motives, this opened the court to the unwarranted charge that it was attempting to influence the outcome.

The Committee felt under a lot of pressure to settle the matter. With the House of Lords appeal beginning only seven days after the decision of the Divisional Court, there was insufficient time for counsel to prepare and develop their arguments or for the judges to test them, circulate judgments for discussion among themselves, and possibly modify their views. On this, Lord Slynn was rueful: ‘[L]ooking back, we should have taken longer over it.’ (David Sugarman, ‘Interview with Lord Steyn’ 2001).

The Hoffmann Debacle

Given the weak position of the Senior Law Lord vis-à-vis the other Law Lords and the strength of Lord Hoffmann’s personality, it was unlikely that Lord Slynn would have forced Lord Hoffmann to disclose his connections to Amnesty International or removed him from the case. The Law Lords were largely a law unto themselves, with such questions regarded as personal matters for individual Law Lords alone to answer. This was not always so. The Lord Chancellor had earlier exercised regulatory control of the Law Lords. However, from the 1980s onwards, the independence of the judiciary was taken to also mean their independence from the Lord Chancellor (R. Stevens, The English Judges (Hart, 2002) 45-75). The Lord Chancellor gradually backed off, his reduced role creating a regulatory vacuum. As John Sainty, Clerk of the Parliament, noted in 1989, “there is no overall strategic supervision of the House of Lords as a court of law” (cited in Michael J. Beloff, “The End of the Twentieth Century” in eds. Louis Blom-Cooper, Brice Dickson and Gavin Drewry, The Judicial House of Lords 1876–2009 (OUP, 2009), 243). Also relevant was the lack of any significant self-reflection accompanying the increasing judicial power and autonomy evident from the 1960s onwards. This was typical of common law development, with the law and practice on judicial recusal lagging behind the remaking of the judiciary. The failure to address this, along with the regulatory vacuum, caught the Law Lords out when they were most exposed. The Hoffmann debacle was an accident waiting to happen.

Pinochet 2 (R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119).

Claire Montgomery presented Pinochet’s petition to set aside the ruling in Pinochet 1. Her rigour and tact were much praised. Lord Hope’s response to what he heard, as described in his diary, was that Lord Hoffmann’s undeclared links with Amnesty International and its publications about Chile and Pinochet ‘were rather shocking. We had not known any of this detail before and by lunchtime it was clear that she [Montgomery] was pushing at an open door.’ (Lord Hope, Lord Hope’s Diaries: House of Lords 1996–2009 (Avizandum Publishing, 2018), 72).

Setting aside the decision in Pinochet 1 involved surmounting several legal obstacles. The rules governing judicial recusal assumed bias only when a judge had a direct financial interest in the subject matter of the proceedings. It was quite a stretch to extend this to Lord Hoffmann’s situation. Judicial creativity was required as the court would have to overrule one of its own decisions. However, the Law Lords, concerned that the integrity of the court was under threat, did not allow this to be an obstruction. Yet there were additional challenges to confront. Framing the issue around Lord Hoffmann’s likely bias would compound the humiliation. Hence, their Lordships, rather than suggesting Lord Hoffmann was biased, decreed that his links with Amnesty International were so close as to automatically disqualify him by law from sitting as a judge in the case. This had the advantage that the court could avoid detailed inquiry into what exactly happened off-stage in Pinochet 1, thereby minimizing controversy.

Pinochet 3 (R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147).

The reputation of the Appellate Committee was at risk. The 20-day hearing sought to counter this, offering more time and more comprehensive argument on both sides than in the first appeal, including the presence of 21 counsel. The well-publicized attendance of Judge Garzón as an observer during part of the proceedings did not help his case. While it accorded with the role of investigating magistrates within the civil law system, it was not welcomed by several Law Lords who thought the case was politically motivated. They sought to draw a clear divide between the English common law system and Judge Garzón. As one Law Lord told me off the record:

“…one had to demonstrat[e]… that we were not… cowboys, that we’re serious lawyers doing a serious lawyers job… I was really shocked by the attitude of the Spanish courts, which was deeply political… I was not going to be used as a weapon… [against] people whose views they didn’t like… [The]… law should not be seen to be taking sides.”

A preference for domestic solutions was allied to a sense that universal jurisdiction and customary international law were too vague and capricious. Lord Hope, with his background as a criminal prosecutor, undertook considerable work on the timeline of the cases raised, basing his decision on domestic law rather than international law. Although his efforts suggested a compromise position that their Lordships might accept, the panel continued to have difficulty in reaching anything close to unanimity, and the decision was delayed. Several Law Lords regarded the majority decision in Pinochet 1 as wrong. But reversing it was problematic. As a Law Lord explained off the record:

“It would have been very unfortunate if we had reached a result different from that in Pinochet I. But more than that you can’t say… I don’t think… [I] was influenced by a desire to come to the same conclusion [as Pinochet 1]. But it was…certainly perceived… [that the court’s reputation was likely to be further damaged]… if we reached a different view.”

Eventually, a majority of 6:1 ruled that Pinochet could be extradited to Spain, but only for the three crimes of torture and conspiracy to torture committed after the UK’s incorporation of the UN Convention against Torture. Closer examination reveals that the seven judges delivered seven different opinions and the ratio for and against Pinochet’s extradition is open to a welter of interpretations (David Robertson, “The House of Lords as a Political and Constitutional Court”. In Diana Woodhouse, ed., The Pinochet Case. A Legal and Constitutional Analysis (Hart, 2000) 17-25).

In their judgments, Lord Browne-Wilkinson and other Law Lords strongly hinted to Jack Straw that because of the much-reduced charges, he should reconsider his decision to allow the extradition to proceed. There was an undercurrent of exasperation with the time, effort, and expense that the case was consuming, and the damage that it had done to the reputation of the Committee. There was a palpable desire among at least some of their Lordships to speedily bring the legal proceedings to a satisfying intellectual, institutional and political conclusion. Lords Browne-Wilkinson, Goff, Hope, and Millett were among those Law Lords who said that they expected Straw to send Pinochet home to Chile, and were disappointed when he resisted.

The Impact of the Hoffmann Debacle

The impact of the Hoffmann debacle was more wide-ranging and momentous than is usually appreciated. But for this setback, and the subsequent setting aside of Pinochet 1, the General might have been extradited to Spain in the spring of 1999 to face trial. This was the most opportune moment for his extradition that Pinochet’s opponents had, not least because it would have radically cut short the amount of time available to persuade the authorities that Pinochet was unfit to stand trial. Instead, it delayed the case, making it more likely that Pinochet would be freed. It adversely effected the relations between counsel and others directly involved in the case, and had a negative impact on personal relations among some of the Law Lords most directly involved and on the Appellate Committee.

Paradoxically, perhaps, it also had the positive effect of contributing to the overdue modernization of the UK legal system. It was a possible factor in Lord Bingham’s appointment as Senior Law Lord (he was then Lord Chief Justice) in 2000, which many saw as an attempt to remedy the managerial vacuum that had bedevilled the Law Lords, and lent weight to the decision to transfer the judicial business of the House of Lords to a Supreme Court. While recasting judicial bias increased recusal claims that the courts have struggled to contain, it rendered UK law more in tune with the higher standards of judicial conduct expected elsewhere, sustaining the notion that judges are bound by the stricter standards of modern judicial professionalism rather than those of Victorian gentlemen.

Conclusion

The Pinochet case endorses Blom-Cooper and Drewry’s claim that “individuality [is] the essential characteristic of the English judicial function”, revealing the part played by personal values, experience, ideologies, and emotions in the UK’s top court (Louis Blom-Cooper and Gavin Drewry, Final Appeal (OUP, 1972), 153). It also underscored the importance of the custom and practice of the court, its culture and supervision; showing how judges operate both individually and as a collective influenced by institutional pressure.

The hidden histories of the Pinochet case outlined in this blog post reveal something of what happened in practice, the judicial voice and the reasoning behind the case, corroborating other empirically-based scholarship that challenges the myth of the judge as a wholly objective arbiter. It confirms that judges are influenced by a wide range of factors, and that in some cases there are substantial differences between the approaches of the individual judges of a given court (Rachel Cahill-O’Callaghan, Values in the Supreme Court (Hart, 2020); Lewis Graham, Judicial Individuality on the UK Supreme Court (Hart, 2025). These findings have significant consequences for the ways in which we think about judicial authority, independence, bias, and accountability – that is, of what judges and courts should and can be.

From any viewpoint, the Pinochet case highlighted the random nature of justice and how an outcome may turn on who sat on the case. It demonstrated how judges, while claiming to keep ‘politics’ at arm’s length, make policy choices and render politics more legalized and law more politicized. From this perspective, the case illustrated how judges, at least in top courts, implicitly and explicitly identify and rank the political-legal values that they believe buttress (or should buttress) governance in the UK.

Whilst the Pinochet case was a decision of the Appellate Committee and an exceptional case, it might be seen as less relevant today. However, it is pertinent to ask whether the Supreme Court has responded sufficiently to the problems that arose in the case, or whether what one commentator called the institutional imperative of “not owning up” has prevailed? (K. Malleson, “Values Diversity in the United Kingdom Supreme Court” (2022) 49 J. of Law and Society 3). Although the Supreme Court has introduced several welcome changes to its procedures and engagement with the public, exactly how individual judges are selected on individual cases, and the nature and extent of their accountability, remain open to criticism. Thus, whilst Amnesty International conducted and published a detailed internal review of its conduct during the case and the lessons that might be learned, the Appellate Committee undertook no similar exercise. Today, when the conduct of courts is under attack, such issues could be passed over as trivial. But if it matters who judges are and how they conduct themselves, then the Pinochet case has continuing importance to public as well as international lawyers.

David Sugarman is Professor of Law Emeritus at the Law School of Lancaster University, UK; Senior Associate Research Fellow, Institute of Advanced Legal Studies, University of London; and Senior Associate of the Centre for Socio-Legal Studies, University of Oxford.

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