Update – Deighton Pierce Glynn: Bahrain, torture & immunity

The work in brief:

In November 2012, Banyan was asked by Sue Willman, a partner at Deighton Pierce Glynn (http://www.deightonpierceglynn.co.uk/), to work on the case of the witness ‘FF’. The work was confidential due to its content and scope and thus we are only able to speak of it now the case has moved forward.

The witness alleged that Prince Nasser bin Hamad al-Khalifa of Bahrain was involved in the torture of detained prisoners during the Bahraini pro-democracy uprisings of 2011. In August 2012, Deighton Pierce Glynn wrote to the CPS asking for the prince to be arrested and prosecuted while he was visiting the UK under universal jurisdiction. The CPS replied that the prince had immunity from arrest because of his status as a foreign official. Deighton Pierce Glyn then applied for a judicial review of the DPP’s decision on 26 October 2012.

The project lasted from December 2012 to May 2013. The students involved were Matthew Burnett-Stuart (SOAS, MA Law) and Reem Mahmoud (SOAS, PhD). The students conducted background legal research and assembled evidence to present to the CPS in order to support the investigation and prosecution.

Outcome of the project:

A judicial review has been granted by the High Court in The Queen on the application of FF v Director of Public Prosecutions challenging the CPS’s decision to allow the prince immunity in the UK. The court is expected to decide if Prince Nasser should be granted immunity in October 2014. As noted by Reem, “It was an honour to work on this case for which I did some research and translation. It is both a relief and delight to see such a case move forward despite the political and diplomatic dimensions of the issue.”

Matthew elaborates on the work:
At the beginning of the project I had to read though the permission bundle that was initially sent to the CPS so I could understand the basis of the prosecution and what the available evidence was. My role was to identify missing evidence and consider possible leads and reference to other potential evidence. I had relatively little experience working on universal jurisdiction so I had to learn on the job. I studied the recent history of Bahrain in depth as well as a day by day timeline of the 2011 uprising. At times, the work was frustrating because some of the victims’ statements where vague and information was difficult to obtain, as it was impossible and dangerous to directly contact the prisoners in Bahrain. On the other hand, I was able to meet with the witness and other Bahraini human rights activist based in the UK which was a truly inspiring and motivating experience.

Thanks to the project I was able to explore interesting post Pinochet legal arguments about whether there is functional immunity for torture prosecution, and if so, to whom if should be applied.

There are of course few issues on which international legal opinion is clearer than on the condemnation of torture. Torture carried out by a public official anywhere in the world is an offence under The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The CPS decision that Prince Nasser has functional immunity was evidently misguided as he could not contend immunity on the basis of executing a function of state as it is clear that torture could never be such a function.

The judicial review is a positive outcome and it might become an important precedent for cases concerning state officials and crimes against humanity. However, whatever the decision, it is clear that much still needs to be done for human rights in Bahrain. The ‘Bahrain Thirteen’, thirteen Bahraini opposition leader and rights activists, sentenced after a political show trial in 2012, need to be released immediately. There is also a need to expose how The UK is complicit in Bahraini crimes, as the brilliant work of Bahrain Watch demonstrates.

Further information and coverage:

–       Bahraini Prince Nasser bin Hamad al-Khalifa could lose UK diplomatic immunity over torture claims, Independent, 12th May 2014

–       High Court grants JR on immunity of ‘torture’ prince, Law Gazette, 14th May 2014

–       High Court grants JR on immunity of ‘torture’ prince, LCCSA, 15th May 2014

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