A Bahraini Prince could face prosecution over claims he tortured protesters during an Arab Spring-inspired uprising after the High Court overturned a decision granting him diplomatic immunity.
The Crown Prosecution Service had previously said Prince Nasser bin Hamad al-Khalifa could not be investigated over claims he was involved in the torture of prisoners during a pro-democracy uprising in Bahrain in 2011.
However, two judges today quashed Director of Public Prosecutions’s decision, raising the possibility, albeit unlikely, that Prince Nasser could be arrested if he travels to the UK.
The government of Bahrain ‘categorically denies’ the claims made against Prince Nasser, and says that any decision on immunity was ‘academic’ due to a lack of evidence against the royal.
The case arose after a Bahraini citizen, referred to only as FF, sought the arrest of Prince Nasser, alleging that he was involved in the torture of detained prisoners.
However, he was told that the prince would be immune from prosecution because of his royal status.
FF, who has been granted asylum in the UK, claims he was badly beaten and given a prison sentence after taking part in protests in the Gulf state in February 2011 which have since left dozens dead, mainly demonstrators.
Tom Hickman, appearing for FF, told the High Court the CPS was claiming the prince had immunity under Section 20 of the State Immunity Act 1978 as a member of the Bahraini royal household and also in relation to his role as Commander of the Royal Guard.
Mr Hickman said the prince was ‘a regular visitor to these shores’, and for that reason FF was seeking to take action against him under the UK’s extra-territorial criminal jurisdiction over acts of torture.
In a statement, FF said: ‘Now the prince has lost his immunity he will need to consider the risk of investigation, arrest and prosecution when he is travelling outside Bahrain.
‘Whilst he is visiting other royal families and horse-riding, there are 13 prisoners of conscience.
‘Two of them have said in open court in Bahrain that the prince tortured them, yet they were still convicted.
‘It is time for the British Government to review its policy of co-operation and support for this regime.’
His solicitor, Sue Willman, of Deighton Pierce Glynn, said in a statement: ‘The UK has a duty under the convention against torture and under its own laws to investigate, arrest and prosecute those who are alleged to have committed acts of torture abroad.
‘They should be applied to all, regardless of the UK’s economic interests.’
The quashing order was made by Lord Justice Laws and Mr Justice Cranston, with the consent of the DPP.
Mr Hickman told the court that the DPP was suggesting that its concession on immunity was ‘academic’ because of a lack of evidence against the prince.
Mr Hickman said: ‘We don’t agree with that. We say that this concession clears the way for an investigation of the prince and for consent for an arrest warrant to be sought – and there is further evidence that will be submitted.’
A spokeswoman for the Government of Bahrain said: ‘As the British DPP has today affirmed, an arrest would have been improper given the absence of evidence of the conduct alleged.
‘As Bahrain has never sought anonymity or sovereign immunity from the English Courts for anyone in respect of this case, it expresses no view on the DPP’s statement that immunity was inappropriate.
‘This has been an ill-targeted, politically-motivated and opportunistic attempt to misuse the British legal system.
‘The Government of Bahrain again categorically denies the allegations against Sheikh Nasser.
‘The Government reiterates its firm condemnation of torture and recognises its responsibility to investigate any reasonable allegation.
‘The Government remains committed to implementing the wider reforms as recommended by the Independent Commission of Inquiry and welcomes constructive engagement with responsible campaigners in pursuit of that aim.’
The government of Bahrain went on to reject claims that the quashing order could now lead to a prosecution of the prince.
The government’s spokeswoman said: ‘Contrary to assertions being made in the wake of today’s hearing, the court order does not open the door to a prosecution.
‘Rather, the Crown Prosecution Service (CPS) said the decision on immunity was academic as it had solid fact-related grounds for the basis on which it determined it could not prosecute Sheikh Nasser.
‘All this was made plain in court today. In short, the situation has not, and will not, change as there is no evidence for the allegations.’
Deborah Walsh, Deputy Head of Special Crime and Counter Terrorism at the CPS, said there would need to be a police investigation before any potential prosecution could be considered.
‘In line with recent case law on this issue, we can no longer maintain our position that the Prince could have immunity,’ she said.
‘We have always maintained that the issues raised by this Judicial Review are academic as before the DPP can consent to any application for a private arrest warrant, there needs to be an investigation by police. The likelihood of immunity is not considered a bar to prosecution and is a matter that should be considered on a case’s individual facts and merits, after some investigation. The Metropolitan Police Counter Terrorism Command is responsible for the investigation of all allegations of war crimes, crimes against humanity, genocide and torture, and has previously said that it would not undertake an investigation in relation to this matter for a number of reasons; the possibility of immunity was not one.
‘The CPS is committed to the prosecution of war crimes and we take our responsibilities under international law very seriously. Whenever the evidence and law allows us to do so, we will vigorously pursue prosecutions through the UK courts. We have a well-established War Crimes Community Involvement Panel that consists of law enforcement, NGOs and others which has been cited internationally as an example of good practice. This meets regularly to discuss issues of concern and relevance and helps to improve our collective knowledge and understanding in this field.’