Court of Appeal
Published July 17, 2007
Aziz v Aziz and Others, Sultan of Brunei intervening
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Sedley and Lord Justice Lawrence Collins
Judgment July 11, 2007

The head of a foreign state had no right to anonymity in judgments in court proceedings brought by his former wife against certain defendants.

The Court of Appeal so held in a reserved judgment when dismissing an appeal by the Sultan of Brunei from the order of Mr Justice Gray dated November 1, 2005, denying him relief as head of state and refusing to prohibit references to him in proceedings between the claimant, Mariam Aziz, his former wife and a number of defendants.

Sir Frank Berman, QC, Mr Neil Hart and Mr Tim Naylor for the Sultan of Brunei; Sir Michael Wood, advocate to the court; Mr Max Mallin for the claimant; Mrs Amir in person.

LORD JUSTICE LAWRENCE COLLINS said that the Sultan sought to reverse Mr Justice Gray’s judgment and sought redactions to various judgments in the proceedings to remove any material which would lead to his being identified.

He relied on article 29 of the Vienna Convention on Diplomatic Relations (1961), which applied by virtue of section 20 of the State Immunity Act 1978, read with section 2 of the Diplomatic Privileges Act 1964, and which, it was said, required the United Kingdom including its courts to treat him with due respect and take all appropriate steps to prevent any attack on his dignity.

The UK’s obligations under article 29 applied equally to the foreign head of state in his personal capacity as they applied in his public capacity.

The privileges or immunity of a head of state were not limited to official acts of the head of state, nor were they limited to situations where in the particular case the head of state would be prevented from carrying out his functions.

However, the immunity had a function in international relations to protect the ability of a head of state to carry out his functions and to promote international cooperation.

His Lordship was far from convinced, on the material before the court, that there was a rule of customary international law which imposed an obligation on a state to take appropriate steps to prevent conduct by individuals which was simply offensive or insulting to a foreign head of state abroad.

In any event, his Lordship was satisfied that there was no relevant attack on the dignity of the Sultan, and that all appropriate steps had been taken to prevent any such attack.

It was difficult, if not impossible, to envisage any situation in which speech, otherwise permitted under English law, could be prohibited on the ground that it was an attack on the dignity of a foreign head of state.

As to whether the judgments should be further redacted, the general rule was that a hearing was to be in public. However, the court had power to sit in private under rule 39.2 od the Civil Procedure Rules and to order that any judgments or orders, or any part of them, should be private: see the Part 39 Practice Direction.

In deciding whether to hold a hearing in public or private the judge had to have regard to article 6.1 of the European Convention on Human Rights.

In Colombani v France (Application No 51279/99) ((2002) ECHR 521) the European Court of Human Rights held that the offence of insulting a foreign head of state was liable to inhibit freedom of expression withour meeting any pressing social need. His Lordship agreed that no greater protection should be given to the dignity of a head of state than to ordinary members of the public.

In the instant case, the judges had dealt sensitively with the confidential and personal information which was before them and had made appropriate orders.

Nothing discreditable was said about the Sultan in the judgments. No finding was made against him or about him. No confidential information relating to the Sultan was contained in the judgments.

There was no basis for the proposition that the identification of the Sultan in the judgments could be a breach of the UK’s international obligations, nor was there any other reason why he should not be identified.

Consequently, there was no reason for further redaction of the judgments and the appeal would be dismissed.

LORD JUSTICE SEDLEY, concurring, said that the Sultan was entitled to expect no less protection from possible embarrassment than any other third party to litigation, but equally no more.

It was the right of litigants to full and open justice in the courts.

There was no supervening right in a foreign sovereign to complete protection irrespective of the interests of justice; but the courts would do all that could be done consonantly with the interests of justice to protect any third party, a foreign sovereign included, from the fallout of other people’s litigation.

The Master of the Rolls agreed with both.

Solicitors: S. J. Berwin; Treasury Solicitor; Davenport Lyons.

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