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The Court of Appeal has delivered an important judgment on the scope of immunity for heads of state under the State Immunity Act 1978.

In a judgment handed down on 6 December 2022, the Court held that His Majesty Juan Carlos I, King of Spain from 22 November 1975 to 18 June 2014, was entitled to immunity under sections 1 and 14 of the Act in respect of allegations pre-dating His abdication.

The Court explained that even after a head of state leaves office, they continue to enjoy immunity for acts performed by them in their public capacity while in office. The relevant test is whether the alleged acts were engaged in “under colour of authority”. Applying that test to the pleaded allegations (which were assumed to be true only for the purposes of the preliminary issue on state immunity and each of which was denied) the Court found that His Majesty would have been acting in a public capacity and therefore entitled to immunity.

The Court rejected a submission that there was an applicable exception to immunity under section 5 of the Act, which provision relates to personal injury caused by acts within the jurisdiction. It also addressed the need for procedural rigour in the sensitive context of state immunity, ruling that the High Court had been wrong to permit an amendment suggested during the course of the hearing at first instance in an attempt to overcome state immunity issues.

The judgment is available here.

Tim Otty KC and Paul Luckhurst of Blackstone Chambers (along with Professor Philippa Webb of Twenty Essex) acted for His Majesty Juan Carlos I before the Court of Appeal and were instructed by Guy Martin, Charles Enderby Smith, Lawrence Northmore-Ball, and Magali Sharma of Carter-Ruck.

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