Clive Nicholls
Brilliant QC who acted for General Augusto Pinochet in his efforts to avoid extradition to Spain
CLIVE NICHOLLS, who has died aged 84, was one of the outstanding silks of his generation, and a flag-bearer in the field of international criminal law whose services were much sought after, particularly in extradition cases.
In September 1998 Augusto Pinochet arrived in Britain to undergo back surgery. Among those who later visited him was Margaret Thatcher, who was grateful to Chile’s former head of state for having given significant support to Britain during the Falklands war.
In Spain, however, an examining magistrate, Judge Baltasar Garzón, was investigating the “disappearances” and murders of Spanish citizens living in Chile during Pinochet’s dictatorship, as well as the alleged kidnap and torture of tens of thousands of others. Garzón issued a warrant for Pinochet’s arrest. As a result, Pinochet was arrested in Britain in late October 1998 on two provisional warrants issued under the Extradition Act 1989.
He was released on stringent bail conditions. But before committal proceedings could take place, he challenged the lawfulness of his arrest and release on bail by making an application for habeas corpus, and further applications to quash the provisional warrants for his arrest by means of judicial review. Thus the scene was set for one of the most famous extradition cases to have taken place anywhere in the world.
Nicholls was instructed to lead the case for Pinochet, which, by virtue of its high public profile and the importance of the legal issues involved, was brought before the Queen’s Bench Divisional Court, presided over by the Lord Chief Justice, Lord Bingham of Cornhill. Nicholls prevailed in respect of both warrants, but the Court delayed quashing the second warrant (which concerned several hundred allegations of torture) to give the prosecution an opportunity to appeal to the House of Lords against its decision. At this point the case began its journey into the legal stratosphere.
The principal issue in the case was whether a former head of state was entitled to immunity from prosecution for acts committed during his tenure. The issue was complex enough in itself, but was further complicated by the fact that Pinochet had seized power in 1973 in a coup d’état, overthrowing the democratically elected Salvador Allende.
The Appellate Committee of the House of Lords began hearing the case on November 4, and delivered its opinion three weeks later. The case was decided against Pinochet by a majority of three to two.
It subsequently transpired, however, that the wife of one of the law lords, Lord Hoffman, who had sat on the appeal, had been working in a variety of administrative positions for Amnesty International, which had campaigned forcefully against alleged human rights abuses in Chile under the Pinochet regime, and which had been given leave to appear before the Appellate Committee as an intervener.
It also transpired that Lord Hoffman himself was an unpaid director and chairman of Amnesty International Charity, an off-shoot of the main organisation. Lord Hoffman had not disclosed either his, or his wife’s, association with Amnesty International. Accordingly, in December 1998 Nicholls and his team took the case back before a differently constituted Appellate Committee, applying to re-open the appeal and set aside the House’s first determination, not least because Lord Hoffman had sided with the majority.
In a landmark case, the House of Lords set aside their first adjudication, and set the matter down to be re-heard. It was never suggested that Lord Hoffman was actually biased, but it was held that a reasonable bystander would regard the House’s first determination as tainted by a perception of bias on Lord Hoffman’s part, and that he should have disclosed his and his wife’s links to Amnesty International before the hearing of the first appeal. As it happened, the resultant third appeal, too, was won by the government of Spain, and committal proceedings followed.
But by this stage, the case had become as much a political hot potato as a legal minefield, and the then Home Secretary, Jack Straw, the ultimate arbiter of whether to grant an extradition request, was placed in an extremely delicate position. Additionally, Pinochet’s age, combined with the effects of spending months living in virtual captivity, had had such a detrimental effect on his physical and mental health that he was, in Straw’s view, unfit to be tried.
Consequently, on March 3 2000, he was discharged from the order of extradition, and, in something of a cloak-and dagger operation, driven to a remote RAF base in Lincolnshire, where a Chilean air force transport was waiting to fly him back to Santiago. Once home, Pinochet’s health recovered somewhat, and he died aged 91 in 2006.
Clive Victor Nicholls was born on August 29 1932, one of identical twin brothers, his twin being Colin. They were both educated at Brighton College, then graduated from Trinity College, Dublin, and were both called to the Bar at Gray’s Inn in 1957. Nicholls also spent a year at Sidney Sussex College, Cambridge, studying for an LLM. Other than his year spent at Cambridge, his education and career trajectory were almost identical to his twin brother. Both became leading lights in their respective fields after joining chambers situated, formerly, at Queen Elizabeth Building in Middle Temple, and, latterly, at 3 Raymond Buildings in Gray’s Inn.
Nicholls took silk in 1981, sat as a Recorder of the Crown Court
between 1984 and 1999, and was elected a Bencher of Gray’s Inn in 1990. He served as head of chambers between 1994 and 2010. Both he and his brother remained active members of chambers after their 80th birthday, concentrating primarily on advisory and academic work.
Nicholls’s career at the bar was stellar. While Pinochet was the pinnacle, he was involved in a number of other prominent cases, both in extradition and in other fields. He appeared in courts all over the world and was called to the Bars of the Australian Capital Territory, Hong Kong, the Bahamas, Malaysia, Ireland, and Fiji. The walls of his study were adorned with letters of thanks from government law officers around the world. Like all the best barristers he both prosecuted and defended: one of the letters of thanks on display in his study was from Illich Ramírez Sánchez – better known as Carlos the Jackal.
Away from courts and cases, Nicholls was the lead author of The Law of Extradition and Mutual
Assistance, now in its third edition. Being a member of the same Chambers as his identical twin inevitably gave rise to instances of confusion, and the two were often mistaken for each other. There was, however, no prospect of confusion when, in 1999, two appeals were conjoined in the House of Lords concerning extraditions to Ireland: Clive acted for one appellant and Colin for the other. One of the law lords challenged Clive as to the merits of a particular point of Colin’s case. Clive replied to the effect that, whatever the merits of Colin’s case, it was a matter for Colin to answer. Almost at that moment, the lectern on which Colin was resting his papers collapsed. Colin instantly informed the Committee that it was Clive’s personal lectern, and that its collapse said much about Clive’s case.
Yet for one who achieved so much, Clive Nicholls remained an engagingly modest man. He was a father figure and mentor in chambers, ever humorous, and radiating a formidable energy. He particularly enjoyed leading new and relatively junior members of chambers, and they invariably found the experience of working with him invaluable. His courtesy to fellow barristers, even in the most hard fought of cases, never wavered.
Away from life at the Bar, his main relaxations were sailing and fishing. He also threw himself into the role of chairman of the trustees of the Bob Champion Cancer trust from 1982 to 1994, and he remained a trustee thereafter.
In 1960 he married Alison Oliver, who survives him with their six children, each of whose Christian names begins with the letter “J”.
Clive Nicholls, born August 29 1932, died February 9 2017