Diplomatic Immunity

BSQ has recently been instructed in an unusual criminal prosecution involving the potential application of diplomatic immunity for a law enforcement official from the US travelling to the UK to perform official functions. Diplomatic immunity extends beyond diplomatic agents and their family members UK but can also be conferred in the form of Special Mission Immunity to members of temporary missions assigned to perform official duties in a host country.

You can read about the case - which resulted in a notice of discontinuance served by the CPS - on our blog.

Immunity from Criminal Prosecution and the Vienna Convention

The legal immunity of diplomatic agents is one of the oldest principles of international law. Over 190 countries have signed the Vienna Convention on Diplomatic Relations which codifies the law in this area. An essential principle of the Convention is that states are entitled to “freely appoint“ members of their diplomatic missions, who then automatically receive privileges and immunities arising including immunity – also known as “personal inviolability’ - from criminal prosecution.

The Vienna Convention also provides separate immunities for the administrative and technical staff of an embassy and their family members. The rationale behind the Vienna Convention is to shield not just diplomatic agents but also support personnel and their families from politically motivated charges in hostile states, allowing them to perform their duties without fear.

Around 25,500 people are entitled to diplomatic immunity in the UK. The incidence of alleged crimes committed by diplomatic agents or others entitled to immunity is relatively low. The UK Government regularly releases annual statements on allegations of criminal activity by diplomatic staff in the UK. Large sums are owed by various embassies in London by way of Congestion Charge penalty fines and are often mentioned in these statements and always attract publicity and controversy.

The Anne Sacoolas Case

The recent case of Anne Sacoolas shows how the Vienna Convention operates in practice. Mrs. Sacoolas faced charges of death by dangerous driving after a collision with a motorcycle driven by Harry Dunn which took place near RAF Croughton where her husband was stationed. Harry Dunn was only 19 at the time. Mrs Sacoolas accepted through her lawyers that she was driving on the wrong side of the road.

Following a judicial review brought by the Dunn family, the Court of Appeal held in R(Dunn) v Secretary of State for the FCO EWHC [2020} 3185 Admin that Ms Sacoolas had diplomatic immunity at the time of the collision because her husband was a member of the administrative and technical staff of the US Embassy, which had an office at RAF Croughton. Applying Articles 29 to 35 of the Vienna Convention the Court decided that the privileges and immunities enjoyed by Mr Sacoolas extended to his wife and family.

Special Mission Immunity

Another type of immunity recognised by international law is known as Special Mission Immunity. This is the issue that arose with BSQ’s recent client. In the case of R (Freedom and Justice Party) v SSFCA [2016] EWHC 2010 (Admin) the Court of Appeal declared ‘special mission immunity” to be part of customary international law and thus upheld by the common law in this jurisdiction. This type of immunity requires the host state to secure core immunities for members of a special mission for members of a special mission during their visit. This includes immunity from criminal prosecution for private acts, as established in Khurts Bat v. the Federal Court of Germany [2011] EWHC 2029 (Admin).

Determining whether an assignment qualifies as a special mission involves reference to the UN Convention on Special Missions, 1969 ("the UNCSM"). This is a fact-specific decision, and there is no strict requirement for the claimant to be a high-ranking government official or for the host state to formally designate the mission as a "Special Mission."

In practice, the British government typically provides advance consent for special missions, and has published ministerial announcements on the position they take. As the CPS did not provide reasons for their decision, in the recent BSQ case it was never clarified whether our client’s assignment met the definition of a special mission.

Nonetheless, where a dispute arises as to whether special mission immunity applies the law is clear that the final decision is for the Courts not the police, prosecution or executive as a function of the separation of powers.

If you require advice on an issue of diplomatic immunity, please contact our London offices on 020 3858 0851.