R (Dunn) v Secretary of State for Foreign and Commonwealth Affairs: Immunity by Accident

Dom Bielby
Introduction

On 24th November, the High Court handed down its judgment in the case of R (Dunn) v Secretary of State for Foreign and Commonwealth Affairs,[1] the latest milestone in the tragic diplomatic saga that ensued following the death of nineteen-year-old Harry Dunn in August 2019. In their judgment, Saini J and Flaux LJ determined that Anne Sacoolas, the spouse of Jonathan Sacoolas, an US intelligence officer stationed at RAF Croughton in Northamptonshire, did enjoy immunity from the UK’s criminal jurisdiction at the time of the incident, thus rejecting the application for judicial review by the Dunn family (the“Claimant”) which alleged that (1) Mrs Sacoolas did not have immunity; (2) theForeign Office (FCO) had unlawfully obstructed the investigation into Mr Dunn’s death; and (3) the FCO was in breach of an obligation to assist with the investigation into his death under Article 2 European Convention on HumanRights.

 

Relevant Framework of Diplomatic Immunity

To understand Dunn, a brief summary of diplomatic immunity is required. Diplomatic immunity is one of the oldest and most important principles of international law,[2]according to which a member of a diplomatic mission in a foreign state is endowed with immunity from the receiving state’s legal jurisdiction, thus ensuring that they are able to carry out their functions unimpeded. The principle was codified in the Vienna Convention on Diplomatic Relations (VCDR)1961.[3] Such is the importance of the principle that all but three sovereign UN member states have signed and ratified the Convention.[4]

 

The VCDR guarantees that members of a diplomatic mission are both inviolable and immune from the jurisdiction of domestic courts. The inviolability principle, found in Article 29, places states under a negative obligation not to detain or imprison mission members and a positive obligation to take reasonable steps to protect their person, freedom and dignity. The principle of immunity, codified in Article 31(1), provides that mission members shall be exempt from domestic criminal, administrative and civil jurisdictions(with some caveats for the last two categories). Per Article 37(2), members of the mission’s administrative and technical staff (A&T staff) are immune from administrative and civil jurisdictions for acts performed in their official capacity only, but still receive full criminal immunity. The relatives of mission members that have accompanied the mission member share these immunities per Article 37(1), albeit, for the relatives of A&T staff, qualified in the same manner as the mission member (Article 37(2)).

 

These immunities may only be lost in two narrow circumstances: first, following the declaration of a mission member as a persona non grata by the receiving state(Article 9(1)), once a reasonable period of time has elapsed during which the persona does not leave the state (Article9(2)); second, where the sending state expressly waives immunity (Article32(1), (2)). These immunities are enjoyed by mission members and their accompanying relatives from the moment that they arrive in the receiving state(Article 39(1)), provided that the addition of said persons to the mission has been brought to the notice of the receiving state (Article 10(1)); the receiving state has not limited the mission’s size (Article 11(1)); and the relevant person has not been declared persona non grata prior to their arrival (Article 9(1)).

 

Due to the domestic rule against the self-execution of treaties,[5] the VCDR has no direct effect in the UK. Accordingly, Articles 1, 22–40 and 45 VCDR are incorporated into domestic law by s.2(1) Diplomatic Privileges Act 1964. It has been recognised that the incorporated provisions are to be interpreted with reference to the unincorporated parts of the treaty.[6]

 

Factual Background of Dunn

RAF Croughton is an air force base located inNorthamptonshire, which, following an agreement between the UK and US, has been utilised as a relay station for American diplomatic communications since 1963.In 1994, on account of a restructuring of the American presence at RAF Croughton, the US State Department requested that its staff at the base be classified as A&T staff of the US diplomatic mission.[7] This required the consent of the UK Government under Article 12 VCDR, as it concerned the establishment of a branch of the US diplomatic mission outside of its existing locality in London. The Foreign Office, despite uncannily prescient concerns about the possibility of accidents occurring with the locals, acceded to the American request, conditional on the agreement of the US to an express pre-waiver of criminal immunity per Article 32(1) VCDR.[8] In an official ‘Exchange of Notes’ (EoN) in 1995, the Foreign Office specified that the extension of the US mission to RAF Croughton would only be accepted, “on the understanding that the United StatesGovernment, by its reply to this letter waives the immunity from criminal jurisdiction of these employees in respect of acts performed outside the course of their duties.”[9] The US Ambassador agreed.[10] Accordingly, from 1996 onward the US Embassy’s ‘London Annexe Croughton’ (LAC)maintained A&T staff protected by Article 37(2) VCDR, subject to the agreed qualification. However, the EoN failed to make specific reference to the family members of the A&T staff, for reasons unknown.[11]

 

On 5th August 2019, as required by Article 10 VCDR, the FCO was notified of Jonathan Sacoolas’ appointment as an LAC A&T staff member, as well as his accompanying household: his wife, Anne Sacoolas, and their children. On 27th August 2019 Mrs Sacoolas, whilst leaving the LAC in her car, collided with Harry Dunn, a local resident who was riding his motorcycle.Evidence suggests that Mrs Sacoolas had been driving on the wrong side of the road when the accident occurred.[12] MrDunn died in hospital as a result of the incident. The following day, officers from Northamptonshire Police (NP), in the presence of an American lawyer andEmbassy official, met Mrs Sacoolas to inform her that she was being investigated for causing death by dangerous driving[13] and that an interview with her would be sought. No mention was made of diplomatic immunity and Mrs Sacoolas assured Police that she would remain in the UK.[14]

 

In communications between the FCO and US Embassy, the former stated that Mrs Sacoolas was covered by the EoN’s advance waiver, the FCO noting in a memorandum to its Parliamentary Under-Secretary that, “...it would not have been the intention of the drafters of the ‘Croughton Agreement’ to provide greater immunity for family members than to a diplomat.”.[15] By contrast the US Embassy considered that Mrs Sacoolas’ immunity was not waived in the agreement.[16]Consequently the FCO lodged a request for a new, express waiver of Mrs Sacoolas’ immunity. This was brought to the attention of NP, leading the investigating officer to conclude that Mrs Sacoolas enjoyed criminal immunity.[17] TheUS Embassy formally rejected the request to newly waive Mrs Sacoolas’ immunity on 13th September 2019 and informed the FCO on 16th September that the Sacoolas family had left the UK the previous day.[18] Despite strong diplomatic representations made by the FCO, the Embassy rebuffed any suggestion that a new waiver be issued.[19]

 

On 22nd December 2019 NP charged Mrs Sacoolas with causing death by dangerous driving and on 10th January 2020 the Home Office issued an extradition request for Mrs Sacoolas. Both measures were described by the StateDepartment as ‘abuses’.[20] On20th July 2020 the UK and US concluded an addition to the EoN, specifically extending the waiver to the families of A&T staff at the LAC and further providing an advance waiver of their Article 29 inviolability for pre-trial proceedings and post-trial detention.[21] Prior to these events, on 28th November 2019, the Dunn family began the process of judicial review against the FCO.[22]

Ground 1 - Immunity

Before considering the substantive question of whether Mrs Sacoolas enjoyed immunity, the Court referred itself to Lord Sumption’s obiter dictum in Reyes v Al-Malki[23] to provide the framework in which it would consider the application and interpretation of the VCDR.[24] TheReyes extract advises courts to adopt a cautionary stance when interpreting international treaties; the text of the treaty itself is the only thing upon which the parties, usually after extensive and detailed deliberation, have agreed. Accordingly, the novel or loose interpretation of provisions against their ordinary meaning is inadvisable, unless it can be shown that this was the real intention of the state parties; otherwise, the court would undermine the uniform application of the treaty.This is especially vital for agreements such as the VCDR for which reciprocity is of high importance.[25] Furthermore, the fact that the VCDR exists, according to its preamble, to “ensure the efficient performance of the functions of diplomatic missions as representing States”, does not justify a case-by-case analysis of each instance of purported immunity to determine whether the application of immunity therein would be conducive to the performance of the mission’s functions. Rather, diplomatic immunity subsists asa general principle to protect diplomatic missions abroad through the prevention of their harassment by domestic legal action, whether legitimate or not in the eyes of the receiving state. Although the submission of foreign diplomats to the jurisdiction of an English court would not likely impede the function of a diplomatic mission, on account of the near certainty of a free end fair trial, the same cannot be guaranteed for British diplomats abroad and, according to Article 47(2) VCDR, a state is entitled to apply a provision of the Convention as restrictively as another state applies the provision to that state’s mission. As Lord Sumption candidly summarised in Reyes: “...a significant purpose of conferring diplomatic immunity of foreign diplomatic personnel inBritain is to ensure that British diplomatic personnel enjoy corresponding immunities elsewhere.”[26]

 

The original substantive case proposed by the Claimant was that the EoN impliedly covered the families of A&T staff, despite the lack of express mention. This ground was rendered moot by the conclusions of theCourt in its description of the framework of diplomatic immunity. Although it was acknowledged that the immunity enjoyed by family members of A&T staff was derived from the immunity enjoyed by the staff member — as established by a natural reading of Article 37(1) and (2) VCDR — it was accepted that the immunity exists distinctly and separately to that of the staff member.[27]Furthermore, as per established case law[28] and despite the evidence that the lack of an express waiver for the family members was accidental, an implied waiver of diplomatic immunity cannot subsist under a natural reading of Article 32(2) VCDR.[29] In accordance with Lord Sumption’s warning, English legal principles, such as constructive notice, cannot be used to justify divergent domestic interpretations.[30]Thus, the EoN pre-waived immunity for Mr Sacoolas, but not for his wife and, for want of a new express waiver or circumstances denying immunity (e.g. underArticle 9(1) VCDR), Mrs Sacoolas was immune from English criminal jurisdiction when she caused the death of Mr Dunn.

 

The Claimant’s amended ground claimed that the EoN was a novel international agreement, separate to the VCDR, from which Mrs Sacoolas did not enjoy immunity. The Claimant submitted that the UK had only accepted a limited criminal immunity for actions undertaken in the course of official duties by A&T staff, under which no derivative immunity could be afforded to Mrs Sacoolas, as she had no official duties within the mission and there was no logic in the UK having consented to an additional, unmentioned and greater immunity for family members.[31] By contrast, the Respondent submitted that the EoN was patently operating within the VCDR regime, pointing to the numerous explicit references to the VCDR within the EoN and the correspondence related thereto.[32] TheirLordships accepted the Respondent’s submissions, agreeing that the EoN was intended to act as a waiver within the VCDR regime. Additionally, the Court determined that the very structure of the EoN indicated that it was not a freestanding agreement due to its incomplete and inadequate content. Rather, in terms of legal effect, it had a singular importance: acting as an express waiver in accordance with Article 32(1) VCDR, but one which did not cover Mrs Sacoolas.[34]Therefore, the Court concluded, “Mrs Sacoolas enjoyed immunity from UK criminal jurisdiction at the time of Harry’s death. We do not come to this conclusion with any enthusiasm for the result, but it is compelled by the operation of the VCDR.”[35]

 

Ground 2 - Obstruction of Investigation

The Claimant’s second ground was, according to theirLordships, of unclear scope, but, as pleaded, appeared to suggest that the FCO unlawfully interfered with NP’s investigation. But for the FCO’s communication with the force, the Claimant argued, Mrs Sacoolas would have been arrested and tried and that the question of immunity would have been a matter for the relevant criminal court.[36]Specifically, according to the Claimant: (1) the advice given to NP by the FCO was unlawful; and (2) the FCO was under an obligation to disclose its diplomatic correspondence, including the EoN, with the force.[37]

 

Regarding (1), the Court noted that Mrs Sacoolas did enjoy immunity and therefore the ground was without foundation, but that, even ignoring this fact, the FCO had not effectively obstructed NP in its duty to investigate whether immunity did exist or not;[38] rather, there was no doubt that NP would have reached the same conclusion regarding immunity through its own investigations.[39] Regarding(2), the Court was even clearer in rebutting the ground, stating that, “[a]t their highest, the substance of theClaimants’ allegations… may be that the FCO did not take certain actions which the Claimants suggest would have assisted NP in their investigation. In our judgment, that does not provide the basis for a finding of public law unlawfulness.”[40] TheCourt noted that the FCO had acted in good faith and had persistently sought to shift the US position through diplomatic means.[41] For comprehensiveness’ sake, their Lordships affirmed that the FCO is under no obligation to disclose its communications, particularly those of a sensitive, diplomatic nature, to the police, barring a relevant court order.[42]

 

Ground 3 - Article 2 ECHR

As with Ground 2, the Court considered the Article 2 ECHR claim parasitic on Ground 1 on the basis that it relied on a breach of the duty to hold a proper inquiry into Mr Dunn’s death, due to the acceptance of an error of law (i.e. that Mrs Sacoolas enjoyed diplomatic immunity).[43] TheClaimant proposed that Ground 3 was not parasitic, (1) due to Mrs Sacoolas’ immunity being ‘anomalous’ and (2) because the FCO had failed in a procedural capacity to ensure the proper investigation of the immunity question.[44]

 

The Court conclusively determined that neither of these claims were substantiated. Regarding (1), Court determined that the cause ofMrs Sacoolas’ immunity was irrelevant: Mrs Sacoolas had immunity under the VCDRand to look behind the EoN to try pick apart the intentions of the UK and US would inject instability into the interpretation of the Convention, as forewarned by Lord Sumption.[45] As the ECHR’s jurisprudence has already accepted that the VCDR may not be disapplied due to Article 2, the Claimant had no grounds on which to allege a human rights violation.[46] On(2) the Court restated that the FCO had, in fact, actively sought to assist theClaimants and that, in any case, the FCO was under no obligation to investigateMr Dunn’s death. Instead, this was the task of HM Coroner’s Service, which was still investigating the incident at time of judgment.[47]

 

The Court granted permission to appeal on Ground 1, but refused permission on Grounds 2 and 3 as the Court found no arguable case existing therein.

 

Commentary

At a personal level (and, it seems, in the eyes of theirLordships, considering the wording of their decision on Ground 1), Dunn is a deeply dissatisfying case in which circumstances appear to have unfairly conspired to deny the Dunn family the closure that a criminal trial may have provided. However, insofar as Dunn’s facts stir an emotional response, the case embodies the warning contained in the classic adage, ‘hard cases make bad law’. Fundamentally, the court is an institution of law, not a vehicle of public opinion and one would be hard-pressed to deny the strength of Lord Sumption’s warning in Reyes against divergent domestic interpretations. Nation states are sovereign and the obligations into which they enter are not undertaken lightly, due to their ability to curtail the inherent powers enjoyed by the state. When these obligations are agreed in writing, it is the words in the treaty to which the state has agreed and from which a uniform and stable interpretation of the obligation can be drawn; the state has not agreed to have its intentions probed by a court to determine what it really meant. Accordingly, a teleologically-pleasing interpretation of the VCDR which found Mrs Sacoolas caught by a waiver (which, on a natural reading of Article32(2), could not reasonably be interpreted to accommodate her) would potentially lead to a destabilisation of this most important of international legal norms. This danger is arguably heightened in our present increasingly nationalistic, inward-looking world. To sow doubt into diplomatic immunity, a principle upon whose shoulders much diplomatic work relies, would be reckless.In addition, we may consider Dunn an unfortunate but necessary warning for the drafters of legal instruments that comprehensiveness is key. For instruments that are usually drafted with significant thought over a long period of time,[48] it should be no substantial, additional burden to ensure that every obligation intended by the parties is actually reflected in the words of the agreement.

 

Since national judicial decisions are a source of state practice and opinio juris, [49] the High Court could have attempted to change the customary norm underlying the VCDR by making a decision which diverged from the orthodox interpretation of Article 32(1). However, such acourse of action, whilst guaranteeing no change in the customary norm of diplomatic immunity for want of the necessary generality and consistency,[50]would still result in the uncertainty against which Lord Sumption warned. This is particularly dangerous in a geopolitical climate which views international co-operation as suspect. Although unfortunate to recognise, it appears to be the case that the Dunn family’s best hope in bringing this distressing chapter to a close is to seek a new waiver and extradition request through diplomatic means. Owing to the change in the US presidency in January, we can hope that such a new waiver remains possible.

 

We should not however overlook the irony of the decision: by affirming the VCDR regime for the general benefit of diplomatic missions worldwide, the enjoyment of diplomatic immunity in Dunn has actively undermined the performance of the US diplomatic mission’s functions in the UK. Not only has focus been placed on the LAC and its controversial role in facilitating US military operations abroad, but the incident has soured the public perception of the US’ diplomatic activities in the UK both at home and abroad. A YouGov study found that 64% of American’s believe, in spite of the protestations of the State Department, that Mrs Sacoolas should be returned to the UK and stand trial.[51] This state of affairs is, of course, not the fault of the VCDR per se, due to the ability of the US to waive Mrs Sacoolas’ immunity, but it serves as a stark reminder of the extent and degree of the protection enjoyed by those with diplomatic immunity, as well as the political and diplomatic consequences to the principle may lead, against which theConvention does not protect.


[1] [2020] EWHC 3185 (Admin)

[2] Recognised by Lord Sumption in Reyes v Al-Malki [2017]UKSC 61, [5]

[3] Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, United Nations Treaty Series, vol. 500, p. 95.

[4] The Republic of Palau, The Solomon Islands and the Republic ofSouth Sudan. The Holy See and the State of Palestine, although not full UN member states, are also signatories to the Convention.

[5] J.H. Rayner v Department of Trade [1990] 2 AC 418

[6] Fawaz Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB), [39]

[7] Dunn, [24]–[26]

[8] Ibid, [27]

[9] Ibid, [30]

[10] Ibid, [31]

[11] Ibid, [94]

[12] Ibid, [42]

[13] S.1 RoadTraffic Act 1988

[14] Ibid, [44]

[15] Ibid, [53]

[16] Ibid, [54]

[17] Ibid, [56], [60]

[18] Ibid, [70]

[19] Ibid, [72]–[73]

[20] Ibid, [77]–[78]

[21] Ibid, [81]

[22] Ibid, [79]

[23] [2017] UKSC 61

[24] Dunn, [13]

[25] Reyes, [12]

[26] Ibid, [12]

[27] Dunn, [18.7]

[28] R v Bow Street Metropolitan Stipendiary Magistrate ex partePinochet Ugarte (No 3) [2000] 1 AC147, 217C, 243F, 263D

[29] Dunn, [18.9]

[30] Ibid, [18.10] and Propend Finance Pty Ltd v Sing (1996)111 ILR 611, 643

[31] Dunn, [87]

[32]  Ibid,[90]–[93]

[33] Ibid, [107]–[109]

[34] Ibid, [110]–[113]

[35] Ibid, [119]

[36] Ibid, [124]

[37] Ibid, [125]

[38] CrownProsecution Service, “Diplomatic Immunity and Diplomatic Premises”, 15 January 2019

[39] Ibid, [128]

[40] Ibid, [131]

[41] Ibid, [130]

[42] Ibid, [132]

[43] Ibid, [136]

[44] Ibid, [138],[142]

[45] Ibid, [139]

[46] Ibid, [140]

[47] Ibid, [143]–[144]

[48] Consider, for instance, that the EoN, although a mere waiver rather than a freestanding agreement, took more than a year to be finalised.

[49] Jurisdictional Immunities of the State (Germany v. Italy:Greece intervening) (Judgment) [2012] ICJ Reports 99,132

[50] North Sea  ContinentalShelf (Judgment) [1969], ICJ Reports 3, 44

[51] YouGov, “Two thirds of Americans support Anne Sacoolas extradition” [Accessed 1.12.2020:yougov.co.uk/topics/politics/articles-reports/2020/01/28/two-thirds-americans-support-anne-sacoolas-extradi]