Dunn v FCO — the opening skirmishes
6 July 2020
In R (Dunn) v The Foreign Secretary and the Chief Constable of Northamptonshire  EWHC 1620 (Admin) the Divisional Court dismissed two applications made in anticipation of the forthcoming rolled up judicial review arising out of the death of Harry Dunn.
Harry Dunn was killed when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas, the wife of a member of the administrative and technical staff of the US Embassy based at RAF Croughton. The Claimants (Harry Dunn’s parents) sought to adduce expert evidence from a retired diplomat Sir Ivor Roberts, and also made an application for specific disclosure.
The Divisional Court summarised the background to the applications as being the judicial review of:-
- The decision made by the Foreign Secretary that Mrs Sacoolas had diplomatic immunity under the Vienna Convention on Diplomatic Relations;
- The allegedly unlawful obstruction by the Foreign Secretary of a criminal investigation by the Northamptonshire Police;
- The allegedly unlawful acceptance by the Northamptonshire Police of the advice of the Foreign Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
- The alleged breach of the investigative duty under Article 2 ECHR as a result of the Foreign Secretary and the Northamptonshire Police’s error of law as to Mrs Sacoolas’s diplomatic immunity;
- The allegedly unlawful ceding of sovereignty over a military base in the UK without Parliamentary consent; and
- The alleged suspension of the laws of the land without Parliamentary consent through affording diplomatic immunity to family members of the relevant personnel.
In respect of the application for specific disclosure, the Divisional Court re-iterated the applicable principles governing disclosure in judicial review, namely that standard disclosure is not required unless the court orders otherwise, with the test as per Tweed v Parades Commission for Northern Ireland  1 AC 650 being whether “in the given case disclosure appears to be necessary in order to resolve the matter fairly and justly.”
The duty of candour required the parties to “to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide” and to disclose materials “which are reasonably required for the court to arrive at an accurate decision”: referring to R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1409 at .
The Divisional Court unsurprisingly strongly criticised as “heterodox” the argument made by the Claimants that relevance was a subjective determination, and they should have an opportunity to examine documents deemed irrelevant by the Foreign Secretary and by the Government Legal Department, on the basis that those were seeking disclosure of the documents “were the best judges of relevance.” The Court held at  that:
The statement that all relevant documents have been disclosed is conclusive unless there are some grounds for supposing the statement to be mistaken. That must be a fortiori the position in a judicial review where, as we have said, disclosure is limited to what is necessary for the fair and just determination of the issues. There is no conceivable justification for the claimants and their lawyers being entitled to trawl through the entire archive when Ms Robertson has stated all relevant documents have been disclosed and there are no grounds for disbelieving her statement.
The Divisional Court also rejected further categories of documents for disclosure on the basis that they were irrelevant to the pleaded grounds. The Court noted, for example, that while the Claimant sought disclosure of a number of documents in order to establish whether the Foreign Secretary had deliberately obstructed the criminal investigation, there was no plea of misfeasance in public office. The Court held that “This is no more than a fishing expedition to see if a more serious allegation can be made out. We have little doubt that if there were any documents which showed or suggested that any obstruction was deliberate, the GLD would have disclosed them as they would clearly be relevant. “
With regards to the application to reply on expert evidence for Sir Ivor Roberts on the basis of being reasonably required to resolve the issue as to whether the Foreign Secretary erred in law in deciding that Mrs Sacoolas enjoyed diplomatic immunity, the Divisional Court noted that Sir Ivor was the editor of a leading text — Satow’s Diplomatic Practice — and was a former ambassador.
In his reports he had made comments about the interpretation of the Vienna Convention. However, it was “clear” that he was not purporting to give evidence about state practice, as understood in international law. That was an obvious problem for the Claimants as the basis of their application was that his evidence was required to comment on state practice. Further, there was no suggestion that customary international law was engaged, so state practice was not itself relevant.
The Divisional Court then considered the further argument that his evidence was required because the relevant diplomatic Notes exchanged between the US and UK amounted to a treaty, and he could assist on what the “technical” language would mean to diplomats.
The Court referred to the case law governing the construction of Treaties by way of identifying what the words meant in their context, rather than through attempting to identify the underlying purpose.
The Court concluded that Sir Ivor’s reports were irrelevant and inadmissable. The primary task for the Court was to ascertain the meaning of the Treaty in light of the ordinary meaning to be given to the terms in their context, and in light of the object and purpose of the Treaty. This was an “exercise to be carried out by the Court applying established rules. We do not consider this to be a skilled exercise for diplomats where any special expertise is in play.”
The court held that he was unable to give expert evidence as to the ordinary meaning, context, or purpose of the Treaty. Further, Sir Ivor had commented on the purpose of the parties to the Notes — which was an impermissible approach. He also expressed “inadmissible views as to whether or not the enjoyment of immunity ensured the efficient performance of the functions of the mission.” There was no specific term in the Notes which was ambiguous or unclear, or had a particular technical practice. Nor was there any diplomatic rule or practice identified that could conceivably bear on the ordinary meaning of any of the terms. Sir Ivor had no specific expertise that could place him in a better position to consider whether the FCO’s interpretation was absurd or irrational.
This case is a useful illustration of the power of the court to police the ambit of the judicial review procedure and of its differences to ‘conventional’ civil litigation procedure. However, the novel approach taken by the Claimants as to the requirement to go behind a legal representative’s declaration as to relevance would potentially have had very wide consequences, and it is hardly surprising that it was squashed so forcefully.
Dominic Ruck Keene is a barrister at 1 Crown Office Row