High Court dismisses Harry Dunn challenge

14 December 2020 by Anogika Souresh

R (on the application of Charlotte Charles and Tim Dunn) v Secretary of State for Foreign and Commonwealth Affairs & Chief Constable of Northamptonshire Police [2020] EWHC 3185 (Admin)

At a “rolled up” hearing on both permission and substantive merits, a challenge was considered by the High Court to the decision of the Foreign and Commonwealth Office’s (“FCO”) that Anne Sacoolas, the wife of a member of the US Government’s Technical and Administrative staff stationed at RAF Croughton, was entitled to diplomatic immunity from prosecution.

The challenge to this decision was dismissed on all grounds. However, permission to appeal to the Court of Appeal has been granted.

Background

The Claimants, Charlotte Charles and Tim Dunn, are the parents of Harry Dunn. On 27 August 2019, Harry Dunn was killed following a collision between his motorbike and a vehicle driven by Mrs Sacoolas.

Mrs Sacoolas was the wife of Jonathan Sacoolas, a member of the US Government’s Administrative and Technical (“A&T”) staff at RAF Croughton. The FCO determined that Mrs Sacoolas was entitled to immunity from criminal proceedings and sought a waiver of immunity, but on 13 September 2019, this was declined by the US authorities. On 15 September 2019, Mrs Sacoolas left England and returned to the United States.

On 24 September 2019, the FCO asked the US to reconsider the waiver of immunity and on 22 December 2019 the CPS began extradition proceedings against Mrs Sacoolas for death by dangerous driving. An extradition request was submitted by the Home Office on 10 January 2020, but this was declined by the US State Department.

The Claimants challenged the FCO’s determination that, at the time of Harry Dunn’s death, Mrs Sacoolas enjoyed diplomatic immunity and the FCO’s confirmation and/or advice to the relevant police force that Mrs Sacoolas had immunity from criminal jurisdiction.

Immunity

The laws of immunity are central to this decision. The Vienna Convention on Diplomatic Relations (“VCDR”) has been in force since 24 April 1964. 192 States are party to the convention.

The VCDR has been implemented in part by the Diplomatic Privileges Act 1964, s.2(1).

Article 29 of the VCDR provides that: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention”. Article 31 of the VCDR state: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State […] A diplomatic agent is not obliged to give evidence as a witness”.

Article 32 of the VCDR states that an immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. Any such waiver must always be express.

Article 37(2) provides:

Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation.

The entitlement to privileges and immunities of members of a mission arises from the automatic operation of the VCDR, given domestic effect by the 1964 Act. A&T staff enjoy inviolability and immunity from criminal jurisdiction both as a matter of international law, by operation of Articles 29, 31(2), and 37(2) VCDR and as a matter of domestic law by operation of s.2(1) of the 1964 Act.

Article 37 VCDR confers separate entitlements to immunity to the family members of a diplomatic agent or member of A&T staff.

Importantly in respect of this case, in 1995 the US Government agreed to waive immunity from criminal jurisdiction in respect of acts performed outside the course of the duties of staff at Croughton who have only A&T status. This was an express advance waiver of immunity. It was done by way of an Exchange of Notes on 15 August 1995.

To summarise:

1. There was an express waiver of immunity from UK criminal jurisdiction of employees and staff members in the A&T category at RAF Croughton;
2. There was no reference to the position of family members of A&T staff; and
3. The discussions took place with reference to the VCDR.

The Judgment

Ground 1: Immunity

The main issue was whether Mrs Sacoolas enjoyed immunity from criminal jurisdiction. The Claimants submitted that she enjoyed no immunity because she could not have greater immunity than her husband, whose immunity in relation to criminal jurisdiction had been waived by the Exchange of Notes.

The Court (Flaux LJ and Sayani J) concluded that the issue must be approached in the context of the VCDR. The VCDR was the framework for the Exchange of Notes. The privileges and immunities afforded to the Mr and Mrs Sacoolas derived from the VCDR and 1964 Act. The immunities were enjoyed in full, subject to any valid waiver. The only valid waiver was found in the Exchange of Notes, which applied only to Mr Sacoolas’s immunity from criminal jurisdiction. In regard to Mrs Sacoolas, there was no waiver. Therefore, Mrs Sacoolas enjoyed full immunity:

In conclusion, we consider that in order for there to have been a waiver of Mrs Sacoolas’ immunity (an entitlement she had on arrival), the machinery of Article 32 of the VCDR had to be employed, and that required an express advance or later waiver. It is common ground that there was no such waiver [113].

Ground 2: Unlawful Advice/Obstruction

It was also the Claimants’ case that it was unlawful for the FCO to “obstruct a criminal investigation” by Northamptonshire Police (“NP”) and/or to confirm to and/or advise NP that Mrs Sacoolas and her husband had diplomatic immunity. Alternatively, it was an “abuse of power” for the FCO to have done anything other than inform the US that if its assertion of immunity was maintained that would have to be tested in the Courts.

But the Court noted that if Ground 1 failed, Ground 2 would necessarily fail: if Mrs Sacoolas enjoyed immunity in law, there cannot be unlawful advice/obstruction by the FCO.

NP agreed with the FCO’s conclusion that Mrs Sacoolas enjoyed diplomatic immunity: “There is no reason to think NP would have concluded otherwise had the FCO not acted in the way that the Claimants contend to be unlawful” [124]. In any case, as Mrs Sacoolas enjoyed inviolability under Article 29 of the VCDR, NP could not have lawfully arrested her.

Moreover, it was also found that, on the evidence, the FCO did not advise NP as to the legal position in relation to Mrs Sacoolas’s immunity. It was for NP to decide what steps to take in the criminal investigation. The FCO did nothing to prevent that [128].

Further, the Claimants’ arguments that there had been a failure to disclose the Exchange of Notes to NP and to advise NP that FCO’s initial analysis had been that Mrs Sacoolas did not have immunity and the FCO’s ultimate decision to accept the US assertion of immunity was rejected, with the Court finding that this did not raise an arguable claim of unlawfulness in public law. As the FCO is not under a legal duty to provide documents to the police, not doing so did not give rise to unlawfulness.

Ground 3: Article 2 ECHR

Under article 2 ECHR, the State has a duty to investigate deaths. However, the VCDR inhibits an Article 2 ECHR investigation, as diplomats and their family members enjoy inviolability, pursuant to Article 29 VCDR and “shall not be liable to any form of arrest or detention”.

The Court concluded that:

In short, Article 2 has to accommodate the VCDR and a complaint that this treaty obstructs an effective investigation is not tenable as a matter of either domestic law or Strasbourg jurisprudence [141].

This Ground was dismissed accordingly.

Commentary

The main argument in this case concerned whether Mrs Sacoolas’s enjoyed immunity. Grounds 2 and 3 were dependent on Ground 1.

The decision of Lord Justice Flaux and Mr Justice Saini reads the VCDR in light of its ordinary meaning, in accordance with established jurisprudence and Article 31 of the Vienna Convention on the Law of Treaties.

The starting point in this case is that Mr Sacoolas and Mrs Sacoolas enjoyed immunity under the VCDR as soon as they landed in the UK. The second step is that Mr Sacoolas’s immunity was curtailed by an express waiver in the form of the Exchange of Notes. No such express waiver exists for Mrs Sacoolas.

To suggest that Mrs Sacoolas’s immunity must also be curtailed would place the waiver prior to the entitlement of immunity. The entitlement to immunity under the VCDR must come first and, in the event that it is not curtailed, must continue.

As such, it must be the case that she still enjoys her immunity under the VCDR. To suggest otherwise would be putting the cart before the horse.

The Court of Appeal will consider these issues in due course.

Anogika Souresh is a barrister at 1 Crown Office Row. She was instructed by the Government Legal Department to undertake document work in preparation for this case, but this article is a summary of the publicly-available judgment.