Brigadier Andige Priyanka Indunil Fernando v Majuran Sathananthan
| Jurisdiction | England & Wales |
| Judge | Sir Julian Flaux,Mrs Justice McGowan |
| Judgment Date | 19 March 2021 |
| Neutral Citation | [2021] EWHC 652 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/1091/2020 AND CO/1856/2020 |
| Date | 19 March 2021 |
[2021] EWHC 652 (Admin)
Sir Julian Flaux CHANCELLOR OF THE HIGH COURT
and
Mrs Justice McGowan
Case Nos: CO/1091/2020 AND CO/1856/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Nick Wayne (instructed by Ronald Fletcher Baker LLP) for the Appellant
Peter Carter QC and Shanthi Sivakumaran (instructed by Public Interest Law Centre) for the Respondent
Hearing date: 2 December 2020
Approved Judgment
Sir Julian Flaux Chancellor of the High Court and
This case raises the issue whether the actions of the appellant were carried out in “the exercise of his functions” as a member of the Sri Lankan mission in London, and, accordingly, whether he has continuing functional immunity from prosecution, after departure from the United Kingdom, by virtue of article 39(2) of the Vienna Convention on Diplomatic Relations (“VCDR”).
We are extremely grateful to counsel for their helpful written and oral submissions. We also observe that we do not doubt the real concerns of the Private Prosecutor in initiating these proceedings.
Factual History
Brigadier Andige Priyanka Indunil Fernando, (“the appellant”) was the Minister Counsellor for Defence at the Sri Lankan High Commission to the United Kingdom. He was a serving diplomatic agent and accordingly, whilst in post, had the protection of diplomatic immunity from prosecution.
On 4 February 2018 a protest was held outside the High Commission. One of the appellant's functions was to safeguard the High Commission and to monitor those protesting against the Sri Lankan government.
On that date he stood on the steps of the High Commission in full uniform and watched the demonstration. He was seen to draw his fingers across his neck in a “cut-throat” gesture on three occasions. The incident was filmed and there was no dispute that it had taken place. Further there is no dispute that he had diplomatic immunity on that date.
The incident was witnessed by Majuran Sathanathan, (“the respondent”). On 6 February 2018, an information was laid by the respondent at Westminster Magistrates Court. The information alleged offences against the appellant of using threatening or abusive words or behaviour, contrary to section 5 of the Public Order Act 1986; threatening unlawful violence contrary to section 4 of the Public Order Act 1986 and making threats to kill contrary to section 16 of the Offences against the Person Act 1861.
Cases which raise the issue of diplomatic immunity are designated as “Chief Magistrate's Business” and the court follows a particular procedure. At the time the information was laid the court was not told that there was, or may be, any issue of diplomatic immunity. The respondent was acting in person but had the assistance of a solicitor.
On 22 February 2018 a summons was issued in the usual manner. It required the appellant's attendance at Westminster Magistrates Court on 13 March 2018. On 21 January 2019 the appellant was convicted, in his absence. The appellant had in fact left the UK on 18 April 2018 and returned to Sri Lanka. On 15 March 2019, the conviction was set aside using powers under section 142 of the Magistrates Court Act 1980. The court had become aware of the issue of diplomatic immunity and reviewed the proceedings under its inherent powers. The Chief Magistrate set aside the conviction and ordered that the matter be re-heard and the issue of immunity be fully canvassed.
Proceedings recommenced and the issue of immunity was argued before the Chief Magistrate at a hearing 1 March 2019. On that date the Chief Magistrate ruled that the appellant was not entitled to diplomatic immunity as she found that the acts complained of did not form part of his “job description”. Following further argument, at a hearing on 6 December 2019, she declined to set that finding aside and she found him guilty of the section 4 offence, the alternative section 5 offence was adjourned sine die.
Current Proceedings
The matter comes before this court as an appeal by case stated and a claim for judicial review. The court has joined the applications. The case stated was formulated by the Chief Magistrate in the form of a single question,
“Was I right to determine that the actions he performed, whilst he was a diplomat, were outside the functions of the mission and therefore not covered by residual immunity when the defendant faced trial?”
The claim for judicial review arises out of the decision of the Chief Magistrate to answer the request to state a case in the form of that single question, rather than four separate answers to the four questions posed, as follows:
a. Whether the Magistrates' Court had jurisdiction and/or should have dismissed the prosecution in circumstances in which the information was laid and the summons issued at a time when the Defendant remained a diplomat entitled to diplomatic immunity?
b. Whether the Magistrates' Court erred by concluding that the acts alleged were not covered by diplomatic immunity in circumstances in which it appeared to have been found that the act in question occurred at a time when the Defendant was performing functions as a member of the mission?
c. Whether the Magistrates' Court erred by relying on an implicit conclusion that the acts alleged were wrong or unacceptable when concluding that the acts alleged were not covered by diplomatic immunity?
d. Whether the Magistrates' Court erred by appearing to find that the Defendant could perform functions as a member of mission and perform private acts at the same time?
The respondent submits that the Chief Magistrate was acting within her discretion to limit the case stated to the single question. The appellant's primary position is that all the issues which are required to be determined by this court are covered by the case stated. As Keene LJ said in Oladimeji v Director of Public Prosecutions [2006] EWHC 1199 (Admin) this court needs: “ clear findings of fact, and a clear identification of the issues of law which are said to arise,”. The issues here are clear and the facts are relatively straightforward. Accordingly, we have determined the issues as set out in the single question in the case stated. In all the circumstances, it is not necessary to consider the claim for judicial review further.
Furthermore, we do not consider it necessary to deal with the issue as to jurisdiction upon which Mr Southey QC spent some time in oral argument, namely whether there was jurisdiction to issue the summons on 22 February 2018 at a time when the appellant was still in the UK and thus had full diplomatic immunity. This is because ultimately, Mr Southey QC seemed to us to accept that the respondent could have legitimately sought to issue a fresh summons after the appellant left the jurisdiction, which is obviously correct.
In relation to the question posed in the case stated, it is for this court to consider whether the decision of the Chief Magistrate was “wrong in law” in her determination that the appellant did not have immunity from suit which continued after his departure from the UK: see section 111(1) of the Magistrates Court Act 1980.
Legal Framework
The Diplomatic Privileges Act 1964 gives effect to the VCDR. The VCDR is the consolidation of all the historical strands of diplomatic immunity, which have developed over time. It has been described as “a cornerstone of the modern international order”, by Professor Denza in the leading textbook, Diplomatic Law.
Diplomatic immunity is immunity from suit. It does not determine whether an offence has been committed by an individual, rather it protects the holder from prosecution in the receiving state. Article 31 of the VCDR grants immunity to a diplomatic agent from the criminal jurisdiction of the receiving state.
In this case the issue concerns the doctrine of “residual immunity”. The appellant, it is accepted, had immunity from suit whilst serving his country in their mission here, under the terms of articles 31 and 39(1). Whether that immunity continues after his departure from the UK depends on whether his conduct falls within the terms of article 39(2). Article 39 provides:
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceeding to take up his post or, if already in its territory, from the moment which his appointment is notified to the Ministry for Foreign Affairs or such other ministry as maybe agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. (emphasis added)
Section 2(1) of the Diplomatic Privileges Act 1964 provides that the articles of the VCDR dealing with diplomatic immunity, which include article 39, “shall have the force of law in the United Kingdom”.
The history and development of the protection from suit granted by diplomatic immunity is long established and was set out in the judgment of Lord Sumption in the Supreme Court in Reyes v Al-Malki and another [2017] UKSC 61; [2019] AC 735. At paragraph 12 of his judgment, he explained the over-arching importance of the principles:
“In the case of the Convention on Diplomatic Relations, there are particular reasons for adhering to these principles:
(1) Like other multilateral...
To continue reading
Request your trial
-
Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos de Borbón y Borbón
...travelling and assaulted him was, by contrast, properly to be regarded as a “public act”. The recent case of Fernando v Sathananthan [2021] EWHC 652 (Admin) [37]-[40] also helpfully analyses the difference “between acts performed qua diplomat and acts performed in a personal capacity”. 75.......
-
Sayn-Wittgenstein-Sayn v Borbon y Borbon
...and assaulted him was, by contrast, properly to be regarded as a “ public act”. The recent case of Fernando v Sathananthan [2021] EWHC 652 (Admin) [37]–[40] also helpfully analyses the difference “ between acts performed qua diplomat and acts performed in a personal 75 For the sake of clar......