The Freedom and Justice Party and Others v Secretary of State for Foreign and Commonwealth Affairs and Another The Commissioner of Police for the Metropolis (Interested Party) Amnesty International and Another (Interveners)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones |
| Judgment Date | 05 August 2016 |
| Neutral Citation | [2016] EWHC 2010 (Admin) |
| Docket Number | Case No: CO/6384/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 August 2016 |
The Queen on the application of
and
and
[2016] EWHC 2010 (Admin)
Lord Justice Lloyd Jones
Mr Justice Jay
Case No: CO/6384/2015
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sudhanshu Swaroop QC and Tom Hickman (instructed by ITN Solicitors) for the Claimants
Tim Eicke QC, Guglielmo VerdirameandJessica Wells (instructed by Government Legal Department) for the First Defendant
Paul Rogers and Katarina Sydow (instructed by the Crown Prosecution Service) for the Second Defendant
Jeremy Johnson QC (instructed by MPS, Directorate of Legal Services) for the Interested Party
Shaheed Fatima QC and Rachel Barnes (instructed by Hickman and Rose) for the Interveners (by written submissions only)
Hearing dates: 28 th and 29 th June 2016
Approved Judgment
| Section | Para No. |
| I. INTRODUCTION | 1 |
| II. FACTUAL BACKGROUND | 6 |
| III. THE COURSE OF THE LITIGATION | 29 |
| IV. PROCEDURAL ISSUES | 35 |
| V. CUSTOMARY INTERNATIONAL LAW | 74 |
| Introduction | 74 |
| The test for the existence of a rule of customary international law | 77 |
| State practice in relation to treaties | 82 |
| The Havana Convention regarding Diplomatic Officers, 1928 | 83 |
| 85 | |
| The Convention on Special Missions, 1969 | 87 |
| The work of the International Law Commission 1960–1967 | 89 |
| Decisions of international courts and tribunals | 104 |
| State practice: the United Kingdom | 106 |
| State practice: the United States | 121 |
| State practice: other States | 129 |
| The Committee of Legal Advisors on Public International Law (CAHDI) | 144 |
| The views of jurists | 148 |
| Conclusion on customary international law | 163 |
| VI. THE COMMON LAW | 166 |
| VII. CONCLUSION | 180 |
| ANNEX | |
| Committee of Legal Advisors on Public International Law (CAHDI): Replies by States to the questionnaire on immunities and special missions |
I. Introduction
This is the judgment of the court to which both members have contributed.
The substantive issue raised by the Claimants in this application for judicial review is whether members of special missions visiting the United Kingdom with the approval of the First Defendant ("the FCO") enjoy personal inviolability and/or immunity from criminal process pursuant to a rule of customary international law to which effect is given by the common law.
The Claimants deny the existence of such a rule, and in any event contend that the common law should not give effect to it. They submit that these judicial review proceedings are the appropriate vehicle for enabling this important point of principle to be determined. The FCO and the Second Defendant ("the DPP") adopt common cause in averring the existence of such a rule of customary international law which, to the extent it has not already been recognised by the common law, should now be recognised. The FCO further contends that the court in its discretion should not entertain this application on a number of related grounds. The DPP shares some of the FCO's concerns in relation to the standing of these Claimants but (as more fully explained below) wishes to be informed by this court if its understanding of the law is incorrect.
The Interested Party ("the MPS") adopts a neutral position in relation to what it describes as the "important legal issue that arises as between the Claimants and the Defendants".
Amnesty International and Redress have filed helpful written submissions on the substantive issue but have taken no position on the particular facts of this case or the court's exercise of its discretion.
II. Factual background
The law relating to permanent missions has been codified in the form of the Vienna Convention on Diplomatic Relations, 1961 ("VCDR") (as a matter of international treaty law binding on the United Kingdom and 189 other States in their mutual relations) and the Diplomatic Privileges Act 1964 (as a matter of domestic law within the United Kingdom). Special or ad hoc missions fall outside these regimes. The UN Convention on Special Missions, adopted in 1969 and which came into force in 1985, has been signed but not ratified by the United Kingdom and no domestic legislation in this jurisdiction reflects or enacts its provisions.
Following the decision of this court in Khurts Bat v Federal Republic of Germany [2013] QB 349, on 4 th March 2013 the FCO (acting by the then Secretary of State, the Rt. Hon. Mr. William Hague MP) gave a written Ministerial Statement on "special mission immunity" announcing a "new pilot process by which the Government will be informed of inward visits which may qualify for special mission immunity status". It is the Government's view that members of special missions "enjoy immunities, including immunity from criminal proceedings and inviolability of the person" to which the common law gives effect. By an accompanying note verbale, foreign governments are advised that the Protocol Directorate of the FCO should be given at least 15 days' notice of the arrival of the mission, providing details, amongst other matters, of the visitor's full name and title, and role or function. It is the policy of the FCO to grant the application for consent to the visit only in respect of "official business". Both the note verbale and the Ministerial Statement make clear that consequential issues of legal effect and status "would ultimately be a matter for the courts", because the FCO's function is limited to the issue of consent to a given visit as a special mission. The note verbale reaffirms Her Majesty's Government's "firm policy of ending impunity for the most serious international crimes and a commitment to the protection of human rights".
Between June 2012 and July 2013 the First Claimant formed the elected Government of the Arab Republic of Egypt. The Second Claimant was appointed Minister of Investment in the Government of Egypt in May 2013 but ceased to hold office in July 2013. The Third Claimant describes himself as "the Foreign Relations Secretary of the Freedom and Justice Party of Alexandria" from June 2012 to July 2013. He is currently seeking asylum in the United Kingdom.
In July 2013 the First Claimant lost power in what it characterises as a "violent coup d'état orchestrated by the current military regime". It says that in August 2013 there was a "widespread, systematic and violent clampdown" on supporters of the previous regime, and that atrocities took place, including killings and acts of torture, during the course of a demonstration in Rab'a Square in support of ex-President Morsi, and its aftermath.
According to the evidence of Mr Tayab Ali, the First Claimant's solicitor:
"Since the coup, the First, Second and Third Claimants have been acting as representatives for thousands of individual victims of the coup. Individuals went to the First Claimant, as they were able to instruct lawyers and pursue a number of cases to seek redress and accountability for the coup. The First Claimant consequently instructed us to pursue a number of avenues for complaint … In that capacity, I have received instructions via the First Claimant for inter alia:
(1) Victims of the numerous atrocities at Rab'a Square
(2) Field doctors from Rab'a Square, who were attacked by security forces while they attempted to treat victims…
(3) Individuals who have been subjected to torture in Egyptian custody."
The Fourth Claimant, whose name has been anonymised by the order of Sweeney J. dated 16 th February 2016, is a British citizen and surgeon who went to Egypt in July and August 2013 to assist in emergency field hospitals. He is not a member of the First Claimant. His witness statement graphically describes the immediate aftermath of a number of violent events, in particular what he characterises as an attack on a peaceful protest carried out by the Egyptian police, army and security services on 27 th July 2013. He states that the field hospital at which he was working was overwhelmed by patients with life-threatening injuries. He informs the court that "over ten hours, we received over 3,000 patients, 200 of whom died". The Fourth Claimant states that he was deeply disturbed by what he witnessed, and seeks justice for what happened to the victims from those responsible.
The First Claimant, through in particular Mr Ali, has since February 2014 been pressing the War Crimes Unit of the Metropolitan Police Counter-Terrorism Command (SO15) to arrest in the United Kingdom individuals responsible for torture in Egypt, pursuant to the universal jurisdiction conferred by section 134 of the Criminal Justice Act 1988. The precise detail of the endeavours made by the First Claimant and its advisers need not be addressed, but – for example – on 28 th February 2014 a meeting took place involving Mr Ali, four Queen's Counsel and members of the MPS. At around that time, Mr Ali's firm submitted a file to SO15 containing evidence of the alleged involvement of a number of individuals in significant international crimes. Mr Ali does not give the precise date, but according to paragraph 24 of his witness statement "we have provided the Police and the Crown Prosecution Service with a list of 43 named suspects that have been identified as responsible for the relevant crimes". SO15 then began a scoping exercise in accordance with internal guidelines.
According to the evidence of Deborah Walsh, who is Head of Counter...
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