The Freedom and Justice Party and Ors v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 19 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1719 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/3648 |
| Date | 19 July 2018 |
The Queen on the Application of
and
and
[2018] EWCA Civ 1719
Lady Justice Arden
Lord Justice Sales
and
Lord Justice Irwin
Case No: C1/2016/3648
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
IN THE HIGH COURT OF JUSTICE DIVISIONAL COURT
LORD JUSTICE LLOYD JONES & MR JUSTICE JAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Sudhanshu Swaroop Q.C., Tom Hickman & Philippa Webb (instructed by ITN Solicitors) for the Appellants
Karen Steyn QC, Jessica Wells, Guglielmo Verdirame, (instructed by Government Legal Department) for the First Respondent
Paul Rogers and Katarina Sydow (instructed by the Director of Public Prosecutions) for the Second Respondent The interveners did not appear but made written representations
Hearing dates: 21–22 March 2018
APPROVED JUDGMENT
Overview and summary of conclusions
This is the judgment of the Court to which all members of the Court have contributed.
This appeal concerns “special missions”. We use the definition of “special mission” found in the UN Convention on Special Missions, 1969 (“the UNCSM”). That reads:
a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task;..
States use special missions in international relations in lieu of or in addition to their permanent diplomatic missions in other countries. The issues on this appeal are about the immunities to be given to special missions.
A special mission could be a single envoy or a delegation. There is nothing in the definition in the UNCSM to limit the nature of the business with which it is engaged. It could be trade or other matters. The special mission is not a new development. The judgment of the Divisional Court (Lloyd Jones LJ and Jay J) dated 5 August 2016 and now under appeal explains that:
Temporary missions were the earliest form of diplomatic missions but they fell into relative disuse in the seventeenth and eighteenth centuries as the practice of exchanging permanent envoys and embassies grew.
This appeal is not, however, about the historic or current use of special missions, or their obvious usefulness. Special missions are clearly used in many situations across the world where there are no permanent missions or for functions for which a member of a permanent mission would not be a suitable or the most suitable representative of the sending state. Rather the issues are (1) whether under customary international law the receiving state must grant, for the duration of the special mission's visit, the privileges of personal inviolability (that is, freedom from arrest or detention) and immunity from criminal proceedings (which we shall call the “core” immunities) in the same way that members of permanent missions are entitled to such immunities under the Vienna Convention on Diplomatic Relations, 1961 (“the VCDR”), and (2) whether such immunities are recognised by the common law.
The UNCSM was adopted by the General Assembly of the United Nations on 8 December 1969. It entered into force on 21 June 1985. Like the VCDR it was based on draft articles prepared by the International Law Commission (“the ILC”). The United Kingdom has signed but not ratified the UNCSM. We have set out extracts from the UNCSM in appendix 1 to this judgment. It is understood that the reason why the United Kingdom has not ratified the UNCSM is that it provides that special missions should automatically have not only the core immunities but also other immunities extending beyond the immunities which the particular special mission might need for its visit, such as those in Articles 25 to 28 and 31.2 of the UNCSM (included in appendix 1) (see Response to consultation of the United Kingdom, [1967] Vol II YB ILC 395–6).
As explained in the judgment below, the UNCSM was described in the UN General Assembly resolution of 8 December 1969 (A/RES/2530 (XXIX)) adopting it as a measure of “codification and progressive development” of international law and the product of a project by ILC. The UNCSM itself is silent as to whether its provisions reflect customary international law.
Indeed, the UNCSM has currently only been ratified by thirty-nine states, though they are widely drawn from Europe, Africa, Asia and the Americas. The UNCSM was adopted by a UN General Assembly resolution with 98 states in favour, none against and one abstention on 8 December 1969. We have inserted “(p)” below next to the names of the states which are parties when we refer to them. The evidence of state practice in this case as to the rule of customary international law which the Divisional Court found to exist comes not simply from states which are not party to the UNCSM but also from states which are bound by it, though of course they are only so bound with regard to other contracting states.
The practice of the British government is to provide consent in advance in appropriate cases to special missions, but to leave the question of immunities to the courts. This appears from a ministerial statement made by the Foreign Secretary, William Hague, to the House of Commons dated 4 March 2013, and the note which followed it.
The Divisional Court held that customary international law requires a receiving state to secure, for the duration of the visit, the core immunities for members of a special mission accepted as such by the receiving state and that this rule of customary international law is given effect by the common law. Before expressing any view on the points decided by the Divisional Court, we pay tribute to the erudition and analysis in the judgment, which, despite the fact it extends to 180 paragraphs, plus a substantial annex, was a model of concision and clarity.
The judgment of the Divisional Court on both those issues is challenged in this appeal, and we deal with them below separately.
For the reasons given below, this Court has concluded that the appeal should be dismissed. We consider that the evidence considered by the Divisional Court and further evidence which has since become available amply shows the existence of the rule of customary international law with which we are concerned. We also consider that this rule of customary international law is recognised by and accepted as part of the common law.
Sudhanshu Swaroop QC, Tom Hickman and Philippa Webb appear for the appellants and Karen Steyn QC, Jessica Wells and Guglielmo Verdirame appear for the first respondent. Paul Rogers and Katarina Sydow appear for the second respondent, but they have not played any substantial part in the submissions on this appeal as the Director's position is simply that she wishes to know the position in customary international law. In addition to leading counsel, we heard submissions from Mr Hickman and Mr Verdirame, and we therefore attribute some submissions to them. In this judgment, the acronym FCO will be used to mean either the first respondent or the Foreign and Commonwealth Office. The interested party and interveners did not appear but copies of the skeletons used below of the interested party (signed by Jeremy Johnson QC) and Interveners (signed by Shaheed Fatima QC and Rachel Barnes) have been provided to us, together with written submissions on the appeal from Ms Fatima QC, Ms Barnes and Daniel Machover for the Interveners. We are grateful for all these materials.
Events giving rise to these proceedings: visit by Egyptian delegation and appellants' objections
These are explained in more detail by the Divisional Court. The appellants are former members of the Egyptian government. Egypt has neither signed nor ratified the UNCSM. They contended that a person whom we will refer to as Lt. General Hegazy had been responsible for torture in the course of events which led to the downfall of the government of which they were members. In 2015 the FCO accepted the visit of Lt. General Hegazy and other members of his delegation as a special mission. The appellants requested that he be arrested. FCO and Crown Prosecution Service (“CPS”) guidance stated that special mission members were immune from arrest. No action was taken against Lt. General Hegazy. He left the United Kingdom at the mission's end. The Divisional Court had first to consider the appellants' standing to bring this claim, but that issue is not under appeal and so we need say no more about it.
A. CUSTOMARY INTERNATIONAL LAW
IDENTIFYING CUSTOMARY INTERNATIONAL LAW
The United Kingdom would be bound under international law to confer immunity on a special mission received and recognised by it only if customary international law required it to do so. Customary international law has to satisfy two requirements: there must be evidence of a substantial uniformity of practice by a substantial number of states; and opinio juris, that is, a general recognition by states that the practice is settled enough to amount to a binding obligation in international law. On occasion this recognition can be inferred from actual settled state practice (see the Jurisdictional Immunities case ( Germany v Italy, Greece intervening), International Court of Justice (“ICJ”) Reports, Judgment of 3 February 2012, [77]), but this will not always be the case (see SS Lotus (France v Turkey) (1927) PCIJ Ser A No 10, 28, where the Permanent Court was not satisfied that the states had acted as they did out of any sense of obligation). Customary international law does not have to cover...
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