The Queen (on the Application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Mr Justice Saini |
| Judgment Date | 24 June 2020 |
| Neutral Citation | [2020] EWHC 1620 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4688/2019 |
| Date | 24 June 2020 |
[2020] EWHC 1620 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
and
Mr Justice Saini
Case No: CO/4688/2019
Geofrey Robertson QC, Adam Wagner and Emilie Gonin (instructed by Howard Kennedy LLP) for the Claimants
Sir James Eadie QC, Ben Watson, Jason Pobjoy and George Molyneaux (instructed by Government Legal Department) for the First Defendant
Jason Beer QC instructed by East Midlands Police Legal Services for the Second Defendant
Hearing date: 18 June 2020
Approved Judgment
Lord Justice Flaux and
Introduction
This case relates to the tragic death of the claimants' son Harry Dunn who was killed in a road traffic collision near RAF Croughton in Northamptonshire on 27 August 2019 when his motorcycle collided with a car being driven on the wrong side of the road by Mrs Anne Sacoolas (“AS”), the wife of Jonathan Sacoolas (“JS”), a member of the administrative and technical staff of the US Embassy based at RAF Croughton.
As was made clear at the outset of the hearing, this is a case management conference not the substantive hearing contrary to the impression created in some press reports. On 16 January 2020, Supperstone J, then Judge in Charge of the Administrative Court, ordered that there be what is called a rolled-up hearing, in other words a hearing where the court determines whether the claimants should have permission to apply for judicial review and if it determines they should, goes on to consider and determine the judicial review. The date for that hearing is not yet fixed but it is likely to be in the Michaelmas Term. At the present hearing the court was concerned with two applications by the claimants: (i) an application for specific disclosure of documents by the first defendant and (ii) an application for permission to adduce expert evidence from Sir Ivor Roberts, an eminent retired diplomat. At the end of the hearing we informed the parties that both applications would be refused, with written reasons to follow. These are those reasons.
Factual and legal background
In order to put in context the case management issues we have to decide it is necessary to set out some of the factual and legal background, which we have sought to do on as neutral a basis as possible.
The arrangements by which such administrative and technical staff are based at RAF Croughton were agreed between the UK and US governments in an Exchange of Notes in 1994 and 1995 (“the Exchange of Notes”), by which, at the request of the US Embassy, the Foreign and Commonwealth Office (“FCO”) stated:
“the Government of the United Kingdom are only willing to accept the remaining [x] persons as members of the A&T staff of the United States Embassy in London with the privileges and immunities accorded to such staff pursuant to the provisions of Article 37.2 of the VCDR [Vienna Convention on Diplomatic Relations], on the understanding that the United States Government, by its reply to this letter, waives the immunity from criminal jurisdiction of these employees in respect of acts performed outside the course of their duties.”
That condition was accepted by the US Embassy. There was a further Exchange of Notes in 2001 when the US Embassy requested that it be allowed to base additional personnel at RAF Croughton. This was agreed on the basis of the same condition. It has recently emerged that there was a yet further Exchange of Notes in 2006 where a request for additional personnel to be based at Croughton was agreed on the basis of the same condition.
Article 37.2 of the VCDR provides:
“(2) 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.”
Articles 29 to 35 include inviolability of the person (Article 29) and immunity from criminal jurisdiction (Article 31). Article 32 provides: “the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State” but goes on to provide that “waiver must always be express”.
Following Mr Dunn's death, the US Embassy stated that AS enjoyed diplomatic immunity under Articles 29, 31 and 37(2), since the Exchange of Notes does not contain any express waiver of immunity of a family member of a member of administrative and technical staff. Having initially had internal doubts as to whether she did enjoy immunity, the FCO concluded that the US Embassy was correct. It requested that the US waive immunity in respect of AS but the US declined to do so. AS and her family left the UK on 15 September 2019. She has refused to return to the jurisdiction voluntarily and extradition proceedings have been commenced by the CPS.
The Grounds of Judicial Review
There are six grounds of judicial review raised by the claimants in their application for permission to apply for judicial review. On the afternoon before the hearing the claimants produced draft Amended Grounds expanding some of their allegations. Since permission to apply for judicial review has not yet been granted, the claimants would seem to be right that permission to amend is not required as CPR 54.15 only applies to applications to amend Grounds after permission to apply for judicial review has been granted in respect of the existing grounds. However, it is unsatisfactory that the Amended Grounds were not produced until the afternoon before the hearing. In the event, neither defendant objected to the amendments and, to the extent necessary, we gave permission to amend.
Ground 1 contends that the first defendant, the Foreign Secretary (“D1”), made an error of law in concluding that AS had diplomatic immunity under Article 37.2 of the VCDR. Thus, the issue, which is an issue of law, will be whether the waiver or condition in the Exchange of Notes covers family members notwithstanding the requirement in Article 32.2 that any waiver be express.
Ground 2 as proposed to be amended contends that it was unlawful for D1 to obstruct a criminal investigation by Northamptonshire Police, (“D2”), and/or to confirm to and/or advise D2 that AS and her husband JS had diplomatic immunity, alternatively that it was an abuse of power for D1 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.
Ground 3 contends that D2 abdicated its duty or fettered its discretion or breached a mandatory policy by accepting the advice of D1 or the Metropolitan Police that AS had immunity.
Ground 4, as amended, alleges that there has been a breach of Articles 2 and/or 6 of the ECHR, specifically of the duty to have a proper enquiry into Mr Dunn's death as a result of the defendants proceeding on the basis of the error of law that AS had immunity and D1 impeding the police investigation by allowing AS to leave the jurisdiction. Although Mr Geoffrey Robertson QC for the claimants sought to contend that Ground 4 was free-standing, it is clearly dependent upon Ground 1. If there was no error of law in relation to whether AS had immunity then it is difficult to see how Ground 4 can arise.
Ground 5 alleges that D1 had no power in domestic law to grant any immunity to the relevant US personnel at RAF Croughton, which is in effect an allegation that D1 had no power to accept their appointment as members of the administrative or technical staff of the mission because the only relevant powers for granting immunity were under the Visiting Forces Act 1952 and any grant of immunity needed but failed to comply with the procedural requirements of the Diplomatic Privileges Act 1964. It is contended that D1 exceeded the limited prerogative power by ceding sovereignty over a military base in the UK to a foreign state which could only be done by Parliament. By the proposed amendment to this Ground the claimants contend that RAF Croughton has at least since 2006 not been used for any form of diplomacy, but for military intelligence purposes.
Ground 6 alleges that by affording diplomatic immunity to family members of the relevant personnel D1 suspended the laws of the land without the consent of Parliament contrary to the Bill of Rights 1688.
The disclosure application
The claimants apply for specific disclosure by D1 of a number of categories of documents. The application was originally dated 10 January 2020 but was amended and supported by a statement dated 10 March 2020 of the claimants' solicitor Mr Mark Stephens. As explained in the first witness statement of Lorna Robertson of the GLD, since receipt of the claimants' pre-action letter of 25 October 2019, the GLD has undertaken a very extensive exercise of identifying and reviewing potentially relevant documents both relating to Mr Dunn's death and the FCO's response to it and to the arrangements made with the US about personnel based at RAF Croughton. She says about 17,400...
To continue reading
Request your trial
-
The Queen (on the Application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs
...also applied to Mrs Sacoolas. We summarised the Claimants' case in these terms without any dispute in our judgment at the CMC: [2020] EWHC 1620 (Admin) at 84 No doubt in recognition of the challenges posed to that case by the requirement under Article 32(1) of the VCDR that any waiver of M......
-
Heathrow Airport Ltd and Others v HM Treasury and another
...by the court and is not an exercise for experts: see e.g. R (Charles) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) at paragraph [49(i)] per Flaux LJ and Saini J. [217] Mr Harbinson's report and the responsive report of Mr Tereposky are not therefore adm......
-
The Queen (on the application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs
...legal background to these proceedings is set out in our judgment of 24 June 2020, following the Case Management Conference (CMC): [2020] EWHC 1620 (Admin) at paras. 2 Since that CMC, the Claimants have refined their grounds and now pursue only three of the original five grounds we describe......
-
The Queen (on the application of Charlotte Charles and Tim Dunn) v The Secretary of State for Foreign and Commonwealth Affairs
...legal background to these proceedings is set out in our judgment of 24 June 2020, following the Case Management Conference (CMC): [2020] EWHC 1620 (Admin) at paras. 2 Since that CMC, the Claimants have refined their grounds and now pursue only three of the original five grounds we describe......
-
The Lockerbie Aircraft Bombing Case and the Final Appeal
...Crim 1661, [5] and [52] and also R (on the application of Charles and Dunn) v Secretary ofState for Foreign and Commonwealth Affairs [2020] EWHC 1620 (Admin) (24 June 2020) (case management conference);and R (on the application of Charles and Dunn) v Secretary of State for Foreign and Commo......