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 | Mr Justice Saini,Lord Justice Flaux |
| Judgment Date | 24 November 2020 |
| Neutral Citation | [2020] EWHC 3185 (Admin) |
| Date | 24 November 2020 |
| Docket Number | Case No: CO/4688/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3185 (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
and
Geoffrey Robertson QC, Sam Wordsworth QC, Adam Wagner, Sean Aughey, Monica Feria-Tinta and Emilie Gonin (instructed by Howard Kennedy LLP) for the Claimants
Sir James Eadie QC, Professor Vaughan Lowe QC, Ben Watson, Jason Pobjoy and George Molyneaux (instructed by Government Legal Department) for the Defendant
Jason Beer QC (instructed by East Midlands Police Legal Services) for the Interested Party
Remote hearing dates: 11–12 November 2020
Approved Judgment
Lord Justice Flaux and
This judgment is in 8 main parts as follows:
| I. Overview — | paras. [1] – [10] |
| II. Diplomatic Immunity: legal framework — | paras. [11] – [20] |
| III. The Exchange of Notes — | paras. [21] – [36] |
| IV. The Facts — | paras. [37] – [81] |
| V. Ground 1: Immunity — | paras. [82] – [120] |
| VI. Ground 2: Obstruction/unlawful advice — | paras. [121] – [135] |
| VII. Ground 3: Article 2 ECHR — | paras. [136] – [145] |
| VIII. Conclusion — | paras. [146] – [147] |
I. Overview
The Claimants, Charlotte Charles and Tim Dunn, are the parents of Harry Dunn. These proceedings for judicial review arise out of Harry's death in a road traffic accident on 27 August 2019.
On that day, Harry (then aged 19 years) was killed following a collision between his motorbike and a vehicle driven by Anne Sacoolas (“Mrs Sacoolas”). Mrs Sacoolas is the wife of Jonathan Sacoolas, a member of the US Government's Administrative and Technical (“A&T”) Staff at RAF Croughton. Harry's motorbike was struck by Mrs Sacoolas' car as she drove out of the base on the evening of 27 August 2019. The evidence strongly suggests she was driving on the wrong side of the road when she struck Harry's motorbike, and Mrs Sacoolas subsequently appears to have accepted this fact through her US lawyers.
Following the accident there was a period of dialogue between the US Embassy and the Foreign and Commonwealth Office (“the FCO” — now the Foreign, Commonwealth and Development Office) concerning the potential diplomatic immunity of Mrs Sacoolas from the criminal jurisdiction of the United Kingdom.
Upon the conclusion of that dialogue, on 15 September 2019, Mrs Sacoolas left England, the FCO having accepted that Mrs Sacoolas was entitled to immunity from criminal proceedings in the United Kingdom. Although the Defendant is the Secretary of State, for convenience we will refer to the Defendant as “the FCO”, as the parties have done in their submissions before us.
On 22 December 2019, the CPS began extradition proceedings against Mrs Sacoolas in respect of a charge of causing Harry's death by dangerous driving. The Home Office submitted an extradition request on 10 January 2020, but the US State Department has declined to progress the extradition, asserting that at the time of the accident Mrs Sacoolas enjoyed immunity from criminal proceedings in the United Kingdom. At present, there seems to be little prospect of Mrs Sacoolas returning to the United Kingdom to face any proceedings in respect of Harry's death.
By this claim, Harry's parents challenge the FCO's determination that at the time of Harry's death, Mrs Sacoolas enjoyed diplomatic immunity (Ground 1). They also allege that the FCO unlawfully confirmed and/or advised the relevant police force that Mrs Sacoolas had immunity from criminal jurisdiction and/or obstructed a criminal investigation (Ground 2). Finally, they claim that these acts breached Article 2 of the ECHR (Ground 3).
This is a “rolled up” hearing to consider both the issue of permission to apply for judicial review and the substantive merits in respect of these grounds. The hearing was conducted remotely.
The FCO's response to Ground 1 is that, as a matter of both domestic and international law, Mrs Sacoolas automatically enjoyed diplomatic immunity from the time she entered the UK and that immunity had not been waived by the US. They also argue that Grounds 2 and 3 are essentially parasitic on Ground 1, but that in any event the FCO did not obstruct or interfere with the independent decisions of the Chief Constable of the Northamptonshire Police (formerly the Second Defendant) who has also concluded that Mrs Sacoolas had immunity at the time of the accident. The Claimants originally made claims against the Chief Constable but those claims were discontinued on 27 July 2020. The Chief Constable is now an Interested Party.
Before we turn to the first of the main issues, we should record that the FCO made an application to withhold certain passages in three Ministerial Submissions disclosed in these proceedings on grounds of public interest immunity (“PII”), pursuant to CPR 31.19(1). These Ministerial Submissions are referred to in Section III below. We acceded to the PII application for the reasons given in a judgment dated 9 November 2020: [2020] EWHC 3010 (Admin).
For completeness, we have reconsidered the issue of non-disclosure in the light of the specific arguments made to us at the hearing. We remain of the view that the withheld passages are not relevant to the issues we need to decide and the balance of the public interests justifies the redactions.
II. Diplomatic Immunity: legal framework
As explained by Lord Sumption in Al-Malki v Reyes [2017] UKSC 61; [2019] AC 735 at [5], the legal immunity of diplomatic agents “is one of the oldest principles of customary international law”. The law is codified in the Vienna Convention on Diplomatic Relations (“VCDR”), to which over 190 States are Parties.
In Al-Malki, Lord Sumption at [11]–[12] referred to the primary rule of interpretation laid down in article 31(1) of the Vienna Convention on the Law of Treaties (1969). In summary, that provision requires that a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Lord Sumption explained that the principle of construction according to the ordinary meaning of terms is mandatory (“shall”), but that is not to say that a treaty is to be interpreted in a spirit of “pedantic literalism”. The language must, as the rule itself insists, be read in its context and in the light of its object and purpose. However, the function of context and purpose in the process of interpretation is to enable the instrument to be read as the parties would have read it. It is not an alternative to the text as a source for determining the parties' intentions.
Of specific importance to the present case is Lord Sumption's observation that in the case of the VCDR there are particular reasons for adhering to these principles. He explained at [12]:
“(1) Like other multilateral treaties, the text was the result of an intensely deliberative process in which the language of successive drafts was minutely reviewed and debated, and if necessary amended. The text is the only thing that all of the many states party to the Convention can be said to have agreed. The scope for inexactness of language is limited.
(2) The Convention must, in order to work, be capable of applying uniformly to all states. The more loosely a multilateral treaty is interpreted, the greater the scope for damaging divergences between different states in its application. A domestic court should not therefore depart from the natural meaning of the Convention unless the departure plainly reflects the intentions of the other participating states, so that it can be assumed to be equally acceptable to them…
(3) Although the purpose of stating uniform rules governing diplomatic relations was “to ensure the efficient performance of the functions of diplomatic missions as representing states”, this is relevant only to explain why the rules laid down in the Convention are as they are. The ambit of each immunity is defined by reference to criteria stated in the articles, which apply generally and to all state parties. The recital does not justify looking at each application of the rules to see whether on the facts of the particular case the recognition of the defendant's immunity would or would not impede the efficient performance of the diplomatic functions of the mission. Nor can the requirements of functional efficiency be considered simply in the light of conditions in the United Kingdom. The courts of the United Kingdom are independent and their procedures fair. It is difficult to envisage that exposure to civil claims would materially interfere with the efficient performance of diplomatic missions. But as the Secretary of State for Foreign and Commonwealth Affairs pointed out, the same cannot be assumed of every legal system in every state. The threat to the efficient performance of diplomatic functions arises at least as much from the risk of trumped up or baseless allegations and unsatisfactory tribunals as from justified ones subject to objective forensic appraisal. It may fairly be said that from the United Kingdom's point of view, a significant purpose of conferring diplomatic immunity of foreign diplomatic personnel in Britain is to ensure that British diplomatic personnel enjoy corresponding immunities elsewhere.
(4) Every state party to the Convention is both a sending and receiving state. The efficacy of the Convention depends, even more than most treaties do,...
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