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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 212 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| FAWAZ AL ATTIYA
|- and -
|HAMAD BIN-JASSIM BIN-JABER AL THANI
TOM DE LA MARE QC and TOM HICKMAN (instructed by IMRAN KHAN and PARTNERS) for the Claimant
Hearing dates: 12-13 January 2016
Crown Copyright ©
THE HONOURABLE MR JUSTICE BLAKE:
i) In the summer of 1997 the defendant wanted to buy land known as the Al-Rayyan land in Qatar (the land) belonging to the claimant and his family at a price that was not acceptable to the claimant. As a result of this refusal the claimant has been the subject of a sequence of adverse decisions including: pressure on him to resign from the Foreign Ministry and non-payment of his salary and expenses when he took sabbatical leave to study in the United Kingdom. It is further contended that the defendant obtained a prohibitive order preventing the claimant from selling the land on the basis that it was to be acquired by the state.
ii) In 2003 the Minister of Municipality instituted compulsory appropriation of the land against the claimant and other land owners for the purposes of building a project known as education city. The claimant was aggrieved at the price paid which was the same as the 1997 offer. He raised a grievance and instituted a series of petitions on the issue. In 2004 the Ministry agreed that a higher price should be paid that the claimant still considered was less than its market value. In June 2007 he was informed by the Acting Minister of Foreign Affairs, who was also the Director of office of the Prime Minister, that the question of compensation and title to the land was exhausted. In 2009 he issued various legal proceedings in Qatar about the land dispute and other matters.
iii) On 29 October 2009 the claimant was forcibly removed from Saudi Arabia to Qatar and on arrival in Qatar was detained in government premises. With the exception of a few days when he escaped from custody, he was detained in one place or another until January 2011 when he was released. He was interrogated on a number of occasions throughout his detention; he was accused of disclosing state secrets and making defamatory remarks about the defendant in his texts, petitions and legal proceedings; he was kept in solitary confinement, denied visits from his family or unimpeded access to a lawyer and was made the subject of threats and inducements.
iv) The cumulative treatment and its extended duration amounted to torture and has been the subject of an expression of concern by the UN Special Rapporteur for the Prevention of Torture. For some of the period he was remanded in custody by judicial authority, but he continued to be held in detention on executive authority after he had been admitted to bail by the judiciary. At the end of the process no criminal charges were proceeded with and he was released.
v) He contends that the confiscation of the land, the removal from Saudi Arabia and the detention in Qatar were all done by others at the instigation of the defendant.
i) The substance of the claim is an allegation of abuse of public power by a public official of Qatar (the Minister of Foreign Affairs who was also from 2007 the Prime Minister of Qatar) and thus the claimant indirectly impleads the state of Qatar. In response, Qatar claims sovereign immunity in respect of the subject matter of the claims under the provisions of the State Immunity Act 1978.
ii) The defendant is an accredited member of the Qatari Embassy in London and was therefore entitled to immunity from suit under the Diplomatic Privileges Act 1964 (DPA).
"Her Majesty's Government is respectfully requested by the Court to provide such response to the questions below as it considers appropriate and, in particular if and insofar as appropriate, by means of certification under section 4 of the Diplomatic Privileges Act 1964. The Court wishes to consider such response as Her Majesty's Government provides at a hearing on 11 and 12 January 2016, and respectfully requests that Her Majesty's Government provides its response as far in advance of that date as it is able to do.
1. Has the Defendant been notified to the FCO as a member of the diplomatic staff of the Mission of the State of Qatar having diplomatic rank; and if so upon what date(s) and in respect of which position(s) was the Defendant so notified?
2. As the date of HMG's response to this request, has the FCO accepted and/or accredited the Defendant as a member of the diplomatic staff of the mission of the State of Qatar having diplomatic rank; and if so, upon what date(s) and in respect of which position(s) was the defendant so accepted and/or accredited; and is he currently so accredited and/or accepted?"
"Under the authority of Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me and in accordance with the provisions of Section 4 of the Diplomatic Privileges Act 1964, I, Julian Evans, director of Protocol at the Foreign and Commonwealth Office hereby certify that the appointment of Sheikh Hamad bin Jassim bin Jaber Al Thani as a member of the diplomatic staff of the mission of the State of Qatar in the United Kingdom was notified to the Foreign and Commonwealth Office on 28 August 2013; and on 28 May 2014 his arrival date was notified as 6 November 2013, from which date he has enjoyed the privileges and immunities of a member of the diplomatic staff of a mission."
i) A short witness statement from the defendant dated 18 September 2015 in which he states he is a Minister Counsellor at the Embassy of the State of Qatar in the United Kingdom and he has responsibility for promoting relations between the state of Qatar and the United Kingdom.
ii) Two witness statements from Dr Ali Bin Fetais Al Marri, the current Attorney General of Qatar. In the first statement dated 20 September 2015, the defendant's identity, past offices and current status as a Minister Counsellor is confirmed. Jurisdiction is disputed on the two grounds noted above. The claimant's allegations about the confiscation of land and the circumstances in which he came to be detained are disputed. The legal basis for continued executive detention after the order of the court admitting the claimant to bail is set out. The second statement dated 11 December 2015 responds to allegations in the claimant's witness statement.
iii) A witness statement from Khalid Bin Mohammed Al-Attiya, the current Minister of Foreign Affairs of Qatar dated 13 December 2015. He is both the cousin and brother in law of the claimant. The claimant's allegations are denied and the defendant's diplomatic appointment is confirmed. It is stated that when the defendant retired as prime minister, consideration was given as to how he could continue to promote Qatar's interests and:"Given the Defendant's experience and his ties to and string relationship with the UK, it was determined by the Emir that the defendant could serve a valuable role at the Qatari Embassy in London; in particular, in order to promote and develop economic relations between the State of Qatar and the UK".
iv) A witness statement from His Excellency, Yousef Ali Al-Khater, the Qatari Ambassador to the Court of St James, London, that confirms the defendant's appointment and function in the London Embassy and the recognition of his status as a diplomat by his inclusion in the London Diplomatic List.
v) A witness statement dated 11 December 2015 from Fady Bakhos, General Counsel to the defendant's private office, responding to the claimant's evidence and stating in summary:a) The defendant is not a director of any English trading company and is not a direct shareholder of any such company. He is a director of Alphastar Limited which acts as a nominee to hold residential property in London.b) The defendant is not the sole beneficiary of the investment assets in question. 15 members of his family are also beneficiaries. The assets are managed on behalf of the beneficiaries, by a private family office in Doha.
i) Two statements of his own setting out his allegations and information he states he was given about the defendant's diplomatic status and the reasons for it.
ii) A witness statement dated 16 November 2015 from Neil Barnett, an executive officer of a company providing corporate intelligence and investigations services. This outlines the information as to the defendant's property and corporate portfolio, his wealth, and a time line of activities since resigning as Prime Minister and various attachments from social media and other public sources.
Issue 1: State Immunity
'(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.'
It is common ground that none of the exceptions are engaged in the present claim.
(i) there was no jurisdiction to bring the claim against either defendant;
(ii) a state can claim immunity when directly impleaded by suing a Ministry or indirectly by suing one of its public officials acting as such;
(iii) there was no principle of international law providing an additional exception to state immunity from civil proceedings where torture contrary to a norm of international law was alleged;
(iv) immunity from suit was not an unjustified and/or disproportionate interference with a right of access to a court for a determination of civil rights within the meaning of Article 6 European Convention on Human Rights (ECHR) where the absence of domestic jurisdiction was to give effect to well established principles of international law.
'10. While the 1978 Act explains what is comprised within the expression "State", and both it and the 1972 European Convention govern the immunity of separate entities exercising sovereign powers, neither expressly provides for the case where suit is brought against the servants or agents, officials or functionaries of a foreign state ("servants or agents") in respect of acts done by them as such in the foreign state. There is, however, a wealth of authority to show that in such case the foreign state is entitled to claim immunity for its servants as it could if sued itself. The foreign state's right to immunity cannot be circumvented by suing its servants or agents. Domestic authority for this proposition may be found in Twycross v Dreyfus (1877) LR 5 Ch D 605, 618-619; Zoernsch v Waldock  1 WLR 675, 692; Propend Finance Pty Ltd v Sing (1997) 111 ILR 611, 669; R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147, 269, 285-286; Holland v Lampen-Wolfe  1 WLR 1573, 1583. Courts in Germany, the United States, Canada and Ireland have taken the same view: see Church of Scientology Case (1978) 65 ILR 193, 198; Herbage v Meese 747 F Supp 60 (1990), 66; Jaffe v Miller (1993) 13 OR (3d) 745, 758-759; Schmidt v Home Secretary of the Government of the United Kingdom (1994) 103 ILR 322, 323-325. The International Criminal Tribunal for the Former Yugoslavia has also taken the same view: Prosecutor v Blaskic (1997) 110 ILR 607, 707. In the UN Convention of 2004 already referred to, this matter is expressly addressed in article 2 where "State" is defined in (1)(b)(iv) to mean "representatives of the State acting in that capacity". It is further provided, in article 6(2)(b), that "A proceeding before a court of a State shall be considered to have been instituted against another State if that other State … (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State".
11. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent of the state, had a sufficient connection with the state to entitle it to claim immunity for his conduct. But these are not borderline cases. Colonel Abdul Aziz is sued as a servant or agent of the Kingdom and there is no suggestion that his conduct complained of was not in discharge or purported discharge of his duties as such. The four defendants in the second action were public officials. The conduct complained of took place in police or prison premises and occurred during a prolonged process of interrogation concerning accusations of terrorism (in two cases) and spying (in the third). There is again no suggestion that the defendants' conduct was not in discharge or purported discharge of their public duties.
12. International law does not require, as a condition of a state's entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority. A state may claim immunity for any act for which it is, in international law, responsible, save where an established exception applies.'
'State immunity affords individual employees or officers of a foreign state "protection under the same cloak as protects the state itself". But this is a difference in the form of expression and not the substance of the rule. What is important, however, is that, as Lord Diplock said in Alcom Ltd v Republic of Columbia  AC 580, 597, the provisions of the SIA "fall to be construed against the background of those principles of public international law as are generally recognised by the family of nations." That means that "state" in section 1(1) of the SIA and "government", which the term "state" is said by section 14(1)(b) to include, must be construed to include any individual representative of the state acting in that capacity, as it is by article 2(1)(b)(iv) of the Immunity Convention. The official acting in that capacity is entitled to the same immunity as the state itself.'
This conclusion followed even if the state official was abusing his power for reasons of his own and in pursuit of a private grudge (see  – and . The other members of the Committee agreed with both judgments.
i) having the 'direction and control' of other public servants for whose acts the defendant was accordingly vicariously liable (paragraphs 1, 9, 14, 15);
ii) 'obtaining a prohibitive order' in respect of the land (paragraph 8);
iii) 'summoning' the claimant (paragraph 13 and 15);
iv) 'giving instructions that arrangements be made for' abduction (paragraph 18);
v) procuring the instigation of a criminal proceedings by writing to the Attorney General (paragraph 24);
vi) securing the claimant's detention 'at the behest of the Prime Minister' (paragraph 33);
vii) 'the defendant abused his office of state' and his conduct was unconstitutional, entitling the claimant to aggravated/exemplary damages (paragraph 60).
i) The pleadings were capable of radical amendment to confine the allegations to malicious prosecution, malicious abuse of process and conspiracy to injury as a private person;
ii) the defendant was wearing two hats: one was as the holder of high office, and the other as a private individual who was a powerful personality in the land by reason of his vast wealth and consequent ability to persuade public officials to do things to suit his purposes;
iii) the mere fact that the defendant as a private person was able to induce public officials to act to promote the defendant's private interests did not mean that the state or its servants were impleaded as such, but the claim could engage the common law doctrine of act of state;
iv) the act of state doctrine was subject to an exception in the case of serious abuse of core human rights including peremptory norms of international law such as the use of torture (see Belhaj v Straw  EWCA Civ 1394;  2 WLR 1105) at  to  and  to .
Conclusions on State Immunity:
'A proceeding before a court of a state shall be considered to have been instituted against another state if that other state (a) is named as a party to the proceeding; or (b) is not named as a party to the proceeding but the proceeding seeks to affect the property, rights, interests or activities of that other state.'
i) A person is only a diplomatic agent if at the relevant time (January 2016 when the issue is being determined) he exercises the function of such an agent at the London Embassy (the functionalist approach). This corresponds with the preamble of the VCDC which is an aid to construction of its meaning.
ii) Whether he does exercise such functions and accordingly has immunity from suit is ultimately a question of fact for the court having determined what the law is. It will usually be assisted by a certificate issued by the FCO under s.4 of the DPA 'stating any fact' related to the question of diplomatic immunity and any fact stated in such a certificate shall be conclusive.
iii) In the absence of any conclusive fact provided by the FCO in a certificate or otherwise, the court must examine the other evidence related to the question and determine whether the burden of establishing the facts that would result in the immunity has been discharged by the defendant on the civil balance. A statement made on behalf of the receiving state would normally be conclusive without the need for further inquiry but this is not a normal case and there is positive evidence that the defendant is not exercising a diplomatic function.
iv) On a proper construction of the DPA and the VCDR to which the DPA gives effect in part, neither the FCO nor the Qatari government have exclusive jurisdiction to determine whether the defendant is entitled to immunity. The question of immunity is a matter of law for the court that must first determine what the law requires and then assess the facts presented in the application against those criteria.
v) If, contrary to this submission, an FCO certificate was to be considered determinative of the issue of immunity when there was no evidence that the propositus was exercising diplomatic function, the effect of the law would be to create a procedural bar to access to a court for the determination of a civil claim that did not pursue a legitimate and/or was not proportionate to the issue and thus the issue of the certificate would lead to a contravention of Article 6 ECHR.
i) First, there are at least two occasions since his retirement from public office when the defendant has publicly stated he is a private person who no longer represents the interests of the state of Qatar and is able to give personal opinions on issues of political controversy in the realm of foreign affairs. It is said that such statements are inconsistent with diplomatic practice. This is reinforced when he states positively that he no longer has a role representing the government of Qatar. He could not have said that had he truly been performing the functions of a Minister Counsellor at the Embassy.
ii) Second, there is positive evidence that since June 2013 the defendant has been actively concerned in acquiring further very substantial assets by way of property, investments and acquisition of shares in public companies, of which he and his family are the ultimate beneficial owner. Such activities are both inconsistent with diplomatic functions and the time spent on them would prevent him exercising such functions.
iii) Third, the defendant's social media pages as well as press reporting demonstrate that since November 2013, he has been out of the UK on a very large number of holidays and other personal activities that would have prevented him undertaking the function of Minister Counsellor at the London Embassy.
iv) Fourth, despite his very high profile as a former Prime Minister and one of the world's wealthiest individuals, no evidence at all has been presented by the government of Qatar or the FCO that the defendant has ever undertaken any function as a diplomatic agent in the UK since November 2013.
v) Fifth, the claimant says that he has been told personally by his relative, the current Foreign Minister of Qatar that the defendant was concerned that when he left public office in Qatar he would be vulnerable to civil and /or criminal process and that he wanted diplomatic immunity to protect him from suit when out of the territory of Qatar; in effect the appointment is a sham for his personal benefit.
vi) Sixth, it is contended that although the defendant may no longer hold office, his enormous wealth and connections with the head of state of Qatar would enable him to influence relevant public officials in that state to secure a titular appointment as a diplomat for the purpose of acquiring immunity from suit, but such a purpose is outside and/or contrary to the proper purposes of the Diplomatic Convention that governs directly or indirectly the proper interpretation of the law.
(i) There is no functional test to be applied for diplomatic immunity. A person should be treated as a diplomatic agent if there is evidence that he has been appointed as such and that appointment has been communicated to and accepted by the competent authority of the receiving state, here the FCO.
(ii) The terms of the FCO certificate are conclusive as to the fact of the defendant's appointment as diplomatic agent and the recognition of that appointment by the FCO. It thus certifies a fact that is binding on the court when it considers whether the immunity claimed exists.
(iii) In any event, the evidence from the Qatari government is clear and cannot be rejected as lacking credibility.
(iv) Recognition of diplomatic status is a prerogative function of the Crown exercised by the FCO. It is accordingly a fact of state binding on the court without further inquiry. It is an aspect of the common law principle that the state should speak with one voice on matters of foreign affairs, including recognition of diplomatic agents;
(v) The claimant's assertions that the Minister for Foreign Affairs had confided in him that the defendant was anxious to obtain immunity from suit is wholly without foundation as are a great many of his factual assertions in the pleadings and witness statements. The state of Qatar does not condescend to address the allegations arising from the public and social media reporting of the defendant's statements and activities. Precisely, how he has been spending his time since his appointment is irrelevant to the issue before the court.
(vi) The court does not have the task of inquiry into whether a diplomatic appointment is a sham. The mechanism for ensuing proper compliance with the VCDR is the ability of the FCO pursuant to Article 9 of the Convention to declare a member of a mission persona non grata and no longer acceptable. In such case the person concerned must either be recalled or 'terminate his functions with the mission.' Here it is clear that the FCO have not exercised such a power as of 4 January 2016 despite having notice of all the material on which the claimant relies before this court as to acts said to be inconsistent with the status of a diplomatic agent.
i) The whole basis of diplomatic relations was consent (283 B);
ii) Approval by notification and acceptance was thus required for all diplomats claiming immunity (282 F) ;
iii) An unilateral claim to immunity made by a foreign country would have alarming consequences for public policy (282 A) ;
iv) The applicant could only claim to be immune as the head of a special mission as opposed to the permanent mission of Costa Rica to the Court of St James; an ambassador or head of a special mission had to be specially approved before his appointment was accepted (283 D-E);
v) In the course of the proceedings there was communication between Costa Rica and the FCO and the government of Costa Rica sent a telegram to London stating that the applicant 'is on a special mission on behalf of the Government of Costa Rica and is duly accredited to the Costa Rica mission in London' which caused Parker CJ to observe (at 284 F)'if that was right in the sense that he had been appointed a member of the diplomatic staff of the Costa Rican Embassy in London then, of course, he would be entitled to diplomatic immunity'
vi) In addition, Parker CJ made an observation (at 283 F-G) on which Mr De La Mare placed emphasis, that in any event:'it is almost impossible to say that a man who is employed by a government to go to foreign countries to conclude purely commercial agreements and not negotiate in any way or have contact with the other government, can be said to be a diplomatic agent at all. He was there purely as a commercial agent of the government. He was not there representing his state to deal with other states'.
'the Secretary of State is empowered to supply the courts with an answer to a question of fact relating to diplomatic privileges but is not empowered to bind the court by his opinion on any question of law which may be entrained in a decision on whether diplomatic privilege is due'.
33. It seems to me that the analogy with the inviolability and immunity of accredited members of permanent missions and the importance of consent illuminate resolution of the issue as to whether the FCO letter dated 12 January 2011 is conclusive. The acceptance of accreditation to a permanent diplomatic mission is a matter within the discretion of the Executive, or, more accurately, the Royal Prerogative. Oppenheim's International Law (9th edition, Vol. I, 1048-9) identifies a list of eight topics in respect of which Foreign Office Certificates have been issued. One of them (g) is the question whether a person is entitled to diplomatic status. All of them, as Sir Elihu submitted, relate to matters which are either for the Royal Prerogative or express a view held by the Foreign Office (whether a state of war exists with a foreign country or between two foreign countries). As Vallat points out in International Law and the Practitioner, the list is not exhaustive.
34. The list relates to matters which in Halsbury's Laws of England (5th edition, 61, paragraph 15) are called "Facts of State". They are facts which the court accepts, not so much because they are within the exclusive knowledge of the UK Government, but because they represent matters which are exclusively for decision by the Government and not for the courts. It is for the United Kingdom Government to decide whether to recognise a mission as a Special Mission, just as it is for the Government to decide whether it recognises an individual as a Head of State. As Brooke LJ said in Kuwait Airways Corporation v Iraqi Airways (nos. 4 and 5  AC 883:-
"Her Majesty's Government has never given up the right to inform the courts as to its recognition or non-recognition of States, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains." (paragraph 349)
35. Brooke LJ was referring to the speech of Lord Atkin in the Arantzazu Mendi  AC 256:-
" Our State cannot speak with two voices on such a matter (viz. State Sovereignty and matters deriving from it), the judiciary is saying one thing, the Executive another. Our Sovereign has to decide whom he will recognise as a fellow Sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone." (page 264)
36. These authorities were cited by the Court of Appeal in The Queen on the Application of HRH Sultan of Pahang v SSHD  EWCA Civ 616 when it regarded the Certificate that the Sultan was not the Head of State of Malaysia as conclusive for the purposes of deciding whether the Sultan enjoyed State immunity.
37. I can see no rational basis for distinguishing between the effect of a Certificate in relation to whether the United Kingdom consented to the visit of Mr Khurts Bat as a Special Mission and from other factual circumstances which give rise to immunity. It is true that the conclusive effect of a Certificate in relation to those identified in Schedule 1 Article 1 of the Diplomatic Privileges Act 1964 is enshrined in S.4 of that Act. But since the essential question is whether the British Government recognised Mr Khurts Bat's visit as a Special Mission with the immunities which flow from such recognition, it seems to me just as much a matter for the Executive as recognition of an Ambassador or a member of an Ambassador's staff, a matter properly the subject of a conclusive statement long before the 1964 Act (see, e.g., Engelke v Musmann  AC 433).
38. It is true that the Protocol letter said that the question whether Mr Khurts Bat came to the UK on 18 September 2010 on a Special Mission was a question of law for the court to determine but that, in my judgement, was no more than a proper and respectful acknowledgement that the consequences of absence of consent to Mr Khurts (thus) visit as a Special Mission were a matter for the court. Exactly the same problem arose in the letter discussed in the Aranzazu Mendi in relation to whether the nationalist Government was recognised by the UK as exercising de facto control over the larger portion of Spain. The letter concluded:-
"The question whether the nationalist Government is to be regarded as that of a foreign sovereign State appears to be a question of law to be answered in the light of the preceding statements (that HMG did recognise that Government) and having regard to the particular issue or circumstances with respect to which the question is raised." (258)
Lord Wright concluded that the difficulty was more apparent than real:-
"The Foreign Office stated the precise facts as then existing in regard to recognition by His Majesty's Government, by the decision of which recognition is given or withheld. The question of law left to the court is what was the effect of these facts on the issues before the court?" (268)
39. In just the same way, the consequences of the fact that the United Kingdom Government did not recognise Mr Khurt's visit as a Special Mission is a matter for the court. Whether or not the United Kingdom Government chose to consent to Mr Khurts Bat's visit as a Special Mission was exclusively a matter for the Government and not for the court. The letter of 12 January 2011 conclusively establishes that the United Kingdom did not consent to the visit as a Special Mission.
40. I recognise that the Government of Mongolia takes a different view and contends that the United Kingdom, through its Ambassador in Mongolia, did consent to the mission as a Special Mission. It seems to me that that controversy underlines the need for the courts not to question that which the Government chooses to recognise and that which it does not. Recognition is a matter, as it seems to me, of foreign policy which is unsuitable for discussion or a view in the courts. Whether or not the purpose of Mr Khurt's visit and that which the Government of Mongolia hoped to achieve by the visit, was or was not capable of constituting a Special Mission, is beside the point. It was for the FCO to decide whether it would choose to recognise that visit as a Special Mission or not.
'HMG do not accord diplomatic status. This is done by the sending State pursuant to its right under article 7 of the Convention freely to appoint the members of the staff of the mission. There is no obligation to notify appointments in advance (except for the Head of Mission) and advance notifications are not usual except where a visa is required. Where we are notified in advance of a nomination through the visa system, we refuse to grant the visa in cases where the nominated person is regarded as unacceptable. We also sometimes try informally to persuade Missions to withdraw a nomination in cases where the appointee is clearly fulfilling an administrative and technical rather than a diplomatic function; or is not carrying out the functions of the mission as described under Article 3 of the Convention. We have also pressed successfully for withdrawal of notification in a very few cases where criminal charges are pending.'
'Since the Vienna Convention contains no objective definition of staff categories, checks carried out after notification usually relate to questions of nationality, designation, residence or family status. Doubts about official status or duties are rarely apparent from the notification form and it is virtually impossible in most cases for the FCO to tell whether a person should more properly be described as a diplomat or as a member of the administrative and technical staff or indeed as a member of a mission at all. In certain cases we refuse to accept notifications and they are withdrawn by the mission concerned. The persona non grata sanction is exercised where there is good reason to do so.'
i) US State Department policy was 'to be recognized as a diplomatic agent, a person must possess a recognized diplomatic title and perform duties of a diplomatic nature' (original emphasis p. 19);
ii) Doubt was expressed as to whether the term 'outside his official functions' in Article 31 (1) (c) could be interpreted by reference to Article 3 because:'there may sometimes be difficulties in determining the limits of diplomatic functions and the boundaries between diplomatic and commercial and diplomatic and consular functions. It is suggested that these issues should be determined by consultation between sending and receiving States. A diplomat who is instructed to undertake an activity such as export promotion or assistance to businessmen, which could be argued to be commercial …is acting within his official functions and should be entitled without question to personal diplomatic immunity. If the receiving State takes the general view that certain of these activities are not properly diplomatic …this may require resolution…This should not, however, expose a diplomat carrying out instructions - unless these clearly exceeded the bounds of proper activity- to the risk of personal suit.'
iii) Certificates under the DPA are rigorously confined to questions of fact within the special knowledge of the FCO such as notification of appointments of members of diplomatic missions. They do not address issues of law.
(i) questions of whether a state or a head of state or a government of a state is recognised are matters within the exclusive jurisdiction of the FCO and the information provided must be acted on by the court as a fact of state as the UK cannot speak with two voices on the same question;
(ii) the recognition of foreign diplomats is also a prerogative function of the FCO as an aspect of the conduct of foreign relations;
(iii) whether immunity attaches to a diplomat or a person claiming to be a diplomat is a matter of law for the court to determine;
(iv) the facts contained in a s.4 DPA certificate are conclusive evidence of the certified facts in the proceedings before the court and any other expression of a question of fact that is within the exclusive competence of the FCO (such as approval of a special mission) may be treated similarly as a fact of state;
(v) diplomatic status is not something created for the benefit of individuals but the freedom of states to conduct relations with a host state; a broad meaning of diplomatic function is to be given although there are some activities that clearly fall beyond this description.
The FCO certificate
The evidence as to performance of a function
Conclusions on diplomatic immunity
Extracts from the Diplomatic Privileges Act 1964
The following provisions of this Act shall, with respect to the matters dealt with therein, have effect in substitution for any previous enactment or rule of law.
2 Application of Vienna Convention.
(1) Subject to section 3 of this Act, the Articles set out in Schedule 1 to this Act (being Articles of the Vienna Convention on Diplomatic Relations signed in 1961) shall have the force of law in the United Kingdom and shall for that purpose be construed in accordance with the following provisions of this section.
(2) In those Articles—
- "agents of the receiving State" shall be construed as including any constable and any person exercising a power of entry to any premises under any enactment (including any enactment of the Parliament of Northern Ireland);
- "national of the receiving State" shall be construed as meaning citizen of the United Kingdom and Colonies;
- "Ministry for Foreign Affairs or such other ministry as may be agreed" shall be construed as meaning the department of the Secretary of State concerned;
and, in the application of those Articles to Scotland, any reference to attachment or execution shall be construed as a reference to the execution of diligence, and any reference to the execution of a judgment as a reference to the enforcement of a decree by diligence.
(3)For the purposes of Article 32 a waiver by the head of the mission of any State or any person for the time being performing his functions shall be deemed to be a waiver by that State.
If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.
ANNEX 2 EXTRACTS FROM THE VIENNA CONVENTION
(The provisions in bold type are those set out in Schedule One of the DPA)
Vienna Convention on Diplomatic Relations
Done at Vienna on 18 April 1961
The States Parties to the present Convention,
Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents,
Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,
Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,
Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,
Have agreed as follows:
For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
(a) The "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;
(b) The "members of the mission" are the head of the mission and the members of the staff of the mission;
(c) The "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;
(d) The "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;
(e) A "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;
(f) The "members of the administrative and technical staff" are the members of the staff of the mission employed in the administrative and technical service of the mission;
(g) The "members of the service staff" are the members of the staff of the mission in the domestic service of the mission;
(h) A "private servant" is a person who is in the domestic service of a member of the mission and who is not an employee of the sending State;
(i) The "premises of the mission" are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.
The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.
1. The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission.
1. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.
2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément.
1. The sending State may, after it has given due notification to the receiving States concerned,
accredit a head of mission or assign any member of the diplomatic staff, as the case may be, to more than one State, unless there is express objection by any of the receiving States.
2. If the sending State accredits a head of mission to one or more other States it may establish a diplomatic mission headed by a chargé d'affaires ad interim in each State where the head of mission has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as
representative of the sending State to any international organization.
Two or more States may accredit the same person as head of mission to another State, unless
objection is offered by the receiving State.
Subject to the provisions of articles 5, 8, 9 and 11, the sending State may freely appoint the
members of the staff of the mission. In the case of military, naval or air attachés, the receiving State may require their names to be submitted beforehand, for its approval.
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons
having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
1. The receiving State may at any time and without having to explain its decision, notify the
sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission.
1. The Ministry for Foreign Affairs of the receiving State, or such other ministry as may be
agreed, shall be notified of:
(a) The appointment of members of the mission, their arrival and their final departure or the
termination of their functions with the mission;
(b) The arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;
(c) The arrival and final departure of private servants in the employ of persons referred to in
subparagraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;
(d) The engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.
2.Where possible, prior notification of arrival and final departure shall also be given.
1. In the absence of specific agreement as to the size of the mission, the receiving State may
require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.
2. The receiving State may equally, within similar bounds and on a non-discriminatory basis,
refuse to accept officials of a particular category.
The sending State may not, without the prior express consent of the receiving State, establish
offices forming part of the mission in localities other than those in which the mission itself is
1. The head of the mission is considered as having taken up his functions in the receiving State either when he has presented his credentials or when he has notified his arrival and a true copy of his credentials has been presented to the Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, in accordance with the practice prevailing in the receiving State which shall be applied in a uniform manner.
2. The order of presentation of credentials or of a true copy thereof will be determined by the date and time of the arrival of the head of the mission.
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Articles 23, 24, 27and 28 omitted
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
2. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.
1. Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.
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. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation.
1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
2. Other members of the staff of the mission and private servants who are nationals of or
permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
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 when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be 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.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.
A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.
The function of a diplomatic agent comes to an end, inter alia:
(a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the mission.
Article 45 to 53 omitted