The Freedom And Justice Party & Ors, R (On the Application Of) v Secretary of State for Foreign and Commonwealth Affairs & Anor

The Divisional Court held that customary international law requires a receiving State which has consented to receive a special mission to secure, for the duration of that mission, personal inviolability and immunity from criminal jurisdiction for members of the mission accepted as such by the receiving State. The court concluded that that rule of customary international law is given effect by the common law.

Procedurally, the court found that the Foreign and Commonwealth Office had not itself made a justiciable decision to confer immunity (its 2013 ministerial statement and a 14 September 2015 certificate were statements of status or opinion), whereas the operative advice not to arrest was given by the Director of Public Prosecutions to the Metropolitan Police and was, in principle, amenable to judicial review. The court granted declaratory relief to clarify the law and to determine the legal position between the parties.

In reaching its decision the court reviewed treaty instruments (notably the Vienna Convention on Diplomatic Relations 1961 and the Convention on Special Missions 1969), the ILC preparatory work, state practice (UK, United States and other States), international jurisprudence and academic opinion, and applied the established test for customary international law (settled practice plus opinio juris).

Background and parties:

The claimants (the Freedom and Justice Party and three individuals) challenged the legal consequences said to flow from recognition by the FCO, in a 14 September 2015 certificate, of an Egyptian official (Lt. General Mahmoud Hegazy) as part of a special mission to the United Kingdom, and the subsequent decision or advice by prosecuting authorities not to arrest him. The claimants sought declaratory relief and, if necessary, quashing orders, contending that there is no rule of customary international law conferring personal inviolability or immunity from criminal process on members of special missions or that the common law should not give effect to such a rule.

The relief sought:

• Declarations (and if necessary quashing orders) in relation to: (1) clarification of the law on special-mission immunity; (2) the FCO’s 2013 guidance (ministerial statement); (3) the FCO’s certificate/status in September 2015; and (4) the DPP’s advice to the police in September 2015.

Issues framed:

• Whether customary international law confers personal inviolability and immunity from criminal jurisdiction on members of special missions accepted by the receiving State.
• Whether the common law should give effect to any such customary rule.
• Threshold procedural issues: justiciability, locus, delay and whether the FCO had made a reviewable decision or merely expressed an opinion of law.

Procedural and preliminary reasoning: The court held the FCO’s role is to recognise and confer status and that the 2013 ministerial statement and certificate were not themselves justiciable decisions conferring immunity; the operative legal advice relied on by the Metropolitan Police was that of the DPP given under statutory powers and was amenable to review. The Divisional Court granted permission to amend and to pursue a declaratory claim dismissing objections of undue hypothetical status, finding that the matter was sufficiently live and that the DPP invited clarification of the law.

Substantive reasoning on customary international law: The court analysed the test for customary international law (settled practice and opinio juris) and examined multilateral instruments, ILC preparatory work, the Convention on Special Missions (1969) and the Vienna Convention (1961). It surveyed state practice and executive statements (United Kingdom, United States, and many other States via CAHDI responses), domestic and foreign judicial decisions, international jurisprudence and academic commentary. The court considered that although the Convention on Special Missions had not been universally accepted, sufficient and representative state practice and opinio juris had developed such that a rule of customary international law now requires inviolability and immunity from criminal jurisdiction for members of a special mission accepted by the receiving State for the duration of the mission.

Substantive reasoning on the common law: The court considered the relationship between customary international law and the common law, relevant statutory materials (including the Diplomatic Privileges Act 1964), separation of powers and parliamentary sovereignty arguments. It rejected submissions that Parliament had occupied the field so as to exclude the common-law adoption of the customary rule and rejected arguments that recognition of the immunity would improperly displace criminal law or offend jus cogens. The court concluded that customary international law, so established, should be given effect by the common law.

Conclusion and operative order: The court granted declarations: (1) that customary international law requires receiving States to secure personal inviolability and immunity from criminal jurisdiction for members of special missions accepted as such for the duration of the mission; and (2) that that rule is given effect by the common law.

First instance: the claim for declaratory relief succeeded. The Divisional Court (Lloyd Jones LJ and Jay J) held that customary international law requires a receiving State to secure, for the duration of a special mission, personal inviolability and immunity from criminal jurisdiction for members of the mission accepted as such by the receiving State, and that the common law gives effect to that rule. The court gave declaratory relief clarifying those points after rejecting procedural objections that would have barred consideration of the substantive issue.