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

A receiving State is required by customary international law to secure personal inviolability and immunity from criminal jurisdiction for members of a special mission whom it has accepted, for the duration of the mission. The rule applies without limitation to official acts and is not displaced because the alleged conduct amounts to torture or another international crime.

The Foreign and Commonwealth Office decides whether to recognise a visit as a special mission, but it does not confer immunity. The legal consequences of that status are determined by the courts. The customary rule forms a source of the common law and should be given effect where consistent with domestic constitutional principles and statute.

The claimants sought judicial review and declaratory relief concerning the treatment of an Egyptian military official as a member of a special mission during a visit to the United Kingdom. The Foreign and Commonwealth Office had consented to and recognised the visit as a special mission. The Metropolitan Police did not arrest the official after receiving advice that special mission immunity applied.

The claim initially focused on the Foreign and Commonwealth Office, but the Director of Public Prosecutions was joined after it became clear that advice given under statutory powers had guided the police. The central issue was whether customary international law required personal inviolability and immunity from criminal jurisdiction for an accepted member of a special mission, and whether that rule formed part of the common law.

The court granted permission to amend the claim and exercised its discretion to determine the substantive issue. The claimants had sufficient standing because they had raised a genuine legal issue through sustained engagement with the police and prosecution authorities. The issue was hypothetical rather than academic, and both defendants had advanced full submissions on it.

1. Procedural position. The Foreign and Commonwealth Office’s certificate recognised the visit as a special mission. Recognition was a matter for the executive and was not justiciable. The FCO’s view that recognition carried immunity was an opinion about the common law, not a decision conferring immunity. The Director of Public Prosecutions’ advice, given under section 3(2)(e) of the Prosecution of Offences Act 1985 and intended to guide the police, was in principle amenable to judicial review.
2. Customary international law. A rule required both sufficiently widespread and representative State practice and opinio juris. Treaties, national decisions, executive practice and legislative materials could be relevant, but the court had to avoid developing international law unilaterally. The evidence, considered cumulatively, established a clear customary rule requiring a receiving State to secure, during the mission, personal inviolability and immunity from criminal jurisdiction for members accepted as members of a special mission.
3. Scope. The immunity was personal and functional in purpose, but it was not limited to official acts. Criminal proceedings alleging torture were therefore barred during the mission. The rule concerned only personal inviolability and criminal jurisdiction; the court expressed no view on civil or administrative immunity.
4. Common law effect. Customary international law was properly regarded as a source of the common law. The Diplomatic Privileges Act 1964 regulated permanent diplomatic missions and did not replace pre-existing law concerning special missions. Recognising the immunity created no offence or substantive defence and did not improperly extend executive prerogative.

The court declared that customary international law required the receiving State to secure the stated immunities and that the rule was given effect by the common law.