The Freedom And Justice Party & Ors, R (On the Application Of) v The Secretary of State for Foreign and Commonwealth Affairs & Anor (Rev 2)

A receiving state which accepts and recognises a special mission is obliged by customary international law to secure its members’ personal inviolability and immunity from criminal proceedings for the mission’s duration. The rule requires sufficiently widespread, representative and consistent state practice, accepted as law, assessed in the light of the states affected by it.

The immunity is not confined to official acts and has no established exception for alleged torture or other international crimes. Customary international law should shape the common law unless a constitutional principle, statute or common-law rule provides a positive reason against reception. No such reason prevents recognition of this narrow immunity, which arises when the executive accepts a person as a member of a special mission.

The appellants, former members of the Egyptian government, sought the arrest of Lt General Hegazy when an Egyptian delegation visited the United Kingdom in 2015. The Foreign and Commonwealth Office had accepted the delegation as a special mission. The appellants alleged torture and contended that its members had no immunity from arrest or criminal process.

The Divisional Court held that customary international law required a receiving state to secure personal inviolability and immunity from criminal jurisdiction for members of an accepted special mission during its visit, and that the rule formed part of the common law: [2016] EWHC 2010 (Admin). The appellants appealed both conclusions.

The central issues were whether the asserted core immunities had become rules of customary international law and, if so, whether English common law recognised them.

1. Appeal dismissed. The court upheld the Divisional Court’s conclusion that a clear rule of customary international law obliges a state which accepts and recognises a special mission to secure its members’ personal inviolability and immunity from criminal jurisdiction throughout the mission’s currency.

2. The requisite customary rule was established by sufficiently widespread, representative and consistent state practice, coupled with opinio juris. The inquiry properly focused on states affected by the rule: states which send, receive or wish to receive special missions. The evidence from treaties, executive and judicial practice, the CAHDI survey and jurists was strongly supportive. There was virtually no contrary practice, and the later evidence reinforced rather than undermined the Divisional Court’s conclusion.

3. The court gave limited weight to the Convention on Special Missions 1969 as a whole. Its limited ratification and wider package of immunities did not disprove the more confined customary rule. The core immunities were functionally necessary if an accepted special mission was to perform its task.

4. The immunity was not limited to official acts and did not yield merely because torture or another international crime was alleged. Immunity is procedural, whereas the prohibition of torture is substantive. No rule of customary international law established an exception to special-mission immunity for such allegations. If accepted as members, administrative and technical personnel were also within the core rule.

5. The customary rule was received into the common law. The governing presumption was that established customary international law can and should shape the common law unless constitutional principle, legislation or an unadaptable common-law rule supplies a positive reason against this. Recognition of immunity from criminal process differs fundamentally from creating a new domestic crime. No statute created an exclusive code or required Parliament to legislate before this narrow and clear immunity could operate.

6. The executive’s decision to accept a person as a special-mission member did not suspend or dispense with domestic law. Once the customary rule was received, domestic law itself attached the stated consequence to that executive act. The court left open whether an exceptional certificate or decision might be judicially reviewable.

• Court of Appeal (Civil Division): Appeal dismissed. The court affirmed that the core immunities of an accepted special mission are required by customary international law and recognised by the common law: [2018] EWCA Civ 1719.
• Divisional Court, High Court: Held that customary international law required personal inviolability and immunity from criminal jurisdiction for members of an accepted special mission during its visit, and that the common law gave effect to the rule: [2016] EWHC 2010 (Admin).