Charles & Anor, R (On the Application Of) v The Secretary of State for Foreign and Commonwealth Affairs

Diplomatic immunity arising under the Vienna Convention on Diplomatic Relations operates automatically when the Convention’s conditions are met. A family member’s immunity is a separate entitlement and is not waived merely because the principal’s immunity has been waived. Under article 32, waiver must be express.

An exchange of diplomatic notes made within the Convention framework may constitute an express waiver of particular immunities without creating a freestanding regime of conditional immunity. An informal opinion from the Foreign and Commonwealth Office about immunity does not usurp the police’s investigative role and is not, without more, a reviewable decision.

Article 2 of the ECHR accommodates immunities required by international law. It does not confer a right to prosecution or require the Foreign and Commonwealth Office itself to conduct the investigation.

The claimants, the parents of Harry Dunn, sought judicial review of the Foreign and Commonwealth Office’s conclusion that Anne Sacoolas, the wife of a member of United States administrative and technical staff at RAF Croughton, enjoyed immunity from United Kingdom criminal jurisdiction after a fatal road traffic collision.

They also alleged that the Foreign and Commonwealth Office unlawfully advised or obstructed Northamptonshire Police and breached article 2 of the ECHR by hindering an effective investigation. The court considered the Vienna Convention on Diplomatic Relations, the 1995 exchange of notes concerning RAF Croughton, and the respective constitutional roles of the Foreign and Commonwealth Office, the police and the coroner.

1. Ground 1: Permission was granted, but the claim was dismissed on the merits. The Vienna Convention on Diplomatic Relations was the governing framework. The exchange of notes made repeated reference to the Convention and did not create a separate species of conditional immunity.
2. Under articles 37(2) and 39, Mr Sacoolas and his family members acquired the privileges and immunities specified in articles 29 to 35 upon entering the United Kingdom, by operation of the Convention and the Diplomatic Privileges 1964 Act. Family members held separate and independent entitlements. The waiver of the principal’s immunity therefore did not waive Mrs Sacoolas’s immunity.
3. The exchange of notes contained a legally binding express waiver under article 32(1) of the administrative and technical staff members’ immunity from criminal jurisdiction in respect of acts outside their duties. It contained no article 32-compliant waiver of Mrs Sacoolas’s immunity. Article 32 required waiver to be express, leaving no room for implied or constructive waiver.
4. Ground 2: Permission was refused. Mrs Sacoolas had immunity, so any advice that immunity existed was legally correct. The Foreign and Commonwealth Office did not make the legally operative investigative decisions. Northamptonshire Police remained responsible for the investigation, subject to legal advice and ultimate adjudication by the courts. The Foreign and Commonwealth Office had no general public-law duty to disclose confidential diplomatic correspondence or internal preliminary views to the police.
5. Ground 3: Permission was refused. Article 2 did not require the Foreign and Commonwealth Office to investigate the death, disclose the diplomatic correspondence, involve the family in every development, or secure prosecution or punishment. The relevant investigative obligations lay with the police and coroner, and the criminal and coronial processes remained ongoing.