Fernando v Sathananthan

Residual diplomatic immunity under article 39(2) of the Vienna Convention on Diplomatic Relations extends to criminal acts performed by a former diplomatic agent in the exercise of official functions. The question is whether the conduct was performed qua diplomat, not whether committing the criminal act formed part of the agent’s job description or was authorised by the sending state. Criminality does not necessarily convert conduct performed in an official context into a private act. The court must interpret the Convention according to the ordinary meaning of its terms, read in context and in light of its object and purpose.

The appellant, a Sri Lankan diplomatic agent, was prosecuted after leaving the United Kingdom for making threatening gestures during a protest outside the Sri Lankan High Commission. He had been monitoring the demonstration as part of his official duties. The Chief Magistrate convicted him of an offence under section 4 of the Public Order Act 1986, holding that the conduct was outside his functions and therefore not protected by residual immunity under article 39(2) of the Vienna Convention on Diplomatic Relations.

The matter came before the Divisional Court by appeal by case stated and a joined judicial review claim. The central issue was whether the threatening conduct had been performed in the exercise of the appellant’s functions as a member of the mission.

1. Appeal allowed. The Chief Magistrate was wrong in law to conclude that the appellant’s conduct was outside the functions of the mission and therefore unprotected by residual immunity after his departure from the United Kingdom.
2. The interpretation of article 39(2) was governed by the ordinary meaning of its terms, read in context and in light of the Convention’s object and purpose. The court rejected an approach based on pedantic literalism or on whether the criminal conduct appeared expressly in the diplomatic agent’s job description.
3. A job description would rarely expressly authorise criminal conduct. Treating the omission of such conduct from the description as determinative would substantially deprive article 39(2) of practical effect and undermine reciprocal protection for diplomatic agents.
4. The relevant inquiry was whether the conduct was performed in the exercise of the agent’s functions as a member of the mission. The appellant was in uniform, on the steps of the High Commission, monitoring a demonstration in accordance with his duties. The threatening gesture did not take him away from that official activity or transform the conduct into a personal act merely because it was criminal.
5. The court applied the distinction between acts performed qua diplomat and acts performed in a personal capacity. The conduct remained official for the purposes of residual immunity, notwithstanding that the sending state would not have commissioned or condoned it.
6. The judicial review claim did not require separate consideration. The court did not determine the jurisdiction issue concerning the original summons because it was accepted that a fresh summons could have been issued after the appellant left the jurisdiction.

• High Court (Administrative Court): The Divisional Court allowed the appeal by case stated. It held that the appellant’s conduct was performed in the exercise of his functions as a member of the mission and remained protected by residual diplomatic immunity under article 39(2).
• Westminster Magistrates’ Court: The Chief Magistrate set aside the appellant’s earlier conviction under section 142 of the Magistrates Court Act 1980, reheard the immunity issue, and convicted him of the section 4 offence under the Public Order Act 1986.