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British Foreign and Commonwealth Office facing legal challenge on diplomatic immunity extensions

Meg Lewis, Senior Content Editor

Update: Since this article was published, Northamptonshire police have charged Anne Sacoolas with causing death by dangerous driving.

Following the death of British teenager Harry Dunn in a road accident in August, the woman suspected of driving the car, Anne Sacoolas, fled the country. Sacoolas, the wife of an American official serving at RAF Croughton military base, claimed she was covered by diplomatic immunity, a centuries-old custom protecting emissaries from the laws of a host state. The international incident has sparked debate about the principle itself and Dunn’s parents have launched judicial review proceedings regarding the role of the Foreign & Commonwealth Office (FCO).

One fundamental question is whether extending diplomatic immunity to family members, as outlined in the 1961 Vienna Convention on Diplomatic Relations, is appropriate in this situation.

[The Vienna Convention] is in some respects a Cold War relic… these immunities are not mandatory… and should not be claimed by democratic allies like the US and UK

Geoffrey Robertson QC
Doughty Street Chambers

Northamptonshire Police say Sacoolas was initially cooperative with their enquiries about the accident and said she would not leave the UK in the near future. It later emerged that Sacoolas and her family had returned to the United States on a US Air Force plane.

Geoffrey Robertson QC, joint head of Doughty Street Chambers, is acting for Dunn’s parents in their challenge to the FCO. He tells Global Insight that while the 1961 Vienna Convention remains international law, ‘it is in some respects a Cold War relic from when absolute immunities were necessary to prevent diplomats from being blackmailed or honey trapped. These immunities are not mandatory, however, and should not be claimed by democratic allies like the US and UK.’

Professor Craig Barker is an international expert on diplomatic law and diplomatic immunity at London South Bank University. ‘The Vienna Convention serves a good purpose, although there are opportunities to see if its operation could be tightened,’ he says. ‘If there’s a failing in the law, it is that for political reasons states aren’t willing to waive immunity when for justice reasons they absolutely should.’

Barker says the best way of tightening the Convention would be to have ‘an agreement or additional treaty that says waiver will be accepted as the norm’. However, ‘at present there is no such mechanism to bring forward changes to the Vienna Convention, nor is the political climate likely to facilitate one,’ he says.

In late October, there were calls for an urgent parliamentary inquiry into the handling of the Dunn case following Foreign Secretary Dominic Raab’s admission that the Dunn family were not informed of Sacoolas’ departure for 11 days.

The FCO says that ‘As the primary point of family liaison, the decision as to when to tell the family was properly a matter for the police.’ The FCO maintains it formally requested the US Embassy to waive Sacoolas’ immunity, but that the UK had no lawful right to prevent the individual from leaving.

The Foreign Secretary has commissioned a review of the immunity arrangements pertaining to RAF Croughton. In his October Commons statement, he explained that Sacoolas’ immunity was the result of arrangements between the US and the UK in 1995, which accepted diplomats and their families at RAF Croughton as part of the US Embassy in the UK. However, there appears to be no public record of documents referring to these arrangements.

Robertson says ‘it is open to question whether the prerogative power permits the government to give immunity, secretly and without parliamentary scrutiny, to CIA agents and their families who are not diplomats. This is really an abdication of sovereignty – a suspension of the rule of law over hundreds of foreign residents.’

‘If immunity really does exist, which I doubt, for Mrs Sacoolas, then apparently we cannot rely on the US to do the right and decent thing by waiving it,’ adds Robertson, who believes that, in future, the UK should refuse to allow US agents to enter the country until the US agrees that it will not claim immunity for them in respect of serious crimes.

The Dunn family have repeatedly called for Sacoolas to travel to the UK to cooperate with the investigation into their son’s death. While President Trump met with Harry Dunn’s parents at the White House, a photograph later materialised of the President holding briefing notes shown to read ‘… the spouse of the US government employee will not return to the United Kingdom’. The family have announced they intend to sue the Trump administration for ‘lawless misconduct’.

Meg Strickler is a member of the IBA Professional Ethics Advisory Board and an attorney at Atlanta law firm Conaway & Strickler. Strickler says that a filing of this nature against the US government is not likely to have any viability. ‘The US is notorious for rarely waiving diplomatic immunity.’

The Dunn family are also mounting a civil case against Sacoolas. Strickler explains that a civil suit could be used as a vehicle to investigate whether there’s more to the story than is currently known, which ‘might incline the UK to push the US to waive [Sacoolas’] immunity and bring her back to the British criminal courts.’ She notes though that a civil suit of this nature will be slow ‘because the implications are more global than this lawsuit alone.’

Officers from Northamptonshire Police travelled to the US to interview Sacoolas under caution in late October. The interview transcript was then passed to the Crown Prosecution Service (CPS). The CPS could trigger an extradition request if it decides to seek to bring charges against Anne Sacoolas for death by dangerous driving – a criminal charge punishable by a sentence of more than 12 months’ imprisonment in both the UK and the US.

Speaking to Global Insight in November, a CPS spokesperson said: ‘We fully understand how difficult this must be for Harry Dunn’s family, and the CPS is doing everything possible to reach a charging decision as soon as we can. Unfortunately, we are unable to tell the family how long that will take. Each case is different, and the CPS has a duty to carefully consider all the available information, in order to make an independent and objective decision.’

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