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The Freedom And Justice Party & Ors, R (On the Application Of) v Secretary of State for Foreign and Commonwealth Affairs & Anor
Factual and Procedural Background
This judgment arises from an application for judicial review concerning whether members of special missions visiting the United Kingdom with the approval of the First Defendant ("the FCO") enjoy personal inviolability and immunity from criminal process pursuant to a rule of customary international law recognised by the common law.
The Claimants deny the existence of such a rule and argue the common law should not give effect to it, whereas the FCO and the Second Defendant ("the DPP") assert the existence of such a rule and seek recognition by the courts. The Interested Party ("the MPS") adopts a neutral stance. Amnesty International and Redress submitted written observations on the substantive issue.
The factual background involves a special mission status granted by the FCO to an Egyptian military official, Lt. General Hegazy, during a visit to the UK in September 2015. The Claimants, representing former Egyptian government members and others, sought the arrest of Lt. General Hegazy for alleged torture under the Criminal Justice Act 1988. The MPS, acting on advice from the DPP and informed by the FCO's certificate of special mission status, declined to arrest him citing immunity.
The Claimants initiated judicial review proceedings challenging the FCO's and DPP's advice and the legal basis of special mission immunity. Procedural history includes pre-action correspondence, joinder of the DPP as a defendant, and arguments concerning standing, justiciability, and timeliness.
Legal Issues Presented
- Whether members of special missions visiting the United Kingdom with the FCO's approval enjoy personal inviolability and immunity from criminal process under customary international law as recognised by the common law.
- Whether the FCO's Ministerial Statement and advice, as well as the DPP's advice to the police, are amenable to judicial review.
- Whether the Claimants have standing and have acted promptly in bringing the claim.
- The scope and effect of the immunity from criminal jurisdiction for members of special missions, including whether it applies to alleged international crimes such as torture.
- The relationship between customary international law, treaty law, and domestic common law regarding special mission immunity.
Arguments of the Parties
Claimants' Arguments
- There is no established rule of customary international law conferring personal inviolability and immunity from criminal jurisdiction on members of special missions.
- The common law should not recognise or give effect to such immunity.
- The judicial review proceedings are the appropriate mechanism to determine this important point of principle.
- The immunity should not extend to alleged international crimes such as torture.
- The FCO's Ministerial Statement and advice, and the DPP's advice, are subject to judicial review.
Defendants' Arguments (FCO and DPP)
- A rule of customary international law exists requiring the recognition of personal inviolability and immunity from criminal jurisdiction for members of special missions accepted by the receiving State.
- The FCO's role is limited to conferring status, not immunity, and its decisions are not justiciable.
- The operative decisions regarding immunity and arrest rest with the police and DPP, who act independently.
- The Claimants lack standing and have acted out of time, especially regarding the 2013 Ministerial Statement.
- The claim is academic because Lt. General Hegazy has not returned to the UK and there is insufficient evidence for prosecution.
- Recognition of immunity is consistent with constitutional principles, separation of powers, and international obligations.
Interested Party (MPS) Position
- Adopts a neutral position on the substantive legal issue between the Claimants and Defendants.
- Relies on legal advice from the DPP, not the FCO, in decision making.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Khurts Bat v Federal Republic of Germany [2013] QB 349 | Recognition that under customary international law, members of special missions enjoy inviolability and immunity from criminal jurisdiction if accepted by the receiving State. | The court accepted the principle of special mission immunity but found no special mission in that case; the executive's position was influential. |
| R v Commissioner of Police for the Metropolis, ex parte Blackburn [1968] 2 QB 118 | Independence of the police and the principle that prosecutorial decisions are not subject to executive control. | Supported the court's view that the DPP's advice to the police was independent and not subject to executive interference. |
| Royal College of Nursing v DHSS [1981] AC 800 | Judicial review of governmental advice intended to be acted upon in a public administrative context. | Used to assess whether the FCO's Ministerial Statement constituted reviewable advice; found it was not akin to such advice. |
| Gillick v DHSS and another [1986] 1 AC 112 | Lawfulness and justiciability of guidance issued by government departments. | Considered in relation to whether the DPP's advice was reviewable; the court found the DPP's advice was capable of review. |
| Shrewsbury and Atcham BC v SSCLG [2008] 3 All ER 548 | Judicial review concerns actions with substantive legal consequences. | Supported the Defendants' submission that the FCO's Ministerial Statement did not create substantive legal consequences. |
| R (Hampstead Heath Winter Swimming Club) v Corporation of London [2005] 1 WLR 2930 | Declaratory relief may be granted to clarify law even in hypothetical cases if a genuine issue arises. | Supported the court's discretion to grant declaratory relief despite the hypothetical nature of the claim. |
| Al-Haq v FCO [2009] EWHC 1910 (Admin) | Standing and justiciability in cases involving foreign political matters. | Referenced in assessing the Claimants' standing; noted the foreign political context but distinguished the present case on exceptional grounds. |
| R v Jones (Margaret) [2007] 1 AC 136 | Parliament alone can create new crimes; courts must consider constitutional principles when applying customary international law. | Considered in evaluating whether recognition of immunity conflicts with constitutional principles. |
| R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 | Relationship between customary international law and domestic law; policy considerations in recognition of customary rules. | Distinguished on the basis that Parliament had expressly legislated on the subject in Keyu, unlike the present case. |
| R v Secretary of State for the Home Department, ex parte Thakrar [1974] 1 QB 684 | International law rules inconsistent with statute law may not be given effect by courts. | Distinguished as the 1964 Act does not regulate special missions, so no inconsistency arises. |
| R v Governor of Pentonville Prison, ex parte Teja [1971] 2 QB 274 | Non-recognition of special mission immunity absent acceptance by the receiving State. | Confirmed that immunity depends on recognition and consent by the UK. |
| R v Governor of Pentonville Prison, ex parte Osman (No.2) (1988) 88 ILR 378 | UK does not regard the Convention on Special Missions as declaratory of customary international law. | Supported the executive's position that special mission immunity was not established customary law at that time. |
| Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002 | Immunity of foreign officials; distinction between treaties reflecting customary law and those not. | Referenced to illustrate limited ICJ commentary on special mission immunity. |
| Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), ICJ Reports 2008 | Immunity claims for special mission members not upheld absent treaty applicability. | Noted as not directly addressing customary international law on special missions. |
Court's Reasoning and Analysis
The court began by identifying the proper focus of the challenge, concluding that the FCO did not make a justiciable decision conferring immunity, but rather conferred status by certifying the visit as a special mission. The operative decisions regarding arrest and immunity rested with the MPS and the DPP, who acted independently under statutory powers.
The court acknowledged the constitutional principle of separation of powers, emphasizing prosecutorial independence from the executive.
It was held that the FCO's Ministerial Statement was an expression of opinion rather than reviewable advice, whereas the DPP's advice to the police was given under statutory powers, intended to guide action, and thus amenable to judicial review, subject to standing and timeliness concerns.
The court examined the substantive issue of whether customary international law requires that members of special missions accepted by the receiving State enjoy personal inviolability and immunity from criminal jurisdiction during the mission's duration. The court undertook an extensive review of international treaties, the work of the International Law Commission, decisions of international courts and tribunals, state practice from various countries including the UK, US, Germany, France, and others, and the views of academic jurists.
It found that while the Convention on Special Missions has not achieved universal ratification or full acceptance as customary international law, a clear rule of customary international law has emerged requiring receiving States to secure the inviolability and immunity from criminal jurisdiction of members of special missions during their visits.
The court rejected the Claimants' submission that immunity should be limited to official acts or excluded for international crimes such as torture, finding no support in state practice for such limitations and emphasizing the functional nature of the immunity.
Turning to domestic law, the court held that customary international law is a source of the common law and should be given effect unless inconsistent with domestic constitutional principles or statute. The Diplomatic Privileges Act 1964 applies only to permanent missions and does not displace customary international law relating to special missions.
The court rejected arguments that recognition of such immunity conflicts with constitutional principles or requires legislative action, noting that immunity is a procedural bar, not a substantive creation or removal of criminal offences, and that courts have historically recognised immunities based on customary international law.
The court concluded that the immunity is functional and applies to all members of a special mission accepted by the FCO, limited to personal inviolability and immunity from criminal proceedings during the mission. Issues related to civil jurisdiction or other immunities were not addressed.
Finally, the court found that the Claimants had standing and had acted with reasonable promptness in relation to the DPP's advice, and that the claim was not purely academic given the possibility of future visits and the importance of clarifying the law.
Holding and Implications
The court made the following declarations:
(1) Customary international law requires a receiving State to secure, for the duration of a special mission, personal inviolability and immunity from criminal jurisdiction for members of the mission accepted as such by the receiving State.
(2) This rule of customary international law is given effect by the common law.
The direct effect of this decision is to confirm that members of special missions accepted by the UK Government enjoy immunity from criminal proceedings and personal inviolability during their visit, as a matter of common law reflecting customary international law.
No new precedent was set beyond affirming and clarifying the existing position based on extensive international and domestic practice and legal principle. The court emphasised the constitutional separation of powers and the limited role of the executive in conferring immunity, leaving the legal effect to be determined by the courts.
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