The alleged abuse of diplomatic immunity to avoid domestic legal process features regularly in the news. This summer, for example, the UK Foreign Secretary published a list of 11 ‘serious and significant offences’ allegedly committed in the UK in 2015 by people with diplomatic immunity, along with numerous less serious offences. The list includes human trafficking and offences involving indecent images of children. Less serious, but with a cumulative financial impact on the capital, is the £100m reportedly owed in congestion charge fees by London’s foreign diplomats.
Under Article 31 of the Vienna Convention on Diplomatic Relations 1961 (VCDR: to which nearly all States are parties, including the UK), a serving diplomat enjoys personal inviolability and is immune from all legal process in the State to which she is posted. The procedure adopted by the CPS in criminal cases involving diplomats is set out on the CPS website.
Although criminal cases have tended to receive the most attention, this wide-ranging immunity from legal process extends also to civil proceedings.
If the Foreign and Commonwealth Office has accepted a person’s credentials as a diplomat, is it possible to go behind that?
But who decides who should be entitled to this extremely broad immunity? If the Foreign and Commonwealth Office has accepted a person’s credentials as a diplomat, is it possible to go behind that? This interesting issue has vexed the courts this year. It arose starkly in the context of divorce proceedings brought in London by the second wife of a wealthy Saudi businessman, Walid Juffali. After the proceedings were brought, Mr Juffali was appointed “Ambassador and Permanent Representative” of St Lucia to the International Maritime Organisation (IMO) in London – a role which, by reason of the legal framework agreed between the UK and the IMO, carries the same immunities as other foreign diplomats. This, he argued, meant that the courts could not entertain his ex-wife’s claim for financial relief under the Matrimonial and Family Proceedings Act 1984.
Hayden J, giving judgment on 8 February 2016 (Estrada v Al Juffali, originally handed down in anonymised form as W v H  EWHC 213 (Fam)), was not convinced. Taking a “functional” approach to immunity, he took the view that:
There is no evidence that H [Mr Juffali] has any knowledge or experience of maritime matters, seaborne trade, shipping or indeed of any of the specialised areas with which the IMO is concerned”. He considered it “clear that since his appointment H has not undertaken any duties of any kind in the pursuit of functions of office”, and noted that “The appointment coincided with the emergent relationship between H and his third wife.
This led Hayden J to hold that:
I am satisfied that what has transpired here is that H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct.
Hayden J also held that, in any event, H was not entitled to full immunity from suit, since he counted as a permanent resident of the UK. This meant that, under the legal framework of the UK IMO Order (SI 2002/1826), and in line with the principles of the VCDR, he had immunity only in respect of his official functions, which would not cover the divorce proceedings.
This decision was sharply inconsistent with a judgment given only a week later by Blake J in the case of Fawaz Al Attiya v Hamad Bin-Jassim Bin-Jaber Al Thani  EWHC 212 (QB). There, the parties were both members of prominent families in Qatar; the claimant alleged that the defendant had caused his rights to be violated in a number of ways, including torture while detained on Qatari government premises. Applying the decision of the House of Lords in Jones v Ministry of the Interior of Saudi Arabia  UKHL 26,  1 AC 270, Blake J held that the doctrine of state immunity meant that the court had no jurisdiction to hear the claim. That was sufficient to decide the case, but he went on to consider the parties’ submissions on diplomatic immunity.
As in the H case, the claimant argued, essentially, that the defendant’s diplomatic appointment was a sham. Interestingly, Blake J held that if the court was entitled to carry out a “functional” analysis and the burden of proof was therefore on the defendant “to prove that he has the status of a diplomatic agent by establishing on a civil balance of probabilities that he is actually exercising diplomatic functions” then the defendant would lose the argument: the defendant’s evidence was undermined by “an essential silence on whether he has ever performed this function since he arrived in the UK or performs it now in 2016.”
However, Blake J rejected the functional approach, holding that “[t]he prerogative power of conducting foreign relations is exercised by the executive through the FCO and not by the courts”. He noted that if the FCO has reason to believe that a diplomat is abusing his or her position, the UK may make representations to the diplomat’s sending State or, in the last resort, declare the diplomat persona non grata under Article 9 of the VCDR. He took the view that “Leaving the control mechanism for termination of an appointment in the hands of the FCO, if it considers appropriate, avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry.”
So when Mr Juffali took his divorce case to the Court of Appeal, it was faced with two incompatible first instance decisions on whether or not the courts can decide that a diplomatic appointment accepted by the FCO is in fact not valid. The FCO intervened, arguing against the adoption of the “functional” approach which Hayden J had applied, on the basis that “[t]he conduct of foreign relations and the work of international organisations could be seriously hampered if the acceptance of accreditation of diplomats and Permanent Representatives was not regarded as conclusive, but was open to scrutiny by the courts.”
This lack of judicial scrutiny puts the onus firmly on the government to monitor abuses of diplomatic position.
The Court of Appeal agreed ( EWCA Civ 176), preferring the reasoning of Blake J to that of Hayden J, and rejecting what it considered as an impermissible attempt to go behind a certificate provided by the FCO confirming the defendant’s diplomatic status. It did not consider that this conclusion was affected by Article 6 of the European Convention on Human Rights (the relationship between state/diplomatic immunity and the right of access to court under Article 6 is a thorny issue in its own right). However, H still lost on the basis that, as Hayden J had held, he was a permanent resident of the UK and therefore only entitled to a narrower immunity limited to his official functions.
The Supreme Court refused permission to appeal in May of this year, paving the way for the High Court to order Mr Juffali, in July, to pay £75 million to his ex-wife.
So for now, the position seems clear: the courts will not go behind an FCO certificate stating that a person has been accepted in the UK as a foreign diplomat, however tempting it may be to do so on the facts of a particular case. This lack of judicial scrutiny puts the onus firmly on the government to monitor abuses of diplomatic position. If, as the FCO’s July statement suggests and as has repeatedly been alleged, foreign diplomats are using their immunities to commit serious offences, including fundamental rights violations such as human trafficking, one would expect the UK to take strong action, regardless of the diplomatic importance of relations with the State in question. As noted above, the removal of a diplomat from the UK can be brought about through the use of Article 9 VCDR. This allows the UK to declare a diplomat persona non grata, which requires her sending State either to recall her or terminate her functions, failing which the UK could refuse to recognise her diplomatic status, paving the way to prosecution (if the diplomat remained in the country). This power has been used extremely sparingly by States, including the UK, but it may be time to revisit that position.