The Divisional Court (Flaux LJ and Saini J) handed down judgment today in R (Charles & Dunn) v Secretary of State for Foreign and Commonwealth Affairs  EWHC 3185 (Admin).
These proceedings for judicial review were brought by Charlotte Charles and Tim Dunn, the parents of Harry Dunn, aged 19, and arose out of Harry Dunn’s death, killed by a car driven by Anne Sacoolas, the wife of a member of the US Government’s Administrative and Technical (“A&T“) Staff at RAF Croughton, on 27 August 2019. Ms Sacoolas accepted that she was driving on the wrong side of the road.
The Claimants challenged the Secretary of State for Foreign and Commonwealth Affairs’ determination that at this time she enjoyed diplomatic immunity (Ground 1) and claimed additionally that the Defendant unlawfully confirmed and/or advised that Anne Sacoolas had immunity from criminal jurisdiction and/or obstructed a criminal investigation (Ground 2). The third ground alleged breaches by the Defendant of its procedural obligations owed under Article 2 of the European Convention on Human Rights (Ground 3).
The Claimants argued that the Defendant erred in law when the Foreign, Commonwealth & Development Office (‘FCDO’) decided that Anne Sacoolas enjoyed immunity from criminal jurisdiction. At the heart of the case were the special arrangements applied to members of the US Embassy based at RAF Croughton (agreed between the UK and the US in an Exchange of Notes in 1994), and the characterisation by the FCDO of the Exchange of Notes as containing an express advance pre-waiver of immunity under Article 32 the Vienna Convention on Diplomatic Relations (‘VCDR’) for the U.S. personnel only, not for their family members. The Claimants argued in that respect that Anne Sacoolas enjoyed no relevant immunity and had no greater immunity than Mr Sacoolas (whose immunity had been pre-waived as regards criminal jurisdiction).
The Court granted permission for judicial review in relation to the first ground, but then refused the application. The Court refused permission in respect of the second and third grounds.
The family of Harry Dunn have announced that they will be appealing the judgment.
This is an important case on the limits of diplomatic immunity of family members of personnel who enjoy limited immunity from criminal jurisdiction with respect to “acts performed in the course of his duties” only, and on the correct understanding of the interaction between the VCDR and special agreements (such as the Exchange Notes referred above).
Monica Feria-Tinta is instructed in the case alongside Sam Wordsworth QC and Sean Aughey (Essex Court Chambers), Richard Hermer QC (Matrix Chambers), and Emilie Gonin (Doughty Street Chambers).
They are instructed by Mark Stephens CBE and Hugo Mason of Howard Kennedy LLP.