Harry Dunn, Diplomatic Immunity and the Law

Update (4th Feb 2021) - There is now some doubt as to whether Anne Sacoolas was entitled to diplomatic immunity at the time of her offence. This arises from a civil case brought in the US by Dunn's family seeking damages from Sacoolas for Dunn's death. Her immunity status is in question since the US proceedings revealed she was employed by the CIA in addition to her husband, and not simply just the spouse of a CIA operative. This employment may have changed her immunity status at the time, as certain CIA employees such as administrative workers or technicians are not entitled to the same level of immunity as other operatives. This post, however, is written under the presumption that Sacoolas had diplomatic immunity. 

This short post discusses the Harry Dunn case and the law surrounding diplomatic immunity.

Facts of Harry Dunn’s case

Anne Sacoolas a 42-year-old American woman is reportedly the spouse of a US intelligence official and was entitled to diplomatic immunity by virtue of her marriage.

Harry Dunn, a 19 year old British man, was involved in a collision with Mrs Sacoolas. Most reports suggest that Mrs Sacoolas was driving on the wrong side of the 

 at the time of the accident, but stayed at the scene until emergency services arrived. Harry Dunn tragically lost his life as a result of the injuries he sustained in the collision.

Although Mrs Sacoolas cooperated with Northamptonshire Police, three weeks after the crash she legally returned to the USA after being granted permission to leave due to her diplomatic immunity.

Northamptonshire Police applied to waive her diplomatic immunity, but the application was refused. Reports suggest this was refused on account that Mrs Sacoolas had already returned to the United States.

According to the Foreign Office, now that she has returned to her home country, foreign Secretary Jeremy Hunt states that Mrs Sacoolas can now return to the UK to be tried for whatever charge may be appropriate, as her immunity is no longer relevant.

What would the charge be?

Most likely, death by dangerous driving. Northamptonshire Police have passed the case to the CPS to consider a prosecution for this very offence, (death by dangerous driving under s.1 of the Road Traffic Act 1988) but no charge has been brought as of yet due to the complicating feature of immunity.

Considering a sentence, the facts are very unclear at this stage, although as Donald Trump suggested in a press conference it appears that Mrs Sacoolas was driving on the wrong side of the road in error due to her familiarity of driving on American roads.

With a glance at the sentencing guidelines, death by dangerous driving at its lowest level of severity, where the driving created a significant risk of danger, has a starting point of 3 years custody, with a range of 2-5 years custody. This goes up progressively where the dangerous driving created a substantial risk of danger, with a starting point of 5 years, and there is an even higher starting point for the most serious offences such as 8 years, the maximum for the offence being 14 years imprisonment.

As with all sentences, aggravating and mitigating features will influence the final sentence.

Mitigating factors include matters like lack of experience contributing to the offence – not being used to driving on UK roads may be relevant in mitigation, and aggravating factors such as being under the influence of drink or drugs, previous convictions for motoring offences will aggravate the sentence.

There is another lesser known offence however which may be relevant, notably causing death by careless or inconsiderate driving, where the maximum sentence is 5 years, but with a much greater possibility of a community order for offences where the careless or inconsiderate driving results from momentary inattention and there are no aggravating factors.

However, were she convicted of an offence of death by dangerous driving, there would be a risk that she would face a custodial sentence. Therefore, Mrs Sacoolas' avoidance of a criminal charge, by way of immunity is both appreciable from her perspective, but equally, if not more so, abhorred by the family of Harry Dunn.

But what is diplomatic immunity, and how has Mrs Sacoolas seemingly appeared to avoid the criminal justice procedure?

The legal framework: What is diplomatic immunity?

Diplomatic Immunity stems from an International Treaty called the Vienna Convention on Diplomatic Relations 1961. It protects foreign diplomats who work abroad without fear of persecution from the host country.

In practice, this means that anyone who is not a British citizen that has diplomatic immunity cannot be subject to prosecution for a criminal offence, or even for a civil case.

Art 29 states that ‘diplomats’, such as an intelligence officer for example, must not be liable to any form of arrest or detention and are immune from civil or criminal prosecution.

Another relevant provision is Art 9 – the host nation can for any reason declare a diplomat to be persona non grata – the state where the diplomat is from must recall them within a reasonable time frame or the diplomat could lose the status of immunity.  

Under Art 32. Those who benefit from diplomatic immunity can lose their immunity if the foreign government agrees to a request to waive such immunity by the Foreign office of the host nation. The beneficiary of the immunity cannot waive it by themselves.

Around 23,000 people in the United Kingdom have diplomatic immunity.

The Vienna convention does state that those who receive immunity are expected to abide by the laws of the receiving nation. However, as previous cases have demonstrated, this does not always occur. 

Could someone actually ‘get away with murder’ then?

Theoretically, yes.

The most notable example is that of the murder of PC Yvonne Fletcher in 1984. PC Fletcher was attending a protest outside the Libyan Embassy, but was fatally shot from a window by someone inside of the Embassy.

In a message intercepted by intelligence services, the Libyan government had instructed the embassy to open fire on the demonstrators, who were protesting the executions of Gaddaffi opponents in Libya. Automatic gunfire from the windows of the embassy wounded eleven protestors and killed PC Fletcher.

The political fallout was massive.

Upon learning of the shooting, Libya placed the British embassy in Tripoli effectively under siege, using military guard to trap the occupants of the embassy. Whilst this was short lived, diplomatic relations with Libya broke down after failed negotiations, and ties between the nations were cut, resulting in both embassies being abandoned in Tripoli and London.

The event was part of Margaret Thatcher’s decision to support US bombings of Libya, using Air Force Bases in the UK.

Despite Libya admitting culpability for the shooting in 1999, and paying compensation, no charges were brought. Reports suggested that sufficient evidence was held by the police to bring a charge, but it could not be made due to issues of national security.

This however, under the Vienna Convention, would still have required the Libyan government to waive diplomatic immunity.

In civil cases too…?

Immunity becomes more complicated where the individual in question is a permanent British resident. In 2016, The court of Appeal heard that Saudi billionaire Sheikh Walid Juffali used diplomatic immunity as a defence to a claim on his fortune made by his ex-wife. He was appointed as the permanent representative to the International Maritime Organisation (IMO) by Saint Lucia, the tiny Caribbean island. His immunity came from this position.

He separated from his wife in 2013, but was appointed to the IMO in 2014.

The Court of Appeal ruled that the court below was wrong to dismiss the notion that Juffali was entitled to immunity, but that since he was a permanent resident in this country, he was not immune from civil actions, and therefore was not immune from the claim against his wife. This is because permanent residents who are diplomats are only immune from prosecution for official acts.

This particular case demonstrates a slight wrinkle, but had he not been a permanent resident, and enjoyed a more conventional diplomatic immunity, it is possible, and even likely, such immunity would have protected him from a civil claim.

Similar to Harry Dunn’s case, another tragic incident from 1997, this time in the United Sates, involved a Georgian diplomat who drove whilst heavily intoxicated. The diplomat caused a large accident which resulted in the death of a 16 year old girl and injured four other people. Media coverage proved highly influential, and caused a national outrage as the diplomat had been held before for two previous driving offences, one of which was drink driving (he tested over the blood-alcohol limit). These previous two charges were both dismissed on account of his diplomatic immunity.

It is perhaps ironic here that the United States government requested the Georgian government to waive his immunity, which Georgia agreed to. The diplomat was charged and pleaded guilty to involuntary manslaughter, receiving a custodial sentence.

What could happen now with Harry Dunns case?

As Mrs Sacoolas has returned the United States, Domonic Raab states that her diplomatic immunity is no longer relevant, and she could be extradited to the United Kingdom, should the US government agree.

The US and UK do have an extradition policy, so even if unlikely, this is nonetheless technically possible.

However, there still remains the argument that at the time of the offence, Mrs Sacoolas had diplomatic immunity. In that sense Dominic Raab’s opinion, that the question of immunity is no longer relevant, seems misplaced. If she was extradited, she would almost certainly argue this in her defence.

However, as with the case of the Georgian diplomat in the United States, it would not necessarily be a successful defence. The diplomat did in fact have immunity at the time of his offence, and yet his immunity was waived after the offence, but he was still convicted.

The Vienna Convention can operate to remove immunity retrospectively, so that where an offence was committed with immunity, yet it has been waived by the home country government, immunity is no longer defence.

This makes sense as waiving immunity in response to an offence would in almost all conceivable cases be arbitrary, unless it were simply to remove protection from future offences. It makes more sense that applications to waive immunity would be in response to crimes already committed.

This of course is distinguished from the present case, where the question of revoking immunity is not presently on the table.

It is very uneasy to hear of how a young man has lost his life, and that the law does not provide an avenue for justice where immunity is held by the defendant. It is entirely understandable the campaign the family is making to seek justice, in what is unquestionably a tragic case.

Should diplomatic immunity be changed then?

Diplomatic immunity has gathered a considerable degree of controversy, though as cases from the 80s have shown, this disquiet is not new.

William Hauge as Foreign Secretary revealed that in 2010 alone, diplomats had been accused of 18 crimes which included sexual assault, human trafficking and drink driving. Highly respected human rights barrister Geoffrey Robertson QC argues diplomatic immunity should be severely limited, and entirely inapplicable to civil cases. He states the Vienna Convention is a product of the Cold War and is no longer relevant in peacetime.

The arguments for and against diplomatic immunity are better placed in a separate discussion, as this is just intended to be a brief overview of how immunity has operated with some extra legal details about this particular case.

Brexit: A threat or an opportunity for UK lawyers and legal London? (Times Law Award Submission)

A fog of Brexit uncertainty for lawyers may thaw in expected ways. Whilst there is no doubt substantial work for lawyers will be generated, our questioner errs by proposing a false binary. Greener pastures for some might be put out for others.

Legal London is experiencing an exponential increase of Brexit related work. Many firms have recruited academics, business advisors and extra practitioners, bolstering their expertise and strengthening their offering. Clients looking to side step the consequences of Brexit are wisely instructing lawyers for assistance in navigating the unknown. In the short-term, this growth will only continue. From corporate clients requiring complex advice on business reorganisation, to private individuals seeking to best position their assets post Brexit. Whether their clients stand to gain or lose money, lawyers will be both available and invaluable. 

International dispute resolution is an area likely to grow. Judgements from such cases will still be entirely enforceable outside of the UK, as they encounter similar procedures of enforcement as in non-EU member states. The differing procedures however will create new challenges and thus legal work for this area. Also, the simplicity of enforcement within the EU is replicable through creating alternative reciprocity arrangement, which would produce further work in this field. Moreover, the suitability of English law for commercial transactions, coupled with the renowned integrity of English courts will not dissolve after Brexit, unaffecting the UK’s attraction as a destination for dispute resolution.

Despite having a withdrawal agreement signed, the negotiations for the Chequers proposal are yet to take their first steps. As Chequers is painfully vague, the eventual agreement itself is almost impossible to predict. Consequently, areas like mergers and acquisitions have slowed in anticipation of acting on the relevant trade agreement when made. However, mergers and acquisitions litigation will ignite once the future trade agreement is reached, and much like international dispute resolution, business is likely to grow in the long-term. However, opportunities may not come to all. 

Long-term forecasts for finance and banking lawyers appear more troublesome. Great concern looms over the fate of passporting. Passporting enables Banks and financial services firms to trade freely with any other EU or European Economic Area (EEA) country. If equivalent provisions are excluded from a Brexit trade agreement, some banks and multinational financial service providers could reduce their UK operations, either relocating to another EEA country, or moving subsidiaries there. Inevitably this incurs initial demand, yet the long-term legal work generated by these bodies will leave along with their clients. Though finance is a single area, the vast amount of revenue otherwise generated by financial services work will be noticeably absent, both to firms and the Treasury. 

That said, the City of London will not lose its status as an elite global financial centre. Expect no exodus. Even though London is likely to retain its status, laurels cannot be rested on. As European capitals such as Paris begin to cultivate English speaking courts, competition for cross-border dispute resolution will only become fiercer. A nonchalant legal London could pay a severe price. Whilst the benefits of Brexit may be reaped today, great challenges in ensuring London remains competitive will arrive soon by tomorrow. 

Economic stability post-Brexit will be critical for the continued legal industry buoyance. A no-deal scenario would be most unfavourable. This could potentially shed £3bn from the legal industry by 2025, and, if the Bank of England is correct, could shrink the economy by 8% immediately after Brexit. Despite a recession, a devaluation of the pound could render the UK an attractive investment opportunity for international clients, generating more work for lawyers still. Yet firms heavily reliant on cross-border transactional work would experience profitability decline, as investment into a newly turbulent economy would be highly unlikely to offset the consequences of a recession. Economic downturn potentially has even wider consequences for the legal industry.

Criminal practitioners might suffer indirect consequences from a post-Brexit recession. Austerity measures made a sacrificial lamb out of the criminal justice system after the 2008 recession. It would come as little surprise if the Ministry of Justice’s rhetoric of fat cat lawyers, rich off the public purse, was wheeled out once again to justify another savaging of legal aid. It seems then, Brexit may even be a distant threat to criminal lawyers. Whilst criminal practitioners will not encounter restrictions in practice resulting from Brexit, lawyers with cross-border practises will.

Based on the draft withdrawal agreement reached on 14th November, the apparent willingness of both the UK and EU to compromise suggests a no-deal scenario is unlikely. However, both Chequers and no-deal scenarios appear to leave the UK outside of the single market for services. Also, it seems most likely the UK will fall outside of the EEA. This will have three significant consequences for UK lawyers practising in the EU. First, lawyers qualified in the UK can currently represent clients in the European Court of Justice, a freedom that may require further hurdles once Brexit occurs. Second, legal privilege afforded to UK lawyers in EU cases could potentially be rescinded and third, the current ability to draw up contracts in 15 EU countries could be lost as well. Unless negotiations retain these privileges, UK lawyers will face substantial disadvantages over their EU counterparts. For those with cross-border practices, Brexit presents perhaps the most immediate threat. As such, lobbying robustly to secure mechanisms that enable cross-border practice and financial services freedoms should be prioritised. 

Great caution should be taken not to rejoice blindly on the prosperity Brexit currently brings to the industry. Failure to acknowledge the long-term challenges Brexit places upon lawyers in certain areas is to ignore that Brexit is both, ultimately, opportunity and threat.