Cambridge Law Journal | 2019
IDENTIFICATION OF SPECIAL MISSION IMMUNITY AND THE RECEPTION OF CUSTOMARY INTERNATIONAL LAW INTO ENGLISH LAW
Abstract
IN R. (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWCA Civ 1719, the Court of Appeal affirmed a decision of the Divisional Court that (1) members of special missions are entitled to inviolability and immunity from criminal jurisdiction (the “core immunities”) under customary international law; and (2) these immunities form part of English common law. The Freedom and Justice Party, which formed the elected Government of Egypt between June 2012 and July 2013, argued that Mahmoud Hegazy, director of the Egyptian Military Intelligence Service in July and August 2013, was responsible for torture during the 2013 military coup d’état that led to the overthrow of President Morsi. In 2015, the Foreign and Commonwealth Office consented to Hegazy’s visit to the UK as a member of a special mission. The appellants asked the Metropolitan Police to arrest him on suspicion of acts of torture, contrary to section 134 of the Criminal Justice Act 1988, which makes it a criminal offence to commit torture anywhere in the world. However, the Crown Prosecution Service took the view that members of a special mission were immune from arrest; so no action was taken against Hegazy. The appellants then sought judicial review of the decision not to arrest him, and the Divisional Court accepted their request for an advisory declaration on special mission immunity as it applied in the law of England and Wales. Special missions are one of the earliest forms of diplomatic intercourse, and “an essential part of the conduct of international relations” (at [79]). However, unlike permanent missions, there is no widely accepted convention governing the privileges and immunities of their members. The 1969 Convention on Special Missions has only 39 state parties (neither Egypt nor the UK is a party, although the UK has signed the Convention), largely Cambridge Law Journal, 78(1), March 2019, pp. 1–41