The Freedom And Justice Party & Ors, R (On the Application Of) v Secretary of State for Foreign and Commonwealth Affairs & Anor, Court of Appeal - Administrative Court, August 05, 2016, [2016] EWHC 2010 (Admin)

Resolution Date:August 05, 2016
Issuing Organization:Administrative Court
Actores:The Freedom And Justice Party & Ors, R (On the Application Of) v Secretary of State for Foreign and Commonwealth Affairs & Anor

Neutral Citation Number: [2016] EWHC 2010 (Admin)

Case No: CO/6384/2015



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/08/2016




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Sudhanshu Swaroop QC and Tom Hickman (instructed by ITN Solicitors) for the Claimants

Tim Eicke QC, Guglielmo Verdirame and Jessica Wells (instructed by Government Legal Department) for the First Defendant

Paul Rogers and Katarina Sydow (instructed by the Crown Prosecution Service) for the Second Defendant

Jeremy Johnson QC (instructed by MPS, Directorate of Legal Services) for the Interested Party

Shaheed Fatima QC and Rachel Barnes (instructed by Hickman and Rose) for the Interveners (by written submissions only)

Hearing dates: 28th and 29th June 2016

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  1. Introduction

    1. This is the judgment of the court to which both members have contributed.

    2. The substantive issue raised by the Claimants in this application for judicial review is whether members of special missions visiting the United Kingdom with the approval of the First Defendant (``the FCO'') enjoy personal inviolability and/or immunity from criminal process pursuant to a rule of customary international law to which effect is given by the common law.

    3. The Claimants deny the existence of such a rule, and in any event contend that the common law should not give effect to it. They submit that these judicial review proceedings are the appropriate vehicle for enabling this important point of principle to be determined. The FCO and the Second Defendant (``the DPP'') adopt common cause in averring the existence of such a rule of customary international law which, to the extent it has not already been recognised by the common law, should now be recognised. The FCO further contends that the court in its discretion should not entertain this application on a number of related grounds. The DPP shares some of the FCO's concerns in relation to the standing of these Claimants but (as more fully explained below) wishes to be informed by this court if its understanding of the law is incorrect.

    4. The Interested Party (``the MPS'') adopts a neutral position in relation to what it describes as the ``important legal issue that arises as between the Claimants and the Defendants''.

    5. Amnesty International and Redress have filed helpful written submissions on the substantive issue but have taken no position on the particular facts of this case or the court's exercise of its discretion.

  2. Factual background

    1. The law relating to permanent missions has been codified in the form of the Vienna Convention on Diplomatic Relations, 1961 (``VCDR'') (as a matter of international treaty law binding on the United Kingdom and 189 other States in their mutual relations) and the Diplomatic Privileges Act 1964 (as a matter of domestic law within the United Kingdom). Special or ad hoc missions fall outside these regimes. The UN Convention on Special Missions, adopted in 1969 and which came into force in 1985, has been signed but not ratified by the United Kingdom and no domestic legislation in this jurisdiction reflects or enacts its provisions.

    2. Following the decision of this court in Khurts Bat v Federal Republic of Germany [2013] QB 349, on 4th March 2013 the FCO (acting by the then Secretary of State, the Rt. Hon. Mr. William Hague MP) gave a written Ministerial Statement on ``special mission immunity'' announcing a ``new pilot process by which the Government will be informed of inward visits which may qualify for special mission immunity status''. It is the Government's view that members of special missions ``enjoy immunities, including immunity from criminal proceedings and inviolability of the person'' to which the common law gives effect. By an accompanying note verbale, foreign governments are advised that the Protocol Directorate of the FCO should be given at least 15 days' notice of the arrival of the mission, providing details, amongst other matters, of the visitor's full name and title, and role or function. It is the policy of the FCO to grant the application for consent to the visit only in respect of ``official business''. Both the note verbale and the Ministerial Statement make clear that consequential issues of legal effect and status ``would ultimately be a matter for the courts'', because the FCO's function is limited to the issue of consent to a given visit as a special mission. The note verbale reaffirms Her Majesty's Government's ``firm policy of ending impunity for the most serious international crimes and a commitment to the protection of human rights''.

    3. Between June 2012 and July 2013 the First Claimant formed the elected Government of the Arab Republic of Egypt. The Second Claimant was appointed Minister of Investment in the Government of Egypt in May 2013 but ceased to hold office in July 2013. The Third Claimant describes himself as ``the Foreign Relations Secretary of the Freedom and Justice Party of Alexandria'' from June 2012 to July 2013. He is currently seeking asylum in the United Kingdom.

    4. In July 2013 the First Claimant lost power in what it characterises as a ``violent coup d'état orchestrated by the current military regime''. It says that in August 2013 there was a ``widespread, systematic and violent clampdown'' on supporters of the previous regime, and that atrocities took place, including killings and acts of torture, during the course of a demonstration in Rab'a Square in support of ex-President Morsi, and its aftermath.

    5. According to the evidence of Mr Tayab Ali, the First Claimant's solicitor:

      ``Since the coup, the First, Second and Third Claimants have been acting as representatives for thousands of individual victims of the coup. Individuals went to the First Claimant, as they were able to instruct lawyers and pursue a number of cases to seek redress and accountability for the coup. The First Claimant consequently instructed us to pursue a number of avenues for complaint ... In that capacity, I have received instructions via the First Claimant for inter alia:

      (1) Victims of the numerous atrocities at Rab'a Square

      (2) Field doctors from Rab'a Square, who were attacked by security forces while they attempted to treat victims...

      (3) Individuals who have been subjected to torture in Egyptian custody.''

    6. The Fourth Claimant, whose name has been anonymised by the order of Sweeney J. dated 16th February 2016, is a British citizen and surgeon who went to Egypt in July and August 2013 to assist in emergency field hospitals. He is not a member of the First Claimant. His witness statement graphically describes the immediate aftermath of a number of violent events, in particular what he characterises as an attack on a peaceful protest carried out by the Egyptian police, army and security services on 27th July 2013. He states that the field hospital at which he was working was overwhelmed by patients with life-threatening injuries. He informs the court that ``over ten hours, we received over 3,000 patients, 200 of whom died''. The Fourth Claimant states that he was deeply disturbed by what he witnessed, and seeks justice for what happened to the victims from those responsible.

    7. The First Claimant, through in particular Mr Ali, has since February 2014 been pressing the War Crimes Unit of the Metropolitan Police Counter-Terrorism Command (SO15) to arrest in the United Kingdom individuals responsible for torture in Egypt, pursuant to the universal jurisdiction conferred by section 134 of the Criminal Justice Act 1988. The precise detail of the endeavours made by the First Claimant and its advisers need not be addressed, but - for example - on 28th February 2014 a meeting took place involving Mr Ali, four Queen's Counsel and members of the MPS. At around that time, Mr Ali's firm submitted a file to SO15 containing evidence of the alleged involvement of a number of individuals in significant international crimes. Mr Ali does not give the precise date, but according to paragraph 24 of his witness statement ``we have provided the Police and the Crown Prosecution Service with a list of 43 named suspects that have been identified as responsible for the relevant crimes''. SO15 then began a scoping exercise in accordance with internal guidelines.

    8. According to the evidence of Deborah Walsh, who is Head of Counter Terrorism and Deputy Head of the Special Crime and Counter Terrorism Division of the CPS, on 6th June 2015 Mr Ali was informed both orally and in writing that there was insufficient evidence at that stage for a realistic prospect of conviction, and that the DPP's counsel was preparing a written advice to that effect. The evidential deficiencies were discussed at a meeting which took place on 17th June, and it was explained that the scoping exercise would continue its work. Ms Walsh also informs the court:

      ``We also discussed that some of those being investigated may have Special Mission immunity during any visit to the UK. ITN solicitors said that they may challenge this concept ...''

    9. Lt. General Mahmoud Hegazy was the director of the Egyptian Military Intelligence Service in July and August 2013, and is regarded by the First Claimant as ``having key responsibility for the Rab'a atrocities''. The MPS has confirmed that he is one of the 43 individuals named within the material submitted by ITN Solicitors, and that he remains part of the scoping exercise. His precise status as at September 2015 is not agreed by the parties, but Mr Ali describes him as ``currently [i.e. as at the date of his witness statement, 14th December 2015] the Egyptian Chief of Staff'', and the FCO's certificate (see below) confirms that. There is an issue between the parties as to whether he occupies other positions in the Egyptian...

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