The claimants, who were former members of the Egyptian Government, claimed that a particular person had been responsible for torture in the course of events that led to the downfall of the government of which they were members. In 2015 the Foreign Office and Commonwealth Office (“the FCO”) accepted the visit of this person and other members of his delegation as a special mission. The claimants requested that he be arrested. The FCO and the Crown Prosecution Service guidance stated that special mission members were immune from arrest. No action was taken against him and he left the United Kingdom at the mission’s end. The claimants claimed judicial review challenging the decision that the person was entitled to immunity. On the claim the Divisional Court of the Queen’s Bench Division made declarations that (i) customary international law obliged a receiving state to secure, for the duration of a special mission, the privileges of personal inviolability and immunity from criminal jurisdiction for the members of the mission whom it had accepted as such and (ii) this rule of customary international law was given effect by the common law.
On the claimants’ appeal—
Held, appeal dismissed. Customary international law obliged a state to grant the members of a special mission, which the state had accepted and recognised as such, immunity from arrest or detention and immunity from criminal proceedings for the duration of the special mission’s visit. Further, such immunities were recognised by the common law. Accordingly, the Divisional Court had been right so to determine (paras 12, 78, 79, 111, 112, 134, 135).
Sudhanshu Swaroop QC, Tom Hickman and Philippa Webb (instructed by ITN Solicitors) for the claimants.
Karen Steyn QC, Jessica Wells and Guglielmo Verdirame (instructed by Treasury Solicitor) for the Secretary of State.
Paul Rogers and Katarina Sydow (instructed by Director of Public Prosecutions) for the Director of Public Prosecutions.
The interveners did not appear but made written submissions.