Diplomatic Immunity and Diplomatic Premises

Updated 3 August 2018|Legal Guidance, International and organised crime

Principle

The immunities granted to diplomatic staff, and their families, are set out in the 1961 Vienna Convention on Diplomatic Relations (VCDR), the Vienna Convention on Consular Relations 1963 (VCCR) and Consular Relations Act 1968. The relevant provisions of the Conventions are applied in the UK by Section 2 of the Diplomatic Privileges Act 1964 (DPA 1964).

Immunity is dependent on rank and ranges from immunity from criminal and civil and administrative jurisdiction to immunity for official acts only.

Article 29 of the VCDR states that:

"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

The VCDR and VCCR oblige members of a diplomatic mission and their families to respect the laws and regulations of the host country (Article 41 of the VCDR; Article 55 of the VCCR).

Staff at diplomatic missions and London based consular missions

Criminal immunity and inviolability in the UK is conferred on all Diplomatic Agents and Administrative and Technical Staff of foreign diplomatic missions and on all Consular Officers and Consular Employees at London-based foreign consular missions. To qualify for this immunity and inviolability, the staff must be: (1) accepted by Her Majesty's Government (HMG) as the receiving State; and (2) notified to the Foreign and Commonwealth Office (FCO).

Whilst staff cannot be nationals of the UK or hold permanent UK residency, dual UK-Commonwealth nationals, who are recognised by HMG as members of their mission, are entitled to the immunity and inviolability to which that person would be entitled if they were not a British national. This does not extend to any of their dependents who may also be dual UK Commonwealth nationals.

Criminal immunity is only afforded to the Service Staff at foreign diplomatic or foreign London-based consular missions in respect of the acts performed in the course of their duties. However, such staff are not inviolable.

Dependents of staff at diplomatic missions staff at London based consular missions

Criminal immunity and inviolability in the UK is conferred on all qualifying dependent household members of Diplomatic Agents and Administrative and Technical Staff of foreign diplomatic missions and Consular Officers and Consular Employees at London based foreign consular missions. To qualify for this immunity and inviolability, the dependent must be notified to, and accepted by, the FCO. The dependents of Diplomatic Agents and Consular Officers cannot be nationals of the UK; and the dependents of Administrative and Technical Staff and Consular Employees cannot be nationals of the UK or hold permanent UK residency.

Dependents of Service Staff are not afforded any immunity or inviolability.

Staff at consular missions based outside of London

Inviolability: Consular Officers accepted by HMG and notified to the FCO are not liable to arrest or detention pending trial, except in the case of a grave crime (one punishable on conviction, as a first offence, with a sentence of five years or more) and then only pursuant to a decision by the competent judicial authority. Consular Employees are not inviolable.

Criminal immunity: Consular Officers and Consular Employees accepted by HMG and notified to the FCO hold immunity in respect of acts they perform in the exercise of their consular functions.

Dependents of staff at consular missions based outside of London

Dependents do not hold inviolability or immunity.

Consular Conventions

Enhanced immunity and inviolability may be afforded to the consular staff of those countries with whom the UK has agreed a Consular Convention: Austria; Belgium; Bulgaria; China; Croatia; Czech Republic; Cuba; Denmark; Egypt; France; Germany; Greece; Hungary; Italy; Japan; Kosovo; Mexico; Mongolia; Montenegro; Netherlands; Norway; Poland; Romania; Russian Federation; Serbia; Slovak Republic; Slovenia; Spain; Sweden; Ukraine; and United States of America. Any enhancement will be dependent on the respective country’s Convention.

Termination of duties

Upon the termination of their functions with their mission, qualifying officers and their qualifying dependents retain their privileges and immunities in the UK for 31 days, unless otherwise advised by HMG

Waivers of immunity and inviolability

Without a waiver of immunity from the sending State, London based staff and dependents who are inviolable, may only be detained as a last resort (such as being in danger of harming others or themselves). Staff at consular missions based outside of London and who are inviolable, may only be detained in the case of a grave crime (as detailed above) or as a last resort.

The FCO may request a waiver of a person's diplomatic immunity in order to arrest, interview under caution and, if appropriate, bring charges. A diplomat cannot waive his or her own immunity. Waivers can only be granted by the sending State. The FCO requests a waiver of immunity through the diplomatic mission concerned.

However, where the Police consider that there is sufficient evidence to justify court proceedings against an individual but the Head of Mission concerned does not agree to a waiver, the FCO may ask for the withdrawal of the individual and their family or declare them personae non gratae. Even if immunity is not waived, any other persons implicated as secondary parties to the diplomat's offence may still be prosecuted.

Waivers of immunity must also be sought, where applicable, for civil or administrative jurisdiction.

The position with members of ad hoc or 'special' diplomatic missions was clarified in the case of R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin). The High Court ruled that immunity arises at common law where the diplomatic status of that mission (and of the individual in question) is recognised by the Foreign and Commonwealth Office on behalf of HM Government. (An appeal is pending).

With regards to diplomats who are no longer in post, assistance can be drawn from the Supreme Court case of Reyes v Al-Malki & Anor [2017] UKSC 61. There, it was held that a former member of the diplomatic staff in London and his wife were not entitled to diplomatic immunity from the claim brought against them by the appellant (their domestic servant) as the employment and mistreatment of the appellant was not an act in the exercise of the diplomatic functions of the mission contrary to Article 39(2) of the VCDR.

Diplomatic and Consular Premises

While diplomatic premises in the UK are part of UK territory, they are inviolable and may not be entered without the consent of the Ambassador or Head of Mission. (See DPA 1964 section 2(1) and Schedule 3). Any offences committed in diplomatic premises in the UK are triable under the ordinary principles of English law, subject to the principles of diplomatic immunity for those who have it. Those who do not have this status (whatever their nationality) can be prosecuted as normal, as for example happened in the case of the terrorists who seized the Iranian embassy in London in 1980.

The definition of diplomatic premises is buildings or part of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of mission (VCDR 1961, Article 1(i)).

Similarly, while consular premises in the UK are part of UK territory, they are inviolable and may not be entered without the consent of the heard of the consular post or of the head of the diplomatic mission (see VCCR 1963, Chapter 2, Article 31).

The definition of consular premises is buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post (see VCCR 1963, Article 1 (j)).

Under Section 1(1) of the Diplomatic and Consular Premises Act 1987, missions are required to seek the Foreign Secretary’s consent for land to be regarded as diplomatic or consular premises.

Guidance Status

This guidance has been agreed by the Parliamentary Protection Group of the Metropolitan Police (PaDP), FCO and CPS.

Procedural Guidance

The guidance must be followed in all cases where a person has diplomatic immunity, claims to have diplomatic immunity or is believed to have diplomatic immunity.

Immunities given to the staff of International Organisations are dependent on the organisation’s respective Headquarters Agreement.

In all such cases, the police officer will submit a report of the PaDP, and a copy is forwarded to the Protocol Directorate at the FCO. PaDP/FCO will advise if the offender has diplomatic immunity.

If a person with diplomatic immunity is the victim or witness to a crime, the officer in the case should request a waiver of immunity. Similarly, if a diplomat or an entitled family member is suspected of a crime, a waiver using the same form must be applied for before any investigation commences.

Prosecutors are reminded that any investigative material gained prior to the waiver will have no evidential value and that a person with diplomatic immunity cannot waive their own immunity. Failure to adhere to agreed protocols can have ramifications around the International Diplomatic Community.

Minor offences, such as motoring offences, will not usually be referred to the CPS. It is usually sufficient for a copy of the police report to be sent to the FCO. Diplomatic Missions and International Organisations Unit, Protocol, FCO will write to the Deputy Head of Mission (DHM) at the foreign mission concerned, and ask the DHM to remind his staff of the need to respect UK laws.

In more serious cases, and if the police think that the case is one that merits seeking a waiver of immunity, the PaDP will submit the full facts to the FCO and the Chief Crown Prosecutor (CCP) of the appropriate CPS Area. A serious case is defined under the FCO guidance as "an offence that might carry a custodial sentence of over 12 months".

The CCP will review the case in accordance with the Code for Crown Prosecutors. He/she will advise both the PaDP and FCO as to whether the criteria for prosecution are satisfied.

If the criteria are satisfied, the FCO, after consultation with the PaDP will decide which of the following courses of action will be pursued:

  • Bring the offence to the attention of the Head of Mission;
  • Request the withdrawal of the alleged offender from this country; or
  • Ask that the Head of Mission waive immunity so that a prosecution can proceed.

If the case does not satisfy criteria for prosecution the FCO may still decide that it is undesirable for the alleged offender to continue his or her duties in the UK.

It is important that if any of these cases satisfy the normal referral criteria to the Special Crime and Counter-Terrorism Division, then that procedure should be followed.

Prosecutors are reminded that all cases involving the prosecution of a person with diplomatic immunity should be dealt with under the direction of the CCP, unless the case meets the criteria for referral to one of the Central Casework Divisions.

Unless cases are referred to a Central Casework Division to be dealt with under the relevant referral criteria, they will be dealt with locally.

The police are responsible for establishing whether an individual or premises has diplomatic immunity.

In some circumstances where a person has not initially claimed diplomatic immunity (for example, in a drink/drive stop) and subsequently does so this issue must be resolved before any further action is taken.

Further reading