Diplomatic Immunity and Diplomatic Premises
Updated 28/02/08
Principle
The immunities granted to diplomatic staff, and their families, are set out in the 1961 Vienna Convention on Diplomatic Relations ("VCDR") to which the United Kingdom is a party. The relevant provisions of the Convention are applied in the UK by the Diplomatic Privileges Act 1964 ("DPA 1964"), section 2. [Link <Refer to Act>]
Diplomatic immunity in the UK is conferred on all members of a foreign mission (and family members forming part of their household, provided they are not nationals of the UK) who have been notified to, and accepted by, the Foreign and Commonwealth Office ("FCO") as performing a diplomatic function. The immunity is from criminal jurisdiction, and from any form of arrest or detention.
See the DPA 1964 for details of the duration of the immunity once the person has left the country, and for the more limited immunity for members of the technical and administrative staff of a diplomatic mission, and their family members, and see the Consular Relations Act 1968 for the more limited immunity for consular staff.
As well as affording immunity from jurisdiction, the VCDR requires diplomats and their families to respect the laws and regulations of the host country. Accordingly, a foreign diplomat in England has no right to ignore the rules of English law. The DPA 1964 confers immunity from criminal jurisdiction on diplomatic staff and their families, and prevents the arrest of persons with immunity. However, there are occasions when those with diplomatic immunity are arrested before their status is properly established, and/or because of the duty the police have to prevent harm.
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. The Mission consults their government and informs the FCO of its decision. This decision is often a matter of central policy, and a refusal to lift immunity does not necessarily imply guilt. However, where the FCO considers 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.
Diplomatic Premises
Diplomatic premises in the UK are not for any purposes foreign territory, but are part of UK territory, although the police and other UK authorities may not enter without the consent of the ambassador or Head of Mission. (See DPA 1964 s.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.
Diplomatic Immunity (Archbold 1-83 to 1-86), Stones 1-462
Diplomatic Premises (Archbold 2 - 35), Stones 8-24783
Joint Guidance
This guidance has been agreed between the Diplomatic Protection Group of the Metropolitan Police ("DPG"), FCO and CPS.
Diplomatic Immunity
The Guidance must be followed in all cases where
(a) a person has diplomatic immunity
(b) claims to have diplomatic immunity
(c) is believed to have diplomatic immunity
In all such cases as (a), (b) or (c) above the police officer will submit a report to the DPG, and a copy is forwarded to the Protocol Directorate at the FCO.
The FCO will advise if the offender has diplomatic immunity.
Minor offences, e.g. 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. The Deputy Director, Protocol, 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 FCO thinks that the case is one that merits seeking a waiver of immunity, the DPG 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 DPG and FCO as to whether the criteria for prosecution are satisfied.
If the criteria are satisfied, the FCO, after consultation with the CCP will decide which of the following courses of action will be pursued: -
- warning the Head of Mission that the alleged offender must mend his ways;
- requesting the withdrawal of the alleged offender from this country;
- asking 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 duties in the UK.
Diplomatic Premises
On receipt of a file, contact should be made with the Head of the Counter Terrorism Division at CPS HQ giving a summary of the available facts. This should be followed by a written summary as soon as reasonably practicable thereafter.
Procedure
All cases involving the prosecution of a person with diplomatic immunity should be dealt with under the direction of the CCP.
Unless cases are referred to Headquarters to be dealt with because of the sensitive/special nature of the matter, they will be dealt with locally.
The dual purpose of referral is: -
- that the appropriate persons at the DPG and the FCO are informed; and
- that CPS HQ are aware of the matter in view of the possible sensitivity of the offences.
Contact Details
The contact details for the DPG and the FCO are:
Graham Winch, CO6, Intelligence Unit, Diplomatic Protection Group Metropolitan Police, Apex House, 47 William 1V Street, London WC2N 4DH
E-mail: Graham.Winch@met.pnn.police.uk
Andrew Partridge, Diplomatic Missions and International Organisations Unit, Protocol Directorate, FCO
E-mail: Andrew.Partridge@fco.gov.uk