The immunities granted to diplomatic staff, and their families, are set out in the 1961 Vienna Convention on Diplomatic Relations (“VCDR”) (and the Vienna Convention on Consular Relations 1963 – CRA 1968) 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.
Diplomatic immunity in the UK is conferred on all entitled members of a foreign mission (and entitled 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. Immunity is dependent on rank, and ranges from immunity from criminal and civil and administrative jurisdiction to immunity for official acts only.
On cessation of their exempt status, diplomats and their dependants have 31 days with privileges and immunity in which to depart the UK.
The VCDR obliges diplomats and their families to respect the laws and regulations of the host country.
The DPA 1964 confers immunity from criminal jurisdiction on diplomatic agents and their families, who are inviolable. Without a waiver, a diplomatic agent, or dependant, may only be detained if deemed likely to harm either themselves or the public.
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.
Principle – Diplomatic 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.
Diplomatic Immunity (Archbold 1-83 to 1-86), Stones 1-462
Diplomatic Premises (Archbold 2 35), Stones 8-24783
Joint Guidance from the Metropolitan Police, FCO and CPS
This guidance has been agreed between the Diplomatic Protection Group of the Metropolitan Police (“DPG”), FCO and CPS.
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. DMIOU, 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 Police 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 DPG 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;
- 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 duties in the UK.
It is important that any case involving a possible charge concerning diplomatic premises which involves a political element is referred immediately to the Counter Terrorism Division (CTD) of the Special Crime and Counter-Terrorism Division and is not dealt with by Area or CPS Direct prosecutors. Any prosecutor considering charging such offences must make contact with a CTD lawyer before authorising charge. A CTD lawyer is on call at all times.
For CTD contact details – see the Legal Guidance on Explosives.
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 is aware of the matter in view of the possible sensitivity of the offences.