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Lieutenant General Hegazy Visitng London

R (Freedom and Justice Party) v SS Foreign & Commonwealth Affairs: How Should International Law Inform the Common Law

Nick Kenny

Nick Kenny

Nick holds a Master’s from the University of Oxford, and is now studying at the University of Law in London. His interests centre on public and private international law.

In R (Freedom and Justice Party) v Secretary of State for Foreign & Commonwealth Affairs, the Court of Appeal clarified how international law feeds into English common law. It confirmed that strong reasons are needed for it to deviate from the orthodoxy of customary international law. The court therefore had no hesitation in affirming that members of ‘special delegations’ to the UK benefit from immunity from prosecution, even where allegations of torture are at play.

Link to judgment: EWCA Civ 1719

Factual Background

The claimants in this judicial review claim were

  1. the Freedom and Justice Party, who held power in Egypt between June 2012 and July 2013,
  2. several individuals in that government, and
  3. a British surgeon who had worked in field hospitals in Egypt during that period and had treated those injured in attacks by the Egyptian army and security services.

They alleged that Lieutenant General Hegazy, then director of the Egyptian Military Intelligence Service, was responsible for crimes of torture during the events leading up to the overthrow of the Freedom and Justice Party’s government in 2013.

Two years later, in 2015, Lieutenant General Hegazy visited the UK on a recognised ‘special mission’, i.e. a temporary diplomatic mission. The claimants, on learning this, asked the Metropolitan Police to arrest him under s134 Criminal Justice Act 1988, which gives the UK Court jurisdiction for acts of torture committed anywhere in the world (i.e. ‘extraterritorial’ jurisdiction).

The police refused to arrest him, having received advice from the Foreign and Commonwealth Office and Director of Public Prosecutions that he was protected as a member of a ‘special mission’, and so enjoyed immunity from criminal proceedings.

The claimants therefore sought judicial review of the decision not to arrest him. By the time the case was heard by the Divisional Court in June 2016, the special mission was over and Lieutenant General Hegazy had left the UK, so there was no prospect of successfully arresting him. Nevertheless, the claimants wanted clarification of the Foreign Office’s guidance that members of special missions had immunity from criminal proceedings. If they were not, then – given the UK’s extraterritorial jurisdiction – it could open the door to the UK arresting and prosecuting leaders embroiled in torture allegations in their own countries when they came here on diplomatic missions.

Legal Background

The core problem is this: there is no authoritative statute or other legal authority in the UK that governs whether members of special missions enjoy diplomatic immunity. The Diplomatic Privileges Act 1964 deals with immunity afforded to permanent diplomatic missions to the UK but does not mention special missions, which are by their nature temporary. There is no treaty between the UK and Egypt that sets out the immunities each would accord a special mission to the other and, though the UK has signed the UN Convention on Special Missions, it has not been ratified.

If there is no statute or valid treaty dictating that members of special missions receive immunity, then why did the police refuse to arrest Lieutenant General Hegazy? It seems that this decision was made on the basis of customary international law, i.e. that international law that is found in the general practice of how states operate on the international plane, rather than formal treaties.

This is what the Divisional Court found at first instance. After analysing the state of customary international law, they found that there was indeed a principle that meant members of special missions benefited from immunity from criminal prosecution. They then held that this principle of customary international law formed part of the common law. They concluded that, in the absence of any strong reason the two should be at odds, the court had no hesitation in following the orthodoxy of customary international law. It was this decision the claimants now appealed.

The Decision

The Court of Appeal in R (Freedom and Justice Party) underwent the same process as the Divisional Court. First, it enquired whether there was a principle of customary international law that afforded immunity to members of special missions. Secondly, it considered whether, if there was such a principle, it should be part of English common law.

i) Does customary international law provide immunity to members of special missions?

To establish a principle of customary international law, there must be:

  1. a general and uniform state practice supporting that principle (‘state practice’), and
  2. this practice must be done out of a sense of legal duty (‘opinio juris’).

The Court of Appeal concurred with the Divisional Court, which had found plenty of examples across the world of states granting immunity to members of special missions. There was, of course, little evidence from those states which do not send or receive special missions. Nevertheless, the court felt these could be discounted when assessing the ‘uniformity’ of state practice (para 82). With these excluded, there was plenty of evidence of both state practice and opinio juris concerning the provision of these immunities to members of special missions, with at least 28 countries found across the world that do so (para 99). Though hardly universal, this made the practice ‘sufficiently uniform’ (para 103) and so form part of customary international law.

Besides this objective approach towards the state of customary international law, the court interestingly slipped a policy consideration into their analysis. Specifically, it noted the ‘fundamental’ importance of special missions in international diplomacy (para 79). It stressed that these missions ‘are an essential part of the conduct of international relations’ and they could not be expected to operate without the immunity afforded to permanent missions.

The court dismissed the notion that this immunity under customary international law does not protect officials where allegations of torture are in play, for which it could find no evidence. The court drew support from the ICJ’s decision in Jurisdictional Immunities. It found that, even though the prohibition on torture is a fundamental and non-derogable norm of international law (i.e. jus cogens), this does not mean those who have committed torture must lose their immunity. Jus cogens norms are concerned with the substantive rules of international law, whereas immunity is a matter of procedure, meaning there is no clash between the two (para 109).

Finally, the court rejected the claimants’ argument that this immunity should be limited to official acts. This would require the court to invade that immunity to work out whether the act was an ‘official act’ or not, which would defeat the whole point (para 111). Besides, there was no state practice supporting this limitation. Overall, the court was clear that Lieutenant General Hegazy enjoyed immunity from criminal prosecution under customary international law.

ii) Does this principle form part of the common law?

Whether this immunity exists under international law still did not answer this case. For the police’s original decision to be correct, Lieutenant General Hegazy must have been immune under common law. Here, the court distinguished between (i) customary international law and (ii) obligations under treaties the UK government has signed but which Parliament has not ratified.

As a general principle, the executive cannot unilaterally change the common law (para 117). Therefore, any unincorporated treaty obligations are presumed not to be part of our domestic law.

However, the situation is the reverse for customary international law. The court drew support from Lord Mance in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, who stressed that customary international law ‘should shape the common law’ so long as it is consistent with ‘domestic constitutional principles, statutory law and common law rules’. In our case, the court highlighted that this is because the test for customary international law is so demanding, requiring ‘sufficiently uniform’ state practice and opinio juris – ‘not something the Crown can achieve by its own unilateral action’ (para 117).

Were there any domestic laws or principles meaning Hegazy’s immunity under customary international law should not apply at common law? The court dismissed the claimants’ argument that, on principle, this question concerning the scope of diplomatic immunity should be left to Parliament to determine. At issue is a simple and narrow rule of international law (para 127) and, although it concerns criminal justice, it is not as if the court is importing a new criminal offence from international law (which it accepted would ordinarily require Parliamentary involvement, para 124). There was no reason this rule should not form part of our domestic law, and so the police were right not to arrest him.

Analysis of R (Freedom and Justice Party)

This judgment is important for its lucid analysis of the interface between the common law and international law. It may seem surprising that different strands of international law should be treated differently, with customary international law presumed to be part of our domestic law and unincorporated treaty obligations facing the opposite presumption. However, the court had no worries about this. Instead, it concluded the difference of treatment was what these two types of international law, by their differing nature, demanded.

This decision may be frustrating to anyone hoping the UK would assert its extraterritorial jurisdiction over torture crimes more forcefully. Those who commit this offense must be public officials or ‘acting in an official capacity’ (s134 Criminal Justice Act 1988). This means they are likely to be in a position of political authority whereby, should they need to visit the UK, they could plausibly be sent under the auspices of a ‘special mission’. This would allow them to effectively circumvent the UK’s jurisdiction for this crime. In other words, this judgment may, in practical terms, severely curtail the power of our extraterritorial jurisdiction for crimes of torture, and mean those who commit torture to achieve positions of power are unlikely to be held to account on official visits to the UK.

Yet, what could the court do? It is difficult to fault the Court’s reasoning in R (Freedom and Justice Party). Furthermore, the policy point noted at para 79 is a crucial one, even if it only receives fleeting mention in the decision. Special missions are a vital component of the modern diplomatic system. It surely makes sense that official members of these special missions receive the same immunity afforded to a diplomat on a permanent mission.

Conclusion

Overall, the consistency in treatment between members of permanent missions and special missions and the uniformity between common law and customary international law make the judgment in R (Freedom and Justice Party) very ‘neat’. Those interested in the relationship between international and domestic law will find its clarity helpful. However, it may be frustrating to those who would see the UK more assertive in pursuing foreign leaders for crimes of torture when they find themselves on our shores.

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