6 July 2020 by

In R (Dunn) v The Foreign Secretary and the Chief Constable of Northamptonshire [2020] EWHC 1620 (Admin) the Divisional Court docket dismissed two functions made in anticipation of the forthcoming rolled up judicial overview arising out of the demise of Harry Dunn.

Harry Dunn was killed when his motorbike collided with a automobile being pushed on the incorrect facet of the highway by Mrs Anne Sacoolas, the spouse of a member of the executive and technical employees of the US Embassy primarily based at RAF Croughton. The Claimants (Harry Dunn’s mother and father) sought to adduce knowledgeable proof from a retired diplomat Sir Ivor Roberts, and likewise made an software for particular disclosure.

The Divisional Court docket summarised the background to the functions as being the judicial overview of:-

  1. The choice made by the Overseas Secretary that Mrs Sacoolas had diplomatic immunity beneath the Vienna Conference on Diplomatic Relations;
  2. The allegedly illegal obstruction by the Overseas Secretary of a prison investigation by the Northamptonshire Police;
  3. The allegedly illegal acceptance by the Northamptonshire Police of the recommendation of the Overseas Secretary or the Metropolitan Police that Mrs Sacoolas had diplomatic immunity;
  4. The alleged breach of the investigative obligation beneath Article 2 ECHR on account of the Overseas Secretary and the Northamptonshire Police’s error of regulation as to Mrs Sacoolas’s diplomatic immunity;
  5. The allegedly illegal ceding of sovereignty over a navy base within the UK with out Parliamentary consent; and
  6. The alleged suspension of the legal guidelines of the land with out Parliamentary consent by way of affording diplomatic immunity to members of the family of the related personnel.

Disclosure

In respect of the appliance for particular disclosure, the Divisional Court docket re-iterated the relevant rules governing disclosure in judicial overview, specifically that commonplace disclosure isn’t required except the courtroom orders in any other case, with the check as per Tweed v Parades Fee for Northern Eire [2007] 1 AC 650  being whether or not “within the given case disclosure seems to be mandatory as a way to resolve the matter pretty and justly.”

The obligation of candour required the events to “to help the courtroom with full and correct explanations of all of the info related to the difficulty the courtroom should determine” and to reveal supplies “that are fairly required for the courtroom to reach at an correct resolution”: referring to R (Quark Fishing) v Secretary of State for Overseas and Commonwealth Affairs [2002] EWCA Civ 1409 at [50].

The Divisional Court docket unsurprisingly strongly criticised as “heterodox” the argument made by the Claimants that relevance was a subjective willpower, and they need to have a chance to look at paperwork deemed irrelevant by the Overseas Secretary and by the Authorities Authorized Division, on the idea that these had been looking for disclosure of the paperwork  “had been the very best judges of relevance.” The Court docket held at [24] that:

The assertion that every one related paperwork have been disclosed is conclusive except there are some grounds for supposing the assertion to be mistaken. That have to be a fortiori the place in a judicial overview the place, as we now have mentioned, disclosure is restricted to what’s mandatory for the truthful and simply willpower of the problems. There isn’t any conceivable justification for the claimants and their legal professionals being entitled to trawl by way of the complete archive when Ms Robertson has acknowledged all related paperwork have been disclosed and there are not any grounds for disbelieving her assertion.

The Divisional Court docket additionally rejected additional classes of paperwork for disclosure on the idea that they had been irrelevant to the pleaded grounds. The Court docket famous, for instance, that whereas the Claimant sought disclosure of plenty of paperwork as a way to set up whether or not the Overseas Secretary had intentionally obstructed the prison investigation, there was no plea of misfeasance in public workplace. The Court docket held that “That is not more than a fishing expedition to see if a extra critical allegation will be made out. We’ve got little doubt that if there have been any paperwork which confirmed or recommended that any obstruction was deliberate, the GLD would have disclosed them as they’d clearly be related.

Knowledgeable proof

Almost about the appliance to answer on knowledgeable proof for Sir Ivor Roberts on the idea of being fairly required to resolve the difficulty as as to if the Overseas Secretary erred in regulation in deciding that Mrs Sacoolas loved diplomatic immunity, the Divisional Court docket famous that Sir Ivor was the editor of a number one textual content — Satow’s Diplomatic Apply — and was a former ambassador.

In his reviews he had made feedback in regards to the interpretation of the Vienna Conference. Nevertheless, it was “clear” that he was not purporting to present proof about state follow, as understood in worldwide regulation. That was an apparent downside for the Claimants as the idea of their software was that his proof was required to touch upon state follow. Additional, there was no suggestion that customary worldwide regulation was engaged, so state follow was not itself related.

The Divisional Court docket then thought-about the additional argument that his proof was required as a result of the related diplomatic Notes exchanged between the US and UK amounted to a treaty, and he might help on what the “technical” language would imply to diplomats.

The Court docket referred to the case regulation governing the development of Treaties by the use of figuring out what the phrases meant of their context, reasonably than by way of making an attempt to establish the underlying function.

The Court docket concluded that Sir Ivor’s reviews had been irrelevant and inadmissable. The first activity for the Court docket was to establish the which means of the Treaty in gentle of the extraordinary which means to be given to the phrases of their context, and in gentle of the article and function of the Treaty. This was an “exercise to be carried out by the Court docket making use of established guidelines. We don’t take into account this to be a talented train for diplomats the place any particular experience is in play.”

The courtroom held that he was unable to present knowledgeable proof as to the extraordinary which means, context, or function of the Treaty. Additional, Sir Ivor had commented on the aim of the events to the Notes — which was an impermissible method. He additionally expressed “inadmissible views as as to if or not the enjoyment of immunity ensured the environment friendly efficiency of the features of the mission.” There was no particular time period within the Notes which was ambiguous or unclear, or had a specific technical follow. Nor was there any diplomatic rule or follow recognized that might conceivably bear on the extraordinary which means of any of the phrases. Sir Ivor had no particular experience that might place him in a greater place to think about whether or not the FCO’s interpretation was absurd or irrational.

Remark

This case is a helpful illustration of the ability of the courtroom to police the ambit of the judicial overview process and of its variations to ‘typical’ civil litigation process. Nevertheless, the novel method taken by the Claimants as to the requirement to go behind a authorized consultant’s declaration as to relevance would doubtlessly have had very large penalties, and it’s hardly stunning that it was squashed so forcefully.

Dominic Ruck Keene is a barrister at 1 Crown Workplace Row