ACCIDENT BY DIPLOMATS
1. DIPLOMATIC IMMUNITY
Prepared by the U.S. Department of State, Office of the Legal Adviser,
January 13, 1997
A. Background
Diplomatic immunity is a principle of international law by which certain foreign
government officials are not subject to the jurisdiction of local courts and other
authorities. The concept of immunity began with ancient tribes. In order to
exchange information, messengers were allowed to travel from tribe to tribe
without fear of harm. They were protected even when they brought bad news.
Today, immunity protects the channels of diplomatic communication by exempting
diplomats from local jurisdiction so that they can perform their duties with freedom,
independence, and security. Diplomatic immunity is not meant to benefit individuals
personally; it is meant to ensure that foreign officials can do their jobs. Under the
concept of reciprocity, diplomats assigned to any country in the world benefit
equally from diplomatic immunity.
2. LEGAL FRAMEWORK
A. The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention
on Consular Relations of 1963 codified most modern diplomatic and consular
practices, including diplomatic immunity. More than 160 nations, including the
United States, are parties to these treaties. The conventions provide immunity to
persons according to their rank in a diplomatic mission or consular post and
according to the need for immunity in performing their duties. For example,
diplomatic agents and members of their immediate families are immune from all
criminal prosecution and most civil law suits. Administrative and technical staff
members of embassies have a lower level of immunity. Consular officers serving in
consulates throughout the country have an even lower level of immunity. Members
of an embassy’s service staff and consular employees are immune only for acts
Performed as part of their official duties.
B. The United States considers the Vienna conventions particularly important because
of the large number of American diplomatic and consular personnel stationed in
countries where judicial systems are very different and less protective of individual
rights than our own or where unfriendly governments might use their police
authorities to harass American diplomats and their families. Failure by U.S.
authorities to uphold the Vienna conventions would complicate U.S. diplomatic
relations and could lead to harsher treatment in foreign courts of U.S. personnel
abroad.
C. 3.Abuses of Diplomatic Immunity
D. Under the Vienna conventions, all persons entitled to immunity have the obligation
and duty to respect the laws and regulations of the host country. Immunity is not a
license to commit a crime, and violations of the law are not condoned. In the United
States, any time a person with immunity is alleged to have committed a crime, the
Department of State advises his or her government of the incident and, where
prosecution would be the normal procedure, requests a waiver of the alleged
offender’s immunity so that the case may be heard in the appropriate U.S. court. If
immunity is not waived, the Department of State may, in serious cases, order the
withdrawal of the offender from the United States. In the case of an offense
committed by a member of a diplomat’s family, the diplomat and his or her entire
family may be expelled. Diplomatic visas of serious offenders are canceled, and their
names are entered into a worldwide lookout system to keep them from returning to
the United States.
E. The Department of State’s Office of Protocol works with the injured parties and the
foreign government to secure restitution in those cases where criminal incidents
have resulted in injuries to individuals. The Diplomatic Relations Act of 1978 and
related regulations require that before a person with immunity can obtain license
plates for a vehicle, he or she must have liability insurance. Anyone injured in an
automobile accident by a person with immunity may bring direct action against the
vehicle’s insurer in U.S. District Court. In addition, diplomats do not have a right to
endanger public safety by driving a vehicle while under the influence of alcohol or
by disregarding the rules of the road. Police stop them and, if they are intoxicated,
prevent them from driving. Police issue citations for driving offenses and the
Department of State revokes drivers’ permits for any persons found to be unsafe
drivers or who continually abuse driving regulations. Furthermore, some countries
follow the practice of investigating, and, if appropriate, taking legal action against
their own diplomats who are accused of breaking a host country’s laws.
F. In those cases where immunity prevents civil suits, the Department of State works
to settle the matter and mediates disputes in an effort to find a mutually satisfactory
solution.
G. The vast majority of persons entitled to some forms of diplomatic immunity are law-
abiding people. Only a few ever run afoul of the law. Unfortunately, those few who
do exhibit egregious behavior draw the attention of the public and the media and
damage the reputation of the entire group.
3. CATEGORIES OF DIPLOMATE BY IMMUNITIES
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A. the system of appointment of agent to act as representative of king or ruler for the
purpose of doing work in other countries or to perform some function has been in
vogue from time immemorial.
B. this is the system in international world, this type of person is known as ’diplomatic
representative’ or ‘diplomatic agent’. special importance is given to such person in
international law. such type of person has many immunities and privileges. and
having some duties which are understand by brief explanation as following as under
CLASSIFICATION OF DILOMATE:
agent-the diplomatic agent has been classified according to their status and functions; it
was again dropped by 1961 convention on diplomatic relations. thus, at present, the
classification of diplomatic envoys is as follows-
1. Ambassador and legates- ambassador and legates are the diplomatic agents of first
category. they are the representatives of the completely sovereign states. they are
either appointed as ambassador or permanent representative appointed by pope
are called legates.
2. Ministers plenipotentiary and envoys extraordinary-minister plenipotentiary and
envoys extraordinary are the diplomatic agents of secured category and as
compared to the diplomatic-agents of the first category, they enjoy less privilege and
immunity.
3. Charge-d-affaires are the diplomatic agents of the last category. the main reason for
this is that they are not appointed by the head of the state. they are appointed by
the foreign ministers of states. in right and status they are considered below the
minister resident.
it was made clear in article-14(2) of the vienna convention on diplomatic relation
that apart from precedent and etiquette, there is hardly any difference between the
diplomatic agents of above-mentioned categories. obviously, there is no difference
so for as their privilege and immunity are concerned.
immunities and privileges of diplomatic agents-several immunities and privileges
have been given to diplomatic agent under international law. s.s.dhawan has
considered these immunities and privileges a main base of international law.
These immunities and privileges are as follows;
1. Inviolability- in international law, diplomatic agents have been given sufficient
personal security. this immunity is recognised under vienna convention 1961. in
article 29 0f the said convention it has been said that “diplomatic agents will enjoy
physical inviolability. he will not be liable to any form of arrest or detention.
honourable treatment will be given to him by taking or keeping state and every
effort shall be made to maintain his freedom and reputation as intact.”
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But if the behavior and conduct of diplomatic agent is found to be objectionable and if
charge is imposed upon him of interference in internal affairs of keeping state, then he
may be declared as persona non grata and may be asked to leave the country (article- 9
and 43 of vienna convention 1961), indian diplomatic agent in pakistan rajesh mittal
was tortured by officers of intelligence agency of pakistan on 25th may 1992 and with
the result, india declared two pakistani diplomatic agents in india as persona non grata
and was asked to leave india is an good example of this.
2. Immunity from civil administrative jurisdiction-it is well established principle of
international law that the diplomatic agents enjoy immune from civil and
administrative jurisdiction.
Under this Immunity:
No suit can be filed against diplomatic agent for recovery of debt;
he cannot be arrested in action for debt recovery;
his property cannot be ceased and sold.
3.Immunity from criminal jurisdiction -diplomatic agents have also been given
immunity from criminal jurisdiction. under article 31 of vienna convention 1961, it
has been provided that “diplomatic agents shall be immune from the criminal
jurisdiction of the state". it means that the keeping state shall not prosecute and
penalize any diplomatic agent under any circumstance. even he can not be arrested.
but it does not mean that he can behave as he likes in keeping state. it is his duty
that he should obey all rules and laws of keeping state and should not do such act
which is inconsistent with the internal system of keeping state. if any misconduct is
done by him, the keeping state may suspend him and ask him to leave the country.
For example- in 1995 the first secretary sultan mahmood dehader in Afghan embassy
was suspended by government of india in delhi in consequence of criminal charge
and misconduct and was sent back to Afghanistan. this immunity is not available to
children and relatives of diplomatic agents who are not residing with them.
4.Immunity regarding residence-there is inviolability of residence of diplomatic agent.
entry in house and even his house can not be searched. if there is any person hidden
in his house to whom the police want to arrest, normally the diplomatic agent
surrenders such person to the police.
5. Immunity from giving evidence in the court-diplomatic agent is immured from
presenting himself for giving evidence in the courts. he can not be made bound for
giving evidence in the court. in article-31(2) of vienna convention, it has been said
“no diplomatice agent will be made bound for giving evidences in a court as
witness”. but if any diplomatic agent wants to give evidence at his own then he will
be allowed to present himself in a court for giving evidence.
6.Immunity from payment of taxes-in international law, diplomatic agent are immune
from payment of taxes and customs duties. according to article 34 and 36 of vienna
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convention “a diplomatic agent shall be immune from payment of all types of taxes
and duties”. but if any diplomatic agent wants to pay taxes in exchange for
enjoyment of facilities of water and electricity he will be allowed to pay. but if does
not pay any tax, no legal action will be taken against him.
7. Immunity from police rules and regulations-diplomatic agent are immune from police
rules and regulations. if he obeys these rules: it will be treated as his good manners
towards the state for maintenance of good relations.
8. Right of worship and devotion to God- diplomatic agent have right to worship
according to his own consciousness is his embassy. but he does not enjoy the right
to preach his own religion and to make the citizens of keeping states bound to
participate in his worship and devolution.
9.Immunity from local and military obligations- according to article-35 of vienna
convention 1961, the diplomatic agent have been immune from local and military
obligations.
10. Right to exercise control and jurisdiction over their officers and families.
11. Freedom of communication for official purpose-this freedom has been conferred
upon by article-27 of vienna convention on the diplomatic relations, 1961. this
article provides that they have freedom to communicate with their home-state in
connection with their functions and duties.
12. Right to travel freely in territory of the receiving state- this new right has, for the
time, been introduced in article-26 of the vienna convention on diplomatic
relations,1961. article 26 provides that diplomatic agents can travel in the territory
of the receiving state subject, of course, to the condition that they cannot go to the
prohibited places or the places which are important from the point of view of the
security of the receiving state.
13. Immunity from social security provisions-according to article 33, a diplomatic agent
shall with respect to services rendered for the sending state be exempt from social
security provisions which may be in force in the receiving state.
14. Immunity from inspection of personal baggage-article 36(2) of vienna convention
1961 provides that the personal baggage of a diplomatic agent be exempt from
inspection.
sources of this article
⦁ international law and human rights (book) by s.k. kapoor 17th edition.
CASE:
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IN THE CENTRAL CRIMINAL COURT
REX VS ANNE SACOOLAS
On 27th August 2019 you drove out of the military base at RAF
Croughton and turned left onto the B4031 towards Croughton
Village. It was about 8.20pm. There was good visibility. Two of your
children were in the back of your car. When you turned, you
immediately went onto the wrong side of the road where you
travelled for about 350metres. Just less than 30 seconds later your
car hit the motorcycle being ridden by Harry Dunn who was just 19
years old. He had spent 27th August 2019 with his best friend, he
was happy. He loved motor bikes. There is no suggestion that he
was driving anything other than entirely properly. He was on the
right side of the road, driving perfectly normally. Excessive speed
was not involved on either side. At the point of the collision there
was a slight bend and rise in the road. The impact with the front of
your car threw him onto the front of your car, then over the top of it
until he landed on the road. His bike caught fire and was pushed backwards
Another driver arrived soon afterwards and called the emergency
services. You got out, realised what had happened, and were very
distressed. You spoke to Mr Dunn who was conscious and speaking.
You got your children out of the car and called your husband and
the RAF base. You confirmed to the police that what happened was
your fault and you had been on the wrong side of the ROAD. A breath
test was administered and was negative. You said you had made a
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mistake.
Mr Dunn suffered multiple severe injuries. He was very gravely ill
when he was taken to hospital and died soon afterwards.
You were not arrested at the time. You did not remain in the United
Kingdom. You left on 15 September 2019.
You submitted to a voluntary interview with the police IN
Washington DC on 28 October 2019. As at the road side, you
admitted you were responsible.
A request for your extradition was submitted in 2020. It was
denied.
Immunity from criminal prosecution was claimed for you by the
government of the United States of America and accepted by the
British government. As the High Court of Justice in London found in
it’s judgment on the challenge of Mr Dunn’s parents to that decision
R (on the application of Charlotte Charles and Tim Dunn) v
Secretary of State for Foreign and Commonwealth Affairs & Chief
Constable of Northamptonshire Police [2020] EWHC 3185 (Admin)
you did indeed enjoy that immunity at the time of the accident
which killed their son.
There is no doubt that the calm and dignified persistence of these
parents and family of that young man has led, through three years
of heart-break and effort, to your appearance before the court and
the opportunity for you to acknowledge your guilt of a crime.
Eventually, you were charged with causing Death by Dangerous
Driving by written requisition pursuant to s.3, Crime (International
Cooperation) Act 2003.
Changes in the law wrought to Part 8 of the Criminal Justice
Act 2003 by the Police, Crime, Sentencing and Courts Act 2022 granted powers to the
criminal courts to permit a person to take
part in criminal proceedings through a live-link. The Chief
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Magistrate granted a live-link order and you appeared before
Westminster Magistrates Court on 29 September 2022. Your case
was sent to the Central Criminal Court.
By participating by video-link at Westminster Magistrates you
surrendered to the court. When your case was sent for trial to the
Central Criminal Court by the Senior Magistrate on you were given
unconditional bail. Surrender to this court was accomplished when
you were identified as being present, again by video-link on 20
October 2022. You were arraigned and pleaded guilty to a lesser
offence, that of Causing death by careless or inconsiderate driving
contrary to s.2B of the Road Traffic Act 1988. The court granted a
live-link for your arraignment because in my judgment it was in the
public interest for you to be able to enter your plea and it would not
defeat the interests of justice if that was accomplished by you
participating through a video link.
At no point in these criminal proceedings had it been
suggested that you were not free and able to travel to this
jurisdiction in person. Once you had pleaded guilty and were
therefore, a convicted offender there could be little reason in a case
where a young man had met his death, for you not to be required
to attend at court for sentence. Your bail was not withdrawn and
you were released from the court but directed to attend in person
for this sentencing hearing. I directed you to attend and observed
that attendance in person would be strong evidence of remorse.
For the purpose of s.6(1) Bail Act 1976 you had a duty to
surrender to the court. Failure of a defendant in a criminal case to
attend in person when directed to do so, without reasonable cause,
is an offence contrary to the Bail Act. It has the potential to affect
the court’s ability to administer justice by damaging the confidence
of victims, witnesses and the public more generally in the
effectiveness of the court system. Judges have to consider taking
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appropriate action if there is no sufficient justification for a failure to
attend. The usual action is to issue a bench warrant not backed for
bail which will result in the arrest of the defendant when they are
located.
Sentence was due to take place on 1 December. A week
before that date, on 24 November, the court received a renewal of
the application for you appears by a live link. This included reference
to harassment and threats, you and your family had received,
mainly by social media and many emanating from the USA, and an
assessment that this gave rise to a risk to your personal safety if
you travelled to the UK. It did not include any reference to a barrier
imposed by the government authorities to your travelling to London
to face sentence in person. As a consequence of what the court had
received I asked the prosecution to provide a response to the
material submitted. Very swiftly, by 28 November the
Northamptonshire police compiled an operation which set out IN
detail four plans by means of which your safety could be protected
if you were to return to the jurisdiction to be sentenced.
Accordingly, I maintained my order that the hearing be in
person. However, a request was made on your behalf for a delay of
a week to obtain further evidence. This was allowed. On Friday 2
December a statement was served from Amy Jeffries your attorney
who accompanies you today. I granted the application on Monday 5
December. The reasons were that for the first time in these criminal
proceedings a barrier to your attendance emanating from the
American government was relied on in support of the application. In
her statement Ms Jeffries says, “The U.S. government does not in
any way support Mrs Sacoolas’s appearing in person at this hearing.
In fact, Mrs Sacoolas’ US Government employer has advised her not
to return to the United Kingdom in person for this hearing because
her return could place significant U.S. interests at risk. This advice
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was communicated to her by her employer on 30 November and
she is not at liberty to disclose the communication itself or any
further information to the court.”
By s.51(3) of the CJA 2003, as amended by s.200 of the
PCSCA 2022 a sentencing hearing falls within the list of eligible
criminal proceedings for which the court has the power to make
such a direction pursual to s.51 (1). The power may be exercised in
respect of a person who is outside the jurisdiction of England and
Wales. But the power is subject to s.51(4)(a) which requires that
the court is satisfied, among other things, that it is in the interests
of justice to make the direction.
The interests of justice in a criminal case are frequently
different to the interests of a defendant. Respect for the law must
be genuine and effective, substantial and real.
The Lord Chief Justice has provided the courts with guidance
which must be considered alongside all the circumstances of the
case, in particular factors which are set out in s.51(6) of the CJA.
One of those factors is the need for the defendant to attend in
person. Paragraph 9 of the Guidance issued by the Lord Chief
Justice invites attention in such factors as the potential penalty to
be imposed and in paragraph 18 whether a live link would risk
damaging international relations so as to be contrary to the
interests of justice.
When the sentence is to be imposed for an offence that
involves a fatality there must be a strong public interest in the
offender being before the court in person, in other words a need for
the defendant to attend in person.
As will become apparent I concluded, provisionally and
subject to hearing the submissions in mitigation today, that the
barrier presented by your adherence to the advice given to you by
your government employer was relevant to my decision on the use
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of a live-link and it would not interfere with the due administration
of justice given the sentence I was likely to impose.
The alternatives would have been to withdraw your bail if you
had not attended today. The result would have been a warrant for
your arrest which would have been extant until executed or
withdrawn. The issuing of a warrant for your arrest would have
been close to an empty gesture and it would stall progress in this
case. Another option open to the court would have been to conduct
sentence in your absence as you are represented by counsel and
the court has material upon which to proceed. It would have been
perverse to refuse this video link in those circumstances and on 5 December I granted
the application, which remained a joint one by
the defense and prosecution.
In an eloquent impact statement Charlotte Charles, Harry Dunn’s mother has expressed
her sorrow at not being able to
comfort her son as he lay on the side of the road or in hospital. She
is full of regrets. Her other son, Harry’s twin Nile feels emptiness.
The deep suffering of the entire family at the unusual course of
events I have outlined has generated the persistence she and
Harry’s father have shown. She wants justice for her son. As she
promised him. Although they have been left with a gaping hole the
family is determined to provide a legacy for him in projects to help
others.
Who are you, Anne Sacoolas? You are a citizen of the United
States of America. You are 45 years old and happily married with
three children aged 7, 9 and 14 years. You accompanied your
husband on his posting to RAF Croughton having arrived a few
weeks before the accident. You had been socializing on the base on
27th August with your husband and children, he left the base shortly
before you and according to the material before me, you decided to
drive home the way he did even though you were less familiar with
it than another route you knew. You have expressed your
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condolences to Mr Dunn’s family through a statement read by
counsel on your behalf at this hearing.
Causing death by careless or inconsiderate driving contrary to
s.2B of the Road Traffic Act 1988 can be committed in various ways.
Sometimes a moment’s inattention can lead to tragic results. This is
not such a case. You drove along the wrong side of the road for
much more than a moment and you did not realize what you were
doing even when you were coming to a bend in the road when all
drivers on a narrow carriageway would naturally check they were
driving safely. It seems to me that your conduct, albeit careless
rather than deliberate, falls at the other extreme, taking everything
into account your behavior on this occasion was not far short of
deliberately dangerous driving which results in a death. I bear in
mind that it was a short period of driving and you were not familiar
with driving on English roads. The Sentencing Council Guideline
places the starting point for sentence for your offence at fifteen
months custody. The range it provides is nine months to three
years custody.
The death of Harry Dunne amounts to the highest degree of
harm but that is inherent in the charge and the starting point of 15 months.
There are none of the aggravating features that may appear
in some such cases for example you were not driving uninsured
There is mitigation in your case. In particular, you were not
compelled to submit yourself to this charge and these proceedings
but have chosen to do so. You had only limited experience of driving
in this country, you offered assistance to Mr Dunne at the scene and
you have never personally denied responsibility for his death. Other
features such as a short time you drove before the collision also
alleviate the gravity to a degree. You are to be treated as of good
character apart from two minor driving matters in 1997 and 2006,
both of which resulted in fines. Anyone who has caused death by
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driving would be expected to feel remorseful but remorse is
important for sentencing purposes and I accept that you felt and
feel genuine remorse.
These features require a reduction in the starting point. I
allow 3 months.
You indicated a guilty plea to this offence in the Magistrates’
Court and you entered your plea at the first opportunity in the
Crown Court. The law requires a one third discount to recognise
this.
The shortest term of imprisonment commensurate with the
seriousness of the offence is therefore 8 months imprisonment.
The offence is so serious that neither a fine alone nor a
community sentence can be justified for it. Imprisonment must
always be the last resort. Your offence passes the custody threshold
but before deciding that no alternative is appropriate I have
considered whether it can be avoided. I ordered a Pre-Sentence
Report at the last hearing. You will have seen the report. The author
has provided me with a great deal of useful information about you
and she has consulted senior officers and officials at His Majesty’s
Prison and Probation Service. However, the author concludes with
no recommendation to the court and states that her enquiries do
not reveal any practical way in which a form of community
sentence, or any other non-custodial disposal imposed by this court
could be managed in the United States of America. It is obvious that
no enforcement can be carried out and no breach of an order could
be prosecuted effectively while you remain abroad. Equally, no
restorative justice process can take place except in person. I am
grateful to the Probation Service for the enquiries they have made.
Counsel on your behalf has submitted that sentence should be
deferred and that you would arrange to do some form of voluntary
work in recompense. I do not consider that there is any purpose in
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deferring sentence. As the Pre-sentence report makes clear you are
not someone who needs rehabilitation, you need to be sentenced
and then both you and the family of Harry Dunn can move on.
If I were to impose an immediate custodial sentence then you
would be unlawfully at large thereafter and I would order you to
return to the United Kingdom to serve it. The sentence would be put
into effect if and when you entered the jurisdiction and surrendered
to a police station. Before doing so, I have considered whether it is
possible to suspend the sentence. You have the strong personal
mitigation I have already summarised, you are also a mother of
young children who would suffer disproportionate harm from your
immediate imprisonment and I am satisfied that appropriate
punishment can be achieved without immediate custody.
Please stand up Mrs. Sacoolas. You are disqualified from
driving for 12 MONTHS
For the offence of causing the death of Harry Dunne by your
careless driving the sentence is 8 months imprisonment suspended
for 12 months. There will be no additional requirements. The
sentence means that if in the next twelve months you commit any
offence, whether or not it is of the same type for which I am
sentencing you today, you would find yourself before the court
again, and it is likely that the sentence would be brought into
operation either in full or in part.
Mrs Justice Cheema-Grubb
8 December 2022
Conclusion
Diplomatic immunity is important For Peaceful FUNCTIONs
But may have some Restrictions in some Time
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increase in diplomacy (in practice more so than in scholarly attention) over the past
century. The reason is a global diplomatic arena crowded with growing numbers of
actors and issues. The chapter revisits the various contexts of diplomacy: conceptual,
historical, legal, institutional (bureaucratic) and cultural, and summarises the
importance of each context to the study of diplomacy. Spies concludes that diplomacy is
the ‘currency’ of international society. Its enduring value is vested in two
considerations, symbolism and utility, neither of which is in decline. This applies to all
states, regardless of their relative capabilities. It is also reflected in the growing interest
shown by non-state actors in joining diplomatic processes and obtaining the skills and
expertise inherent to formal diplomacy.
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