Geoff Berridge   10 Jun 2020   Diplo Blog, Diplomacy

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Diplo Wisdom Circle

When the abuse of diplomatic immunity is alleged to have occurred, it usually refers to diplomatic officers taking advantage of their special status under the 1961 Vienna Convention on Diplomatic Relations (VCDR) to avoid penalties for misdemeanours, such as ignoring parking regulations, shoplifting, and so on; occasionally for more serious offences. But governments that, in return for favours, grant diplomatic immunity to those who manifestly do not discharge diplomatic functions, or discharge some in abnormal circumstances and might be adequately protected by other legal means, also abuse diplomatic immunity. Both forms of abuse bring a vital principle into disrepute and thereby threaten its application in circumstances when it is properly needed.

A current case in point of the latter kind is provided by a revelation prised by the press from the British Foreign and Commonwealth Office (FCO) about Royal Air Force (RAF) Croughton in the English Midlands, and subsequently confirmed in a statement by the foreign secretary in the House of Commons on 21 October 2019. Despite its name, RAF Croughton is a large US intelligence communications hub, an important cog in the Five Eyes intelligence alliance, and operates under the aegis of the US Air Force’s 501st Combat Support Wing. Under a special UK-USA agreement sealed in 1995, diplomatic immunity was extended to intelligence officers, among others, on RAF Croughton staff. And it is for this reason that Anne Sacoolas has so far escaped what could have been a prison term of up to five years for killing young British motorcyclist Harry Dunn while at the wheel of a car (reportedly carrying diplomatic plates) being driven on the wrong side of the road in late August. For she is the wife of Jonathan Sacoolas, a US intelligence officer based at RAF Croughton, and the VCDR provides that members of the immediate family of a ‘diplomat’ enjoy privileges and immunities identical to those of the diplomatic officer.

Although Anne Sacoolas initially co-operated with the police investigation, she was swiftly flown back to the United States. Back home, obviously she no longer has diplomatic immunity; neither, perhaps less obviously, does her diplomatic immunity at the time free her of criminal responsibility for the killing of Harry Dunn, arrHarrsince diplomatic immunity is only procedural in nature (Denza, Diplomatic Law, 2008, pp. 311-312). But interesting questions remain. First, did diplomatic law permit the UK government to grant diplomatic immunity to persons working on an air base?

The answer to this question must be ‘yes’. First, there is nothing in the VCDR to suggest that the working part of a mission must only occupy one site, providing that any ‘offices forming part of the mission in localities other than those in which the [main part of the] mission itself is established’ are set up with the express consent of the sending state (VCDR Article 12); hence the legally legitimate view of British diplomats that RAF Croughton was treated as an ‘annex’ of the US Embassy in London. Second, an important purpose of a diplomatic mission is to gather intelligence (albeit by ‘lawful means’) and promote intelligence liaison between friendly states. And third, it is common practice for intelligence officers and their immediate families to be given ‘diplomatic cover’ in embassies, although not always as members of the ‘diplomatic staff’ – an important point in the context of this case. Thus the technicians among them, such as those working for the US National Security Agency (NSA), who traditionally clustered in the attics or in sheds on the roofs of large embassies, will almost certainly be members of the VCDR’s second tier of embassy staff, the ‘administrative and technical staff’. (This was effectively acknowledged by the foreign secretary in his 21 October statement.) And members of this class not only enjoy diplomatic immunity as well (except relative to civil and administrative – as opposed to criminal – jurisdiction when acting unofficially, VCDR Art. 37(2)); but also do not appear on the published diplomatic list. The consequence of this is that the argument – commonly heard in the early days of this affair – that the Sacoolas family was not entitled to diplomatic immunity because the husband’s name did not appear on the London Diplomatic List falls away.

The FCO might, therefore, have been legally entitled to extend diplomatic immunity to US personnel posted at RAF Croughton, but did they need to? This is the second question.

American intelligence technicians at RAF Croughton do not work in an unfriendly state; nor are their cloistered existence and super-protected communications likely to expose them to hostile pressure. Besides, they could benefit from special treatment via the Visiting Forces Act (1952). That service personnel and civilian support personnel of the United States in the UK are embraced by this act is confirmed by the listing of the USA in Part II of Schedule 1 to the Visiting Forces and International Headquarters (Application of Law) Order (1999). The conclusion, therefore, is inescapable. The British government has given diplomatic immunity to intelligence agency technical officers at RAF Croughton because it regards their work as vital and sensitive and because its most important ally, the United States, no doubt asked for it. And it probably asked for it because, apart from the fact that CIA and NSA officers are neither fliers nor civilian support staff of the US Air Force, the Visiting Forces Act provides nothing like the degree of immunity from UK jurisdiction afforded by diplomatic status and, unless waiver were to have been granted in her case, would certainly not have saved Anne Sacoolas from British justice. The easiest way to understand this is to look at the succinct guidance to this legislation provided by the UK Crown Prosecution Service here.

Nevertheless, the political expediency that was the background to the Sacoolas affair has produced an unfortunate consequence for diplomacy. By describing and treating as ‘diplomats’ persons who neither in the popular imagination nor in the understanding of the VCDR remotely resemble genuine diplomats and work in an establishment that is the very antithesis of a diplomatic mission, it has further tarnished the principle of diplomatic immunity itself, as well as possibly made its beneficiaries in such cases less careful about the need to obey domestic laws. Consideration should be seriously given to making all of the staff of establishments like RAF Croughton fall back on something resembling the Visiting Forces Act and, failing this, at the very least, to calling their ‘diplomatic immunity’ something else; for example, ‘special immunity’.

This post first appeared on the personal blog of Prof. GR Berridge and is republished here with permission.

Discussion topic

What are the main lessons of the Sacoolas affair?

Join the discussion in the comments below!

Comments

  • Charlie (not verified), 10/31/2020 - 17:18

    Dear Professor, I know not what the fascination in the U.K. over this case is. No, the U.S. will never send Sacoolas back to the U.K. to face a trial where the possible penalty is 5 up to 14 years. This in most or nearly all of my countrymen’s educated opinion is an unconscionable punishment. Not only will the original argument of diplomatic immunity probably prevail here in the U.S.,even it does not I do not believe for second that a Federal judge and our Department of State will allow Sacoolas to face such jeopardy in the U.K. absent of malicious intentions or gross recklessness (speeding In great excess, drink driving.. etc) It may feel good in U.K. to criminally charge Sacoolas. Ultimately, little will come of it. I suspect that this is an effort in the U.K. to appeal to the parents and supporters of the victim— to let them know that their government is listening and cares.

  • Geoff Berridge (not verified), 10/31/2020 - 17:18

    Dear Charlie, Thank you for your comment. I agree that it is highly unlikely that the Trump administration will either encourage or require the return of Mrs Sacoolas to the UK for trial. However, I think you exaggerate the punishment she would have faced had she remained, or would face were she to come back, although I admit that this depends on whether her driving is judged to have been 'dangerous' or merely 'careless' (my guess is the latter). Since, as I understand it, she behaved very properly at the scene, this page https://www.sentencingcouncil.org.uk/wp-content/uploads/FINAL-Death-by-… on sentencing guidelines in the UK suggests that she might have got away with no prison sentence at all, only a fine or community service.

  • Geoff Berridge (not verified), 10/31/2020 - 17:18

    Dear Craig, I sympathise very much with your reaction, although you will appreciate that sentencing policy is beyond my competence and was touched on only as an aside in my blog.

  • Jack Jones (not verified), 10/31/2020 - 17:18

    According to the Crown Prosecution Service (CPS) as peported in The Independent Newspaper (20th Dec 2019), the immunity does not apply to dependants of consular officials based outside London. As a conequence the CPS in consulation wit the DPP Max Hill QC have charged Mrs Sacoolas, and the Home Office have sent an extradition request. Te Director of Public Prosecutions has explained the situation personally to the Dunn family. It's still unlikely that Anne Sacoolas will be extradited, however the events have been very damaging to the US and are not over yet. Everyone knows that Croughton a spy base involved in hacking in to world leaders phones and even drone strikes. The lack pof accountability of US bases may yet be highlighted by the Judicial Review in to the Foreign Office, whilst Diplomatic Immunity is one again being questioned, whilst the case was also seen as important in relation to the much criticised current UK extradition laws. The media are also not finished with this one, and the Dunn family will keep on fighting and appearing on television with Piers Morgan and others who have taken a personal interest. All of this because a woman couldn't be bothered to come back and say sorry, get a slap on the wrist in terms of a suspended sentence and pay a fine. Matthew Broderick killed two people in Northern Ireland and was charged with the same offence of causing death by dangerous driving, and his sentence was a fine equivalent to $175. There have also been numerous other cases involving tragic accidents, and the 14 years only applies to those who caused such deaths by deliberate behaviour such as racing or using mobile phones.

  • Geoff Berridge (not verified), 10/31/2020 - 17:18

    Thank you for this, Jack, which has prompted me to update on this affair. Yes, rather to my surprise, I see that the CPS has recommended that Anne Sacoolas be charged with dangerous, rather than careless, driving and that an application for her extradition has been made via the Home Office to the US Department of State. I see from the press that there is now reference to a US-UK agreement of 1964 whereby staff at RAF Croughton 'pre-waived' immunity but their families were still to enjoy it. The British foreign secretary has asked for a review of this 'anomaly' as well as for a general review of the immunities given to US staff at RAF Croughton. I have just the following observations: (1) Anne Sacoolas was granted diplomatic immunity by the UK government and, in principle, the State Department should have been asked to waive this before she left the country; obviously, she was whisked out by the Embassy too quickly. (2) As a rule, diplomatic immunity ceases when diplomatic functions cease, so Anne Sacoolas, no longer enjoys diplomatic immunity. It is, therefore, entirely legitimate to apply for her extradition. (3) This will not be granted, although I imagine that there might have been more chance of this had she been charged only with careless driving. (4) Except in The Independent (the article of 20 December to which you refer) I can find no reference to any CPS claim about the dependants of 'consular' officials having no immunities. This is a thoroughly confused article, which is not surprising since the reporter chiefly covers Sport!

  • Brownlee (not verified), 10/31/2020 - 17:18

    She was driving on the wrong side of the road and hit a young man, who died of his injuries. This is a crime on whichever side of the pond you reside.

  • Phil (not verified), 10/31/2020 - 17:18

    Charlie, Don't you think driving on the wrong side of road is gross negligence? In most every state I've lived, it is that plus it kicks it up to vehicular manslaughter if you end someone's life. Do UK lives not matter? Is the US not a nation of LAW and Order? I'm trying to think of a parallel case, but of course most visiting Brits apparently know how to drive on American roads. P.R.

  • In reply to by Charlie (not verified)

    Wendy Gibbons (not verified), 10/31/2020 - 17:18

    Charlie, I'm a mother and if either of my boys had this awful thing happen I would be doing everything possible to get this god awful excuse of a mother back here to pay for her crime. She's killed someone. Wake up

  • In reply to by Charlie (not verified)

    Not important (not verified), 10/31/2020 - 17:18

    I would have called the accident driving without due care and attention, or careless driving, but dangerour driving is referring to a mode of driving which is inexcusable due to idiocy or the like and has nothing to do a crime as such. Anne Sacoolas has probably been on the wrong side of the road momentarily and any right thinking person would and should see this terrible accident in that light. This is undoubtedly a highly intelligent woman who with three of her own children would never dteam of perpetrating such a mistake out of sheer negligence. So this family are oviously out for revenge, mostly the mother, and everyone in the family dare not cross her. They follow her.
    She is vindictive and hopes ultimatly to sue the poor woman in USA to get financial gain too.
    Let a case be heard by video in a cross atlantic link with the relevant parties, at a high level.
    Anne Sacoolas won't be punished other than a fine, she has done nothing criminal to deserve anything else but be punished for this unfortunste misdemeaner. The dunns, or whatever they are called can take up their lives in their own simple way and let it all go.

  • In reply to by Craig Welch (not verified)

    Reginald Bowler (not verified), 10/31/2020 - 17:18

    "This in most or nearly all of my countrymen’s educated opinion is an unconscionable punishment"

    Why? Shouldn't people be prosecuted for crimes? Shouldn't people obey local laws, and be subject to local penalties? Should foreigners committing crimes in the USA be treated more leniently than locals, or even allowed to go free?

    There is a massive inconsistency in your thinking.

  • Nigel (not verified), 10/31/2020 - 17:18

    It is clear that despite the fire storm of criticism on both sides of the Atlantic that Mrs Sooclas's won't be coming back to Britain simply because she is a valuable asset which the US Government doesn't want to have in a UK jail for a couple of years.

  • Mike (not verified), 10/31/2020 - 17:18

    If I was her i would do the right thing and face the court and admit my mistake. Everyone makes mistakes. She did not set out to do wrong, That way both families would have closure, as it stands the Dunn's will be tormented for the rest of their lives that they did not get justice for Harry and Anne Sacoolas will have to live with the knowledge that she did not have the courage to face the law. I doubt given the circumstances that she would have been sentenced to any more than 3 years and that would probably have been suspended. As things stand, it certainly weighs heavy on her mind and her families knowing she did not have the courage to stand up and be counted.

  • Eric (not verified), 10/31/2020 - 17:18

    Justice is Justice.
    And in this case, Sacoolas has evaded Justice.
    The UK is known as a country for it's fair Justice.
    She should be extradited to the UK to face Justice.
    If Charlie thought for a moment how this would play out if the US/UK roles were reversed he'd very quickly see "what the fascination in the US over this case" would be.

    President Trump sells himself as the "law and order" president and yet denies Justice to one of its closest allies. However, Trump has also questioned, "What's an ally?" and stated that the EU was formed in order to take advantage of the US on trade. He promised to help the Dunn family. Let's see him keep his word.

    Ref: https://twitter.com/real_farmacist/status/1051627528920526848

  • In reply to by Charlie (not verified)

    A L D (not verified), 10/31/2020 - 17:18

    Charlie, I think you’re greatly misestimating how your fellow countrymen feel about the case. 5 years in jail for recklessly killing someone’s child seems like too lean of a sentence in my opinion and many Americans feel the same way as I do. I say reckless because that’s what it is when you drive on the wrong side of the road and kill someone head on. That is not a simple “accident”, that is reckless driving. If you do that here in America, you go to jail. You should be ashamed of your opinion, which is blinded by nationalism. If the tables were turned I’m sure you would want the “foreigner’s” head on a pike for having the audacity to kill an American child. You need to check yourself and your opinion, especially since you seem to think it’s so common, WHEN IT IS NOT.

  • Charlie Horse (not verified), 10/31/2020 - 17:18

    From a recent issue of road.cc --
    "A Solihull motorist has been handed a six-month suspended sentence and two-year driving ban after admitting causing the death of a cyclist by careless driving. David McSkimming was driving his Porsche Boxter at 59mph in a 40mph zone when he hit Anthony Satterthwaite on the opposite side of the road after “rebounding” off a tree.
    The Coventry Telegraph(link is external) reports that McSkimming was driving along Eastcote Lane, Solihull, on December 22, 2018, when he lost control on a bend, span onto the wrong side of the road and hit a tree before rebounding into 51-year-old Satterthwaite.
    The cyclist suffered fatal injuries and was pronounced dead at the scene. Investigators found the car had been travelling at 59mph in the 40mph zone in damp conditions."

    That was judged as "careless" not "dangerous" driving. I have read many incidents of cyclist being killed by faulty driving in the UK (e.g., "sun in eyes", "sandwich being eaten was falling down shirt") and none I can recall have included any jail sentence - many result in dropped charges.

    For this reason, and because I believe the British system of justice is capable of judging US citizens fairly, I think it was a mistake for the US/UK to evacuate Anne Sacoolas - the VCDR allows the diplomats country to waive immunity. She was in no danger of being imprisoned. Evacuation was a rash and ill considered move that created many unnecessary problems.

    Ironically, some of the comments here imply that she should be imprisoned in Britain, even explicitly mentioning her status as the wife of a US intelligence officer as a supporting reason for imprisonment. If such logic were actually to prevail in her case in the UK, then that would actually justify US demanding diplomatic immunity and evacuating her. (However, I do not believe such logic would prevail).

    Perhaps the outrage would be better turned on the UK consciously selfish dangerous drivers who kill cyclists with impunity.

  • Mike (not verified), 10/31/2020 - 17:18

    The US should send her back. As an American I believe we should honor extradition requests from allies. Especially when the person is guilty of killing someone.
    There is a problem in America and that problem is a lack of accountability.

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