12 October 2019

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 Vienna Convention on Diplomatic Relations (1961) (VCDR) to avoid penalties for misdemeanours such as ignoring parking regulations, shop-lifting 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 second kind mentioned in the preceding paragraph is provided by a revelation prised by the press from the British Foreign and Commonwealth Office (FCO) about RAF Croughton in the English Midlands. Despite its name, this is a large US intelligence communications hub, important cog in the Five Eyes intelligence alliance, and operates under the aegis of the US Air Force’s 501st Combat Support Wing. Diplomatic immunity, it seems, was extended to (publicly unspecified) staff at RAF Croughton in a special UK-USA agreement that was sealed in 1994, when Douglas Hurd was foreign secretary and Warren Christopher was secretary of state during the first presidency of Bill Clinton. 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 US intelligence officer Jonathan Sacoolas who was 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. After initially cooperating with the police investigation and giving no indication that she intended to leave the country, Mrs Sacoolas returned to the United States. There is no indication that the State Department intends to waive her immunity and send her back, despite apparently sincere attempts by the FCO and No. 10 to shift it on this point.

If it is true that this agreement exists, which unfortunately can no more be taken for granted than any other statement coming from the Johnson government, its plausibility must be admitted. (An FOI request for papers on this would be a waste of time and it will be at least 50 years before they are routinely released for scrutiny.) To begin with, RAF Croughton could legitimately be construed as an ‘annex’ of the ‘premises of the [US] mission’ in the sense of Article 1(i) of the VCDR. After all, an important purpose of a diplomatic mission is to gather intelligence (albeit by ‘lawful means’) and promote intelligence liaison between friendly states, and there is nothing in the VCDR to suggest that a mission must only occupy one site in addition to the residence, providing that any ‘offices forming part of the mission in localities other than those in which the mission itself is established’ are set up with the express consent of the receiving state (VCDR Article 12). Furthermore, intelligence officers and their immediate families often do have diplomatic immunity from the criminal, civil and administrative jurisdiction of receiving states. Typically, this is when they are formally given what is loosely known as ‘diplomatic cover’ at what we might call an embassy’s main site, in this case in London. In addition – and this is important – not all of these intelligence officers need to be members of the ‘diplomatic staff’ of the mission; the technicians among them, such as those working for the US National Security Agency, 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’. 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 that the Sacoolas family is not entitled to diplomatic immunity because the husband’s name does not appear on the London Diplomatic List falls away. (It has nothing to do with the fact that he was based outside London, as is sometimes suggested.) It is worth adding that the website of the 501st Combat Support Wing at RAF Croughton says that the base ‘also hosts members of the department of state,’ which seems implausible and is probably just a clumsy device to lend substance to the claim that it has persons enjoying diplomatic immunity.

Aside from the issue of waiver, the important question that remains is why the FCO agreed to give diplomatic immunity to the American intelligence technicians at RAF Croughton in the first place. They do not work in an unfriendly state; nor is 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 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 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. The unfortunate consequence is that, 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 UK laws. Consideration should be seriously given to making all of the staff of establishments like RAF Croughton fall back on the Visiting Forces Act and, failing this, at the very least to calling their ‘diplomatic immunity’ something else; for example, ‘special immunity’.

PS, 13 October 2019. Only hours after posting this blog the UK foreign secretary, Dominic Raab, made the unsurprising announcement that it had been agreed with the US government that, having returned home, Anne Sacoolas no longer has diplomatic immunity. This does not necessarily mean, of course, that she was not entitled to it at the time the offence was committed. On the other hand, diplomatic immunity at the time no longer protects her from UK criminal jurisdiction, for diplomatic immunity is only procedural in nature – it does not exonerate anyone from criminal responsibility. See Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 3rd ed (OUP, 2008), pp. 311-12.

PPS, 22 October 2019. I have just read a further statement on this affair by British foreign secretary Dominic Raab made in the House of Commons last night (see full text here). He confirms two points that were only speculative in my post: (1) that an agreement on diplomatic immunity at RAF Croughton was indeed made with the USA, although he dates this at 1995 rather than 1994; and (2) that those covered by the agreement were ‘the technical and administrative employees at the Croughton annexe’ (his shaky grasp of the VCDR is demonstrated by this mangling of the VCDR’s language). But what he says on immunity at the base and who benefits from it is extraordinarily vague and – if not confused and contradictory – certainly confusing, as Emily Thornberry pointed out. This is what he said:

The UK Government had been notified of the American family’s arrival in the UK in July 2019, and this diplomatic immunity was the result of the arrangements agreed between the UK Government and the US Government back in 1995. Under those arrangements, US staff at RAF Croughton and their families were accepted as part of the US embassy in the UK. Pursuant to these arrangements, staff and their families were entitled to immunity under the Vienna convention on diplomatic relations. Under the exchange of notes in relation to the Croughton annexe, these arrangements waived immunity for employees, but the waiver did not cover spouses.

It should be  relief to all concerned that Dominic Raab also said in last night’s statement that he had ‘already commissioned a review of the immunity arrangements for US personnel and their families at the Croughton annexe holding privileges and immunities under the Vienna convention on diplomatic relations. As this case has demonstrated, I do not believe that the current arrangements are right, and the review will look at how we can ensure that the arrangements at Croughton cannot be used in this way again.