“Since the coup, the First, Second and Third Claimants have been acting as representatives for thousands of individual victims of the coup. Individuals went to the First Claimant, as they were able to instruct lawyers and pursue a number of cases to seek redress and accountability for the coup. The First Claimant consequently instructed us to pursue a number of avenues for complaint … In that capacity, I have received instructions via the First Claimant for inter alia: (1) Victims of the numerous atrocities at Rab’a Square (2) Field doctors from Rab’a Square, who were attacked by security forces while they attempted to treat victims… (3) Individuals who have been subjected to torture in Egyptian custody.”
“We also discussed that some of those being investigated may have Special Mission immunity during any visit to the UK. ITN solicitors said that they may challenge this concept …”
“Under the authority of Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me, I … hereby confirm that [the FCO] has consented to the visit to the United Kingdom of Egyptian Chief of Defence Staff, Lt. General Mahmoud Hegazy [REDACTED] from 15-19 September as a special mission, and they will be received as such.”
“In relation to your request for the arrest of Mr Hegazy - we have been advised by the [FCO] that the individual has Special Mission Immunity in relation to his visit to the UK. We will not be seeking his arrest at this time but will continue with the Scoping Exercise.”
“All – I [the Deputy Head of the Egypt team, North Africa Department of the FCO] have spoken to [DS] Gary Titherly at the Met and informed him that Hegazy has Special Mission Status. There are other avenues that could be pursued … the Met are reviewing further information before confirming a course of action, but undertook to be in contact with me before acting. Currently there is no possibility of arrest.”
“I replied at 10:31 “he is immune from criminal proceedings which means for arrest and prosecution. I think they will challenge FCO decision to grant special mission immunity.”
“10. … the MPS takes legal advice from the CPS, not the FCO. So, although the advice of the CPS coincides with the clear position of the FCO, it is the CPS advice as to the law (not the contentions of the FCO) that is material to MPS decision making. … 18. … SO15 sought information from the Defendant as to the basis on which Lt. Gen Hegazy was in the United Kingdom. The Defendant provided SO15 with a certificate which confirmed that the Defendant had consented to the visit … 19. The combination of (a) the recognition by the FCO of Lt Gen Hegazy as part of a special mission and (b) the advice from the CPS that a person who is part of a special mission recognised by the Government is immune from arrest, meant that there was no question of Lt. Gen Hegazy being arrested. 20. Accordingly, SO 15 informed the Claimant’s solicitor by an email dated17th September 2015 that Lt. Gen Hegazy had Special Mission Immunity …”
“… the [FCO] denies that [the First Claimant] has capacity or standing to initiate the proposed judicial review proceedings. The decision to consent to Lt. Gen. Hegazy’s visit as a special mission is purely a matter for the Government and is therefore not subject to review by the courts. In any event, [the FCO] denies that his decision was unlawful, as alleged by [the First Claimant] or at all.”
“It seems to me that that controversy underlines the need for the courts not to question that which the Government chooses to recognise and that which it does not. Recognition is a matter, as it seems to me, of foreign policy which is unsuitable for discussion or a view in the courts. Whether or not the purpose of the defendant’s visit and that which the Government of Mongolia hoped to achieve by that visit, was or was not capable of constituting a special mission, is beside the point. It was for the FCO to decide whether it would choose to recognise that visit as a special mission or not.”
“I have no hesitation in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State … He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must or must not prosecute this man or that one …”
“… this appeal arises out of a difference of opinion between the Royal College of Nursing of the United Kingdom and the Department of Health and Social Security about the true construction of theAbortion Act 1967 …”
“The judge saw no reason why he should be inhibited on this ground from dealing with the issues in the action; and I agree with him. It was not contended that the issue of the guidance was itself a crime: the case against the department was simply that the guidance, if followed, would result in unlawful acts and that the department by issuing it was exercising a statutory discretion in a wholly unreasonable way.”
“We must now say that if a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi, has jurisdiction to correct the error of law by an appropriate declaration. Such an extended jurisdiction is no doubt a salutary and indeed a necessary one in certain circumstances, as the Royal College of Nursing case[1981] AC 800 itself well illustrates. But the occasions of a departmental non-statutory publication raising, as in that case, a clearly defined issue of law, unclouded by political, social or moral overtones, will be rare.”
“Judicial review, generally, is concerned with actions or other events which have, or will have, substantive legal consequences: for example, by conferring new rights and powers, or by restricting existing legal rights or interests.”
“The declaration is a discretionary remedy. This important characteristic probably derives not from the fact that the power to grant it was first conferred on the Court of Chancery, but from the discretionary power conferred by the rule of court. There is thus ample jurisdiction to prevent its abuse; and the court always has inherent powers to refuse relief to speculators and busybodies, those who ask hypothetical questions or those who have no sufficient interest. As was said by Lord Dunedin [in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd[1921] 2 AC 438 at 448]: ‘The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.’ In other words, there must be a genuine legal issue between the parties.”
“Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are special affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.”
“It is not for a national court to “develop” international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states”
“[T]urning now to the applicability of the provisions of Section II of the 1958 draft, dealing with diplomatic privileges and immunities, it has been suggested above …that this part of the draft would, in the main, be applicable to special missions. The activities of a special mission are part of what are usually functions of a permanent mission, and since privileges and immunities are granted in the interest of these functions and for promoting good relations between the States, it is natural that these advantages be granted also to special missions, unless they are based on circumstances which apply only to permanent missions.” (A/CN.4/129, Yearbook of the ILC 1960, II, para 23.) He also noted: “[P]ublicists seem to agree that diplomatic immunities apply also to special missions, although they do not discuss the matter in detail. The Havana Convention of 1928 sanctions the same rules.”
“Whilst the various instruments and studies referred to above do not purport to reflect the actual practice of States in every particular, it is probable that they represent the position adopted by the majority of States in respect of special missions. Four broad principles at least appear to be generally recognized: (i) That, subject to consent, special missions may be sent; (ii) That such missions, being composed of State representatives, are entitled to diplomatic privileges and immunities; (iii) That they receive no precedence ex proprio vigore over permanent missions; and (iv) That the mission is terminated when the object is achieved.” 123. But these four principles extracted from the abundant sources on special missions were not sufficient to guide the Commission in the task of preparing the new positive law concerning special missions.” “Whilst the various instruments and studies referred to above do not purport to reflect the actual practice of States in every particular, it is probable that they represent the position adopted by the majority of States in respect of special missions. Four broad principles at least appear to be generally recognized: (i) That, subject to consent, special missions may be sent; (ii) That such missions, being composed of State representatives, are entitled to diplomatic privileges and immunities; (iii) That they receive no precedence ex proprio vigore over permanent missions; and (iv) That the mission is terminated when the object is achieved.”
“136. The present situation demands that a solid foundation for a positive system of law in this field be laid without delay and that the rules of such a system be formulated in detail. The old has been found wanting. The new does not exist, and every day brings new concrete situations which require a solution. Reality demands it.”
“326. There still remains the fundamental question – what is the general legal custom (since codified rules are as yet lacking) with regard to the legal status of ad hoc diplomacy as regards the enjoyment of facilities, privileges and immunities? On this point theory, practice and the authors of the draft of the future regulation of this question agree. The International Law Commission took as its starting point the assumption that ad hoc missions being composed of State representatives, are entitled to diplomatic privileges and immunities. This however does not answer the question; for it has not yet been determined, either by the Commission or in practice, precisely to what extent ad hoc diplomacy enjoys these diplomatic facilities. The Commission itself wavered between the application of the mutatis mutandis principle and the direct (or analogous) application of the rules relating to permanent diplomatic missions. In any event, before a decision can be reached further studies will be needed, in order either to codify the undetermined and imprecise cases of application in practice (e.g. topics which are not yet ripe for codification) or to apply, by means of rational solutions, the method of the progressive development of international law.”
“23. In preparing the draft articles, the Commission has sought to codify the modern rules of international law concerning special missions, and the articles formulated by the Commission contain elements of progressive development as well as of codification of the law.”
“Before the Second World War, the question whether the facilities, privileges and immunities of special missions have a basis in law or whether they are accorded merely as a matter of courtesy was discussed in the literature and raised in practice. Since the War, the view that there is a legal basis has prevailed. It is now generally recognized that States are under an obligation to accord the facilities, privileges and immunities in question to special missions and their members. Such is also the opinion expressed by the Commission on several occasions between 1958 and 1965 and confirmed by it in 1967.”
“The Court does not find that the UN Convention on Special Missions is “customary international law” that binds this court. Neither the United States nor The Gambia are signatories to the convention. None of the members of the UN Security Council have signed the convention. These facts indicate to this court that there is, in the least, some resistance to the tenets of the convention such that it is not yet “customary international law”
“…upon an Executive branch determination, senior foreign officials on special diplomatic missions are immune from personal jurisdiction where jurisdiction is based solely on their presence in the United States during their mission. … Other states have recognised special mission immunity and its foundation in international law. The full extent of that immunity may remain unsettled, but need not be decided here in any event. Minister Bo’s case falls well within the widespread consensus that, at a minimum, States are constrained in their ability to exercise jurisdiction, as here, over ministerial-level officials invited on a special diplomatic mission.”
“An “ad hoc” mission means a legation, limited in duration, which represents a State and is sent by that State to another State, with the latter’s consent, for the purpose of dealing with specific issues with the State and to fulfil a specific task in relation to it … The position of such ad hoc State representatives – also those sent to an international organisation – is determined primarily by the relevant agreement on the official headquarters of that organisation, secondarily by customary international law, for the determination of which (limited) reference may be made to the Vienna Convention of14 March 1975 on the representation of States in their relations with International Organisations of a universal character, and by analogy also the UN Convention on Special Missions … None of those legal sources can support the assumption that an ad hoc mission to UNIDO may come into being without the consent of that organisation.”
“In accordance with international law, no act of constraint relating to the exercise of a prosecution may be imposed during their stay, against any person who has been officially invited to stay in the territory of the Kingdom by the Belgium authorities or by an international organization established in Belgium and with which Belgium has concluded a headquarters agreement.”
“The French Foreign Ministry officials who were arrested were members of an official mission accredited by the French Government, in accord with the Egyptian Government, for the purpose of implementing an international agreement; they were entitled to certain privileges and immunities, in accordance with the general principles of international law, under which special missions enjoy a status similar to that of regular diplomatic missions...”
“Lorsque des personnes ont, comme en l’espèce, des fonctions essentiellement internes, il n’est pas nécessaire qu’elles soient protégées par des immunités en tout temps et en toutes circonstances; il suffit qu’elles puissent bénéficier d’immunités lorsqu’elles se rendent à l’étranger, pour le compte de leur Etat, dans le cadre d’une mission officielle. Tel est l’objet des immunités reconnues aux membres des missions spéciales, qui constituent une garantie suffisante pour des personnes exerçant une fonction, telle que celle de procureur de la République ou de chef de la sécurité nationale, qui n’implique pas de fréquents déplacements à l’étranger.” (referred to by Wood, Max Planck UNYB 16 (2012) at p.77)”
“20. German jurisdiction also shall not apply to representatives of other states and persons accompanying them who are staying in territory of application of this Act at the official invitation of the Federal Republic of Germany. Moreover, German jurisdiction also shall not apply to persons other than those designated in subsection (1) and in section 18 [diplomatic missions] and 19 [consular missions] insofar as they are exempt therefrom pursuant to the general rules of international law or on the basis of international agreements or other legislation.”
“[286] …It is contentious amongst scholars of international law whether its provisions are already now the basis of State practice as customary international law. Professor Doehring, whom the Provincial Court heard as an expert, has indicated that no court decisions on that issue are known. He is of the opinion that the content of the Convention has not up to now created ascertainable pre-effects in the sense of the coming into being of customary international law supported by a general opinio juris (for the same view see also Wolf, Europäische Grundrechtezeitschrift 1983, pp. 401, 403; also doubtful is Bothe, Zeitschrift für Ausländisches und Öffentliches Recht und Völkerrecht 1971, pp. 246, 265). Lagoni (in Menzel & Ipsen, Völkerrecht, 2nd ed., 1979, p. 282), on whom Doehring relies, sees in the Convention merely a possibility of “indications for recognition by customary international law of the Special Mission as an institution of international law and of the diplomatic status of its members”
“If a representative of a State pays an official visit to another State, this person should, in the opinion of the CAVV, be able to claim full immunity, even in cases concerning international crime.”
“In the CAVV’s opinion, all members of official missions may be entitled to full immunity under customary international law. The Government endorses this. Members of official missions can be seen as “temporary diplomats”
“Does your State consider that certain obligations and/or definitions regarding immunity of special missions derive from customary international law? If so, please provide a brief description of the main requirements of customary international law in this respect.”
“The Special Missions Convention follows generally the Convention on Diplomatic Relations and would provide essentially similar privileges and immunities. Although the law as to “itinerant envoys”, special representatives, representatives to international conferences, and other participants in diplomacy remains uncertain, the Convention on Special Missions reflects what is increasingly practiced and in many respects may emerge as customary international law.”
“The general recognition of the public and official character of these [special missions] has not been accompanied by the development of clear and comprehensive rule of customary international law concerning their privileges and immunities.”
“The Convention [on Special Missions], unlike the Vienna Convention on Diplomatic Relations, has not acquired the status of customary international law.”
“9. It is generally agreed that clear and comprehensive rules of customary international law on the immunity of temporary missions are lacking. But, since such missions consist of agents of States received with the consent of the host State, they benefit from the privileges based on State immunity and the express or implied conditions of their invitation. Therefore, States have accepted that special missions enjoy functional immunities, such as immunity for official acts and inviolability for official documents … While the extent of privileges and immunities of special missions under customary international law remains unclear, State practice suggests that it does not currently reach the level accorded to diplomatic agents.”
“As regards [the immunity of official visitors, including those on special missions] the rules of customary international law are both wider and narrower than the provisions of the Convention on Special Missions. They are wider in that the class of official visitors who may be entitled to immunity is broader than that foreseen in the Convention. They are narrower in that the range of privileges and immunities is more limited, being essentially confined to immunity from criminal jurisdiction and inviolability of the person.”
“The Convention has influenced the customary rules concerning persons on official visits (special missions), which have developed largely through domestic case-law. The Convention confers a higher scale of privileges and immunities upon a narrower range of missions than the extant customary law, which focuses on the immunities necessary for the proper conduct of the mission, principally inviolability and immunity from criminal jurisdiction.”
“These occasional missions have no special status in customary law but it should be remembered that, since they are agents of States and are received by the consent of the host State, they benefit from the ordinary principles based upon sovereign immunity and the express or implied conditions of the invitation or licence received by the sending States.”
“In customary international law the immunities to which a person on special missions is entitled is determined by the principle of functional necessity, which would appear to be narrower than the immunities specified in the Convention and essentially confined to immunity from criminal jurisdiction and inviolability of the person.”
“While there is still some uncertainty as to the precise content of the privileges and immunities under customary international law to which persons on special mission are entitled, it is generally accepted that inviolability and immunity from criminal jurisdiction for the duration of the special mission are included.”
“International law does not lay down any clear rules as to the precise extent of the privileges and immunities to which persons on a special mission are entitled. It is, however, acknowledged that such missions do have a public, official character and that the members of such missions should, therefore, be entitled to special treatment. The English courts have accordingly recognised that a representative of a foreign State on special mission may enjoy personal inviolability and immunity from jurisdiction comparable to that of a diplomatic agent.”
“Speaking generally, in my opinion, the presumption when considering any such policy issue is that [customary international law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.”
“An Act to amend the law on diplomatic privileges and immunities by giving effect to the Vienna Convention on Diplomatic Relations; and for purposes connected therewith.”
“The following provisions of this Act shall, with respect to the matters dealt with herein, have effect in substitution for any previous enactment or rule of law.”