Recent high-profile news stories about the bankruptcy proceedings against Boris Becker and the killing of journalist Jamal Khashoggi in the Saudi consulate in Istanbul have brought the status of diplomatic immunity into focus. Bar a highly unlikely political intervention by the Saudi state, the perpetrators of Khashoggi’s murder will almost certainly never see the inside of a Turkish court room. However, for both claimants and defendants in English legal proceedings, the status and effect of an individual’s diplomatic immunity can have wide-ranging implications for the litigation in such proceedings.

International approach to diplomatic immunity

Under the 1961 Vienna Convention, foreign diplomats are generally afforded immunity from prosecution in their host country in both criminal and civil proceedings. Diplomatic immunity may also extend to the diplomat’s family members.

There have been a number of cases in English law in which the compatibility of immunity with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (right to a fair trial) has been considered. As is often the case, the law seeks to balance competing rights and protections.

A regular counter to defendants who rely on their diplomatic status to secure immunity from prosecution is for the other party to claim that the diplomatic position is not genuine. Claimants will argue that a diplomatic position is merely a device to prevent the successful prosecution of legal proceedings. The party seeking to challenge diplomatic immunity may question whether the role taken up by the individual asserting the immunity is just a “sham”, merely intended for the avoidance of prosecution.

English courts’ approach to immunity as a defence

In ongoing bankruptcy proceedings, Boris Becker claims diplomatic immunity resulting from his appointment by the Central African Republic as a Sports and Culture Attaché. However, the media, and presumably Mr Becker’s creditors, have questioned the circumstances of this diplomatic appointment, on the basis that it is a device to enable him to resist bankruptcy.

It may seem uncontroversial to suggest that the English court could apply a test to determine whether Mr Becker’s diplomatic status is or is not designed to resist proceedings. However, where the diplomatic status of an individual is confirmed by a foreign state, the English courts have shown a reluctance to seek to go behind such an assertion.

In two recent cases on diplomatic immunity, Al Attiya v Al Thani [2016] and Estrada v Juffali [2016], the English courts have confirmed a reluctance to question a foreign state’s assertion that an individual is a member of their diplomatic staff and entitled to the protections that confers. There are a range of policy reasons for adopting such an approach, including the state’s own fears that the process or circumstances of the appointment of its own diplomats may be similarly questioned by foreign states.

Subject to certain exceptions, international law provides that a diplomatic agent who is a national of, or permanently resident in a host state shall enjoy only immunity from jurisdiction in respect of official acts performed in the exercise of his functions. This approach has been confirmed by the English courts, which have found that where an individual is “permanently resident” in the UK and a claim against them does not arise in respect of official acts performed in the exercise of their diplomatic functions, then that person is not entitled to immunity. This is an important reservation, and for an individual seeking to assert diplomatic immunity, care will need to be taken not to establish residence.

The bottom line

The domestic and international rules and regulations in respect of diplomatic and state immunity are a complex area that is tested by the English courts relatively infrequently, and usually by parties who have a high public profile. Therefore, when such cases are litigated in London, it is of particular interest to both the legal profession and the general public.

Ben Wolfe is a managing associate specialising in commercial litigation, often involving high profile clients and with a foreign element.

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