Lisa Cherkassky, Senior Lecturer in Law at the University of Derby, examines the use and history of diplomatic immunity, which has become the issue at the centre of a police investigation into a fatal road collision.
Motorcyclist Harry Dunn was aged only 19 when he was killed in a collision with a car on 27th August 2019 in Northamptonshire, leaving his family “utterly devastated”.
It is always traumatic for any family to have the life of loved one taken so unexpectedly, but this case contains an added complexity. It has been widely reported that the suspected driver of the car – named by media outlets including Sky News and the BBC as Anne Sacoolas – was in the United Kingdom accompanying her husband, a United States diplomat, on official business.
The criminal charges that are likely to occur in this type of accident include unlawful act manslaughter under the common law or causing death by dangerous driving under section 1 of the Road Traffic Act 1988, or causing death by careless or inconsiderate driving under section 2B of the same act.
However, the Vienna Convention on Diplomatic Relations (1961) grants foreign diplomats and their family members immunity from criminal prosecution in their host state. It appears, much to the dismay of Harry Dunn’s grieving family, that the suspect has returned to the United States and is exercising her immunity (which she is legally entitled to do) under the United Kingdom’s Diplomatic Privileges Act 1964.
Harry Dunn’s mother, Charlotte Charles, told the BBC her family’s grief has now been compounded by the fact that the suspect has left the UK under her diplomatic immunity, and the knowledge that it is very rare for this privilege to be waived.
Allowing justice to take place
The case has involved the Chief Constable of Northamptonshire Police and Foreign Secretary Dominic Raab, both of whom have urged the US to waive the diplomatic immunity in this tragic case “to allow the justice process to take place”. The US State Department has reportedly confirmed that its officials are giving the case “intense attention at senior levels and are carefully [considering it] given the global impact such decisions carry”.
The Prime Minister has questioned the use of diplomatic immunity “for this type of purpose” and encouraged the suspect to return to the UK to “engage properly with the processes of law”. He has even spoken of raising the case directly with the White House.
The Vienna Convention is a controversial treaty. The only way a diplomat (or his family member) were to face prosecution in their host country for the commission of a crime would be for their employing country (in this case, the United States) to waive their diplomatic immunity and open them to prosecution.
Should the United States refuse to waive immunity in the Harry Dunn case, the suspect is merely likely to be expelled from the United Kingdom.
Should the United States waive immunity, however, they could face the full force of the criminal law and this would bring the Dunn family the long sought-after closure they need to mourn the loss of their son in peace.
Precedents for waiving immunity
There is a brief history of diplomatic immunity being granted in the United Kingdom, most notably for PC Yvonne Fletcher, who was shot dead from a window in the Libyan embassy in London in 1984. Those inside the building ended their siege and were granted immunity by Libya. Similarly, in December 2018 a diplomat had been expelled from the United Kingdom after several allegations of rape, and diplomats from Algeria, Egypt and Cambodia have also been expelled from the United Kingdom for allegations of sexual assault, blackmail, and possession of a firearm respectively.
Immunity has been waived once in recent history – in 2003 – Colombian diplomat Jairo Soto-Mendoza stood trial for murdering a man who supposedly mugged his son. Colombia waived immunity and Mr Soto-Mendoza stood trial for murder, but he was found not guilty.
The Vienna Convention therefore poses difficult ethical questions: whilst the treaty is not exactly carte-blanche to visit a host country, commit a crime and then return home, it rather nervously relies upon the good will of nearby countries to “do the right thing” and allow the host country to prosecute the individual, for sometimes violent and very serious crimes.
The act of upholding immunity may have difficult international consequences, such as a breakdown in trust between the two countries involved and jeopardising friendly relations (as happened between the United Kingdom and Libya in 1984).
The United Kingdom has an excellent relationship with the United States, but scenarios like this with a vulnerable human element are going to cause significant discomfort for both sides.