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| 23 of last three lines could be read as somehow just
24 referring to what Her Majesty's Government had been 25 notified by the State of Qatar, that that is a reading 171
1 that simply doesn't fit with the ordinary meaning of the 2 language. If it had meant to say that he was simply 3 notified that it was intended that he would enjoy 4 diplomatic immunity from 6 November 2013, if that is 5 what that sentence was meant to say, then it would have 6 said something like "His arrival date was notified as 7 6 November 2013 from which date he would enjoy the 8 privileges ..." et cetera. But instead you have the 9 clear statement from which date he has enjoyed the 10 privileges and immunities. 11 So as I put it yesterday, you have two facts there, 12 if you like. You have the fact that he has been 13 appointed as being implicitly stated there, and you 14 have, importantly, it clearly stated that the government 15 does recognise his appointment, because that is why you 16 have the reference to "from which date he has enjoyed 17 the privileges and immunities". 18 MR JUSTICE BLAKE: Where is this power of recognition coming 19 from, that is what I am trying to tease out? 20 MS CARSS-FRISK: So ... 21 MR JUSTICE BLAKE: Is it in the Vienna Convention? Is it in 22 the Diplomatic Privileges Act? Where is this thing 23 about recognising? 24 MS CARSS-FRISK: This is the Royal Prerogative, my Lord, and 25 I was going to come back to Mr De La Mere saying, ah, 172
1 well, the one voice principle he said only applies in 2 a case where under the Vienna Convention consent is 3 required by the receiving State. But that is with 4 respect putting it too narrowly, because if you go to 5 Khurts Bat's, for example, at volume 2, tab 27. 6 You see a very general statement about how 7 accreditation of diplomats is a matter for the Royal 8 Prerogative. 9 So recognising whether someone is a diplomat falls 10 within that concept, it is a so-called fact of State. 11 So starting at paragraph 33 of the judgment of 12 Lord Justice Moses, perhaps I could just remind 13 your Lordship or invite your Lordship to remind yourself 14 of 33 and 34. 15 MR JUSTICE BLAKE: Yes, I have got it. I absolutely 16 recognise that if there is some function of the Foreign 17 Office in this class of case involving recognition of 18 what the person has been appointed to do and is doing, 19 and that a decision is reached on that basis, and that 20 is certified to the court, the court takes that as the 21 fact, on which it will then reach its conclusions on 22 law. 23 MS CARSS-FRISK: Indeed. If the Foreign Office feels able 24 to reach a view that someone is a diplomatic agent. 25 MR JUSTICE BLAKE: But I at the moment just want your help 173
1 as to how the Foreign Office in a case of this kind, as 2 opposed to the other kinds we have looked at, can, does, 3 and how, go beyond certifying the facts that are within 4 its knowledge, which, as I understand it, is 5 notification of an appointment, notification of the 6 arrival date, and no doubt the appointment says to be 7 for diplomatic purposes. But if someone misunderstands 8 what diplomatic purposes is and if -- and I don't know 9 what the answer to the question is until I have thought 10 about it and adjudicated upon the rival submissions, but 11 I am just trying to explore this head -- what is going 12 on, what information does the Foreign Office have that 13 is able to give me to assist me in the task, which 14 I understand is my task, which is to decide on the facts 15 certified is this person a diplomatic agent within the 16 meaning of the Vienna Convention as matter of law. Now, 17 is that my task? 18 MS CARSS-FRISK: It is your task to recognise -- there is 19 that word again -- to act consistently in your judgment 20 with the Foreign Office certificate which recognises 21 that he is a diplomatic agent and, therefore, we do say 22 that your Lordship is bound by the certificate to reach 23 the view that he is a diplomatic agent. 24 Now, you should, in our submission, be reaching that 25 view in any event leaving the certificate to one side. 174
1 MR JUSTICE BLAKE: I appreciate that you have other 2 arguments but -- 3 MS CARSS-FRISK: But we do say that you are bound by the 4 view expressed, the fact expressed, by the Foreign 5 Office, that so far as they are concerned he is 6 a diplomatic agent. That is a fact conclusively stated 7 in the certificate, and we would suggest in accordance 8 with longstanding practice as to this. 9 I was just looking for a reference I am conscious of 10 in Denza actually where she cites a case called 11 Empson v Smith, where there was -- 12 MR JUSTICE BLAKE: Shall we turn her up, it is at tab 38. 13 MS CARSS-FRISK: Yes, I am turning lots of things up, but -- 14 MR JUSTICE BLAKE: I am asking for your help, so that is 15 perfectly -- 16 MS CARSS-FRISK: Yes, no, of course, and I am delighted to 17 endeavour to give it. So page 309. 18 MR JUSTICE BLAKE: Yes. I have Empson and ... 19 MS CARSS-FRISK: Yes, one sees the wording of the 20 certificate there: 21 "By the direction of Her Majesty's principal 22 secretary, et cetera, hereby certified under section 4, 23 that Mr CB Smith was on October 1, a member of the 24 administrative and technical staff of the diplomatic 25 mission of Canada in the UK and that he has since that 175
1 date continued to be a member of the said administrative 2 and technical staff and he is now such a member." 3 MR JUSTICE BLAKE: Yes, I have seen that, that is an example 4 of a certificate, and we know about Tega, so we can jump 5 over that, and then deal with the bit after the citation 6 from Tega: 7 "Certificates under the DPA are rigorously confined 8 to questions of fact within the special knowledge of the 9 FCO such as notifications of appointments of members of 10 diplomatic missions. Questions of law as to whether the 11 defendant is permanently resident in the United Kingdom 12 are left to the court though in appropriate cases facts 13 relevant to these questions may be covered in 14 a certificate. If the diplomatic status of the 15 defendant comes to the attention of the court without 16 having been expressly pleaded an appropriate course is 17 for proceedings to be adjourned while a certificate is 18 sought." 19 It is the first question, the specialist knowledge 20 of the FCO are men, to that, and they do have such 21 knowledge, and they can assist the courts in these 22 questions. 23 MS CARSS-FRISK: That is obviously their practice. It is 24 not actually what section 4 says. But that is their 25 practice. But the point is as in Empson v Smith, the 176
1 FCO has felt able in this case to -- 2 MR JUSTICE BLAKE: In Empson v Smith they were able to say 3 that the people concerned were, or the person concerned, 4 was a member of the administrative and technical staff 5 and has continued to be a member of that staff. 6 MS CARSS-FRISK: Indeed. 7 MR JUSTICE BLAKE: That is telling us that they are not 8 simply notified that that is what they are going to be 9 doing, that is what they have been doing and continue to 10 be doing. How they know it we don't need to know. 11 MS CARSS-FRISK: Yes indeed, and in this case the Foreign 12 Office has also felt able to actually state their view 13 not just that they have been notified but that from the 14 relevant date of 6 November 2013 he has been an agent. 15 Hence the reference to "has been enjoying the 16 privileges", et cetera, of that position. 17 MR JUSTICE BLAKE: What it says is he has enjoyed the 18 privileges. At the moment, as you may have gathered, 19 I am inclined to think that that is the very question of 20 law that I have to determine. 21 So thank you very much, Mr Evans, but there comes 22 a point when the statement of fact which is conclusive 23 has to leave to me the application of the facts to the 24 issue of law. 25 So if he had said: 177
1 "... and we can confirm that he has been acting as 2 a diplomatic agent from that date", that is a fact which 3 of course is very helpful to decide the issue. 4 MS CARSS-FRISK: But, my Lord, that is precisely the fact 5 that is clearly implicit in the certificate. 6 MR JUSTICE BLAKE: Clearly implicit in the certificate. 7 MS CARSS-FRISK: As I said yesterday -- 8 MR JUSTICE BLAKE: Right. 9 MS CARSS-FRISK: -- as I said yesterday, my Lord, it is of 10 course for you to decide as a matter of law whether he 11 is entitled to immunity or not. But the final part of 12 the certificate rests on the basis, and can only rest on 13 the basis, that he is recognised to have been 14 a diplomatic agent certainly at that point, 15 6 November 2013, and thereafter. 16 That being the Foreign Office's view, which they 17 felt able to certify, the court is with respect bound to 18 regard him as a diplomatic agent. 19 Now whether immunity flows from that is a different 20 matter of course, although on the particular facts of 21 this case it would follow. But it is still a matter for 22 the court. 23 MR JUSTICE BLAKE: So essentially the implication, because 24 you say it is a clear implication, that I should make in 25 the certificate that "after 2013", comma, should be read 178
1 "and he has been performing the acts of a diplomatic 2 agent from which date and therefore he has enjoyed the 3 privileges and immunities"? 4 MS CARSS-FRISK: Or he has been a diplomatic agent. That is 5 the threshold under Article 31. It is, has he, or is 6 he, or is someone a diplomatic agent. 7 MR JUSTICE BLAKE: I mean on the way that Mr De La Mere puts 8 the case, he says that is the key issue, and you say 9 it is about notification. I have those two. But it 10 seems to me that the enjoyment of privileges is 11 a conclusion which follows from a fact. 12 MS CARSS-FRISK: Indeed, exactly, and that is why that fact 13 is inevitably and necessarily stated in that 14 certificate. 15 MR JUSTICE BLAKE: Well inevitably to be implied in the 16 certificate because it is not actually stated, is it? 17 MS CARSS-FRISK: There is no -- 18 MR JUSTICE BLAKE: It is not objectively stated. 19 MS CARSS-FRISK: You cannot escape that that fact is the 20 basis for the last clause of the certificate. It is 21 stated. 22 MR JUSTICE BLAKE: Where is it stated? 23 MS CARSS-FRISK: Because it forms the basis of the reference 24 to him having from that date enjoyed the privilege, da 25 da da, of a member of the diplomatic staff of a mission. 179
1 So it is clear that part of that is a statement that 2 from that day he has been and is a member of the 3 diplomatic staff of the mission. 4 MR JUSTICE BLAKE: Yes. If it comes to this, if the 5 certificate is to be read as saying he is a member of 6 a diplomatic staff of a mission and therefore he has 7 enjoyed the privilege and immunities of such a member of 8 staff, that is the fact that I would need to make the 9 legal evaluation, and that is simple. If it doesn't 10 mean that then I am a little bit perplexed. 11 MS CARSS-FRISK: It cannot, in our respectful submission, 12 mean anything else. One mustn't forget that this 13 certificate was issued in response to the two specific 14 questions that were asked in the joint letter to the 15 court. It might be helpful for your Lordship just to 16 look back at that. 17 MR JUSTICE BLAKE: I did it at lunchtime so I have them in 18 mind. 19 MS CARSS-FRISK: So the second question is looking 20 specifically at the question of accreditation. 21 MR JUSTICE BLAKE: Acceptance. 22 MS CARSS-FRISK: Acceptance and/or accreditation. So 23 page 91A: 24 "Has the FCO accepted and/or accredited the 25 defendant as a member of the diplomatic staff of the 180
1 mission, and is he currently so accepted and/or 2 accredited?" 3 Now in answer to that specific question, or the two 4 questions posed, that last clause of the certificate can 5 only mean precisely what we have just discussed. It 6 serves no other purpose and it is obviously intended as 7 a response to the questions put. 8 Furthermore, that reading of the certificate is 9 entirely consistent of course with the letter that was 10 originally received back in September, the 4 September 11 letter. It may be just worth reminding your Lordship of 12 that which is at page 58: 13 "This letter is to confirm that he is a minister 14 counsellor at the embassy. He was accepted and 15 accredited as minister counsellor on 6 November 2013." 16 So it is not just the certificate. It is the 17 letter. But it is absolutely right to read the 18 certificate in the light of what has gone before. And 19 of course in particular in the light of the questions 20 put. 21 Now if you do that there can be no doubt what that 22 final clause is intended to convey. Plainly if the 23 Foreign Office say from a certain day this person has 24 enjoyed privileges and immunities, the privileges and 25 immunities of a member of the diplomatic staff, they are 181
1 saying that on the basis that they recognise that he has 2 been a member of the diplomatic staff from that date. 3 There can be no other basis for it. 4 Now why have they felt able to say that, my Lord. 5 Well, we know that in this case, which of course will 6 not be the case always, but in this case they had 7 a wealth of information about the defendant provided by 8 the claimant. They have considered it one would assume. 9 They must have done before deciding that they were able 10 to send -- 11 MR JUSTICE BLAKE: In the midst of Christmas dinner, it 12 looks like, but there we are. 13 MS CARSS-FRISK: My Lord, I don't know the internal workings 14 of the Foreign Office but they had the representations 15 clearly put forward with a view to dissuading them from 16 issuing a certificate. Notwithstanding what was put 17 forward they did issue this, which is only consistent 18 with the view that they accept that he is a member of 19 the mission, otherwise you can give no content to that 20 last clause at all. 21 MR JUSTICE BLAKE: Except that either it means something 22 about a quotation of what the sending State says or 23 it is ultra vires because it is jumping on my job rather 24 than theirs. 25 MS CARSS-FRISK: It is not, as it were, jumping into your 182
1 territory, my Lord, I respectfully say, to the extent 2 that it indicates, as it clearly does, the Foreign 3 Office view that he is a member of the mission. 4 Now immunities, yes absolutely, that is for 5 your Lordship. But even if it was felt that they had 6 gone a step too far referring to immunities, that does 7 not undermine the validity and significance of the fact 8 that is there to be seen, ie that they regard him as 9 a member of the mission. That simply cannot be ignored. 10 I hope I have dealt sufficiently with 11 Mr De La Mere's reading that it was all about the 12 sending State's notification. Grammatically that simply 13 doesn't work. And, of course, doesn't fit at all with 14 the questions that the Foreign Office was asked. 15 One notes that the covering letter at page 113G says 16 in terms: 17 "As requested by the court, please find enclosed 18 a certificate under section 4 in response to the 19 questions in your letter." 20 So it is not as though they were saying, "Sorry, but 21 we can only answer it in part" or "We don't feel 22 comfortable about dealing with this or that", which as 23 we have seen from the case law sometimes the FCO does 24 do. But here it straightforwardly said, "Right, we have 25 the questions. We will answer those questions." One of 183
1 the questions is, "Has he been accepted as a member of 2 the mission? Answer: Yes." There it is. 3 Now that fact is then of course binding pursuant to 4 section 4, binding on this court. But in any event, as 5 I said a little while ago, and indeed yesterday, the one 6 voice principle which requires the court, I say with 7 respect, to respect the dealings of Her Majesty's 8 Government in the matter of foreign affairs, that 9 principle absolutely applies in this case. 10 I think this is where we come back perhaps to 11 Lord Justice Moses in Khurts Bat where he quotes 12 Oppenheim to the effect that broadly the accreditation 13 of diplomatic staff is a matter that falls within the 14 Royal Prerogative. 15 Now that is in every case; not just in those limited 16 cases where the Vienna Convention requires consent by 17 the receiving State. It applies more broadly than that. 18 That is no doubt why the Foreign Office feels able at 19 least in some cases to express a view about that. 20 So this must be the time to go back to Khurts Bat, 21 my Lord. I think we were at paragraph 33. It is 22 tab 27. 23 MR JUSTICE BLAKE: Yes, I think we had gone there. 24 MS CARSS-FRISK: Page 363. 25 MR JUSTICE BLAKE: 33 and 34. 184
1 MS CARSS-FRISK: Yes, and one sees that in 33 he refers to 2 Oppenheim's International Law and says: 3 "One of the matters is the question of whether 4 a person is entitled to diplomatic status." 5 So that is put very broadly. There is no suggestion 6 that this is limited to the situation where it is 7 a special mission or it is the head of a permanent 8 mission. So one can focus particularly on paragraph 37 9 where he talks about section 4. At D he says this: 10 "But since the essential question is whether the 11 British government recognised the defendant's visit as 12 a special mission with the immunities which flow from 13 such recognition, it seems to me just as much a matter 14 for the executive as recognition of an ambassador or 15 a member of an ambassador's staff, a matter properly the 16 subject of a conclusive statement long before the 1964 17 Act." 18 So very clearly there extending the principle to the 19 appointment of not just an ambassador but a member of an 20 ambassador's staff. 21 MR JUSTICE BLAKE: Yes. 22 MS CARSS-FRISK: Paragraph 40 is also -- 23 MR JUSTICE BLAKE: What they are certifying are the factual 24 circumstances which give rise to the immunity. 25 MS CARSS-FRISK: Yes, absolutely, and the factual 185
1 circumstances include for our purposes crucially that 2 someone is a diplomatic agent: they are a member of the 3 staff of the mission, a diplomatic member of the staff 4 of the mission. 5 MR JUSTICE BLAKE: Right. I think we have probably teased 6 that argument out but ... 7 MS CARSS-FRISK: Yes. I just emphasise in addition though 8 that quite apart from the certificate we have the wealth 9 of material of the letters from the Foreign Office also. 10 So far as the evidence more generally is concerned 11 I will not go into it in detail because of course our 12 fundamental submission is that the question of whether 13 someone is a diplomatic agent cannot be left to be 14 determined as a matter of what they actually do or do 15 not do, which was certainly part of Mr De La Mere's 16 submission. That cannot be right because (a) it is not 17 justified by a reading of the Vienna Convention and (b) 18 it goes against the idea of Her Majesty's Government 19 dealing with such matters as a matter of the Royal 20 Prerogative and (c) it would of course create enormous 21 uncertainty where a court might then be faced in many, 22 many cases with perhaps spurious allegations that 23 someone is not actually a diplomat by reference to, 24 what, Instagram; reference to any number of things that 25 might go to whether they are in fact exercising 186
1 diplomatic functions or not, which really we would 2 suggest would make the whole thing unworkable and cannot 3 be what is intended by the Vienna Convention apart from 4 anything else. 5 MR JUSTICE BLAKE: Is there a difference in principle 6 between a factual enquiry as to whether you are a member 7 of a household of the Head of State, see Mr Justice Vos' 8 decision in the Apex case, as he then was, and whether 9 in fact whatever they were enquiring into as a matter of 10 fact in Tega, I appreciate with another legal regime? 11 MS CARSS-FRISK: Yes, there is a difference, my Lord, 12 because -- well, certainly if we are right that as 13 a matter of law what matters is whether under Article 7 14 someone is appointed to a post, which is a diplomatic 15 post, and if that is what matters and the control 16 mechanism is then in Article 9 whereby the sending State 17 can if it wishes carry out an investigation into whether 18 they are actually doing their job as diplomats or not, 19 if that is what we are concerned with then the factual 20 issues that my learned friend has sought to raise simply 21 do not come into it. That is why we say as a matter of 22 law his submissions about, well on this date the 23 defendant said this or he did that, and looking broadly 24 as to what has happened in practice after his 25 appointment, that is simply not a matter for the court 187
1 in this case. Whereas in Apex, the particular 2 circumstances there, or the factual scenario looking at 3 whether someone, the Prince, was a member of the 4 household of the King, that was a matter that in that 5 case did call for factual investigation. But we are 6 looking at a different issue. We are looking at the 7 question of appointment, as I have said, where the 8 Vienna Convention tells us it is about whether you have 9 been appointed to carry out diplomatic functions. If 10 you have that is that unless and until the receiving 11 State decides that you are not desirable. 12 MR JUSTICE BLAKE: That is entirely the way you opened the 13 case and I have all those submissions recorded. Now 14 I have heard what the other side are saying about it 15 I need to test you. 16 MS CARSS-FRISK: Yes. 17 MR JUSTICE BLAKE: You would go so far as to say even if the 18 person appointed to the diplomatic functions within the 19 meaning of 3(e) never actually does anything over two 20 and a half years that doesn't matter as long as they are 21 appointed to those functions? 22 MS CARSS-FRISK: Yes. 23 MR JUSTICE BLAKE: And the receiving State has not said, "Go Directory: wp-content -> uploads -> 2016 2016 -> 2017 afoCo Landmark Scholarship Program 2016 -> Instructions for the Preparation of Camera-Ready Contributions to the Conference Proceedings 2016 -> Step student Scholarships for Year 10-13 2016 -> The united church of canada 2016 -> Idan raichel biography – May 2016 Brief Producer, keyboardist, Lyricist, composer and Performer Idan Raichel 2016 -> An introduction to centre’s interventions expanding access to justice 2016 -> Sanchar Shakti 2016 -> Unit analysis should help here. We want number of bananas 2016 -> The Autobiography of Elder Joseph Bates 2016 -> The Great Heat and the Rhode Island Deep Water Bay Scallop (Argopecten irradians) Fishery 1875-1905 Download 1.31 Mb. Share with your friends:
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