1 Wednesday, 13 January 2016 2 (10. 00 am)

Download 1.31 Mb.

Page	6/12
Date	06.06.2017
Size	1.31 Mb.
	#20075

1 2 3 4 5 6 7 8 9 ... 12

22 my Lord have it s paragraph 45?
23 MR JUSTICE BLAKE: I have.
24 MR DE LA MERE: The first point is this paragraph on
25 certification relates to facts within the particular

1 knowledge of the FCO. That is the first rubric through

2 which you have got to construe any certificate, is it
3 a fact likely to be within the particular knowledge of
4 the FCO? And typically under section 4 would relate to
5 questions of whether or not a person has been notified
6 to the FCO as a diplomat. We have seen notification is
7 relevant for heads of mission, and it is relevant under
8 Article 39(1) for somebody who was already in the
9 country. So that must be to what he is referring. The
10 FCO is not in a position to certify any relevant fact
11 which would assist the court in its current enquiry.
12 MR JUSTICE BLAKE: There was no certificate or certification
13 of the facts?
14 MR DE LA MERE: Yes, but what is relevant is why they go on
15 to explain that that is the case:
16 "In spite of our inability to offer assistance under
17 section 4, we shall offer such assistance as we can in
18 relation to your specific question."
19 MR JUSTICE BLAKE: This is non-section 4 assistance, then.
20 MR DE LA MERE: Correct.
21 MR JUSTICE BLAKE: Yes.
22 MR DE LA MERE: Then they go on to say:
23 "There is no relevant fact because it is all
24 internal to Saudi Arabia. But the question of whether
25 or not Prince Mishal is a member of Prince Abdullah's

1 family is a mixed question of fact."

2 And to the extent it can assist on the law they then
3 provide a learned opinion with Sir Arthur Watts dealing
4 with the legal question of how to define who is part of
5 the royal household. Now note here there is no attempt
6 to provide some further assistance to the court; the
7 issue is simply ducked.
8 In our case, when one looks at the sorts of facts
9 that are likely to be relevant to this question, since
10 we know that notification is irrelevant, what are the
11 sorts of facts that are likely to be of the knowledge of
12 the Secretary of State?
13 Well, first of all, notification is a fact that will
14 be known, and it may assist the court in its evidential
15 review because it is evidence that tends to support the
16 contention. Unless the party is acting under a mistake
17 of law or in bad faith, it tends to support the fact of
18 their diplomatic post.
19 MR JUSTICE BLAKE: It is not irrelevant, it is just not
20 conclusive.
21 MR DE LA MERE: Absolutely.
22 MR JUSTICE BLAKE: I think you put it irrelevant a few
23 moments ago.
24 MR DE LA MERE: Exactly so, and take the classic employment
25 case, in circumstances in a classic employment case

1 where you get a certificate that somebody has been

2 notified, even though that is not the relevant test, and
3 that they have arrived and they have notified the fact
4 they have been appointed and they have notified the fact
5 they have come to the country and taken up the post,
6 that is likely to be evidence if there is no other
7 evidence before the court that will strongly assist the
8 court in working out whether or not the burden of proof
9 has been discharged. It is not going to answer the
10 question but it is certainly relevant to the answer to
11 the question. But in a very unusual circumstance where
12 you can prove, as it happens, that the person has never
13 taken up post or that they have left or that they've
14 been discharged it certainly wouldn't be the end of the
15 enquiry.
16 So those are the first types of fact that can be
17 certified. They are still useful and the certification
18 will be conclusive as to the facts but, the facts won't
19 be conclusive of the issue.
20 The second category of facts will be any category of
21 facts in relation to dealings with the individual in
22 question. Now, I readily appreciate there might be some
23 concerns about confidentiality if one were to descend
24 into great detail about precisely what was being done,
25 but the gist, to use that word we are all so beloved of

1 these days, the gist of what is going on can be

2 disclosed without breach of confidence. They can say
3 "We have met Prince Mishal on many occasions in
4 a diplomatic capacity to discuss diplomatic relations
5 between the State of Qatar and the State of the United
6 Kingdom", a function that false within Article 3(1), or
7 he has been providing liaison with relevant minister of
8 agriculture parties in relation to trade discussions or
9 what have you, those facts can all be certified, but
10 they are not.
11 What you cannot do is certify that somebody is
12 a diplomat, because that is to purport to answer the
13 question of law that it is for the court to answer.
14 What you cannot do is apply the wrong test and
15 answer that question, because that is doubly
16 inappropriate, not only are you straying beyond the
17 impermissible bounds set by Article 4, but you are
18 making a further error of law.
19 So the effect of certificates are limited. The
20 facts may be facts central to the question of law for
21 the court, they may be facts that are relevant to but
22 not dispositive. That is the only function. That is
23 the first topic.
24 The second topic is what relevance lies in the fact
25 that the foreign State asserts X is so. Just a bare

1 assertion. He is a diplomat, he is performing liaison

2 functions and continues to do so.
3 Now, that was exactly the situation at play in Apex.
4 There was a letter from the Saudi ambassador asserting
5 that Prince Mishal was a member of the royal household.
6 Indeed, at the day of the hearing, there was evidence
7 filed by the Saudis that he was involved in day-to-day
8 discharge of the duties of the royal household. All of
9 that evidence was carefully looked at, it was treated as
10 being important, and then it was gone behind and
11 rejected by Mr Justice Vos on the facts as being
12 incredible.
13 Having lost the case on the facts they appealed, and
14 in the appeal to the Court of Appeal the argument was
15 run that the Saudi stance on that issue was
16 unassailable. If you like, the assertion that he was
17 a diplomat was some form of act of State which was
18 itself incapable of being looked behind.
19 That made the third issue in the hearing in the
20 Court of Appeal, tab 29 of authorities bundle 2, you can
21 pick it up at paragraph 5 of Lord Justice Briggs'
22 judgment, and you can see Mr Alan Jones has come into
23 the case with his characteristic inventiveness:
24 "An advance for the first time in this court the
25 submission that as matter of law the judge should have

1 treated the letter from the ambassador for Saudi Arabia

2 stating the princes both form part of King Abdullah's
3 household as conclusive on that question there being no
4 certificate one way or the other from the
5 Secretary of State. For his part, Apex submitted on
6 appeal that the judge ought to have adopted its narrower
7 submission as to the scope of the context of the head of
8 State's household with the result that if correct the
9 princes would not on any view of the evidence have
10 formed part of it."
11 Then that argument, after the argument at 19 and
12 following, which is described as the household issue,
13 which is this question of what are the substantive
14 criteria, a point I have already pointed to, and given
15 you the references for earlier --
16 MR JUSTICE BLAKE: Yes.
17 MR DE LA MERE: -- that issue of conclusive status is then
18 picked up at paragraph 59 and following. It may be that
19 this passage is obiter, but nevertheless it is still
20 highly informative. He says:
21 "It is unnecessary for the court to address those
22 aspects of the appeal. Nonetheless, a major plank in
23 Mr Jones' argument that the judge had got the facts
24 wrong about the prince is wrong, it was a legal
25 submission, namely that where a Secretary of State

1 certificate is either not sought or is declined under

2 section 4, the court should fall back on an
3 unquestioning acceptance of a written statement about
4 the matter in issue from the ambassador or foreign state
5 concerned, rather than conduct such forensic and
6 evidential analysis of the issue as is proportionate and
7 appropriate when a question of jurisdiction arises at
8 the beginning of the proceedings."
9 Which is precisely what Mr Justice Vos had done.
10 Over the following paragraphs, through to the
11 conclusion at 71, that contention is analysed and
12 rejected, rejected on the authorities, rejected as
13 inconsistent with the FCO's views as encapsulated in
14 Miss Wilmshurst's essay, when she was the deputy legal
15 adviser of the FCO before her somewhat public
16 resignation, and then rejected on the basis of Aziz v
17 The Republic of Yemen, where the status of the
18 ambassador's evidence was described as important but not
19 necessarily conclusive of the relevant matters.
20 Then Trentex, a dicta from the speech of
21 Lord Denning to like effect are analysed before the
22 conclusion at 71.
23 I mention this, the context of the case was one
24 where there was no certificate. But the reasoning is
25 equally apposite where there is no certificate touching

1 upon the central issue of fact in question, which is

2 does the person in question discharge diplomatic
3 functions? And if I am correct that that is a question
4 of fact into which enquiry is required and if I am
5 correct that the certificate simply doesn't address
6 that, then this approach must be the approach to the
7 only evidence that you have, which is the bare and
8 undocumented and unparticularised assertions contained
9 in the evidence adduced on behalf of the defendant.
10 You can and should look behind it if it is as it is
11 utterly inconsistent with the facts. It is incredible,
12 just as the evidence in the Apex case was incredible.
13 That is topic 2 in both dimensions.
14 Topic 3, construction of the certificate. Before
15 I get to the fabled documents, can I make some remarks
16 about some background considerations that affect its
17 construction. The first is that we take firm issue with
18 my learned friend's argument, effectively an argument
19 that certificate answers and is predicated upon an
20 answer to all of the points raised in our letter to the
21 FCO. That argument is, we would suggest, most
22 implausible on the full facts. It is implausible
23 because whilst we wrote on 16 November, copying the
24 letter to my learned friends, and I must confess
25 I simply don't understand the complaint about

1 appropriateness of us writing a letter of

2 representations, I find that, quite apart from the fact
3 that we copied the letter that fact was not known to the
4 FCO, the FCO didn't know that we had copied the letter
5 to Macfarlanes, they simply received the letter, with
6 the result that we got a request from the FCO to share
7 the letter of representations that we had sent in with
8 Qatar.
9 You can see that in tab 7 of bundle 1 at 113C.
10 15 December:
11 "Thank you for your letter of the 16th. Thank you
12 for the information that you provided about your
13 client's allegations. We consider it necessary to give
14 the Qatari embassy an opportunity to respond to the
15 allegations. We would, therefore, be grateful if you
16 would confirm that you have no objection to our
17 providing the information you have provided to the
18 Qatari embassy for this purpose."
19 So they were saying: before we go any further with
20 this we want your consent to share the letter. As it
21 happens that consent was not provided until 23 December.
22 The letter is at 113E.
23 MR JUSTICE BLAKE: It wasn't provided even though you had
24 already provided the information to the --
25 MR DE LA MERE: Yes. You know, I risk giving evidence here

1 but I know how things are in my office let alone

2 solicitors' offices just before Christmas, I suspect
3 there might have been a bit of slippage. In any event,
4 that consent that the FCO thought was necessary, and in
5 fact wasn't, wasn't given, and --
6 MR JUSTICE BLAKE: The reference to that is 17 --
7 MR DE LA MERE: 113E.
8 MR JUSTICE BLAKE: 113E.
9 MR DE LA MERE: Then you need to look at 113F, as well,
10 a letter of 4 January. Do you have these pages,
11 my Lord, because they have been inserted into the
12 bundle? It's probably as well to check.
13 MR JUSTICE BLAKE: Yes, I have got them. I wasn't looking
14 them up until just now, but now I am.
15 MR DE LA MERE: Yes, good, thank you.
16 At 113F:
17 "We apologise for our ostensible delay in providing
18 your firm with a copy of this letter, as the original
19 letter was despatched outside of office hours and
20 following the formal closure of the office for Christmas
21 and the New Year period. We are awaiting a response."
22 So this is the copying letter explaining our reply
23 to Macfarlanes, as, we didn't know, that was the very
24 day that the certificate was issued.
25 Now, it seems most unlikely if the FCO are asking

1 for missions and representations and have been so

2 fastidious as to insist upon our consent and the consent
3 is given on the 23rd that on the first working day after
4 Christmas, the submissions have been made by the Qataris
5 over the intervening holiday period and had been
6 considered, digested and responded to fully by
7 January 4, the first working day a civil servant will
8 turn up to their office. It just doesn't work. And,
9 therefore, the certificate is to be construed, as it
10 plainly is, as a certification of the bare minimum,
11 which is those facts which are in the particular
12 knowledge of the Secretary of State.
13 That is my second point, because we are all agreed
14 that was the only proper purpose of a certificate. You
15 have seen the FCO being insistent upon that in the Apex
16 litigation.
17 If that is the only proper purpose they can only
18 certify things that are in their knowledge. Here if
19 there is a fact of notification, even if it is legally
20 non-determinative, that is something they can certify.
21 And they indicate in the covering letter: we have not
22 answered the further questions from the court about
23 agrement et cetera, because it is irrelevant outside the
24 case of a head of mission. So that overused cliche of
25 advocates, this is a Sherlock Holmes' dog that doesn't

1 bite -- bark, rather.

2 MR JUSTICE BLAKE: It probably wouldn't do either.
3 MR DE LA MERE: Neither bites nor barks, because what is
4 telling about the certificate is what it doesn't contain
5 and how sparse it is in its contents.
6 And the third point is, look at the questions that
7 were posed for answer, if you turn back to tab 6,
8 paragraph 5.
9 MR JUSTICE BLAKE: You agreed or your team agreed those
10 questions.
11 MR DE LA MERE: My team as it then was. I must confess
12 I wasn't involved in the case at that stage.
13 MR JUSTICE BLAKE: I am not suggesting a personal
14 responsibility.
15 MR DE LA MERE: No, no, our team agreed the questions.
16 MR JUSTICE BLAKE: And you might have added something else.
17 MR DE LA MERE: I might have added something else, indeed.
18 But the questions are not directed to the question of
19 whether or not there was any liaison or evidence of
20 discharge of the Article 3 functions. They are directed
21 in the second limb, which is entirely unanswered to the
22 question of whether or not the FCO has accepted or
23 accredited the defendant as a member of the diplomatic
24 staff, and you would have thought that that question
25 would have prompted a response if this was an individual

1 regularly setting foot inside the FCO office or

2 otherwise, to conduct liaison: yes, we welcomed him in
3 as a diplomat.
4 I am reminded by Mr Hickman, who did appear at that
5 stage, that there were other questions that we sought to
6 have posed but they weren't, so there we go.
7 MR JUSTICE BLAKE: What, like, has he done anything?
8 MR DE LA MERE: I don't know. I can find out.
9 MR JUSTICE BLAKE: I had better not plunge into a difficult
10 area.
11 MR DE LA MERE: One would have thought if there were any
12 evidence about engagement with this person as a diplomat
13 known to the FCO, a candid answer to question 22 would
14 have prompted the provision of those facts.
15 MR JUSTICE BLAKE: Has the FCO accepted and/or accredited
16 the defendant as a member of the diplomatic staff of the
17 mission, having diplomatic rank?
18 MR DE LA MERE: Yes. And as the covering letter makes
19 plain, that question is not answered because it is said
20 to be irrelevant. Ms Carss-Frisk showed that you
21 letter, the covering letter, it is page 113G, where they
22 say:
23 "Please note that Article 7 permits the sending
24 State ..."
25 MR JUSTICE BLAKE: This is a letter from Macfarlanes for

1 transmission to the court, is it?

2 MR DE LA MERE: That is right. That is how I read it,
3 because it was Macfarlanes were the agreed sender of the
4 letter, so that's why the response came to them:
5 "Agrement is required in respect of the head of
6 mission by virtue of Article 4."
7 MR JUSTICE BLAKE: "As requested please find enclosed
8 a certificate in response to the questions to ... in
9 your letter."
10 MR DE LA MERE: Yes. There's nothing about agrement or
11 agreement or accreditation in the answer.
12 MR JUSTICE BLAKE: Haven't we then got to turn to the
13 answers to the question?
14 MR DE LA MERE: That is what I was going to next, my Lord,
15 the certificate. Those are the three points that I make
16 that you have to have in mind when construing the
17 certificate, the history of events where they are
18 obviously not answering all the questions raised in our
19 letter, it is fact and fact alone, and refusing to
20 engage in questions on agrement.
21 The relevant bit of the certificate starts off with
22 the words "certify that". There are two things being
23 certified here. One, it is very unhelpful that the
24 whole thing is formulated in a passive voice but it is,
25 so let's look at its first proposition, the appointment

100

1 of the defendant as a member of the diplomatic staff of
2 the mission of the State of Qatar in the UK was notified
3 to the FCO on 28 August. Putting that in the active
4 voice, the fact that is being notified is that the UK
5 was notified by the Qataris that the Qataris had
6 appointed him or said they had appointed him. It is an
7 assertion and no more.
8 It is not a statement that says he is a member of
9 the diplomatic staff; it is a statement that the Qataris
10 have told us that he is a member of the diplomatic
11 staff. That is a fact. And that is the only fact
12 certified in the first part.
13 The second part follows exactly the same rubric.
14 There is a wider ambiguity here. There is one of two
15 ways, neither of which is particularly detrimental to
16 us, as far as I am concerned, but there are two ways
17 that you can read this. The first way is that the first
18 is a statement of fact, and the second clause is
19 a conclusion of law. So on 28 May 2014 his arrival date
20 was notified as 6 November 2013.
21 Now, note arrival date in the UK, not
22 as Article 39(1) requires arrival to take up his post,
23 it is simply a notification by the Qataris of the fact
24 that he has arrived in the UK on 6 November 2013. So
25 a backdated notification.

101

1 Again, when you put it into the active voice that
2 clause is not a statement of fact on the part of the UK
3 that he has taken up such post. It is simply
4 a recitation of the fact of notification and nothing
5 more.
6 Then we come to the clause. There is one of two
7 ways that that clause can be read. The first way is
8 that the clause itself is a further assertion that was
9 part of the Qatari notification, so that in effect --
10 and in my submission that is the more natural way to
11 read it because it provides that bit that is missing,
12 namely notification that he has taken up post in the
13 mission, because, as I said, if you just stop at the
14 commas, it is just a notification of arrival.
15 So the first way to read it is effectively that the
16 Qataris have notified on 28 May that he arrived on
17 6 November to take up his position as a member of the
18 mission from which dates the Qataris assert that he has
19 enjoyed immunities and privilege, that is the first way
20 of reading it.
21 The second way of reading it is that the United
22 Kingdom Foreign and Commonwealth Office is expressing
23 a conclusion of law as to the consequence of the two
24 preceding facts that they have indicated. If they are
25 doing that it is immaterial because it is outside the

102

1 scope of what is permitted under section 4. Section 4
2 is to be confined to questions of fact. And this
3 assertion, which is supposedly dispositive of the very
4 issue that arises under Article 39(1) and (2) cannot be
5 so characterised as a pure fact. So it is simply
6 impermissible.
7 More to the point if the predicates for the
8 conclusion are the two facts that precede it, it is
9 obviously a conclusion of fact and law that is wrong in
10 law, because as we have seen from Bagga notification is
11 not determinative of the issue, and these two facts
12 don't begin to answer the question.
13 What one is left with, in my submission, is a most
14 unhelpful document, unhelpful to the court that is, but
15 in no way unhelpful to us, because we are content to
16 live with and embrace the facts that this document
17 certifies, namely the two notification facts, because we
18 say they are irrelevant, or if they are relevant they
19 are relevant only to provide -- they are irrelevant as
20 conclusionary facts, I should say, they are relevant, as
21 I have already accepted, as evidence that may tend to
22 show something, absent an overwhelming -- or absent any
23 evidence showing the contrary, and we say the evidence
24 when one reviews it is compelling to contrary effect.

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:

1 2 3 4 5 6 7 8 9 ... 12