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19 unacceptable [that's PNG]. We also sometimes try
20 informally to persuade missions to withdraw nominations
21 in cases where the appointee is clearly fulfilling an
22 administrative and technical rather than diplomatic
23 function or is not carrying out any of the functions of
24 the mission as described in Article 3 of the Convention.
25 We have also pressed successfully for withdrawal of

1 notification in a very few cases where criminal charges

2 were pending."
3 So there it is clear, in my submission, that the
4 view of the government is that somebody who is not
5 performing any functions is not a diplomat and should
6 not, therefore, be so presented.
7 What is also important is the absence of any
8 requirement for notification.
9 The subsequent report reinforces the point. It is
10 the next tab this the bundle. In particular the passage
11 beginning at page 9 of the report, paragraph 18, headed
12 "Notification of the staff".
13 It is noteworthy at paragraph 19 they say:
14 "Problems of abuse or attempted abuse arise mainly
15 out of the interpretation of Article 7, which states
16 that the sending State may freely appoint the members of
17 the staff of the mission, but that is partly
18 circumscribed by the persona non grata provision.
19 Particular problems include notification that diplomatic
20 staff are persons who should more properly be regarded
21 as administrative and technical staff, notification of
22 staff whose functions do not appear properly or fully to
23 fall within those of a diplomatic mission, imprecise
24 definition of members of the household."
25 And so on and so forth.

1 Then 21 records this, and this is the problem that

2 confronts my Lord now:
3 "Since the Vienna Convention contains no objective
4 definition of staff categories [that is the issue, there
5 is no objective test provided] checks carried out after
6 notification usually relate to questions of nationality,
7 designation residence or family status."
8 And then this, and this is why the ministerial
9 certification process is limited:
10 "Doubts about official status ['or duties' it should
11 be, not 'of duties'] are rarely apparent from the
12 notification form and it is virtually impossible in both
13 cases for the FCO to tell whether a person should more
14 properly be described as a diplomat or a member of the
15 administrative or technical staff or indeed as a member
16 of the mission at all."
17 So that is the problem.
18 MR JUSTICE BLAKE: I can see that is the problem when you
19 get a notification X is going to arrive or X has
20 arrived. Is that virtual impossibility -- does that
21 remain in place 18 months after the arrival?
22 MR DE LA MERE: In my submission, where the nature of the
23 function in question will call for engagement with the
24 foreign receiving State they should by that juncture
25 have some idea as to whether or not they have had any

1 liaison or interaction with the person in question.

2 What you will notice is entirely absent from the
3 certificate, entirely absent from anything that the FCO
4 has ever said, is any indication they have had any
5 contact with the defendant in a diplomatic capacity
6 whatsoever. That is a fact it would be simplicity
7 itself for them to so certify. They know that is the
8 essence of our complaint. He is not acting as
9 a diplomat. They have not indicated that they know him
10 to be so acting. It is simply notification. That is
11 all we are told about.
12 MR JUSTICE BLAKE: But I mean, you have the other side of
13 the coin, I put it to you earlier, if from November 2013
14 to January 2016 the FCO were of the view that the
15 notified person had failed to undertake any diplomatic
16 functions at all that might have been the basis for
17 representations FCO to the embassy of Qatar.
18 MR DE LA MERE: There is no obligation on the FCO to certify
19 that fact if they know it, and one can well imagine
20 doing so might precipitate some adverse diplomatic
21 consequences.
22 MR JUSTICE BLAKE: Perhaps the FCO are content for the
23 person to remain a notified member of a mission despite
24 the information that was provided to them about the
25 degree of participation in it.

1 MR DE LA MERE: It is possible for the FCO in its internal

2 judgment not to pick the fight. That doesn't answer the
3 question is the person a diplomat.
4 MR JUSTICE BLAKE: So if the --
5 MR DE LA MERE: We all know the real politik of how foreign
6 affairs are conducted, my Lord. Simply because the
7 point isn't taken, the material has not arisen, it
8 doesn't mean that the FCO doesn't have a view on the
9 issue. It simply means that they are not willing to
10 certify that fact to this court. There may be any
11 number of reasons why that is the case, any number of
12 reasons.
13 So those are the provisions referred to in
14 Article 7. It is worth going back to the Convention to
15 look at Article 13. This is another provision in which
16 notification is relevant:
17 "Part of the obtaining of the consent for the head
18 of the mission is prior presentation and acceptance of
19 credentials or notification of his arrival."
20 It is a compare and contrast point. There are no
21 such equivalent pre-conditions upon non-heads of
22 mission. So notification again is exclusively,
23 acceptance and notification, exclusively confined to
24 heads of mission.
25 Then let's look very, very swiftly and broadly

1 because I know my Lord is familiar with it, with the

2 types of immunity provided to persons benefiting from
3 the immunity. They start at Article 29. Physical
4 inviolability, Article 29, inviolability of their
5 premises, of both the mission and the papers, and the
6 private residence, Article 30.
7 The very fact that you are expected to have
8 a private residence, another indication of permanence,
9 integration into the receiving State, et cetera. Then
10 the civil and criminal immunities we will come back to.
11 Then 33, immunity from social security. Article 34
12 is immunity from taxes. Article 36 is immunity from
13 indirect taxes, Customs and Excise duties, and matters
14 of such kind.
15 And 35, for what it is worth, immunity from personal
16 service obligations. That would be jury service or
17 anything of that kind.
18 All of those immunities are immunities to
19 obligations that are predicated upon or presuppose the
20 existence of some form of sufficient integration or
21 permanent residence within a particular State sufficient
22 to generate tax paying obligations. Social security,
23 for instance, invariably works upon the notion of
24 habitual residence. Tax works upon the notion of tax
25 domicile, and so on and so forth.

1 These immunities again speak to the type of

2 integration to be expected of a diplomat at a permanent
3 mission.
4 Then we come on to 31 itself. There is complete
5 diplomatic immunity from the criminal jurisdiction of
6 the receiving State, and there is also immunity from
7 civil and administrative jurisdiction except in the case
8 of real actions relating to private immovable property.
9 So you could sue diplomats about houses that you have
10 rented to them; an action in relation to the succession
11 in which he is involved as an executor, administrator or
12 heir. Then an action relating to any professional or
13 commercial activity exercised by the diplomatic agent in
14 the receiving State, and then these words, yet another
15 pointer to functions, "outside his official functions."
16 So we have a functional test.
17 31(2):
18 "A diplomatic agent is not obliged to give evidence
19 as a witness."
20 Hence my point earlier about the immunity operating
21 in a context of a dispute like that potentially arising
22 in relation to Barclays or indeed in relation to the
23 World Cup, where of course the defendant was intimately
24 involved in the Qatari bid.
25 So those are immunities from giving evidence. Then

1 we come on to what we say is every bit as critical as

2 Article 3, 42 and 31, which is Article 39, because
3 Article 39 governs the timing of the acquisition and the
4 conditions of the retention of the immunities conferred
5 by, amongst other things, Article 31.
6 Let's look at the language:
7 "Every person entitled to privileges and immunity
8 shall enjoy them [not from notification, not from
9 acceptance] from the moment he enters the territory of
10 the receiving State on proceeding to take up his post."
11 So the trigger is entry into the jurisdiction to
12 take up the post. And then this is the only context in
13 all of these Articles where notification is of any
14 relevance at all:
15 "... or if already in its territory from the moment
16 when his appointment is notified to the Minister of
17 Foreign Affairs or such other ministry as may be
18 agreed."
19 So one can envisage a prominent political figure
20 resident in let's say the UK already living here is then
21 chosen to be the next charge d'affaires in a particular
22 area within the ministry and receives an appointment, at
23 which point the immigration status changes and
24 a notification obligation arises in order to trigger the
25 immunity. We are not in the territory of that second

1 proviso and there is no suggestion from my learned

2 friend that we are. Yet that is the only context in
3 which notification is relevant to the timing of
4 immunity.
5 Then we come on to 39(2) which you weren't referred
6 to at all:
7 "When the functions of a person enjoying privileges
8 and immunities have come to an end such privileges and
9 immunities shall normally cease to apply at one of two
10 points: either first at the moment when he leaves the
11 country or, secondly, on expiry of a relevant period in
12 which to do so but shall subsist until that time even in
13 the case of armed conflict."
14 That is a very important provision. Once again it
15 emphasises the question is all about the functions of
16 a person enjoying privileges and immunities. It is the
17 clearest possible pointer to a functional test. It is
18 also a test that operates with no intervention whatever
19 on the part of the receiving State.
20 In the first circumstance the person's function had
21 ceased, that is condition one, and they have left the
22 jurisdiction. Bear in mind the evidence when we come to
23 see it shows that this is an individual who has spent
24 very little, if any time, in the UK, and has been coming
25 and going between it and a large number of other

1 countries. That is the first circumstance in which it

2 is lost. And all that the UK could certify in that
3 context would be departure from the jurisdiction.
4 The second context:
5 "... or on expiry of a relevant period in which to
6 do so."
7 MR JUSTICE BLAKE: "A reasonable period".
8 MR DE LA MERE: Sorry, "a reasonable period in which to do
9 so."
10 That is an automatic provision that again takes
11 effect from the simple fact of the cessation of the
12 functions that lead to the enjoyment of the privileges
13 and immunities. That is the clearest possible indicator
14 that there is a functional test of who is a diplomat
15 running as a Golden Metwand through all of these
16 provisions. It is impossible to read that provision any
17 other way.
18 Now again these may well be facts and matters that
19 are simply out of the knowledge of the receiving State.
20 They may well not have knowledge about when posts have
21 formally been terminated or whether for instance a post
22 formally remains in position but the diplomat after
23 a dispute with their boss, for instance, is on garden
24 leave and has been suspended from providing any
25 particular function whilst being paid their salary.

1 None of that will be known to the receiving State and it

2 will trigger a factual enquiry in order to ascertain
3 whether or not the immunity came to an end. Somebody
4 may be demoted. They might be demoted from a diplomatic
5 post to an administrative and technical post triggering
6 a relevant change in their immunities. Again that won't
7 be known. It will be a matter of proof between the
8 claimant and the defendant in the action.
9 Nothing of course will happen to the diplomatic list
10 in those circumstances if the receiving State has no
11 knowledge about what has happened.
12 Then the last provision, again one you weren't
13 referred to, Article 41, we say is very important.
14 Firstly, a general obligation of good faith and
15 therefore relevant to the proper construction and
16 operation of this provision:
17 "Without prejudice to their privileges and
18 immunities, it is the duty of all persons enjoying such
19 privileges and immunities to respect the laws and
20 regulations of the receiving State. They have also
21 a duty not to interfere with internal affairs of that
22 State."
23 Then secondly this, because this is relevant to what
24 sort of things the receiving State will know:
25 "All official business with the receiving State

1 entrusted to the mission by the sending State shall be

2 conducted with or through the Ministry of Foreign
3 Affairs of the receiving State or with such other
4 ministry as may be agreed."
5 So what that means is that if I want to organise
6 a trade conference promoting Qatari/UK economic links
7 and to invite people to come to it to promote investment
8 by the UK in Qatar or by Qatar in the UK, I have to
9 approach the FCO to say this is what I wish to do, and
10 the FCO is likely to direct you to a relevant official
11 in the Department for Business Industry and Skills, and
12 then you will liaise with them in the setting up of such
13 a joint trade fair or matters of that kind.
14 Necessarily, if this is the type of official
15 business you are engaging in, and you are required to
16 conduct it with the effective counterparts in the
17 government of the receiving State, they are going to
18 know whether or not you have done that. I go back to
19 the point -- and this is really a ramming home of the
20 point made in relation to the functions in Article 3 --
21 the sustained discharge of diplomatic functions save for
22 the people who never leave the embassy, who are just
23 providing reports, et cetera, is a fact, is a fact that
24 is going to be known to the counterparts in the
25 receiving State. That is a proper matter as to which

1 they can certify facts.

2 Compare and contrast the Apex case. In Apex the FCO
3 has no detailed knowledge about whether the two princes,
4 Prince Mishal, et cetera, were discharging the functions
5 of the State on behalf of the Saudi King. If the case
6 is being made this is an individual who is discharging
7 functions in the UK and you are required to conduct them
8 through these official channels, then that is a fact
9 that you should and can certify. There is no such
10 certification.
11 So what do we learn from all of this. In our
12 submission, you learn that propositions we have set out
13 at paragraphs 26 to 33 of our skeleton argument, you
14 learn, first, paragraph 27, that it must be shown that
15 in substance someone is a diplomatic agent. That means,
16 in our submission, that they are discharging Article 3
17 functions. You learn that they have to be doing so at
18 or in connection with the permanent mission, the
19 embassy, because this set of provisions does not apply
20 to other forms of special envoys or representatives.
21 That is paragraph 28 and 29.
22 We have set out the relevant Convention on special
23 missions and we say that really shows the difference.
24 Somebody who is acting very much ad hoc with no real
25 integration or connection into the State or the mission,

1 is likely to benefit only from that separate Convention,

2 rather than the Convention attaching to missions.
3 At the second key point we say, at 30, it must be
4 shown that the person claiming immunity has entered the
5 receiving State and taken up post, that is Article 39,
6 and we emphasise, as I did just now, the wording "on
7 proceeding to take up his post" which must be a post to
8 discharge diplomatic functions.
9 Because of Article 39(2) and because of the fact
10 that the defendant has repeatedly left the UK, indeed
11 I don't know whether he is in the UK now, it follows
12 that the burden of proof that the defendant indubitably
13 has to show that he enjoys immunities extends to showing
14 he has not lest them under Article 39(2) in that his
15 functions have not come to an end or he has not left the
16 country, them having come to an end.
17 So in short, it depends upon him showing, as we say
18 at 32, that he is in fact a current serving member of
19 the staff at the Qatari permanent mission and in such
20 connection that he is discharging Article 3 duties. And
21 there is the quote from Professor Denza that I have
22 already shown you at paragraph 33.
23 What you also learn from this review of the
24 Convention is that there is no material role, other than
25 the irrelevant instances that I have shown you for

1 notification. It is broadly irrelevant to someone being

2 a diplomat, someone being received in post or arriving
3 in post, to the immunities taking effect, save for
4 someone already in the country, or for the immunities
5 continuing. It is simply an irrelevant topic. And the
6 clear authority for that is Bagga. I am going to try
7 my Lord's patience and remind you of the case you
8 appeared in, because the dicta in Bagga about the
9 irrelevance of notification are very strong, it is
10 tab 17 of the first authorities bundle.
11 MR JUSTICE BLAKE: It is was a question up until that
12 authority people had thought what was said in Tega was
13 a general application --
14 MR DE LA MERE: Absolutely right, my Lord.
15 MR JUSTICE BLAKE: -- and Bagga dispels that.
16 MR DE LA MERE: Until that point in time there had been
17 a mistaken conception that acceptance and notification
18 were relevant --
19 MR JUSTICE BLAKE: Were relevant for ordinary missions as
20 opposed to special missions or heads of missions.
21 MR DE LA MERE: Correct, and there had been other divisional
22 authority to that effect and the question had gone up to
23 the Court of Appeal. It couldn't be clearer in the
24 answer, page 495E and following, and in particular at F,
25 Lord Justice Parker:

1 "So far as diplomatic immunities are concerned,

2 apart from authority there could, in my view, only be
3 one answer, it is abundantly clear from Article 39 of
4 the Convention [that is what I have just been labouring]
5 that the immunities will be enjoyed on entry to take up
6 a post and it is only when a person already in the
7 country is appointed that immunities depend upon
8 notification. Indeed this must, as it seems to me,
9 necessarily be so, because Article 36 immunities if to
10 be enjoyed at all can only be enjoyed at a time of
11 original take up of post."
12 Then there is an extensive review of the authorities
13 starting at 496 at H and following, and we go through
14 all of the contrary authorities, Tega, Youssufu,
15 et cetera, and it concludes with a clear conclusion at
16 499 at C that:
17 "Those cases, though right on the facts, were wrong
18 on the point that immunity under the Act depends upon
19 notification and acceptance. They are in any event
20 inapplicable to the question of whether a person is
21 exempt from control."
22 So notification and acceptance are both irrelevant.
23 Now, there are passages in the other judgments of
24 relevance. Lord Justice Glidewell you will see at 506,
25 at F to G:

1 "Is it necessary that his membership should have

2 been notified? I wholly agree with Parker LJ that the
3 answer to this question is no, if a person is appointed
4 to a post at a diplomatic mission and has to travel to
5 take it up, he is clearly a member of the mission at the
6 moment he arrives at the airport."
7 Then Lord Justice Leggatt, he says at 508, at E:
8 "Since in relation to the first question we are
9 departing from authorities, I shall briefly state my own
10 reasons."
11 And then he goes on to do so in the passages that we
12 have cited in our skeleton argument. Again, the answer
13 is clearly no. So notification an acceptance is
14 completely irrelevant.
15 That being so, you are left with a stark choice,
16 either as Ms Carss-Frisk would have it, simple assertion
17 upon a State's part that they have appointed to a post
18 is sufficient, and that follows from Article 7, or we
19 are right that there is a requirement for the post to
20 which a person has been freely appointed to be
21 a diplomatic post. And, in my submission, the clear
22 evidence, particularly in the light of Article 3, 42,
23 and 39(1), and in particular (2), read together is there
24 is such a functional approach.
25 That is the first and by far the lengthiest topic

1 that I have to cover on diplomatic immunity.

2 Let me come to my second topic, the status of
3 domestic certificates and the state of foreign State
4 assertions. Because in substance what we have is both
5 a certificate and what really is no more than
6 a certification or assertion on the part of the sending
7 State that this individual is discharging such functions
8 and continues to do so. It doesn't go in any way in
9 particularity beyond that.
10 Let's deal with domestic certification first, and in
11 this instance I think it is helpful to compare and
12 contrast the sorts of certificates one sees in other
13 cases. Let's start with looking at the Apex
14 circumstances. It's paragraph 45 of Mr Justice Vos in
15 his decision at bundle A2, tab 28.
16 What is striking, and I invite you to ru merite
17 diplomatic language as the court often accepts that it
18 has to do, or the absence of diplomatic language, what
19 is striking in this case is the fullness of the
20 certificate provided and its lengthy nature.
21 The first point made in the certificate -- does

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