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24 away".
25 MS CARSS-FRISK: That is absolutely right, and there is

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1 strong support for that. If I can remind your Lordship
2 of the Propend case where Mr Justice Laws was looking at
3 whether a police liaison officer who had been at the
4 Australian High Commission, whether when he was giving
5 an undertaking to the court --
6 MR JUSTICE BLAKE: Yes, I remember what the case was all
7 about.
8 MS CARSS-FRISK: The importance of that case, it is not so
9 much what the court said, but it was actually -- well,
10 it is in this sense, that Lord Justice Laws --
11 MR JUSTICE BLAKE: He was "Mr" in those days, but he has
12 subsequently gone on to greater things.
13 MS CARSS-FRISK: Sorry, Mr Justice Laws, he approved
14 a textbook passage that set out that it would be
15 possible for the sending and the receiving State to
16 agree that it doesn't matter whether a diplomatic agent
17 is acting consistently with his diplomatic role or
18 engaging in commercial activities.
19 MR JUSTICE BLAKE: It seems to me that must be right for
20 what you might call the disciplinary issues, or issues
21 about going beyond the role which might justify the
22 receiving State to rescind. It is a question for the
23 receiving State. I have that.
24 MS CARSS-FRISK: Or the sending State.
25 MR JUSTICE BLAKE: The sending State and the receiving

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1 State. The receiving State would be the ones to say,
2 "Hang on a moment, whilst you are here purporting to be
3 a diplomat, which we have recognised and approved and
4 accredited, you have gone off and conducted business,
5 running a company, and we think that is inconsistent.
6 Stop it or else go". They could do that or they could
7 say, "We don't mind you doing that for various reasons.
8 You carry on."
9 But the argument I think that I am being asked to
10 adjudicate upon is, that is okay when you have done
11 something which puts you in the role of diplomatic agent
12 in the first place. But if you have never done anything
13 which entitles you to be a diplomatic agent, and all you
14 have ever done is things outside that, then it is not
15 a question of rescinding, it is a question that you have
16 not yet met the threshold for being there. I think that
17 was the case that Mr Hickman was seeking to develop. I
18 am sorry, Mr De La Mere was seeking to develop, I beg
19 your pardon. Both of them. There's two hats merging
20 into a blended one, isn't there!
21 MS CARSS-FRISK: My Lord, it is with respect the same
22 situation. It is analogous to the one about whether the
23 sending and receiving State can agree that it doesn't
24 matter how the person conducts him or herself in
25 practice. If someone has been appointed to a diplomatic

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1 post then they are a diplomatic agent. We come back to
2 our submission based on Article 7. It is for the
3 State of Qatar freely to appoint someone. There is no,
4 but no basis, on which the court could go behind the
5 very clear statements by those who represent the
6 State of Qatar and in particular the ambassador and the
7 Foreign Secretary, quite apart from the defendant,
8 saying he has been appointed to carry out certain
9 functions that fall truly within diplomatic functions
10 under Article 3. That is what he has been appointed to
11 do. There is then no further question of looking at
12 what he in fact does under the Vienna Convention.
13 If there is a problem about what he in fact does,
14 whether it is because he engages too much in business or
15 at all in business, or whether it is because he is on
16 too many holidays, or because he doesn't actually carry
17 out diplomatic functions, then that is a matter for the
18 sending State recalling him or, significantly for our
19 purposes, it would be a matter for the UK to say, "Well,
20 we are not happy with this" and exercise their powers
21 under article 9. But that is how the whole system is
22 intended to work.
23 MR JUSTICE BLAKE: I have understood those are your
24 submissions and I have them, thank you.
25 MS CARSS-FRISK: Now that being our position, as I say, I am

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1 not going to enter into the detail of the factual
2 evidence, save to say that it really does not come near
3 the submission that was made. It doesn't even begin to
4 substantiate the allegation that we are concerned with
5 a person who has not carried out diplomatic functions at
6 all or is not engaged in that at all. It certainly
7 would not entitle the court with great respect to go
8 behind the clear evidence in witness statement by the
9 ambassador and the Foreign Secretary of Qatar referring
10 to his diplomatic functions, and in particular, of
11 course, the evidence of the ambassador actually saying
12 that he has indeed been and is doing such things,
13 carrying out such functions, or words to that effect.
14 It is hardly surprising that the ambassador does not
15 go into detail given the analysis that we have put
16 forward that we are concerned with, whether he is
17 appointed to such a post in the face of the allegations
18 made, he is confirming that he has been appointed and he
19 is in that post, has been carry out and is carrying out
20 those functions in effect.
21 As I say, there is no way in which the court could
22 go behind that with great respect. It is not like the
23 Apex case where there was a letter from the Government
24 of Saudi Arabia and the discussion was about whether it
25 was binding or not. The conclusion was that it would

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1 not be binding. But here you have a witness statement
2 which must be given, in our respectful submission, very,
3 very considerable weight. The evidence pointed to by my
4 learned friend just doesn't suggest or is not
5 inconsistent with the defendant having in fact been
6 engaged in diplomatic activities.
7 May I draw breath for one second. (Pause) My Lord,
8 I suspect that that covers most of the territory that
9 I wanted to cover.
10 There is perhaps one other reference that I should
11 draw to your attention. It is about how certificates
12 from the FCO generally carry with them that someone is
13 recognised, or certainly carry with them some form of
14 recognition of a statement of attitude by the Foreign
15 Office. We get that from an article by Elizabeth
16 Wilmshurst on which my learned friend relied. It is
17 volume 2 of the authorities, tab 39A. So that is her
18 learned article about executive certificates in foreign
19 affairs. She says this on page 2, tab 39A, the second
20 paragraph:
21 "Formulations which omit reference to the attitude
22 of the Crown are casting the net too wide. Certificates
23 which do not expressly mention recognition by the Crown
24 or a similar view or attitude will usually imply it.
25 Generally speaking certificates will not be issued on

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1 matters of pure fact on which parties can obtain
2 evidence elsewhere. It is not the role of the FCO to be
3 an inexpensive source of evidence for private
4 litigants."
5 MR JUSTICE BLAKE: I have checked what footnote 17 says.
6 Kalintan is an independent State.
7 MS CARSS-FRISK: Yes. It is simply making the point that
8 recognition or the attitude of the Foreign Office is
9 generally to be seen as implicit in whatever it is that
10 they do put in a certificate. If one looks in the same
11 article at the last sentence under the heading
12 "Rationale", on the next page, one sees that she says
13 this, looking at the rationale for treating certificates
14 as conclusive:
15 "Perhaps it is sufficient to say that since all
16 certificates are concerned with the Crown's prerogative
17 in foreign affairs it is reasonable that a declaration
18 by the Crown as to what it has done or what attitude it
19 has taken within its sphere should be treated as
20 conclusive evidence of any such fact by the courts."
21 So reasonable that its attitude, the attitude it has
22 taken within its sphere, should be treated as conclusive
23 evidence of any such fact by the courts. So here the
24 FCO's attitude within its sphere is that the defendant
25 was appointed and is a diplomatic member of the Embassy

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1 of Qatar and the court should, we respectfully say, find
2 likewise.
3 As for Article 6 I think I can be very, very brief
4 indeed because Mr De La Mere said that Article 6 is only
5 relevant if his functional test is correct as a matter
6 of law. On that basis we say you only ever get to that
7 then if his submission on that point is right, which we
8 hope that we will have persuaded your Lordship it isn't.
9 But in any event his submission, I respectfully say,
10 didn't grapple with our point that this key matter of
11 Her Majesty's Government acting within the Royal
12 Prerogative in matters such as this is a matter of
13 substantive law, which means that Article 6 just isn't
14 triggered.
15 His submission of course was that this wasn't within
16 the Royal Prerogative, but I hope I may have persuaded
17 your Lordship that it squarely is. If that is right
18 I don't need to say anything about the novel submission
19 that the court could simply ignore the certificate here
20 and now as if it had never been issued on the basis that
21 it would somehow be unlawful. Certainly if there were
22 to be any challenge to the validity of the certificate
23 then in our submission it would clearly have had to have
24 been challenged by judicial review in the ordinary way
25 as was done in, for example, the Tinnelly case, where

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1 there was an attempt to challenge a certificate by
2 judicial review.
3 What the court cannot do and couldn't do on any
4 basis, we say, is to simply proceed on the basis that
5 it is not faced with a valid certificate to which it
6 must pay attention. But, as I say, I hope I don't even
7 need to go near that issue if I am otherwise right, as
8 I hope I am.
9 My Lord, it is nearly 20 to 5. Unless I can seek to
10 assist your Lordship further on any matter that is our
11 reply.
12 MR JUSTICE BLAKE: Thank you. No, I think I have probably
13 asked you far too many questions.
14 MS CARSS-FRISK: Not at all, my Lord.
15 MR DE LA MERE: My Lord, if you could forgive me one point
16 of fact, 15 seconds. It is not correct to say that our
17 letter of 16 November was directed at the certificate.
18 If you read the letter it was directed at the suite of
19 powers which indubitably exist in the Secretary of
20 State. The topic of the letter was not the certificate
21 as my learned friend said.
22 MR JUSTICE BLAKE: Let me just complete my note and then
23 I will rise.
24 Right. I will obviously reserve judgment and give
25 a hand-down judgment in due course.

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1 Are there any particular time-sensitive issues?
2 I know everyone would like justice to be done as soon as
3 possible but ...
4 MS CARSS-FRISK: I don't believe so for our part, my Lord.
5 MR JUSTICE BLAKE: Right, thank you. I know I have one or
6 two other things coming up to do but I will give it all
7 appropriate thought.
8 I appreciate we have had a livelink note being
9 taken. I have taken my own notes but if anyone felt
10 they would like me to see the livelink if you could pass
11 an electronic format to my clerk.
12 MS CARSS-FRISK: Yes, we will certainly provide the
13 transcript to your Lordship, yes.
14 MR JUSTICE BLAKE: Thank you very much. It is just
15 possible, without of course committing the cardinal sin
16 of cutting and pasting your arguments for my judgment,
17 but it might be that if you were able to provide your
18 skeletons in electronic format that might be some
19 assistance to the judgment-writing process.
20 MS CARSS-FRISK: Certainly.
21 MR JUSTICE BLAKE: Thank you very much. Thank you very
22 much, both of you, for your arguments on an interesting
23 case.
24 (4.40 pm)
25 (The hearing was concluded pending judgment)

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Submissions by MR DE LA MERE ........................23



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Reply submissions by MS CARSS-FRISK ................156



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