Special Mission Immunity in International and Domestic Law

20 July, 2018

On 19 July 2018, the Court of Appeal (Arden, Sales and Irwin LLJ) handed down judgment in R (oao Freedom and Justice Party and others) v Secretary of State for Foreign and Commonwealth Affairs and others [2018] EWCA Civ 1719. The case arose from the Appellants’ attempt to secure the arrest of the Director of the Egyptian Military Intelligence Service during the course of an official visit he made to the UK, for alleged involvement in acts of torture committed during the uprising in Egypt in 2013. Lt Gen Hegazy had been granted special mission status by the Foreign Office for the duration of his visit and, on that basis, no further action was taken by the Metropolitan Police or the CPS. The Appellants sought judicial review on the principal grounds that (i) there was no rule of customary international law requiring the grant of immunity to Lt General Hegazy (neither State being a party to the UN Convention on Special Missions); and in any event (ii) any such customary international law rule had not and should not be incorporated into English common law. The Court of Appeal, dismissing the Appellants’ appeal, has confirmed that (i) the core principles of special mission immunity – including the inviolability and immunity from criminal jurisdiction of members of special missions – have become established in customary international law and (ii) these customary international law rules form part of English common law.

Jessica Wells (with Karen Steyn QC of 11kbw and Guglielmo Verdirame of 20 Essex Street) acted for the First Respondent, the Secretary of State for Foreign and Commonwealth Affairs, instructed by the Government Legal Department.