Court of Appeal to consider whether suspected torturers visiting UK can be given diplomatic immunity

Case could have ‘far-reaching implications for diplomatic relations’ - Tawanda Mutasah

The Court of Appeal is hearing an important case to determine whether members of special missions visiting the UK with the approval of the Foreign Office should be immune from criminal proceedings.

The case arises from an official visit to Britain in 2015 by an Egyptian general, Lt General Mahmoud Hegazy, who is suspected of torture and other ill-treatment following former president Mohamed Morsi’s removal from power by a military-led coalition in 2013.

The UK police can investigate and arrest visiting foreign torture suspects under the principle of universal jurisdiction, which enables states to prosecute suspects of the gravest international crimes - such as genocide, war crimes, or crimes against humanity - regardless of their nationality or where the crime was committed. This principle is embodied in section 134 of the Criminal Justice Act 1988.  

The claimants in this case, which include members of Morsi’s Freedom and Justice Party, notified the Metropolitan Police of General Hegazy’s likely presence in the UK and requested his arrest on the allegations of torture. However, the Metropolitan Police said they’d been advised by the FCO and the Crown Prosecution Service that Hegazy had “special mission immunity” and therefore could not be arrested.

On 5 August 2016, the Divisional Court found in this case that customary international law requires states to secure, for the duration of a “special mission” visit, personal inviolability and immunity from criminal jurisdiction for the members of the special mission. The court also found that this rule of customary international law is given effect by English common law. The claimants have appealed that decision to the Court of Appeal, which is now hearing the case (21-22 March).

Amnesty International and REDRESS have intervened in the proceedings, arguing that there is no such rule of customary international law and even if there were it shouldn’t be considered part of domestic law - not least because it clashes with the UK’s obligations under the UN Convention Against Torture.

Tawanda Mutasah, Amnesty International’s Senior Director, said:

“This is a landmark case for the UK legal system. Its outcome could have far-reaching implications for diplomatic relations and special missions visiting the UK at the invitation of Government, particularly where those individuals are suspected of serious human rights violations such as torture.” 

Rupert Skilbeck, Director of REDRESS, said:

“The UK Government cannot be allowed to use special mission immunity as an excuse for avoiding its fundamental international and domestic legal obligation to prosecute those responsible for torture.”

Submission from REDRESS and Amnesty

REDRESS and Amnesty made written submissions on the law, but did not take a position on the facts of this particular case. The organisations were represented pro bono by Shaheed Fatima QC, Rachel Barnes, and Hickman and Rose Solicitors.