Diplomatic Immunity?

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RickH
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Re: Diplomatic Immunity?

Post by RickH »

DaveReading wrote: 14 Dec 2021, 1:51pm"CIA wife Anne Sacoolas may not participate in Harry Dunn hearing"

https://www.thetimes.co.uk/article/anne ... -hrtghh9wz
Is it just a difference between British & American terminology (or legalese) but I wouldn't have used the word "hearing" for criminal proceedings? To me "hearing" implies something more like an inquiry.
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Jdsk
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Re: Diplomatic Immunity?

Post by Jdsk »

RickH wrote: 14 Dec 2021, 2:04pm
DaveReading wrote: 14 Dec 2021, 1:51pm"CIA wife Anne Sacoolas may not participate in Harry Dunn hearing"

https://www.thetimes.co.uk/article/anne ... -hrtghh9wz
Is it just a difference between British & American terminology (or legalese) but I wouldn't have used the word "hearing" for criminal proceedings? To me "hearing" implies something more like an inquiry.
I don't know why the Times used hearing there. Other sources suggest that it is the trial, but it might be some preliminary procedure.

I don't think that there is a transatlantic difference in the usage. Hearings are generally about procedure and trials about final decisions whether it's a criminal or a civil case.

Jonathan
Psamathe
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Re: Diplomatic Immunity?

Post by Psamathe »

Jdsk wrote: 14 Dec 2021, 2:35pm
RickH wrote: 14 Dec 2021, 2:04pm
DaveReading wrote: 14 Dec 2021, 1:51pm"CIA wife Anne Sacoolas may not participate in Harry Dunn hearing"

https://www.thetimes.co.uk/article/anne ... -hrtghh9wz
Is it just a difference between British & American terminology (or legalese) but I wouldn't have used the word "hearing" for criminal proceedings? To me "hearing" implies something more like an inquiry.
I don't know why the Times used hearing there. Other sources suggest that it is the trial, but it might be some preliminary procedure.

I don't think that there is a transatlantic difference in the usage. Hearings are generally about procedure and trials about final decisions whether it's a criminal or a civil case.

Jonathan
Can there still be a trial if she decides not to attend? i.e. she decides she does not wish to defend herself ("in absentia"). I have no idea what sort of penalty might be given were she found guilty but hypothetically if she was sentenced to 6 months in prison would she get on the next flight to Wormwood Scrubs? Would she even serve any punishment in the US (who still seem to be treating diplomatic immunity as a license to do anything anywhere to anybody.

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thirdcrank
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Re: Diplomatic Immunity?

Post by thirdcrank »

DaveReading wrote: 14 Dec 2021, 1:51pm
"CIA wife Anne Sacoolas may not participate in Harry Dunn hearing"

https://www.thetimes.co.uk/article/anne ... -hrtghh9wz
Thanks for that.

For anybody feeling uptight about diplomatic immunity in general or why it was applicable in this case, it's all been covered in some detail higher up the thread. IMO the reason why it was available to this person is largely the fault of the relevant bit of the British government dealing with these matters.
mattheus
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Re: Diplomatic Immunity?

Post by mattheus »

Psamathe wrote: 14 Dec 2021, 3:34pm
Can there still be a trial if she decides not to attend? i.e. she decides she does not wish to defend herself ("in absentia"). I have no idea what sort of penalty might be given were she found guilty
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Jdsk
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Re: Diplomatic Immunity?

Post by Jdsk »

Psamathe wrote: 14 Dec 2021, 3:34pmCan there still be a trial if she decides not to attend? i.e. she decides she does not wish to defend herself ("in absentia").
Yes, but courts don't like doing it.

Psamathe wrote: 14 Dec 2021, 3:34pm I have no idea what sort of penalty might be given were she found guilty...
The previous decision was to bring a charge of causing death by dangerous driving. I don't think that it's known what it will be now.

Sentencing guidelines for causing death by dangerous driving:
https://www.sentencingcouncil.org.uk/of ... s-driving/

Jonathan
thirdcrank
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Re: Diplomatic Immunity?

Post by thirdcrank »

This is outside my experience and they keep changing the rules anyway, but I'd be interested to read a credible source which says that an English court can try an absent defendant from start to finish for an indictable offence. I know there have been cases where a defendant has scarpered during a trial and the judge has decided to continue in the absence of the accused but that's not really the same.
Jdsk
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Re: Diplomatic Immunity?

Post by Jdsk »

Jdsk wrote: 14 Dec 2021, 4:48pm
Psamathe wrote: 14 Dec 2021, 3:34pmCan there still be a trial if she decides not to attend? i.e. she decides she does not wish to defend herself ("in absentia").
Yes, but courts don't like doing it.
thirdcrank wrote: 14 Dec 2021, 5:13pm ... but I'd be interested to read a credible source which says that an English court can try an absent defendant from start to finish for an indictable offence. I know there have been cases where a defendant has scarpered during a trial and the judge has decided to continue in the absence of the accused but that's not really the same.
How credible is Bingham J?
https://publications.parliament.uk/pa/l ... ones-1.htm

Jonathan
thirdcrank
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Re: Diplomatic Immunity?

Post by thirdcrank »

Jdsk wrote: 14 Dec 2021, 5:34pm
How credible is Bingham J?
https://publications.parliament.uk/pa/l ... ones-1.htm
Thanks for that. By "credible" I meant not some sort of conspiracy theory or similar from social media.

My layman's reading of that House of Lords judgment is that a defendant cannot avoid a trial of which they are aware by making themselves scarce. Accepting that this person must surely be aware of the trial, I presume the central question now is whether the court may hold a trial of a person who had diplomatic immunity at the time of the alleged offence. I suppose if they don't assert that immunity to the court, it might decide to ignore it, even though the court in its turn must surely be aware that the diplomatic immunity has been confirmed. From your own earlier link to the High Court judgment:
95. In our judgment, Mrs Sacoolas had immunity at the time of Harry’s death
https://www.judiciary.uk/wp-content/upl ... ffairs.pdf
slowster
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Re: Diplomatic Immunity?

Post by slowster »

thirdcrank wrote: 14 Dec 2021, 6:26pm My layman's reading of that House of Lords judgment is that a defendant cannot avoid a trial of which they are aware by making themselves scarce. Accepting that this person must surely be aware of the trial, I presume the central question now is whether the court may hold a trial of a person who had diplomatic immunity at the time of the alleged offence. I suppose if they don't assert that immunity to the court, it might decide to ignore it, even though the court in its turn must surely be aware that the diplomatic immunity has been confirmed. From your own earlier link to the High Court judgment:
95. In our judgment, Mrs Sacoolas had immunity at the time of Harry’s death
https://www.judiciary.uk/wp-content/upl ... ffairs.pdf
That judicial review was heard in November 2020. At that time it was generally understood that Sacoolas was the dependent spouse of an American working at the base. The terms of the arrangement whereby immunity was given limited it to dependent family members, with the US Govt. employees themselves not having immunity for acts outside the course of their duties.

Three months later it was reported in the media that Anne Sacoolas was herself a US Govt. employee - apparently an even more senior CIA agent than her husband and presumably also working at the base. Consequently she would not have immunity for acts outside the course of her duties. Presumably this information about her true status was not available to the court which heard the judicial review.

My understanding is that immunity is something which is at the discretion of governments' to claim for their representatives working abroad, and it is something which a government can choose not to assert for a particular individual/case, i.e. Sacoolas cannot claim immunity if the US Govt. does not assert it in her case or withdraws an assertion of immunity. If immunity was being claimed, the upcoming trial would not be happening.

https://www.theguardian.com/uk-news/202 ... rt-is-told

My reading between the lines is that an agreement must have already been reached between the US and UK governments about what will happen in the event of Sacoolas being convicted and the sentence being a term of imprisonment. The UK government would not let the CPS proceed with the trial if there was the potential for a conviction and a sentence to a term of imprisonment, only for the US/Sacoolas to refuse to accept the verdict and sentence.

My guess is that the mitigating factors are unlikely to be sufficient for a prison sentence to be suspended, and that it has been agreed that any prison sentence would be served in the US, e.g. in a low security prison ('Club Fed').
thirdcrank
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Re: Diplomatic Immunity?

Post by thirdcrank »

We will have to wait and see. Pre-CPS, it was suggested that the police tended to be over-ready to prosecute AKA "leave it to the courts to decide" as a way of ducking the decision, the logic being that if somebody was prosecuted and acquitted they suffered no harm.

The duty of the CPS to apply the "public interest test" was intended - in part - to change that approach.

So my reading between the lines was that the CPS had decided to deal with this by leaving it to the court to decide.

The fact that the media reported that the suspect herself was a US Government employee isn't necessarily conclusive. If that were to be the case it would imply - to me at least - that the US Government had acted in bad faith. If they've now decided to accept that, agreeing to extradition might be the right way to correct that. OTOH, as the US courts seem happy with plea bargaining, perhaps the entire US administration takes them for granted.

Anyway, as I've said before, the diplomatic stuff is all "above my pay grade."
=================================================================
PS I've reflected on this and had another look at the linked judgment. I quoted paragraph 95 above and for anybody prepared to read it, the court's detailed explanation is in a series of subsequent paragraphs. My layman's summary is that when the staffing of this American base at RAF Croughton was civilianised - and the rules for visiting armed forces no longer applied, the US government requested that a list of US personnel and their families should be accorded diplomatic status. Concerned that so many people so remote from from the supervision of the US Embassy might commit driving offences etc., the US government came to some agreement to restrict that diplomatic status. As the diplomatic status of the families came from being family members, it was assumed by the British government that limiting the diplomatic status of the listed personnel inevitably limited the diplomatic status of their families. The High Court held that once granted, the diplomatic status of the family members was personal to them, and could only be removed expressly - not by implication. I can't see the possibility of her having another - undeclared - role affecting her status.

It seems to me that the relevant bit of the UK government should have taken note of the Supreme Court judgment in Al-Malki v Reyes [2017] which established the sentence above in bold. It should have set the alarm bells ringing. Somebody should have thought "What about all those American families at RAF Croughton?"
Last edited by thirdcrank on 14 Dec 2021, 9:16pm, edited 1 time in total.
Jdsk
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Re: Diplomatic Immunity?

Post by Jdsk »

slowster wrote: 14 Dec 2021, 7:25pmMy understanding is that immunity is something which is at the discretion of governments' to claim for their representatives working abroad, and it is something which a government can choose not to assert for a particular individual/case, i.e. Sacoolas cannot claim immunity if the US Govt. does not assert it in her case or withdraws an assertion of immunity. If immunity was being claimed, the upcoming trial would not be happening.
Yes, the government can choose to assert, not to assert, or to waive.

I don't know what happens if an individual claims immunity but the relevant government doesn't assert it.

Jonathan
Jdsk
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Re: Diplomatic Immunity?

Post by Jdsk »

slowster wrote: 14 Dec 2021, 7:25pmMy reading between the lines is that an agreement must have already been reached between the US and UK governments about what will happen in the event of Sacoolas being convicted and the sentence being a term of imprisonment. The UK government would not let the CPS proceed with the trial if there was the potential for a conviction and a sentence to a term of imprisonment, only for the US/Sacoolas to refuse to accept the verdict and sentence.

My guess is that the mitigating factors are unlikely to be sufficient for a prison sentence to be suspended, and that it has been agreed that any prison sentence would be served in the US, e.g. in a low security prison ('Club Fed').
I wouldn't be at all surprised. And we might never be officially told.

Jonathan
thirdcrank
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Re: Diplomatic Immunity?

Post by thirdcrank »

There's a "constitutional expert" in the Daily Telegraph today suggesting that leaving the UK could be considered by the court as an aggravating feature, were she to be convicted.

On the matter of "asserting diplomatic immunity" I understood all along that it was the US government that had done the asserting and had taken her back to the US

(I've spent a little while adding to my earlier post above)
Jdsk
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Re: Diplomatic Immunity?

Post by Jdsk »

thirdcrank wrote: 14 Dec 2021, 9:21pmOn the matter of "asserting diplomatic immunity" I understood all along that it was the US government that had done the asserting and had taken her back to the US
TTBOMK diplomatic immunity was not claimed before she left the UK. Corrections welcome.

But what matters next is what she is claiming now. I don't think that we yet know the nature of the imminent hearing or trial, and it is possible that it will include submissions on her status.

Jonathan
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