Al Attiya v Bin-Jassim Bin-Jaber Al Thani

The claimant is a member of a prominent family related to the ruling family of the state of Qatar. He was born in London and is a dual British and Qatari national. Since 1993 he has been a salaried member of the Foreign Ministry of Qatar and from July 1998 he held the rank of Ambassador, although he is not accredited to any overseas mission.

The defendant is also a member of a prominent Qatari family and since 1989 he has held ministerial office in Qatar. From 1992 to 2013 he was Minister of Foreign Affairs and from 2007 to 2013 he combined this office with that of Prime Minister. He is also a very wealthy man and, along with other members of his family, is the beneficial owner through a chain of holding companies of valuable hotels, property and other assets in the United Kingdom and elsewhere in the world. Press reports value his wealth in the region of £7.8 billion.

In June 2013 he resigned from his posts as Foreign Minister and Prime Minister. In May 2014 and June 2015 he participated in public interviews and political debate in which he described himself as a private citizen who no longer represented the government of Qatar. Press reporting and his social media pages present him as having spent much of 2014 and 2015 in recreational and other personal activities in many locations around the world.

In August 2015 the claimant issued a claim for damages against the defendant and personally served him in London at one of his properties. The claim is for damages for trespass to land of the claimant’s and to his person. In summary, it is contended:

In September 2015, whilst disputing much of the factual basis for the claim, the defendant applied for an order that this court has no jurisdiction to entertain the claim for two reasons, that I propose to examine in the following order:

The matter came before Foskett J on 19 October 2015 who gave directions for trial. At that time there were two letters from the protocol department of the Foreign and Commonwealth Office (FCO) both indicating that the defendant was recognised as an accredited diplomat. The status of those letters was in dispute. One of the directions made was that the parties should jointly write to the FCO seeking a certificate under s.4 DPA directed to the following questions:

“Her Majesty’s Government is respectfully requested by the Court to provide such response to the questions below as it considers appropriate and, in particular if and insofar as appropriate, by means of certification under section 4 of the Diplomatic Privileges Act 1964. The Court wishes to consider such response as Her Majesty’s Government provides at a hearing on 11 and 12 January 2016, and respectfully requests that Her Majesty’s Government provides its response as far in advance of that date as it is able to do.

1.

Has the Defendant been notified to the FCO as a member of the diplomatic staff of the Mission of the State of Qatar having diplomatic rank; and if so upon what date(s) and in respect of which position(s) was the Defendant so notified?

2.

As the date of HMG’s response to this request, has the FCO accepted and/or accredited the Defendant as a member of the diplomatic staff of the mission of the State of Qatar having diplomatic rank; and if so, upon what date(s) and in respect of which position(s) was the defendant so accepted and/or accredited; and is he currently so accredited and/or accepted?”

A joint letter was written on 10 November 2015. On the same date the claimant’s solicitors informed the defendant’s solicitors that it proposed to communicate unilaterally with the FCO. It did so on 16 November 2015, in a letter drawing attention to a number of pieces of information available from public sources about the defendant’s commercial, social and media activities since mid-2013 to date that were said to be inconsistent with diplomatic status. This letter was copied to the defendant’s solicitors on the same day that it was sent.

On 15 December the FCO wrote to the claimant’s solicitors inviting their consent for them to supply the letter to the Qatari Embassy in order for its observations to be made as to its contents. Consent was unnecessary given that the letter had already been supplied on 16 November but after some administrative delay in the solicitor’s office, consent was given on 23 December and in a follow up letter on 4 January 2016. It is not known what communication there has been about the 16 November letter between 23 December 2015 and the 4 January 2016.

On 4 January 2016 the FCO issued a certificate in the following terms:

“Under the authority of Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me and in accordance with the provisions of Section 4 of the Diplomatic Privileges Act 1964, I, Julian Evans, director of Protocol at the Foreign and Commonwealth Office hereby certify that the appointment of Sheikh Hamad bin Jassim bin Jaber Al Thani as a member of the diplomatic staff of the mission of the State of Qatar in the United Kingdom was notified to the Foreign and Commonwealth Office on 28 August 2013; and on 28 May 2014 his arrival date was notified as 6 November 2013, from which date he has enjoyed the privileges and immunities of a member of the diplomatic staff of a mission.”

This is the hearing of the defendant’s application for an order that this court has no jurisdiction to hear the claim on the two bases set out at [5] above. There has been filed for the defendant:

For the claimant there has been filed:

Section 1 of the State Immunity Act 1978 provides:

In the case of Jones v Ministry of the Interior of Saudi Arabia [2006] UKHL 26 [2007] 1 AC 270, the Appellate Committee was concerned with whether there was jurisdiction in an UK court to try a claim brought by British nationals for damages for false detention and assault by means of infliction of torture in Saudi Arabia. The defendants were the Ministry of the Interior of Saudi Arabia and a Lieutenant Colonel in the employment of the state. It concluded that :

In support of the second proposition Lord Bingham noted:

Lord Hoffman added at [68]- [69]:

Ms Carrs-Frisk QC for the defendant submits that the claimant’s pleadings make clear that the defendant is being sued for an alleged abuse of power exercised by reason of his being the former Prime Minister of Qatar from 2007 to 2013 and in respect of his senior position in government for any acts committed in the earlier period of the dispute. Applying the principles stated in Jones, the claim should be struck out on state immunity grounds.

The defendant supports this contention by an analysis of the claimant’s letter before claim and the particulars of claim dated 24 August 2015. The claimant’s pleading states that the defendant’s official position in government and then refers to him:

Mr De La Mare QC for the claimant recognised that as presently pleaded, the claim alleged abuse of the public power exercisable by the defendant by reason of his high position in government at the material time. He contended however that the claim should not be struck out because:

In Belhaj v Straw the claimant was suing British defendants including the former Foreign Secretary for their part in the unlawful rendition and ill treatment of the claimant when he was forcibly returned from abroad to Libya from whence he had fled in fear of persecution. The proceedings involved contentions about the acts of officials of other states in either seeking or permitting the extra judicial expulsion to Libya although neither those states nor the officials were being sued and some of the acts took place outside the sovereign territory of those states.

The Court of Appeal upheld the decision of Simon J (as he then was) and concluded that sovereignty immunity was not a bar to jurisdiction. It also agreed that the act of state doctrine was engaged in respect of a number of the claims but disagreed that this amounted to a bar to the claim proceeding. By contrast with state immunity, the act of state principle is a common law doctrine that is subject to some exemptions such as where fundamental human rights were said to be breached. This exception arose for consideration in the claim and accordingly there was jurisdiction to proceed to trial to investigate the facts. There is presently an appeal outstanding before the Supreme Court with respect to the Court of Appeal’s decision on state immunity. The claimant contends that it would make sense for an opportunity to amend the pleadings to be deferred until the Supreme Court delivered its decision.

In my judgment, the defendant’s submissions on this issue are well-founded and the claim should be struck out for want of jurisdiction.

It is plain from the judgments in both Jones and Belhaj that a decision whether state immunity is a bar to jurisdiction is made on the pleadings at a preliminary hearing in advance of trial.

The claimant has had notice of the defendant’s intended application for some four months, and has been afforded ample opportunity to have re framed the case as outlined in Mr de La Mare’s oral submissions. Despite this, there has been no application to amend the pleadings and no draft amended pleadings suing the defendant in a purely private capacity have been supplied to the court.

The response to the defendant’s application that is now advanced was not intimated in correspondence or the detailed skeleton argument that was lodged pursuant to directions on 6 January 2016. It appears to have been developed ex improviso during the course of the proceedings. It is far too late in the life of this application to now permit the claimant to fundamentally reformulate the claim in an endeavour to avoid the application of state immunity bar to jurisdiction.

There is no judicial authority on how a former Prime Minister of a sovereign state could be sued in a private capacity for inducing breaches of duty by other public officials resulting in torts being committed against a claimant. It is difficult to see how the two hats can be severed and how the alleged private motive in inducing the torts can be separated from the public office that gave the defendant the status and the ability to direct others and issue instructions.

The fact that the claimant contends that the dispute with the defendant arose as a purely personal matter in 1997, is irrelevant to the application of the act of state principle as the judgments in Jones make clear and in particular the concurring judgment of Lord Hoffman.

Even if it were possible to sue the defendant for malicious abuse or abuse or malicious prosecution, applying the law of Qatar, it seems to me that any adjudication on any amended claim would still engage state immunity. Any determination of the claim would directly challenge the good faith of both the Minister of Municipality in promoting compulsory purchase of the claimant’s land and the Attorney General in seeking the return of the claimant from Saudi Arabia, detaining him and prosecuting him. This is not a case where the acts of a foreign state under challenge are the unwitting outcome of a malicious use of process by a powerful citizen of that state.

In the course of his judgment in Jones, Lord Bingham referred to the United Nations Convention of Jurisdictional Immunities of states and their Property June 2004. Article 6(2) of that Convention states:

In my judgment, a contention that a property confiscation order was made for an improper purpose and that a criminal investigation, extradition request, detention and charge brought under the authority of the Attorney General all affect the property rights interest or activities of that state.

I recognise that this Convention was also cited in the Court of Appeal judgment in Belhaj but there are significant factual differences between that case and the present. The defendants are British officials who are subject to the jurisdiction of the English courts and the acts of foreign officials may be only incidental to the causation of loss. By contrast, the direct focus of the claim in the present case is the acts of foreign public officials dozen in pursuance of their public authority in Qatar and under the laws of Qatar.

I do not consider that the present application needs to await the outcome of the defendant’s appeal to the Supreme Court in Belhaj. Whatever the final parameters of the state immunity principle turn out to be, I can proceed in the present case, by applying the Court of Appeal decision, albeit distinguishing it on the facts.

Although the conclusion I have reached on the issue of state immunity is sufficient to grant the relief the defendant seeks without consideration of the question of diplomatic immunity, I go on to consider the further issue of diplomatic immunity in case subsequent developments demonstrate that I am wrong on the first question.

If the defendant’s contentions are correct, in the absence of a change of present circumstances, he would be immune from any civil or criminal proceedings in respect of any matter, save to the extent as permitted under Article 31 (1) of the Vienna Convention on Diplomatic Relations 1961 (VCDR) incorporated into law by the Schedule to the DPA.

It is common ground that if the defendant is a diplomatic agent, then he is immune from this suit. It is not contended that it falls within the three exceptions spelt out in Article 31 of the VCDR. What is in dispute is whether he is a diplomatic agent within the meaning of Article 1 when taken together with Article 3.

In substance, the rival submissions of the parties may be summarised as follows. The claimant contends that:

It is central to Mr De La Mare’s submissions on this issue that the present case is not ‘a normal case’ given the status of the defendant and the information about his activities since November 2013:

The defendant submits:

These are all formidable submissions. Although there are many cases concerned with diplomatic immunity and prerogative acts of the Crown with respect to foreign affairs, there is nothing that directly decides the issue in dispute. It accordingly falls to me to determine the question applying the provisions of the DPA and any relevant guidance given by the VCDR and applicable principles of international law, as well as the line of authorities touching on the subject to which I was referred.

As the DPA and the DC are central to the analysis, I set out the relevant parts in Annexes 1 and 2 to this judgment. Whilst I am aware that in the case of R v Governor of Pentonville Prison ex p Teja [1971] 2 QB 274 (Teja), to which further reference will be made, Parker CJ (at 283 A) expressed doubt as to whether it was possible to construe the Act or the terms of the VCDR incorporated into domestic law by the Act with reference to provisions of the Convention that were not so incorporated, in the later case of Propend Finance v Singh and others (111) ILR 611 (1996) Laws J (as he then was) concluded that such a course was ‘clearly right’ (at 635). It seems to me that this accurately states the position and both sides in the course of their submissions have referred me to provisions of the VCDR that are not contained in the schedule to the DPA.

The fourth holding of the preamble to the VCDR states ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States’. There are numerous other references to ‘function’ in the text of the VCDR in the context, for example, as to when immunities begin and end (see Articles 39 and 43).

The functions of a mission are not exhaustively defined, but include the purposes set out in Article 3 which at (e) refers to ‘developing economic relations between states’. Developing economic relations between states is distinct from a diplomatic agent undertaking professional or commercial activity for personal profit, an activity prohibited by Article 42. Although neither Article 3 nor 42 is expressly incorporated into domestic law by the schedule to the DPA, they form part of the principles of international law and can be relied on to ascertain the meaning of terms that are part of domestic law.

The VCDR encapsulates a wide variety of personnel from the head of mission, diplomatic agents, technical and administrative staff, private servants, family members and others. The proposed accreditation of a head of a mission requires the agreement of the receiving state. The members of the staff of the mission are distinguished as to status and immunity according to whether they have diplomatic rank or are the technical and administrative staff of the mission.

The sending state may freely appoint the members of staff of the mission. Save in the case of military attaches, there is no requirement for prior approval of the receiving state (VCDR Article 7). Although the freedom to appoint members of staff is primarily about the identity of the people chosen to be a member of staff, the rank assigned to that member of staff is generally a matter for the sending state alone. Thus the level of appointment and the consequential diplomatic rank is a matter for that state.

It is the sending state that accredits its head of mission or diplomatic staff of the mission to the receiving state (see Article 5, 6 and 14). Save in specific circumstances where the VCDR requires prior approval, accreditation is by notification to the relevant authority, here the FCO. If the receiving state takes issue with the accreditation, it can communicate with the sending state and if necessary may make an Article 9 notification.

The DPA and the VCDC replace the previous common law and statutory provisions dating back to the statute of Queen Anne in 1708 that gave more extensive immunity to diplomats. There have been a number of judicial decisions on diplomatic immunity under the DPA, most often in connection with criminal liability and exemption from immigration control.

In Teja an Indian national wanted for suspected commercial fraud claimed to be immune as a member of a diplomatic mission of Costa Rica. He relied on letters to that effect issued on behalf of the government of that country. There was a certificate before the court from the FCO stating that the applicant ‘has not been accredited to the Court of St James as a diplomatic agent’. The issue was whether he was nevertheless entitled to such immunity. The Divisional Court was satisfied that he was not, concluding:

Teja was influential in a number of subsequent extradition cases and the second holding above was applied in In re Osman (1988) 88 ILR 378 DC and ex p Yusufu [1985] Crim LR 510 DC. In addition, it was followed in a number of immigration cases with the consequence that date stamps placed in passports tendered by those coming to take up a post at a diplomatic mission were held to amount to leave to remain as it was understood that exemption from immigration control did not begin until the appointment had been notified and accepted by the FCO.

R v Secretary of State for the Home Department ex p Bagga [1991] QB 485 CA was an immigration case where the second holding in Teja was held to be wrong (at [45] (ii) above). Ambassadors and heads of mission were special cases and in general Article 39 of the VCDR made clear that immunity attached from the moment a person entered the country to take up a diplomatic post whether there had been notification or not (per Parker LJ at 495 F and 496 E). As far as exemption from immigration control was concerned the Home Office was not concerned with the diplomatic niceties of notification but simply with whether a mission is a member of a mission (at 496 F). Teja was correct in its conclusion on its own facts that depended on the claim to immunity by reason of a claim to be heading a special mission, but the broader proposition was overruled and so was the reasoning in the subsequent cases relying on it although they reached the right conclusions on the facts (see pp 497 E, 498 B, 499 C, 506 F).

Despite its status as an authority for the broader proposition of law, the case of Osman remains of some interest having regard to the terms of the certificate issued in that case that the claimant ‘is not and has not been accepted or received as a member of the diplomatic staff of the Embassy of the Republic of Liberia’ (of which he claimed to be a diplomatic agent). Mustill LJ held that the certificate was conclusive of the facts stated although not exclusive as to the means by which the facts could be proved (p. 396). Further the function of the certificate was that:

McGowan J concurring (at p.402) observed that the applicant had not established that he was immune by demonstrating that he had been appointed as a member of the diplomatic staff of a mission.

In Propend the court was concerned with whether a police officer who exercised the function of police liaison officer at the Australian High Commission was liable to process for contempt of court in respect undertaking given in the course of litigation about a search warrant. The issue was whether an Article 31 (1) (c) exemption to immunity arose because the officer was carrying out a professional activity. Laws J held it did having regard to the provisions of Article 42 and the preamble demonstrating what the purpose of the immunity was (p633 and 635). The precise terms of the certificate were not reproduced in the judgment but it is sufficient to note that it satisfied the court that immunity attached because the police office had been a diplomatic agent accredited to the UK (612).

Khurts-Bat v Investigating Judge of the Federal Court of Germany [2011] EWHC 2029 (Admin) [2013] QB 349 was another extradition case where the applicant claimed immunity on the basis that he was on a special mission for which there had been no consent and approval by the FCO. The claim was rejected (as in Teja) Moses LJ further reviewed the state of the law as follows:

In British Arab Commercial Bank PLC v National Transitional Council for the State of Libya [2011] EWHC 2274 (Comm) Mr Justice Blair had to decide who was the recognised government of Libya and whether a bank account in London under the control of the Libyan Embassy in London could now be controlled by the successor government to the Gaddafi regime. There was a certificate from the FCO that the defendant was considered the recognised government and the decision in Khurts-Bat was noted and applied. I do not consider that this decision gives any further assistance to the issue before me.

The death of WPC Fletcher at the hands of someone from within the Libyan Embassy in London led to an investigation by the Foreign Affairs Committee of the House of Commons as to Diplomatic Immunities and Privileges in 1984. The evidence from the FCO (20 June 1984) revealed in response to question 22:

In its response to the Committee’s report (April 1985 Cmnd 9497) the government observed at [21]:

In Al Maliki v Reyes [2015] ICR 931 [2015] EWCA Civ 32, the Court of Appeal had to decide whether engaging domestic staff was an activity incidental to diplomatic functions and thus well within immunity from suit or was subject to an Art 37 exemption from immunity. It upheld the claim for immunity but there was (at [20] and following) a wide ranging consideration of the object and purpose of the VCDR derived from the preamble, drafting history and state practice.

In the materials provided to me by the parties is an extract from Diplomatic Law by Eileen Denza (Third Edition) OUP from which the following information can be abstracted:-

There is also helpful information about the practice in issuing executive certificates in foreign affairs in an article written by Elizabeth Wilmshurst (the former senior legal officer to the FCO) in the ICLQ (1986) 157.

I accept from this summary of the law that:

The claimant does not seek to contradict the terms of the FCO certificate (set out at [9] above). It is contended that the last sentence however, should be disregarded in so far as it purports to be a legal conclusion rather than a statement of fact. The FCO practice reflected in the views of such commentators as Denza and Wilmshurst is that a certificate is directed to facts for the assistance of the court but the conclusions of law are for the court alone. The understanding of the courts and indeed the terms of DPA s.4 are to similar effect. It may well be that a certificate is based on an understanding of the law, and the FCO understanding of the legal basis for any facts may itself be a source of information to the court’s decision, but I agree with the claimant that I am not bound by a certificate that purports to go beyond its function under the statute.

The information supplied by the FCO to the parties has not been entirely consistent as to the relevant dates. On 4 September 2015 a letter was issued indicating that the defendant was recognised as a Minister Counsellor on 6 November 2013. In a letter to the claimant’s solicitors dated 5 October 2015, it states that it was notified by the Qatari Embassy of an in intention to appoint the defendant to its diplomatic staff and was accredited with diplomatic status in October 2014. The certificate itself explains that notification took place on 28 August 2013 and on 28 May 2014 the defendant’s arrival date was notified as 6 November 2013. The reference to the 6 November in the earlier letter thus appears to be the date from which accreditation to the diplomatic staff of the Embassy has been considered effective. The last sentence in the certificate is, in my view, based on a view of the law that arrival to take up a diplomatic post followed by the absence of any objection by the receiving state together results in membership of diplomatic staff with the consequent immunity. The letter to the defendant’s solicitors with the certificate observes that the agreement of the receiving state is not necessary in the case of a member of diplomatic staff other than a head of a mission.

The claimant points out that not every view of the FCO as to the meaning of legal terms has been accepted by the courts as accurate. In the case of Apex Global Management Limited [2013] EWHC 587 (Ch) Mr Justice Vos, as he then was, had to decide whether two Saudi princes were immune from the jurisdiction of the English court in relation to a commercial dispute because they were members of the family of a sovereign or other head of state ‘forming part of his household’ within the meaning of s.20 State Immunity Act seeking to apply Article 37 of the VCDR as incorporated by the DPA. The court had drafted a series of questions for the FCO to assist in deciding that fact. The response indicated that the FCO was not in a position to certify any relevant fact that would assist the court in its inquiry, but did provide some material where a prominent expert in this field Sir Arthur Watts had expressed views as to the wide meaning of ‘membership of a household’.

In the end the judge took a different and narrower view as to membership of a household and was distinctly unimpressed with the assertions of fact made in a number of witness statements of Saudi officials on behalf of the defendant in this case. His conclusion was upheld by the Court of Appeal on different grounds taking an even narrower view of ‘membership of a household’.

If Mr de la Mare is correct in his central contention of law that it is for the defendant to prove that he has the status of a diplomatic agent by establishing on a civil balance of probabilities that he is actually exercising diplomatic functions within the meaning of Article 3, I would not be satisfied on the evidence before me that this burden had been discharged.

I recognise that the defendant’s very extensive business interests would make him well qualified to undertake the diplomatic function of improving economic cooperation between the receiving and sending states, and that there is evidence that he was appointed in August 2013 to come to the UK to undertake such a function.

The difficulty with the defendant’s evidence is its essential silence on whether he has ever performed this function since he arrived in the UK or performs it now in 2016. There is material in the public domain compiled in Mr Barnett’s witness statement of 16 November 2015 to support the proposition that since November 2013 the defendant has been in Morocco (December 2013), USA (February 2014), India (February 2014), Morocco, Tanzania, Maldives (April 2014), Switzerland ( May 2014), Greece, USA, France and Kuwait ( June 2014), Hungary (November (2014), Oman, Russia, Belize, Mexico, Panama, and Cuba (December 2014), Saudi Arabia (January 2015). India and Germany (February 2015), Hungary (May 2015), Austria (June 2015), Saudi Arabia (July 2015), Greece (August 2015) and Morocco (October 2015). Each of these visits appears to have been for personal purposes wholly unrelated to functions as a member of a mission in London. In addition, there are the two public statements during the period that he is a private person and not representing the government of Qatar and significant evidence of business transactions in the UK and elsewhere concerned solely with the acquisition of assets of which he and his family are beneficial owners. It is difficult to understand how a person could make such a statement if he regarded himself as an a charged with the task of representing the interests of Qatar in the United Kingdom.

I accept that the performance of some private commercial activity within the meaning of Article 42, although contrary to diplomatic status, does not of itself mean that the person concerned loses immunity generally as a diplomat. Such acts may be waived by the receiving state and in any event there may be policy reasons why the receiving state would not wish to declare someone persona non grata. Article 31 recognises that one can be both a diplomat and entitled to general immunity and be exempt from immunity and subject to the jurisdiction of the civil courts for disputes arising from commercial activity.

I further accept that as Ms Denza states (see [57 (ii)] above) there may be borderline cases of commercial activity and diplomatic functions, but if the defendant has been devoting most of his time to being concerned in acquiring the equity of a chain of Spanish stores, an oil company and other assets such as is indicated in the Barnett material, in my judgment this would be activity wholly outside his diplomatic functions however broadly they be conceived within Article 3 or otherwise.

There is no evidence from the defendant to rebut or explain his public statements or the visits and acquisitions described by Mr Barnett. It may be undisputed that he is not the director of any UK based trading company, as Mr Bakhos states, but equally it is not disputed that he is the beneficiary of a portfolio of UK assets of an unimaginable value and that portfolio has grown since November 2013.

The evidence from the Qatari Ambassador and Foreign Minister does not tell the court what the defendant has actually been doing. The claimant does not challenge the fact that the defendant has been appointed to the London Embassy and his appointment and the capacity in which it was made has been notified to the FCO, but that does not tell the court what he has actually been doing. It is one thing to query diplomatic functions at the start of a tour of duty when nothing is known as to what functions he will actually undertake and review the evidence of functions after 26 months. There is strength in the claimant’s statement that as a very high profile businessman and former Prime Minister any function he has had of representing the interests of Qatar to HMG would have been known by the FCO but there is nothing in the factual information provided to suggest that he has ever undertaken any such function.

The court is not bound by comity or any other principle to accept without more what the state of Qatar has said through its representatives and the law reports are full of examples ( such as Teja and Apex) where the court has been unable to accept assertions made by such representatives whether in letters or witness statements. In reaching this conclusion, I attach no weight to the fact that there has been no cross examination of the defendant’s witnesses, although the claimant extended an invitation for them to attend. This is an application rather than a trial and such applications are normally heard on documentary evidence; the claimant has not sought an order for cross examination and it may well be that a state disputing jurisdiction would be unwilling for its Ambassador and other holders of public office to attend court.

It is sufficient to note that the evidence simply does not address this issue and it cannot be implied that simply because he was appointed to promote economic cooperation as a diplomatic function that is what he has been doing. It appears from the example of the claimant’s own status as ambassador that the state of Qatar may have a very broad view of what diplomatic functions are and who is entitled to be accredited to undertake them. If the functional analysis is correct, then the assertions made by Qatar may be based on a differing view of the law to the one that the court may conclude is appropriate.

However, although a case for a functional requirement can be made by reference, the object and purpose of the Convention, US state practice and a few observations in the case law, I conclude that it does not provide the test to be applied by this court in determining whether someone is a diplomatic agent.

In the previous cases where a FCO certificate or letter has been issued, the court has treated the question of whether a person is a diplomatic agent as settled by the question of whether the receiving state has accepted the accreditation of the sending state or not. Whilst acceptance is not an act that itself affords the immunity, it is regarded by the courts as good evidence of the fact of membership of diplomatic staff. The fact that the courts have not previously asked more searching questions and sought evidence of the precise activity that has been performed suggests that such an inquiry was considered unnecessary.

There would be real difficulties and uncertainties if the court were to undertake the inquiry that the claimant contends it should. The sending state is not obliged to provide evidence and the nature of any exchanges in which the person concerned may have engaged might well be something that both states would prefer not to disclose. A functional inquiry may well result in information not known to the FCO being examined and opens the door to the real possibility that conflicting factual findings are made between the court and the FCO, with the result that the one voice principle is undermined.

If the FCO has good reason to believe that the status of diplomat and membership of the staff of a mission is being abused by the sending state to promote the personal convenience of the propositus, there may be representations made that immunity is waived by the sending state or that the person ceases to be a member of a mission. In the last resort, a person may be declared persona non grata, but even in those circumstances I anticipate that in the light of VCDR Art 9 (2) and 39 (2) some time to leave the country would be afforded before any immunity ceased.

Leaving the control mechanism for termination of an appointment in the hands of the FCO, if it considers appropriate, avoids the risk of inconsistency and leaves the exercise of the prerogative untrammelled by a rival judicial enquiry. The prerogative power of conducting foreign relations is exercised by the executive through the FCO and not by the courts; that power includes the exercise of waiver where considered expedient. If private commercial activity by a member of the diplomatic staff of a mission has been taking place in breach of Article 42,that may be the subject of waiver by the receiving state. Equally a receiving state may be content to accept a member of diplomatic staff even if that person is not engaged in such a function full time.

The sending state’s freedom of appointment under Article 7 goes beyond the identity of the appointee and extends to the rank to which the person is appointed, as well as the instructions as to the activity to be appointed to and the degree of time spent on it. If both the receiving and sending state are aware that a diplomat is spending significant periods of time on other matters, that may be a reason to terminate the appointment but it does not follow that immunity does not apply while the person remains an accredited diplomat.

If any of the matters presented in the claimant’s evidence cause the FCO concern as to the defendant’s current functions in the Qatar Mission or private acts in the UK or elsewhere, it can take such action is it deems appropriate. It is unclear whether there has been inquiry into them, but it is plain that the FCO was willing to issue the 4 January certificate despite the information contained in the 16 November letter.

I am not persuaded by any of the cases cited by Mr De La Mare, that this court must decide for itself who is exercising the function of a diplomat where there has been accreditation as such by the FCO. Teja, Osman and Khurts Bats were all claims to diplomatic immunity by people who claimed to be on special missions where there had been no communication to or acceptance by the FCO of such people as a head of a mission. Propend and Al Maliki were both concerned with whether the exemption to immunity applied or not on the basis that the activity in question (ie conducting police inquiries or hiring domestic staff) was a personal, commercial or professional one outside of diplomatic functions. There was no examination by the court of whether a person was a diplomat in the first place. In Apex the question was whether a person was a member of the household of the head of state. That issue was in turn partly dependent on the breadth to be ascribed to the term household and the ascertainment of what the domestic arrangements were. It was not a matter on which the FCO had any knowledge and did not express an opinion. It is not a matter within its specialist expertise or prerogative power by contrast to the question of who the head of state was.

In the case of diplomats other than a head of a mission, Bagga demonstrates that immunity attaches from the moment the person enters the country to assume the function and prior approval is not necessary. This does not mean that the certificate of the FCO as to the facts as to whether there has been notification subsequent to arrival is irrelevant. Whilst acceptance of a diplomat is not the source of the immunity, it is evidence that the person is a member of the mission, which is the central fact for assessing whether it exists. There needs to be some certainty whether a person is a diplomat and this would be impossible to achieve if the acceptance by the receiving state of the accreditation offered by the sending state were not sufficient.

This conclusion is not incompatible with the right of access to a court for the purpose of Article 6. Putting aside any doubts expressed by British judges at the developing principles of the Strasbourg case law, it is clear from decisions such as Al Adsani v United Kingdom (2002) 34 EHRR 11 and Fogarty v United Kingdom (2022) 34 EHRR 12, that a restriction on jurisdiction is considered relevant, necessary and proportionate if it is to give effect to international law principles including the VCDR and state immunity. Benkharbouche v Embassy of the Republic of Sudan [2015] 3 WLR 301 points out that the immunity should go no further than international law require in order to be compatible but in my view, the current state of the law does not grant more extensive immunity than the VCDR envisages. It is open to the receiving state to require that accredited diplomats should devote themselves full time to their official functions and not be party to any private acquisition of assets in the receiving state, but nothing in the VCDR or other provisions of international law require it.

I have not been compelled to decide a question of law a certain way by the terms of the FCO certificate and its last sentence. I have reached my independent conclusion as to what a member of a diplomatic mission means in domestic and international law. If ultimately it is a question whether a sending state has appointed such a person to its mission and that appointment has been consented in by the receiving state, then the terms of the certificate are conclusive evidence of the facts.

For these reasons I am satisfied that on both grounds the court has no jurisdiction to hear this case.