Harry Dunn Case: FCO Rejects Family's Claims, Will Oppose Judicial Review

Dominic Raab, Secretary of State for Foreign and Commonwealth Affairs

The Harry Dunn case has moved forward one step. The Foreign and Commonwealth Office rejected the family's claims of misue or abuse of power, as well as their request that the FCO withdraw its advise to the police regarding the American driver's diplomatic immunity.

From the BBC yesterday:

In the letter, the FCO said it would "seek costs" for any judicial review brought and argues the family has not found "any reasonably arguable ground of legal challenge".

It said the allegation that the foreign secretary had "misused and/or abused his power" was "entirely without foundation".

The family's lawyer/spokesman, normally so voluble, has so far maintained a near-total Twitter silence on this setback.

There are further details of the FCO's letter from the Press Association:

It is understood a legal claim issued by Harry’s family on October 25 was met with strong resistance from the FCO – who said any judicial review would be “opposed” and “defended”.

The 19-year-old’s parents had requested the FCO “withdraw the advice” provided to Northamptonshire Police surrounding the granting of diplomatic immunity to the US suspect in the case Anne Sacoolas.

The family’s lawyers also offered an alternative request of “paying substantive damages” for breaching the European Convention of Human Rights.

-- snip --

The claim against the FCO issued on behalf of Mr Dunn’s parents – Charlotte Charles and Tim Dunn – alleged the granting of diplomatic immunity to Mrs Sacoolas was “wrong in law”.

-- snip --

In the letter, the FCO wrote: “It is not accepted that the proposed claim for judicial review articulated on your clients’ behalf in your letter, dated October 25, identifies any reasonably arguable ground of legal challenge.

“It is not therefore accepted that you have identified any arguable basis on which to suggest that the FCO ought now either ‘to withdraw the advice provided to the police’, or to pay ‘substantive damages for the breach of Articles 2 and 6, ECHR’.

“The unparticularised allegation that the Secretary of State for Foreign and Commonwealth Affairs (SSFCA) has misused and/or abused his power and/or has committed misfeasance in public office is entirely without foundation.”

The response continued: “As to the alternative ground of challenge based on Articles 2 and 6 ECHR, it is not accepted that you have identified any basis under the ECHR to criticise the SSFCA’s actions.

“The SSFCA therefore declines to take the action you have invited him to take on behalf of your clients, and would oppose any application for permission to bring a claim for judicial review.

“We therefore invite you not to pursue the proposed claim. In the event that the claim is issued, it will be defended, the application for permission will be opposed, and the Secretary of State will seek his costs for doing so.”

So the FCO is willing to be the bad guy in this touchy case, defending the legality of its ruling on diplomatic immunity for the driver. Not a popular position, I don't suppose, but the facts and the law on immunity are clear.

From this point on, the family's lawyer/spokesman might as well concentrate all his bad advise on pursuing his Plan B, that promised million-dollar payday in a U.S. court (“In the U.S. you can sue for millions of dollars if someone spills some hot coffee on your hand at McDonalds”). Of course, assuming he finds a U.S. judge willing to assert jurisdiction over traffic accidents in the UK, he'll then be fighting an insurance agency, and those people care not at all for public opinion and will make the FCO seem like a toothless bulldog in comparison.

Most Head Shakingly Bad Thing of the Week

Hilton Head McDonald’s served man sweet tea with a side of weed - Hilton Head Island Packet

He had hope for the sweet tea and kept thinking “maybe this will get better, maybe it’s just me,” as he fidgeted with his straw and poked around the inside of his cup ... Finally, when Brown realized he was “high as a kite,” he opened up the lid only to find something he wasn’t expecting: three bags of marijuana.

“I kept being like ‘I swear, there is weed in my sweet tea!’” he said. “The officer asked me why I drank it and I was like, ‘Well, I was thirsty!’”

UK Police to Interview Driver in Harry Dunn Case

There was a development yesterday in what is becoming my daily post about the Harry Dunn / diplomatic immunity case. UK police will travel to the U.S. to interview the American driver, which is the last step necessary in order to complete the file that police will turn over to the Crown Prosecution Service.

“The suspect has cooperated fully with police and authorities and requested to be interviewed by British police officers under caution in the United States. She did not want to provide a pre-prepared statement, as is her right. As soon as we have the visas available officers from Northamptonshire police will be travelling to the United States.”

Of course, this does not mean that the driver can be arrested, nor even that the UK will try to extradite her from the U.S. They might, they might not.

Anything short of an immediate arrest will disappoint many people following the case from the UK. I saw one online comment today in which the writer fantasized about UK police poisoning the American during the interview, leaving her to die. Pretty par for the course for public sentiment.

We also learned a new bit of info from a report in the Telegraph:

Police interviewed and breathalysed Anne Sacoolas, wife of an American diplomat at the scene, but did not arrest her. She left the country citing diplomatic immunity and has since admitted to driving on the wrong side of the road and hitting the teenage motorcyclist.

The Telegraph went on to quote Northamptonshire Police Chief Constable Nick Adderley, who, by the way, strikes me as the most straightforward official yet to have taken a public role in this matter, as saying:

“In any case, once the diplomatic immunity was flagged up, which it was the following day, it’s over. It ends. It finishes. The police can not move on the investigation with that suspect."

"I urge the family spokesman to exercise constraint in his commentary as the case moves forward."

"I understand the emotion and I understand the anxiety, I also understand the will and the want for answers to questions the family are asking."

"The suspect not being in the county clearly frustrates the investigation but it does not stop it."

"Lawyers have clearly stated that the suspect wants to be personally interviewed by officers from Northamptonshire Police in order for them to see her and the devastation this has caused her and her family.

She did not want to provide a pre-prepared statement which is her right to do so. We do understand from colleagues in the US that the family is utterly devastated."

So far, so good. But then the Telegraph commits a whooping untruth in its timeline of the case.

October 13

The Foreign Office writes to Mr Dunn's family saying Mrs Sacoolas does not have diplomatic immunity.

It becomes clear that her husband was an intelligence officer and not a registered diplomat in a recognised role, and therefore neither he nor his wife are entitled to diplomatic immunity.

Absolute nonsense. Look at any other post I've done labeled "Harry Dunn" to see why, or cut out the middleman and just read Articles 29, 31, and 37 of the Vienna Convention on Diplomatic Relations.

Harry Dunn Case: FCO Will Review Immunity Arrangements at RAF Croughton

Tonight, UK Foreign Minister Dominic Raab addressed the House of Commons about the Harry Dunn case. The news is that he will review the bilateral arrangements that are currently in place.

Mr Raab said he had commissioned a review into immunity arrangements for US personnel and their families at the RAF Croughton annex in light of this case.

"As this case has demonstrated, I do not believe the current arrangements are right and the review will look at how we can make sure that the arrangements at Croughton cannot be used in this way again," he said.

He said the case was "now with Northamptonshire Police and Crown Prosecution Service and it is for them to consider the next steps as part of their criminal investigation".

Predictably, the family's lawyer-spokesman is sticking to his sad fantasy that the American driver really didn't have immunity at all. Oh, the UK Foreign Office thought she did, but what would they know about diplomatic business? All it needs now is for the Northamptonshire Police to track her down and slap the cuffs on her.

The Dunn family lawyer Radd Seiger told Sky News that Mr Raab's statement added insult to injury. He said that Mrs Sacoolas did not have immunity at all.

-- snip --

The Dunn family position is that she did not have diplomatic immunity because her husband was not a diplomat and no diplomatic work was taking place at RAF Croughton.

He said "nobody wants to go to the courts" but that they have lawyers ready to go "on both sides of the Atlantic" because of their frustration with the current results of their efforts.

-- snip --

Mrs Charles and Mr Dunn also say they have heard rumours that Northamptonshire officers were on the way to the US to continue their investigation and asked to find out what the purpose of the visit would be.

The family also wanted to know about the potential to charge and extradite Mrs Sacoolas back to the UK.

-- snip --

Mr Seiger continued: "We have been told that Northamptonshire Police are either in the US or are on their way from the UK - either going to the States to interview her or see Donald Trump."

I like the "nobody wants to go to the courts" line from Mr. Seiger, the classic tell of a lawyer who wouldn't be caught dead in a courtroom.

So, the next step is up to the Crown Prosecution Service: do they think they can request extradition?

Dunn Family Lawyer "Intent on Exposing" Misconduct

5 that is.The family is now concerned that there has been misconduct and a cover up on both sides of the Atlantic and they are intent on exposing it with the help of their lawyers. Harry's family are being incredibly brave in their darkest hour and are taking it upon themselves

— Radd Seiger (@RaddSeiger) October 18, 2019

At the end of the Dunn family's U.S. media tour, their lawyer-spokesman doubled down on delusion today, announcing via twitter that:

(1) The family is now concerned that there has been misconduct and a cover up on both sides of the Atlantic and they are intent on exposing it with the help of their lawyers.

(2) We now expect Northants Police to take over from the work we have done and the progress we have made, charge her and begin extradition proceedings to bring her back.

(3) It is clear that the Americans are desperate to protect Mrs Sacoolas and are intent on ruthlessly and aggressively not letting her return. We are trying to find out why that is.

When reality intrudes, as it eventually will, he will see that there was no misconduct or mistake in the UK authorities recognition of the American driver's diplomatic immunity from criminal jurisdiction. And, since U.S. authorities from the Ambassador to the Secretary of State and the President himself have refused a request for waiver of immunity, there will be no extradition. Those U.S. authorities are, indeed, ruthlessly protecting the diplomatic immunity of their employees and the employees' family members, and they will continue to do so for so long as necessary to protect U.S. interests.

None of this is doing the grief-stricken family any good.

I really shouldn't blame the family lawyer too much, since he seems to be getting his misinformation from one particular source - Mark Stephens, Solicitor, an activist type who previously represented Julian Assange. Hey, maybe it's a bad idea to take advice from a lawyer whose last client hasn't seen a day of freedom in nine years.

Stephens is just BS'ing his way along on the subject of immunity. Here's a sample of his astoundingly wrong information from a press interview this week:

Mr Stephens said that by making Mrs Sacoolas a “fugitive” it was obvious US officials knew she was not entitled to immunity, as the purpose of the law is to allow diplomats to continue to work in their host country.

“It’s almost unique, in fact I think it is unique, that someone who is claiming diplomatic immunity has fled from justice and fled from scrutiny of their diplomatic status.”

Oh, sure. The purpose of immunity from criminal jurisdiction is to allow diplomats to continue to work in the receiving state whose laws they have broken with no consequence? And no one claiming immunity has ever before in history departed the receiving state, much less been thrown out, all facts to the contrary notwithstanding?

Do people pay this guy for advice like that? What a sweet deal for him.

Meanwhile, here in the real world, any diplomat violating host country laws who is not recalled by the sending state, or does not depart voluntarily, will be declared persona non grata and expelled from the receiving state as per Article 9 of the Vienna Convention on Diplomatic Relations. End of story.

All Right Mister DeMille, I'm Ready For My Presidential Portrait

Is that the way Hillary will end up? It's a distinct possibility, I think, after today's odd, and oddly disturbing, outburst of delusional accusations against Tulsi Gabbard:

Hillary Clinton said that Rep. Tulsi Gabbard is being groomed by Moscow to run as a third-party spoiler candidate in 2020 to help President Trump win reelection.

The former secretary of state pushed the theory on Campaign HQ podcast hosted by David Plouffe, President Barack Obama’s campaign manager in 2008.

Plouffe and Clinton discussed hurdles the Democratic nominee would face and compared the 2020 race to Clinton’s loss to Trump in 2016. Plouffe asked Clinton about the part third-party candidates, such as Jill Stein of the Green Party, played in 2016, allowing Trump to secure key states.

"They are also going to do third party again," Clinton, 71, said. "I'm not making any predictions, but I think they’ve got their eye on somebody who is currently in the Democratic primary and are grooming her to be the third-party candidate," Clinton said, referring to Gabbard, without mentioning the Hawaii representative by name.

"She is a favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far. That's assuming Jill Stein will give it up, which she might not because she is also a Russian asset.

A 38 year-old Congressional Representative who challenges Hillary's world, however slightly, is a "Russian asset?" And she's not the only one. There are others!

Assuming Hillary isn't merely trying to divert attention from the latest HRC e-mail security violation news, that's enough to make you wonder about cognitive decline.

You can hear Hillary on the Campaign HQ podcast here.

Well, if that is how Hillary finally goes down, I just hope she goes full Gloria Swanson.

I can’t go on with this press conference, I’m too happy. Mr. DeMille, do you mind if I say a few words? Thank you. I just want to tell you all how happy I am to be back in the White House making policy again. You don’t know how much I’ve missed all of you. And I promise you I’ll never desert you again because after 2020 we’ll hold another election and another election. You see, this is my life. It always will be. There’s nothing else. Just us, the cameras, and those wonderful voters out there in the dark! … All right, Mr. DeMille, I’m ready for my Presidential portrait.

Harry Dunn Family Ends its U.S. Tour

At least one good thing seems to have come out of the Dunn family's meeting at the White House this week. Although they refused to meet the woman who was at fault in the crash that killed their son, it may be that they are now ready to accept the fact that they will not get her back to the UK for any kind of judicial process.

Charlotte Charles, the mother of Harry Dunn: "If I'm totally honest, I don't hold out too much hope that she's going to be returned to us."

Nevertheless, their family lawyer / spokesman is doing his best to keep false hopes raised, it seems, by relying on the extremely bad information he's getting from activist-lawyer Mark Stephens. To summarize Stephens: the driver never had diplomatic immunity because neither she nor her husband are named in the UK's Diplomatic List, and aren't "diplomatic agents;" plus, diplomatic status only applies to diplomats posted to London; and anyway, diplomatic immunity is always waived when the receiving state so requests (there is literally no case in which it isn't!); and, if all that fails, she lost her immunity when she left the country, so we can extradite her back to the UK now and put her on trial.

All bollocks.

Regarding those 'routine' waivers of immunity, you might think that a British lawyer would remember one of the most striking cases ever of diplomatic immunity, which occurred in London in 1984 - the murder of Woman Police Constable Yvonne Fletcher by someone shooting from inside the Libyan embassy. The occupants of the embassy were allowed to leave the UK unhindered, and their bags weren't even searched for the murder weapon. What happened to that waiver?

It happens not infrequently that diplomats leave the jurisdiction after causing fatal traffic accidents. Last year, a U.S. military attache left Pakistan under exactly those circumstances.

As for extradition, obviously, that will be refused. It isn't even clear whether the UK could declare the driver a fugitive and try to extradite her from a third country so long as they would be unable to prosecute her due to her immunity.

Most aggravatingly of all, the simple facts of who gets diplomatic immunity are spelled out in black and white and are perfectly clear to anyone who cares to read the Vienna Convention on Diplomatic and Consular Relations.

Here are the key excerpts:

Article 29

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.

Article 31

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

Article 37

The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.

To recap, the American driver is - so far as I can tell from the public record - evidently the family member of a technical and administrative staffer, or else someone with equivalent immunity via special bilateral agreement, and for that reason immune from the criminal jurisdiction of the UK.

The Dunn family may have a cause for civil action, but that's all.

The family's lawyer ought to read the Vienna Convention and see if he can find a loophole. At least that would be honest labor.