Judicial Review Decision in Harry Dunn Case Handed Down: Diplomatic Immunity Upheld

The UK High Court has ruled on the judicial review brought by the family of Harry Dunn in which they asked the court to find that the American driver did not have diplomatic immunity. The court concluded that the driver, in fact, was covered by immunity from UK criminal jurisdiction, affirming the position of the UK Foreign and Commonwealth Development Office. Read the decision here. 

In short, the justices found: “Our conclusion is that Mrs Sacoolas enjoyed immunity from UK criminal jurisdiction at the time of Harry’s death. We do not come to this conclusion with any enthusiasm for the result, but it is compelled by the operation of the Vienna convention on diplomatic relations.” 

Regarding the merits of the case brought by the family, the justices said this:

114. Creative though they are, the Claimants' arguments under Ground 1 [whether diplomatic immunity existed] ultimately amount to playing with language in order to address the weakness in the case arising from the lack of an express waiver. This play is easily identified: they seek to avoid the effect of the VCDR [Vienna Convention on Diplomatic Relations] by re-classifying the advance waiver of Mr Sacoolas' immunity as a new creature ("limited immunity") and then arguing that this limited immunity, by implication, has also silently attached to the family members (whose full immunity has never been in fact waived expressly in accordance with the mandatory language of Article 32).

115. For completeness we should record that there was nothing in the case law and textbooks relied upon by the Claimants in relation to the so-called "derivative" nature of a family member's immunity which affects this conclusion.

120. We grant permission to apply for judicial review in relation to Ground 1, but we dismiss that ground on the merits.

Is that the end of the matter? Of course not, because the family have refused all along to acknowledge the operation of the Vienna convention on diplomatic relations. Because, you know, they only listen to their ‘advisor.’ 

The mother of Harry Dunn was quoted today saying "Right from the start our team have advised us that Anne Sacoolas did not have diplomatic immunity when she killed Harry and that advice is just (as) strong now as it was at the start of our campaign.” 

And there it is. Exactly that, that right-from-the-start denial of legal and political reality on the part of her shady advisor in his encouragement of her wish fulfillment, is the cause of this tragic woman’s refusal to acknowledge the fact of diplomatic immunity. 

In the callous fantasy land that her ‘advisor’ has created for the family, there will be no grieving or acceptance until international law is overturned and diplomatic immunity denied. In other words, until they get the one thing they cannot get. 

The judicial review by the High Court was the deus ex machina wherein the family had invested all its hopes, until today. Now, the firm rejection by the High Court of the family’s weak arguments is "just a blip along the way" according to the victim’s mother. Now, they’ll appeal and make the same losing arguments to a Higher Court, where presumably they will lose again and then appeal again to the Highest Court in the UK. And after that to the Higher-than-the-Highest Court, if such a thing exists, and then to the World Court and beyond. It will never end. 

Here are the predictable further plot points in this tragedy.

January 20, 2021 – The family will now invest all its new hopes in President Joe Biden being more than happy to reverse the USG’s position and create a precedent by violating the diplomatic immunity of the spouse of an Administrative and Technical staffer. 

January 29, 2021 – The family’s civil lawsuit against the American driver will be challenged by the defendant in U.S. Court for the Eastern District of Virginia. The suit was filed there under the very inventive premise that a U.S. court could have jurisdiction over a UK traffic accident. We’ll see. If not laughed out of court, a civil suit could end in a financial settlement, which is an outcome that might buy some temporary peace. However, a civil case cannot end in extradition and trial, and that is the one and only thing that will end this drama, or so the family has been convinced. 

February, 2021 – Biden’s presumptive SecState Antony Blinken will probably be asked by the UK to approve a new extradition request. My odds on that request not being approved are 99 to 1. When has the USG ever waived diplomatic immunity and allowed an employee to be tried overseas? The answer is once (here), and that was in a war-time espionage case that had profound political consequences for FDR’s 1940 reelection if the employee in question had not been locked up abroad. 

TBD, 2021 – When a new Ambassador to the UK is confirmed by the Senate, the family will have a new shuffle of the cards at Embassy London and a new clutch of long-suffering embassy people to approach with more demands for in-person meetings featuring their omnipresent ‘advisor’ in the role of stage manager, interpreter, and press release writer. 

Can we really be so sure Biden won't cave? Well, consider this Presidential statement which summed up the USG’s position on immunity during a particularly trying case in the recent past:

"We've got a very simple principle here that every country in the world that is party to the Vienna Convention on diplomatic relations has upheld in the past and should uphold in the future, and that is, if our diplomats are in another country, then they are not subject to that country's local prosecution," Obama said in a press conference today. "We expect Pakistan, that's a signatory and recognizes Mr. Davis as a diplomat, to abide by the same convention... I'm not going to discuss the specific exchanges that we've had [with the Pakistani government], but we've been very firm about this being a priority."

That was Obama. But now, you may wonder, will the Biden administration have the nerve, or better yet the bottle, to say “no” to emotional coercion from the Dunn family? 

I can easily see Biden's people trying to find some sneaking half-way compromise that would placate the family. But then, the family insists on all or nothing. All is not possible, short of POTUS and the SecState breaking faith with our covered employees abroad, so it will be nothing. 

Lastly, an unseen actor in this drama is the American driver, who for over a year has been subjected to a constant stream of threats, insults, harassment, and obnoxious psychoanalyzing by the British tabloids and those U.S. media that are following along. She is the target of a daily Two Minutes Hate led by the victim’s family and joined in by the kind of online spectators (some of whom live in our common Northern Virginia neighborhoods) who are always eager to take a gratuitous wallow in someone else’s misery. 

Moreover, all of that abuse is directed at her, personally, as if there were no national interests involved. But the matter of diplomatic immunity is far from personal; asserting immunity is a matter of international law and diplomatic practice between nations. It is, as Obama said, a principle that every nation in the world has adopted in their mutual interests. It is not a personal choice by the covered individuals, it cannot be surrendered by them, nor does it depend on their wishes. 

The American driver in this case is receiving all that abuse because the U.S. government, and not her personally, is upholding the principle of diplomatic immunity in our national interest. It is upholding that principle even regardless of what she may, in fact, wish. 

I’ll say this: all of you USG employees and family members who are now abroad and covered by diplomatic or consular immunity, or will be in the future, ought to hope that President Biden will hold firm to the “very simple principle here that every country in the world that is party to the Vienna Convention on diplomatic relations has upheld in the past and should uphold in the future.” 

What is happening to one family member now might well happen to any of you next, and it is more likely to do so if the incoming administration compromises on that very simple principle.