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78 Cambridge L.J. 1 (2019)

handle is hein.journals/camblj78 and id is 1 raw text is: 


Cambridge Law Journal, 78(1), March 2019, pp. 1-41


                               THE

CAMBRIDGE                       LAW              JOURNAL


VOLUME  78, PART 1                                      MARCH  2019



                    CASE AND COMMENT


IDENTIFICATION OF SPECIAL MISSION IMMUNITY AND THE RECEPTION OF CUSTOMARY
                  INTERNATIONAL LAW INTO ENGLISH LAW
IN R. (Freedom  and Justice Party) v Secretary of State for Foreign and
Commonwealth   Affairs [2018] EWCA   Civ  1719, the Court of Appeal
affirmed a decision of the Divisional Court that (1) members of special mis-
sions are entitled to inviolability and immunity from criminal jurisdiction
(the core immunities) under customary international law; and (2) these
immunities form part of English common  law. The Freedom and  Justice
Party, which formed  the elected Government  of Egypt  between  June
2012  and  July 2013, argued that Mahmoud Hegazy, director of the
Egyptian Military Intelligence Service in July and August 2013, was
responsible for torture during the 2013 military coup d'tat that led to
the  overthrow  of  President  Morsi.  In  2015,  the  Foreign  and
Commonwealth   Office consented to Hegazy's visit to the UK as a member
of a special mission. The appellants asked the Metropolitan Police to arrest
him on suspicion of acts of torture, contrary to section 134 of the Criminal
Justice Act 1988, which makes it a criminal offence to commit torture any-
where in the world. However, the Crown Prosecution Service took the view
that members of a special mission were immune from arrest; so no action
was taken against Hegazy. The appellants then sought judicial review of
the decision not to arrest him, and the Divisional Court accepted their
request for an advisory declaration on special mission immunity as it
applied in the law of England and Wales.
  Special missions are one of the earliest forms of diplomatic intercourse,
and an essential part of the conduct of international relations (at [79]).
However, unlike permanent missions, there is no widely accepted conven-
tion governing the privileges and immunities of their members. The 1969
Convention on  Special Missions has only 39 state parties (neither Egypt
nor the UK is a party, although the UK has signed the Convention), largely


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