Last December, Anne Sacoolas was charged with causing death by dangerous driving following a road traffic accident in which 19-year-old Harry Dunn lost his life. It is alleged that she was driving on the wrong side of the road at the time. Mrs Sacoolas’ husband was employed in some official capacity at a United States Air Force communication station based at RAF Croughton.
The US position is that Mrs Sacoolas cannot be prosecuted in the UK because she was protected by diplomatic immunity at the time of the incident due to her husband’s position. In January, the US State Department refused to extradite her to the UK on this basis. Despite these claims, on 11 May an Interpol Red Notice for Mrs Sacoolas was circulated internationally.
What is an Interpol Red Notice?
The Interpol website describes a Red Notice as ‘a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action’. Red Notices can be issued for individuals who are sought either for prosecution having been charged with an offence, or to serve a sentence having been convicted of an offence.
A Red Notice is not an international arrest warrant and does not automatically confer a power of arrest. It is up to each Interpol member state to decide the legal value it ascribes to Red Notices within its jurisdiction. However, many states honour Red Notices as a matter of course, especially where there is an extradition treaty in place with the requesting state.
Impact on extradition
In practical terms, the issuance of the Red Notice changes very little in relation to Mrs Sacoolas’ present situation. A spokesperson from the US State Department has responded to the Notice by reiterating that their refusal to extradite Mrs Sacoolas is ‘final’.
The Red Notice does not compel the US to arrest and extradite Mrs Sacoolas. As noted above, Interpol Red Notices are not international arrest warrants, and Interpol cannot oblige any national law enforcement agency to arrest a subject of a Notice. The United States Department of Justice does not consider a Red Notice to be a sufficient basis for the arrest of a suspect, but instead ‘treats a foreign-issued Red Notice only as a formalized request by the issuing law enforcement authority to “be on the look-out” for the fugitive in question, and to advise if they are located.’
The US authorities have made their position clear, and it is highly unlikely that US law enforcement agencies will act upon the Red Notice. However, should Mrs Sacoolas leave the US the position may be rather different. She is now at risk of arrest in any of Interpol’s 194 member countries, many of which ascribe a direct power of arrest to a Red Notice.
Diplomatic immunity
The key issue throughout this case has been whether Mrs Sacoolas can rely on diplomatic immunity as a procedural bar to criminal proceedings in the UK. Some commentators have suggested that the issuance of the Interpol Red Notice confirms that the UK authorities do not believe that Mrs Sacoolas is entitled to any form of diplomatic immunity.
It is certainly true that the Interpol Rules on the Processing of Data oblige the requesting state to ensure that its request for publication of a Notice complies with its international obligations (Article 76(2)(d)). This includes a state’s obligation to respect the rules of international law governing diplomatic immunity.
Ultimately, however, the question of whether Mrs Sacoolas may benefit from diplomatic immunity is neither for the UK authorities nor Interpol to decide. This matter must be brought before a court and decided according to international law. The key questions to be answered will be a) whether Mrs Sacoolas was entitled to immunity by virtue of her husband’s position, b) if so, what is the form and extent of that immunity and c) whether she still benefits from that immunity now that her husband’s diplomatic functions have ceased.
It appears that Mrs Sacoolas’ alleged immunity stems from a bilateral agreement concluded in 1995 between the US and the UK, which afforded some form of diplomatic immunity on staff members and their families at the RAF Croughton base. The precise terms of this agreement have not been made public. It is therefore difficult to know whether, and if so to what extent, Mrs Sacoolas is immune from criminal proceedings in the UK.
However, in a speech given in the House of Commons on 21 October 2019, Foreign Secretary Dominic Raab described the arrangement as follows:
‘US staff at RAF Croughton and their families were accepted as part of the US embassy in the UK. Pursuant to these arrangements, staff and their families were entitled to immunity under the Vienna Convention on Diplomatic Relations.’
This would suggest that the 1995 agreement was simply an extension of the application of general international law concerning diplomatic immunity to cover the RAF base. The rules of international law governing diplomatic immunity are codified within the 1961 Vienna Convention on Diplomatic Relations (VCDR), which was enacted into UK law by the Diplomatic Privileges Act 1964.
The VCDR affords different levels of immunity to different types of diplomatic staff. In short, there are two types of immunity from domestic criminal proceedings which diplomats may enjoy; rationae personae, which is personal inviolability, freedom from arrest and detention and absolute immunity from criminal jurisdiction even for acts performed in a private capacity, and rationae materiae, which is immunity only in respect of acts performed in the course of official functions.
Diplomatic agents, which include the head of a diplomatic mission and other members of the diplomatic staff, enjoy immunities rationae personae from criminal jurisdiction. The same is true of administrative and technical staff. Other members of staff are entitled to immunity rationae. materiae. Under Article 37 VCDR, the family members of a diplomat enjoy the same privileges and immunities as the diplomat themselves.
Considering the terms of the VCDR, and in light of what is known about the 1995 agreement, it is likely that Mrs Sacoolas held some form of diplomatic immunity during her time in the UK. The nature and scope of that immunity is still unclear.
However, even assuming that Mrs Sacoolas was entitled to full personal immunity during her time in the UK, it is not necessarily the case that she may rely on that immunity now. Article 39(2) of the VCDR states that:
‘When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country … However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.’
In other words, absolute personal immunity from criminal proceedings (rationae personae) only applies while the diplomat is in office. Once the diplomat leaves office, they are no longer immune from the criminal jurisdiction of their receiving state for acts committed in a private capacity. Accordingly, Mrs Sacoolas’ immunity for private acts would have expired when her husband ceased to exercise diplomatic functions, and they returned to the US.
While immunity for acts committed in the exercise of official functions (rationae materiae) does subsist beyond the end of a diplomatic mission, this form of lasting immunity only applies to actions which are intrinsically governmental in character. If Mrs Sacoolas seeks to rely on this form of immunity, a court would have to examine the nature of her actions and the context in which they occurred to determine whether she was engaging in governmental activity at the time of the incident.
Going forward
In sum, the issuance of the Red Notice is unlikely to result in Mrs Sacoolas’ extradition from the US. However, it does mean that Mrs Sacoolas is at risk of arrest and extradition if she were to travel to almost any other country in the world, especially to countries which have an extradition treaty with the UK.
In terms of pursuing a prosecution, the main issue remains whether Mrs Sacoolas is entitled to immunity. Not much is presently known about the 1995 immunity agreement, but any immunity Mrs Sacoolas may have held for private acts has most likely expired now that she has returned the to US, and any residual immunity would only cover acts carried out in an official capacity.
Georgia Beatty is a barrister practising in all areas of criminal law. She both defends and prosecutes in a wide range of criminal cases. In addition to her criminal practice, Georgia has a growing practice in extradition law and has been instructed in both Part 1 and Part 2 cases. She also accepts instructions in family proceedings.
