Propend Finance Pty v Sing, Times L Rep, May 2, 1997 (dipl. imm.)
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COURT OF APPEAL (CIVIL DIVISION)
The Times 2 May 1997, (Transcript: Smith Bernal)
HEARING-DATES: 17 APRIL 1997
17 APRIL 1997
COUNSEL:
N Pleming QC and J Lewis for the Appellants; G Pollock QC and D Mayhew
for the Respondents
PANEL: LEGGATT, PILL LJJ AND MANCE J
JUDGMENTBY-1: LEGGATT LJ
JUDGMENT-1:
LEGGATT LJ: This is the judgment of the court to which we have all
contributed. Before the court are appeals by the plaintiffs, and by
the second defendant, against the decision of Mr Justice Laws whereby
he ordered that proceedings for contempt of court could not proceed
against the first defendant on the ground of diplomatic immunity, but
that they could proceed against the second defendant despite the
assertion of state immunity. The plaintiffs are an Australian company
called Propend Finance Pty Ltd and individual Australians. The first
defendant is Detective Superintendent Alan Sing ('the
Superintendent'), who is a police officer in the Australian Federal
Police Force ('the AFP') and who between December 1989 and December
1993 (or shortly thereafter) was an accredited diplomat at the
Australian High Commission in London serving as First Secretary
(Police Liaison). The second defendant ('the Commissioner') is the
head of the AFP, and is brought into these proceedings as such, and
not in his personal capacity. The documents which are the subject
matter of these proceedings were seized from the offices in London of
Theodore Goddard, who are solicitors, and of Stein Richards, who are
accountants.
On 27 August 1993 the Attorney General of Australia, acting pursuant
to statutory powers in Australia, asked the Government of the United
Kingdom for assistance pursuant to agreements of mutual assistance.
The agreements are provided in the 'Scheme relating to Mutual
Assistance in Criminal Matters within the Commonwealth', which is
known as 'the Harare scheme', because it was adopted at the Harare
conference held in Zimbabwe in 1986.
The request was to assist him in the United Kingdom by seeking a Court
order for search warrants. The documents and information sought
related to an investigation into alleged tax evasion in Australia. In
response to the request on 30 September 1993 the Secretary of State
issued a direction to the Metropolitan Police under s.7(4) of the
Criminal Justice (International Co-operation) Act 1990 and Sch 1 of
the Police and Criminal Evidence Act 1984. The direction was widened
by the Secretary of State on 25 October 1993 to include additional
details supplied to him by the Superintendent. On 26 October 1993
search warrants were issued by Judge Goddard QC pursuant to the
Secretary of State's direction. The warrants requested by the
Commissioner were applied for by the Metropolitan Police on the
direction of the Secretary of State, and the application was presented
by DC Fryer. The Superintendent attended and at the invitation of the
judge gave evidence on oath as to the nature of the offence alleged.
It was not suggested in terms by the defendants before Laws J that the
Superintendent gave evidence before Judge Goddard without authority,
though he did so without prior preparation or consultation. The
premises of Theodore Goddard and of Stein Richards were entered on 27
October 1993; the warrants were executed; and various documents were
seized.
On 29 October 1993 the Superintendent took possession of the
documents. The plaintiffs, concerned about the legality of the seizure
of their documents from their solicitors and accountants, sought
agreement from the Metropolitan Police and the Australian authorities
to maintain the status quo in relation to the seized documents until
the legality of the seizure could be verified. In default of agreement
the plaintiffs sought emergency injunctive relief from Potts J on 29
October 1993, before bringing a claim for judicial review. The hearing
before Potts J was attended by solicitors and counsel for the
plaintiffs, and by counsel (Brian Barker QC) acting for and
representing the Superintendent. It has also been suggested that he
represented the AFP and the Australian High Commissioner. Undertakings
were given by the Superintendent to Potts J on 29 October 1993 that
until 4pm on 5 November 1993 documents seized on 27 October 1993 or
copies thereof would not be removed from the jurisdiction of the court
or from the Australian High Commission in London. In particular, he
agreed that copies of the documents would not be faxed, and that there
would be compliance with the spirit and tenor of the undertaking. The
undertaking was given by the Superintendent on his own behalf and not
in terms by or on behalf of the AFP. The best evidence of what
occurred at the hearing before Potts J is as set out in an attendance
note prepared by the plaintiffs' solicitors, which made no reference
to Mr Barker informing the judge that the Superintendent was a
diplomat. Since the defendants regarded the point as irrelevant, they
did not seek to challenge the plaintiffs' evidence about it by cross-
examination. There are no affidavits in these proceedings from the
defendants themselves, or from the High Commissioner. Laws J held that
Mr Barker had informed Potts J that the Superintendent was a diplomat.
On 1 November 1993 (the first working day after the undertaking was
given), unbeknown to the plaintiffs or their advisers, the
Superintendent appears to have sent extracts from the seized documents
to Australia by fax. On 5 November 1993 Mr Justice Brooke gave leave
to move for judicial review of the decision to issue the search
warrants. Agreement was reached by means of a fresh undertaking by the
Commonwealth of Australia, not the Superintendent, to maintain the
relief afforded by the undertaking given on 29 October 1993. On 13
December 1993 the Divisional Court continued the injunctive relief by
making a consent order sealing the seized documents, ordering their
removal from the High Commission and preventing their use in any way
until final determination of the matter.
Judge Goddard's decision to issue the warrants and the decision of the
Secretary of State to make directions concerning the seized documents
were subsequently quashed by the Divisional Court on 17 March 1994. At
that hearing a further order and consent order were made which
finalised the injunctive relief.
Towards the end of 1994 and during the beginning of 1995 it came to
the plaintiffs' notice that the orders of the High Court had been
breached. A four-page fax (with 28 pages attached) had been sent from
the Australian High Commission in London by the Superintendent to the
Attorney General of Australia on 1 November 1993 containing extracts
from the seized documents in apparent breach of the order of 29
October 1993. The plaintiffs claim that that fax, with its
attachments, was widely disseminated in Australia; copies of the fax
were not sealed or kept in London in breach of the order of 13
December 1993; and in breach of the order of 17 March 1994 the
documents were not disclosed or destroyed.
Three bundles of documents said to contain the fax of 1 November 1993
were destroyed in Australia in July 1994. The appellants as a result
of various enquiries under the Freedom of Information Act in Australia
have now been told by the Attorney General of Australia that there are
further copies of the fax of 1 November 1993, namely, four copies in
the Headquarters of the Commissioner, two copies in the High
Commission (in addition to another copy retrieved from Clifford
Chance), and one copy in the Attorney General's Office. By letter of
31 October 1994 the Attorney General of Australia has admitted that
the fax had been sent on 1st of November 1993 but denied it was a
breach of the Order of Potts J. The defendants, by their solicitors,
have admitted breaches of the orders of 13 December 1993 and 17 March
1994 in relation to the fax, but state that they amount to a 'very
limited failure to comply'.
The result reached by the judge was an odd one. For the Superintendent
was accorded diplomatic immunity while the Commissioner, though at
best he was vicariously liable for the Superintendent, enjoyed no form
of immunity from contempt proceedings.
The Plaintiffs' Appeal
Waiver of immunity
By virtue of art 31 of Sch 1 to the Diplomatic Privileges Act 1964
('the 1964 Act') a diplomatic agent shall enjoy inter alia immunity
from the civil and administrative jurisdiction of the receiving State.
However under art 32:
"1. The immunity from jurisdiction of diplomatic agents . . . may be
waived by the sending State.
2. The waiver must be express.
3 . . . . .
4. Waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary."
For the plaintiffs Mr Pleming QC submits that there has been a waiver
of immunity with respect to the Superintendent. He accepts that, to be
effective, a waiver must be first, express, second, made by the Head
of Mission or any person for the time being performing these functions
(s.2(5) of the 1964 Act), and third, must be made in full knowledge of
diplomatic rights (R v Madan [1961] 2 QB 1, [1961] 1 All ER 588).
Reference is made to the undertaking given by the Superintendent to
Potts J on 29 October 1993 that the documents would not be removed
from the Australian High Commission for seven days. It was given
following a short adjournment of the hearing to enable Mr Barker to
take instructions. In his evidence before Laws J, Mr Barker accepted
that it was 'probable, likely even' that the Superintendent had taken
instructions from someone during the adjournment. Mr Barker understood
the undertaking to be 'genuine and binding'. In a letter he wrote on 2
November 1993, the Superintendent said: 'Having given the undertaking
you may rest assured I have adhered to it'. Since the undertaking had
substance only if it could be enforced by contempt proceedings, the
giving of the undertaking was inconsistent with the maintenance of
immunity, it is submitted, and there is no difference between a
submission to the jurisdiction and an express waiver. The authority to
give the undertaking must have come from the High Commissioner.
The judge found (p 62) that the Superintendent submitted to the
jurisdiction of the court by giving the undertaking but that he had no
authority to do so. The judge added:
"It follows in my judgment that his diplomatic immunity was not waived
by his giving the undertakings. There is no evidence before me to
demonstrate that the Commonwealth of Australia waived it . . . . The
rule means that the waiver be intended as such by the sending State,
and unequivocally communicated as such to the court."
We agree with Mr Pollock QC that there was a considerable degree of
confusion at the hearing before Potts J on 29 October. There is even
disagreement between counsel present at the hearing as to whether Mr
Barker told the judge (as the judge accepted) that the Superintendent
was a diplomat; he said that he did, the recollection of opposing
counsel and solicitor was that he did not. The judge accepted Mr
Barker's evidence that so far as the Superintendent was concerned
immunity was not an issue at that hearing.
There is no doubt that within days of the undertaking being given,
diplomatic immunity was being asserted by solicitors on behalf of the
Superintendent and that stance was maintained during the following
months. Mr Pollock submits that it is highly unlikely that solicitors
would have taken the point in the way that they did if the High
Commissioner had waived the Superintendent's immunity only days
earlier.
In our judgment, the judge was entitled to find as a fact that, during
the adjournment, the Superintendent neither spoke to the High
Commissioner directly nor did he telephone Australia. We would have
reached the same conclusion and we reject Mr Pleming's submission that
the judge was forced to a conclusion, on balance of probability, that
there had been an express waiver. His finding that there was no waiver
within the meaning of art 32 cannot be challenged.
As to the events of 4 March 1994, there was a plain statement by
counsel acting for the Superintendent that the Superintendent would
not claim diplomatic immunity in relation to 'these proceedings'. The
undertaking was in no way restricted, Mr Pleming submits, and 'these
proceedings' must include the hearing on 29 October. He relies on the
words used by Mr Barker, when giving evidence before Laws J, that by
'these proceedings' he meant 'these interlocutory and judicial review
matters'. In substance, there was only one set of proceedings. The
words involved a plain renunciation of a previously asserted privilege
and status. By leading counsel, the Commonwealth of Australia
expressly waived the diplomatic immunity of the Superintendent.
The circumstances in which the undertaking was given must be
considered. The hearing on 4 March was in the proceedings brought by
the plaintiffs to review judicially the order of Judge Goddard to
grant a search warrant. In those proceedings the Commonwealth had by
then submitted to the jurisdiction. Before the undertaking was given,
Mr Barker had agreed that the order of Judge Goddard should be
quashed. The plaintiffs were understandably concerned to protect
themselves against further disclosure and use of the contents of
documents which might already have been inspected. The hearing on 4
March was an interlocutory hearing in the judicial review, and the
plaintiffs sought leave to cross-examine the Superintendent so that
they could consider the scope of the derivative use injunction
required to protect their position. They were seeking a satisfactory
order in the judicial review and it was in that context that the
undertaking was given on 4 March. Counsel for the plaintiff did not
pursue the application to cross-examine once the undertaking had been
given.
The notice of motion for contempt had arisen in the writ action in
which no further steps had been taken since November 1993. The writ
has never been served. In the circumstances, we do not understand Mr
Barker's words to cover the writ action. We are quite unable to hold
that the undertaking in the judicial review amounted to an express
waiver of diplomatic immunity in relation to a notice of motion for
contempt in the writ action and the judge was right in holding that
there was no relevant waiver.
Loss of diplomatic immunity by reason of art 32(2)
Article 32(2) of Sch 1 to the 1964 Act provides that:
"The initiation of proceedings by a diplomatic agent . . . . shall
preclude him from invoking immunity from jurisdiction in respect of
any counterclaim directly connected with the principal claim."
Mr Pleming submits that the Commonwealth of Australia initiated the
proceedings by the letter of request to the government of the United
Kingdom for assistance pursuant to the Harare scheme. While the
Secretary of State issued a direction to the Metropolitan Police in
accordance with the request, the Superintendent was a party to the
initiation of the search and seizure procedures. The Metropolitan
Police, it is submitted, had no direct interest in the application
other than as a matter of international co-operation and acting as a
conduit for the Australian authorities. It was the Superintendent who
gave evidence before Judge Goddard and effectively it was his, and his
government's, application. The only way the plaintiffs could defend
themselves against the consequences of the warrant issued by the judge
was by the application to Potts J and the application was a
'counterclaim' within the broad meaning given to that word in art
32(2) for example in High Commissioner for India v Ghosh [1960] 1 QB
134, [1959] 3 All ER 659 per Jenkins LJ at page 140 of the former
report.
In our judgment, there is no escape from the conclusion reached by the
judge that the proceedings were initiated by Detective Constable Fryer
of the Metropolitan Police. The application was made by him pursuant
to the Police and Criminal Evidence Act 1984 and the Criminal Justice
(International Co-operation) Act 1990, s.7(1) and (2).
The procedure provided by the Harare agreement and the 1990 Act is
that a request for assistance is made by a Commonwealth government to
the United Kingdom government followed by action by the United Kingdom
government. Section 7(4) of the Act provides:
"(4) No application for a warrant or order shall be made by virtue of
subsection (1) or (2) above except in pursuance of a direction given
by the Secretary of State in response to a request received:
(a) from a court or tribunal exercising criminal jurisdiction in the
overseas country or territory in question or a prosecuting authority
in that country or territory; or
(b) from any other authority in that country or territory which
appears to him to have the function of making requests for the
purposes of this section;
and any evidence seized by a constable by virtue of this section shall
be furnished by him to the Secretary of State for transmission to that
court, tribunal or authority."
The Act empowers the Secretary of State to direct an application to
the English courts pursuant to the Australian request. That request,
by one government to another, cannot in our judgment amount to the
initiation of proceedings for the purposes of art 32(2). Neither the
Superintendent nor his government had power to make the relevant
application to the English court. While the Superintendent gave
evidence, and may even have acted as advocate, the application was
made, as it had to be, by the United Kingdom police, who thereby
initiated the proceedings.
Loss of diplomatic immunity by reason of art 39(2)
Article 39(2) of the 1964 Act provides 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, or on expiry of a
reasonable time in which to do so, but shall subsist until that time,
even in case of armed conflict. 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."
The plaintiffs' submission is that when the Superintendent left the
United Kingdom, as he did at about the end of 1993, he was no longer
entitled to diplomatic immunity because the relevant acts had not been
performed by him 'in the exercise of his functions as a member of the
Mission'. When he gave the undertaking on 29 October 1993 and when he
allegedly broke it a few days later he was acting as an officer of the
Australian Federal Police and in no other capacity. The Superintendent
had two roles, it is submitted: first, as a diplomat responsible for
liaison between the government of Australia and United Kingdom police
forces in relation to criminal investigations and matters of mutual
concern and, secondly, as an officer of the Australian Federal Police
discharging police duties. In giving the undertaking on 29 October
1993, and in allegedly breaking it a few days later, the
Superintendent was acting as a police officer. Reliance is placed on
the fact that the Superintendent was substituted, as a person to be
present at the execution of search warrants, for Detective Sergeant
Taciak who could not have claimed diplomatic immunity. Further, the
Home Office were told that the Superintendent 'will be undertaking the
investigations on behalf of the AFP'. Diplomatic immunity is not
designed for the protection of Commonwealth or foreign police officers
conducting police business in the United Kingdom.
Counsel on both sides referred to the documents setting out the 'role
functions and lines of responsibility of liaison officers'. These
include a continuing responsibility to the Commissioner of Police but
the duties are stated broadly enough to cover the part played by the
Superintendent in the application to Judge Goddard. The role of the
liaison officer is stated to be:
"to represent the interests of the Australian Federal Police on
matters of law enforcement, in particular, to receive and distribute
crime intelligence at post and to facilitate provision of crime
intelligence to Australian police forces."
We see no justification for a conclusion that the relevant acts of the
Superintendent were other than acts performed 'in the exercise of his
functions as a member of the Mission'. The Superintendent appeared on
the London Diplomatic List as 'First Secretary (Police Liaison)'. His
government had an obvious interest in the satisfactory operation of
the Harare scheme. The stated purpose of that scheme (art 1) is 'to
increase the level and scope of assistance rendered between
Commonwealth governments in criminal matters'. It provides 'for the
giving of assistance by the competent authorities of one country (the
requested country) in respect of criminal matters arising in another
country (the requesting country)'. Assistance in criminal matters is
said to include assistance in 'search and seizure' and in 'obtaining
evidence'. In co-operating as he did in Detective Constable Fryer's
application, he was exercising functions as the High Commission's
Police Liaison Officer. Some police functions may be clothed with
diplomatic immunity just as the functions of military or cultural
attaches may be.
Conclusion
It is to be hoped that the Metropolitan Police will in future carry
out directions of the Secretary of State under the 1978 Act more
professionally, and will refrain from seeking to instruct counsel
without the mediation of the Crown Prosecution Service. The manner in
which the initial application for a search warrant was made to Judge
Goddard QC reflects little credit on any of those concerned. The
plaintiffs' appeal against the order in favour of the Superintendent
is dismissed.
The Commissioner's Appeal
The case against the Commissioner
The proceedings against the Commissioner were begun by Notice of
Motion dated 1 June 1995. It says only this in relation to the
Commissioner's responsibility:
"The First Defendant was at all material times an officer of the
Australian Federal Police and he was acting in such capacity when he
gave the undertakings referred to in paragraph 1 above and sent the
fax referred to in paragraph 4 above. In the premises the
Commissioner . . . . is vicariously liable for the contempt of the
First Defendant."
Leave to serve out of the jurisdiction (alternatively to effect
service here) was given by Master Trench on the same day. The
application before Laws J was to set aside the proceedings 'on the
ground that the Defendants are immune from the jurisdiction of this
Honourable Court'. The appeal against the judge's decision is on the
same basis. As regards any basis in law for holding the Commissioner
responsible, it simply says this:
"In so far as the Second Defendant could have any vicarious
responsibility for the actions of the First Defendant which are the
subject of these proceedings (assumed for present purposes but not
admitted), the Second Defendant was acting . . . . "
Mr Pollock disclaimed any intention to take any points on the merits
of the claim against the Commissioner apart from state immunity. He
referred to the peril in terms of deemed submission to the
jurisdiction where a state 'has intervened or taken any step in the
proceedings': s 2(3)(b) of the 1978 Act.
An order for leave to serve out of the jurisdiction (or substituted
service in lieu) does however require the applicant to show that the
case is a proper one for such service: Rules of Supreme Court 1965 Ord
11, r 4(2) and 9(1) and (5). We need not consider whether it would
have been open to the Commissioner, without submitting to the
jurisdiction, to challenge the suggestion of vicarious responsibility
for the Superintendent's alleged contempt of the order of Potts J.
Independent of any steps which may have been taken by a party to
litigation, this court has an interest in ensuring that its process is
not used for purposes which are not explicable or do not make sense.
If it is obvious that proceedings are misconceived, or are being
conducted on an unrealistic hypothesis, this court may, in its
inherent jurisdiction, take steps to halt their misuse. During the
course of the hearing before us, in the context of the issue of state
immunity that was argued before us, we sought to understand the basis
on which it could be suggested that the Commissioner had some
vicarious responsibility for a contempt which was committed, at most,
by one of his officers acting in breach of an order directed to that
officer personally. We became increasingly concerned that there was
and is no coherent or comprehensible basis for such a suggestion.
A difficulty in the plaintiffs' way at the outset is the identity of
the Commissioner. The plaintiffs evidently wanted to implead the AFP.
But that is not an entity capable of being sued. So they sued the
Commissioner to stand for the AFP, acknowledging that he was not sued
in his personal capacity. Had he been, the fact that the person who
was the Commissioner at the time when the notice of motion was served
has since died would have aborted the proceedings against him. So it
is said that the Commissioner was sued in the way of his office. The
office of Commissioner is not shown to be a corporation sole. The
Commissioner might nonetheless have been in a position analogous with
that of a chief officer of police in this country, in respect of whom
s.88(1) of the Police Act 1996 provides that -
"The chief officer of police for any police area shall be liable in
respect of torts committed by constables under his direction and
control in the performance or purported performance of their functions
in like manner as a master is liable in respect of torts committed by
his servants in the course of their employment, and accordingly shall
in respect of any such tort be treated for all purposes as a joint
tortfeasor."
But despite direct questions from the Bench Mr Pleming was unable to
cite any Australian statute that would supply the deficiency.
The fallacy upon which the plaintiffs' case against the Commissioner
is founded is that vicarious responsibility of this kind is to be
equated with the liability of a principal for his agent. Whether there
was vicarious responsibility so as to make the Commissioner liable for
any torts committed by the Superintendent is irrelevant. We do not
understand how the Commissioner could be liable, vicariously or
otherwise, for any contempt committed by the Superintendent. Facts,
such as the existence of agency, without which the giving of the
undertaking and the breach of it cannot be established against the
Commissioner, must be alleged and proved if they are relevant to
establish liability on the part of the Commissioner. The Notice of
Motion as we have set it out singularly fails to make any allegation
of this nature.
It is alleged that before giving the undertaking the Superintendent
may have spoken to someone else by telephone. But in view of the
shortness of time taken, and the fact that it would then have been the
middle of the night in Australia, it is not alleged that the
Superintendent took instructions from the Commissioner. So the
undertaking cannot have been given with his authority unless some
prior authority was vested in the Superintendent. If it was, there
would have been no need to obtain it again by telephone. In any event,
there is no vestige of evidence that any such authority was given by
the Commissioner or received by the Superintendent at any time. If the
Commissioner had purported to give authority, it would have had to be
shown that he himself had authority to authorise his subordinates to
give undertakings such as would have the effect of waiving state
immunity. Delegatus non potest delegare, and it is impossible to
suppose, or to proceed upon any assumption, that the relevant Minister
would or could have given to the Commissioner power to give that
authority to other officers of the AFP. The Commissioner was therefore
not party to the giving of the undertaking by the Superintendent.
The notice of motion of 1 June l995, which seeks the committal for
contempt of the Superintendent and the Commissioner, refers to 'breach
of an undertaking given by the First Defendant on his own behalf and
on behalf of the Second Defendant'. There is no evidence that any
undertaking was given on behalf of the Commissioner. On the contrary,
the terms of the undertaking are (so far as material) correctly set
out in the notice of motion:
"The Defendant [meaning the Superintendent], his agents or otherwise,
will not until 4 pm Friday 5th November l993 remove any documents
seized on 27th October l993 or copies thereof, from the jurisdiction
of this Court."
The other parts of the undertaking similarly relate only to the
Superintendent. The notice of motion concludes by stating that:
"The First Defendant was at all material times an officer of the
Australian Federal police and he was acting in such capacity when he
gave the undertakings referred to . . . . . In the premises the
Commissioner ... is vicariously liable for the contempt of the First
Defendant."
That could not render the Commissioner party to the giving of the
undertaking or put him in contempt if there was breach of it. In these
circumstances, were it necessary we would of our own motion have set
aside the order made and dismissed the proceedings against the
Commissioner, on the ground that they palpably lacked any conceivable
merit. As it is, however, the matter can in any event be disposed of
by reference to state immunity upon which Mr Pollock's submissions
were based.
State immunity
Because the argument before us has mainly been concerned with it, we
proceed to consider on its merits the Commissioner's appeal against
the judge's rejection of his claim to state immunity. He claims
immunity as part of the State of Australia, within the meaning of s.
14(1) of the State Immunity Act 1978, or alternatively under s.14(2)
as a separate entity. Section 14 provides (so far as material) that:
"(1) the immunities and privileges conferred by this Act apply to any
foreign or commonwealth State other than the United Kingdom; and
references to a State include references to -
(a) the sovereign or other head of State in his public capacity;
(b) the government of that State;
(c) any department of that government,
but not to any entity (hereafter referred to as a 'separate entity')
which is distinct from the executive organs of the government of the
State and capable of suing or being sued.
(2) A separate entity is immune from the jurisdiction of the courts of
the United Kingdom if, and only if:
(a) the proceedings relate to anything done by it in the exercise of
sovereign authority; and
(b) the circumstances are such that a State . . . . would have been so
immune."
The judge did not accept that the Commissioner was entitled to any
immunity. The plaintiffs maintain that he was correct in this
conclusion. They also rely by Respondents' Notice on three alternative
arguments that the Commissioner has no immunity because (i) the
present action constitutes 'proceedings in respect of . . . . damage
or loss of tangible property' within s.5(b) of the 1978 Act; (ii) the
Commissioner instituted the present action and is therefore deemed to
have submitted to the jurisdiction and waived any immunity under s.
2(1) and (3)(a); and (iii) the Commissioner had submitted to the
jurisdiction, by the giving by the Superintendent of the undertakings
on 29 October 1993. About the first two we need say no more than that
they were succinctly rejected by the judge (at pages 52-53 of his
judgment) on grounds with which we agree. To the third we shall refer
at the end of this judgment.
During the course of submissions before us, the plaintiffs suggested a
new reason why the Commissioner should be regarded as having submitted
to the jurisdiction. This was that the State of Australia and its
'authorities' or 'agencies', including specifically the AFP, had by
consent orders dated 14 December 1993 and 17 March 1994 in the
plaintiffs' proceedings for judicial review submitted to the
jurisdiction of the English court. This was a point never previously
suggested and not covered by their Respondents' Notice. It fails for
that reason alone. There has been no application to amend the
Respondents' Notice, and there would appear to be every reason for
refusing any such application, if any had been made. The context of
the orders would at the least have merited investigation. Further, on
the material which is before the court, any submission by the orders
would appear to have been confined to the proceedings for judicial
review and their resolution. The present action was at the time
addressed only to the Superintendent and dormant. The writ in it was
subsequently amended to add the AFP, but not the Commissioner, and
even now has not been served on anyone. In these circumstances, even
if the court were to address the point on present material, it would
appear to be without merit.
Starting with s.14, the judge heard extensive evidence about the
status in Australia of the AFP. He concluded that they occupied a
similar position to the police in this country. The police were, in
other words, holders of an independent office under the Crown,
fulfilling public duties of maintenance and enforcement of the law.
The judge said of s.14(1) that:
"It seems to me obvious, and was not I think disputed, that the
references to the 'government' are to the executive branch of
government."
He regarded as 'apparently bizarre' the conclusion accepted by
Professor Crawford, the Commissioner's expert, that every member of
the AFP was part of the executive government of Australia. The
reductio ad absurdum, in his view, was that 'every bailiff, every
tipstaff, many local authority officials, and other who enjoy or are
burdened with public power under Act of Parliament are, likewise,
members of the executive government'.
The judge thus rejected the Commissioner's evidence and case that the
Commissioner was a part of the government of Australia within s.14(1).
The judge seems to have thought that this was an end of the matter,
and that s.14(2) could not really arise: He said:
"The fact is that the evidence of [the second defendant's] own expert,
Professor Crawford, was that the AFP is not distinct from the
executive organs of government in Australia. Indeed, his evidence was
to contrary effect. The only real question here is as to the impact of
section 14(1)."
The only comment he therefore made on s.14(2) was a brief statement
near the end of his judgment that:
"Had I had to consider section 14(2), I would have held that the AFP
have committed no relevant act 'in the exercise of sovereign
authority'. They do not exercise 'sovereign authority'."
We do not follow the judge's reasoning. The rejection of the
Commissioner's contention that he fell within s.14(1), on the ground
that he fulfilled a role independent of the executive, was a reason
for considering whether s.14(2) applied, not a reason why s.14(2)
could not apply.
The 1978 Act was passed, at least in part, to give effect to the
European Convention on State Immunity of 1972. Chapter 1 of the
Convention is entitled 'Immunity from jurisdiction' and contains a
number of articles setting out circumstances in which 'a Contracting
State cannot claim immunity from the jurisdiction of a court of
another Contracting State'. The final article in Ch 1, art 15,
provides that 'a Contracting State shall be entitled to immunity from
the jurisdiction of the courts of another Contracting State if the
proceedings do not fall within Articles.1 to 14'. Chapter 5 is
entitled 'General provisions' and art 27 provides:
"1. For the purpose of the present Convention, the expression
'Contracting State' shall not include any legal entity of a
Contracting State which is distinct therefrom and is capable of suing
or being sued, even if that entity has been entrusted with public
functions.
2. Proceedings may be instituted against any entity referred to in
paragraph 1 before the courts of another Contracting State in the same
manner as against a private person: however, the courts may not
entertain proceedings in respect of acts performed by the entity in
the exercise of sovereign authority (acta jure imperii).
3. Proceedings may in any event be instituted against any such entity
before those courts if, in corresponding circumstances the courts
would have had jurisdiction if the proceedings had been instituted
against a Contracting State."
Section 14 of the Act is concerned first to define, for the purposes
of English law, what is a State and second to give effect to art 27
and the 'entities' contemplated in that article. The expression
'sovereign authority' used in the Article is adopted in the section
though without the bracketed words 'acta jure imperii' which appear in
many of the cases, English and foreign, in which State immunity is
considered.
In our view the word 'government' in s.14(1) must be given a broader
meaning than that contemplated by the judge. Far from leading to
bizarre or absurd conclusions, a broad reading corresponds with the
requirement of comity and with a body of law from many countries on
the scope of sovereign immunity as a concept which covers acta jure
imperii. In our judgment, Parliament had that jurisprudence in mind
when enacting s.14 and intended a broad interpretation of the word
'government' in s.14(1). The expression 'sovereign authority' or a
similar expression appears frequently in the authorities. While in s.
14 it appears only in s.14(2) dealing with separate entities and not
in s.14(1) dealing with 'government', it would be curious if separate
entities were immune from the jurisdiction in proceedings relating to
acts done by them in the exercise of sovereign authority if the
government of the State were not also immune. The word government
should be construed in the light of the concept of sovereign
authority.
In Playa Largo (Owners of Cargo Lately Laden on Board) v I Congreso de
Partido (Owners) [1983] AC 244, [1981] 2 All ER 1064, Lord Wilberforce
at page 263 of the former report, described the Claim against the
Empire of Iran case (1963) 45 ILR 57, decided by the Federal
Constitutional Court of the German Federal Republic, as a case of
'great clarity' and as containing 'an instructive view of the law of
state immunity over a wide area'. Lord Wilberforce cited the passage
at page 80:
"As a means of determining the distinction between acts jure imperii
and jure gestionis one should rather refer to the nature of the State
transaction or the resulting legal relationships, and not to the
motive or purpose of the State activity. It thus depends on whether
the foreign State has acted in exercise of its sovereign authority,
that is in public law, or like a private person, that is in private
law."
At page 81, the judgment of the Constitutional Court reads:
"National law can only be employed to distinguish between a sovereign
and non-sovereign activity of a foreign State in so far as it cannot
exclude from the sovereign sphere, and thus from immunity, such State
dealings as belong to the field of State authority in the narrow and
proper sense, according to the predominantly held view of States. In
this generally recognisable field of sovereign activity are included
transactions relating to foreign affairs and military authority, the
legislature, the exercise of police authority, and the administration
of justice." (Emphasis added).
The same Court in the Church of Scientology case (1978) 65 ILR 193
said in relation to an action brought in Germany against 'the Head of
New Scotland Yard' that 'the way in which the police laws of the
United Kingdom classified the defendant's official status has no
bearing on the judgment which must be made in accordance with
international law'.
In I Congreso, the House of Lords considered the doctrine of sovereign
immunity at common law, the relevant events having occurred before the
1978 Act came into force. Analysing the transactions involved in that
case, Lord Wilberforce at page 262E stated that they did not involve:
" . . . . a challenge to or inquiry into any act of sovereignty or
governmental act of that state. It is, in accepted phrases, neither a
threat to the dignity of that state, nor any interference with its
sovereign functions."
At page 267C Lord Wilberforce stated that in considering whether State
immunity should be granted or not, the court should consider whether
the relevant acts should:
" . . . . be considered as fairly within an area of activity, trading
or commercial, or otherwise of a private law character, in which the
State has chosen to engage, or whether the relevant acts should be
considered as having been done outside that area, and within the
sphere of governmental or sovereign activity."
In Kuwait Airways v Iraqi Airways [1995] 3 All ER 694, [1995] 1 WLR
1147 Lord Goff considered the 1978 Act and stated at page 706D of the
former report that s.14 'so far as it relates to separate entities
plainly had its origin in Article 27 of the Convention'. Lord Goff
recognised the distinction in English Law between acta iure imperii
which when performed by a foreign sovereign attract immunity and acta
iure gestionis which do not. He recognised the 'very broad definition'
of commercial transactions in s.3(3) of the Act. These would be acta
iure gestionis. To illustrate the distinction, Lord Goff cited
passages from I Congreso including those cited above. The distinction
between acta iure imperii and acta iure gestionis has also been
considered, in the context of the Visiting Forces Act 1952, in
Littrell v USA (No 2) [1994] 4 All ER 203.
In the Kuwait Airways case, Iraqi Airways Company was held to be 'a
separate entity' and at issue was whether s.14(2) of the Act applied
to the activity involved. Lord Goff stated, at page 707H that the
words 'in the exercise of sovereign authority' in s.14(2)(a) should be
construed in accordance with the accepted meaning of acta iure
imperii, especially as that is plainly in accordance with art 27(2) of
the Convention, which is reflected in s.14(2) of the Act. Once it is
established, as it undoubtedly is, that the concept of acta iure
imperii exists in English law, it is in our view relevant to a
determination of what bodies are a part of the 'State' and the
'government' for the purposes of s.14(1). The word 'government' should
not be confined to what in other contexts would in English law mean
the Government of the United Kingdom. Once the broad scope of
governmental or sovereign activity is, for this purpose, accepted, the
performance of police functions is essentially a part of governmental
activity. The concept of a 'separate entity' obviously has its place
in the overall scheme but has no application in the present case. The
affirmation by Lord Goff in the Kuwait Airways case of the concept of
governmental or sovereign activity, though made in relation to an
entity which was plainly an entity separate from the executive organs
of the government, is wholly consistent with a broad definition of
government in s.14(1).
The protection afforded by the Act of 1978 to States would be
undermined if employees, officers (or as one authority puts it,
'functionaries') could be sued as individuals for matters of State
conduct in respect of which the State they were serving had immunity.
Section 14(1) must be read as affording to individual employees or
officers of a foreign State protection under the same cloak as
protects the State itself.
This proposition too has wide support in Commonwealth and foreign
jurisdictions. In the Church of Scientology case, it was held that any
attempt to subject State conduct to German jurisdiction by targeting
the foreign agent performing the act would undermine the absolute
immunity of sovereign States in respect of sovereign activity. Another
example is Jaffe v Miller [1993] ILR 446 (Ontario Court of Appeals),
where the relevant statute conferred immunity in quite similar terms
to the 1978 Act upon a foreign state, including specifically its
sovereign or other head and any government or political subdivision
(defined as meaning a province, state or other like political
subdivision of a federal state) of the foreign state, including any of
its departments and any agency of the foreign state. The court held
that, for the Act to be effective, it must necessarily confer immunity
on any state 'functionary', acting in the course of his official
duties, embracing in that case two officials of the State of Florida
alleged to have committed torts against the plaintiff. A third example
is provided by Herbage v Messe [1990] ILR 101 (US District Court,
District of Colombia). The action was brought by a prisoner in the
United States who had been extradited from England. It alleged
wrongdoing in the course of the extradition proceedings by the English
Home Secretary, the former Director of Public Prosecutions, a
Detective Inspector of the Hampshire Constabulary and two barristers
who had acted for the Director of Public Prosecutions. All these
defendants were held entitled to state immunity.
The concept of an 'entity . . . . distinct from the executive organs
of the government of the State and capable of suing or being sued' is
not one which would normally be identified with an individual or
natural person. Its background and history suggest that the concept
was introduced to address the problem presented by artificial legal
entities exercising public functions. Lord Goff in the Kuwait Airways
case at page 706G pointed out that the language makes it probable that
the section has in mind entities 'of' or, in other words, created by
the State in question. Where such an artificial entity exists and is
entitled to immunity, then its servants or officers would of course
benefit by immunity in similar fashion to the officers or
functionaries of a state entitled to immunity. Further, an individual
might possess status as a corporation sole or similar status which
could constitute him in that capacity a 'separate entity' for the
purposes of s.14.
Looking at the facts of the present case in that light, we have no
doubt but that the activity of the Superintendent in this case and any
vicarious responsibility of the Commissioner involved acts of a
sovereign or governmental nature. The role of the police is to
maintain and enforce the law. The day when such responsibility could
be left to private policing or police forces are either long since
past or not yet come. It is, and was held in R v Secretary of State
for the Home Department, ex p Northumbria Police Authority [1989] 1 QB
26, [1987] 2 All ER 282, part of the prerogative power of the Crown
'to keep the peace, which is bound up with its undoubted right to see
that crime is prevented and justice administered': per Croom-Johnson
LJ at page 44C of the former report.
The fact that the police who undertake this function on a day by day
basis do so as officers, rather than servants, and are 'answerable to
the law and the law alone' (per Lord Denning MR in R v Commissioner of
Police for the Metropolis, ex p. Blackburn [1968] 2 QB 118, [1968] 1
All ER 763) is not determinative of the present issue. The same
applies to the judiciary. The separation of their power from that of
the executive is an important feature of our constitution.
Nonetheless, for the purposes of the international concept of state
immunity, it seems to us clear that judges should and would be
entitled to immunity on the ground that they exercise sovereign
authority. In this country there may be an understandable reluctance
to characterise the activities of either police or judges as
'governmental'. But this is because, in a domestic context, that word
has acquired narrower shades of meaning than it finds in the
international context reflected in s.14 of the 1978 Act.
In the circumstances we have no doubt that the Superintendent's
activities, and if vicarious liability were to be established, those
of the Commissioner, are covered by state immunity. The Superintendent
is a part of the Government of Australia within the meaning of that
term in s.14(1) of the Act. That being so we do not need to consider
the effect of the presence of the word 'executive' in the last part of
s.14(1).
Finally, by Respondents' Notice the plaintiffs submit that the
Commissioner must be treated as having waived state immunity, because
the Superintendent was 'authorized' to give undertakings to Potts J.
The submission rests on a similar fallacy to that involved in the
plaintiffs' case that there was a waiver of the Superintendent's
diplomatic immunity.
To determine whether sovereign immunity subsists, it is necessary to
consider whether the Commonwealth of Australia authorized a waiver of
such immunity. As a matter of fact, there is nothing whatever to
support any suggestion that anyone ever intended or authorized any
waiver of state immunity in respect of any conduct of the
Superintendent as a police officer. On the judge's findings, neither
the High Commissioner in London nor anyone else with authority to
waive immunity on behalf of the Commonwealth of Australia did so. The
Superintendent's possible conversation with the High Commission (not
the High Commissioner) during the course of the hearing before Potts J
cannot therefore have been with anyone who could have waived state
immunity. Nor, if it were relevant to look at his position, did the
then Commissioner either know of the giving of the undertakings before
they were given or in any event authorise any such waiver. Even if he
had known of what was happening, it appears that he would himself have
had to have obtained higher authority from the Special Minister of
State and Minister of Foreign Affairs for any such waiver. There is no
suggestion that any such authority existed or was obtained. Further,
waiver of state immunity requires not only authority, but knowledge of
the right being waived: see Baccus SRL v Servicio Nacional del Trigo
[1957] 1 QB 438, [1956] 3 All ER 715. The suggestion that there was a
waiver in the present case fails at every stage.
Conclusion
The proceedings against the Commissioner were misconceived. But if he
were subject to any form of liability for any acts of the
Superintendent, he would be entitled to state immunity, which has not
been waived. In any event the proceedings appear to have little, if
any, continuing utility. The Commissioner's appeal is allowed.
DISPOSITION:
Appeal in respect of Respondent Sing dismissed with costs; appeal in
respect of the Commissioner is allowed with costs; the Order of Laws J
is revoked; the Order of Master Trench giving leave is discharged.
SOLICITORS:
Devonshires; Clifford Chance