The question for the 2023 6KBW Essay Competition will be released on 3 July 2023. Further information can be found here. To inspire any potential essayists, here are the three winning entries from the 2022 competition. The question was ‘One rule for them: should anyone ever be exempt from the criminal law?’ Congratulations once again to Nathan, Syed and Francesca!
1st Place: Nathan Thompson
Ever since the writings of A. V. Dicey every student of the English legal system is taught that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm.”[1] Equality before the law has remained a pillar in the constitution of the United Kingdom, from its fledgeling roots in Magna Carta; to the case of Entick v Carrington;[2] and more recently Boris Johnson’s fixed penalty notice for breaching COVID-19 regulations, this principle has crystalised within the consciousness of the nation. However, there remains one sector of society which the global community have sought to limit legal, and certainly criminal liability; that is the position of children. Indeed, since the times of King Ines of the West Saxons and the Ines asetnessa legal accountability excluded minors; millennia later and society still holds to the same values.[3]
In a progressive society it is only moral that the most vulnerable individuals are protected from criminal charges when they cannot comprehend the seriousness of their actions, is it not? Nevertheless, this will do little to comfort the grieving parent who has lost their child through another’s act. Parliament has legislated attempting to strike a balance between the need to protect children who know no better and the need to hold those accountable when they do know better. The most recent and striking law to be placed in the statute books is section 34 of the Crime and Disorder Act 1998 which removed the defence of doli incapax for individuals over the age of ten. This defence created a rebuttable presumption that a child was unable to form the necessary mens rea needed for a crime and therefore could not be prosecuted. Its abolition remains controversial, and this will be commented upon in the following paragraphs. However, the question remains should children ever be excluded from possessing criminal liability?
To correctly make an assessment on this complex legal issue we must first consider what constitutes a ‘child’. Many jurisdictions including England and Wales place this threshold at eighteen. However, it would be asinine to believe that the hourglass of criminal liability still holds sand on the eve of one’s eighteenth birthday. In 1994, commenting judicially on doli incapax, Laws J noted that the doctrine of excluding criminal liability for children was an outdated practice and the incorporation of a universal system of compulsory education has ensured that children should understand right from wrong.[4]Almost three decades have passed since that judgement and we are increasingly living in the age of information. The plethora of knowledge now available to most children would suggest that intelligence, and consequently maturity, will develop at a far greater rate than previously seen; therefore, it would be safe to assume with greater consciousness of the modern world, greater awareness of right and wrong will evolve at a younger age. However,, with the growth of technology, children are increasingly exposed to glorified violence by Hollywood. Evidently, this may impact on a young person’s moral compass and can cause developmental issues in the perceptions of children. Indeed, video games have been suggested by some victims of crime as influences for children to undertake lawbreaking.[5] We cannot, however, underestimate that this could simply be an excuse to find blame. Research by Bournemouth University has shown that exposure to video games has practically no effect on the moral judgement of children.[6] With respect, Laws J’s judgement fails to encompass the shared experiences of all children. Whilst education is compulsory, its quality is not shared equally; the inner-city comprehensive school student is not receiving the same diligent tutoring as the Etonian student. Unmistakably, education is fluid and despite living in the age of information, many children will be suffering from information overload, adding weight to the proposition that children should be protected from the criminal court room until they have matured.
Neuroscience supports calls to limit criminal responsibility for minors. Studies have shown that the prefrontal cortex, which is responsible for decision making, is not developed enough for a child to undertake rational decision making.[7]Common sense suggests that minors are less capable of making reasoned decisions, while systems of mandatory education and age prohibited activities highlight that society continuously seeks to protect children. English law does not permit or ‘trust’ a seventeen-year-old to have the intellectual reasoning to vote in a general election; nor does it allow the underage to decide if alcohol enters their body before eighteen. Society does not determine children to be able to make these conscious decisions until they reach adulthood. In stark contrast the law currently expects ten-year-olds to stand full criminal trial, albeit within a Youth Court. Such a differential in these societal and legal standards is manifestly unfair; if England and Wales cannot trust minors to have the complete responsibilities of adults it would be absurd to suggest that they should have the same criminal liability. On the other hand, these neurological studies conclude neurological development is not totally achieved until the age of twenty, which would be a ridiculous recommendation for a criminal age of responsibility.[8] Indeed, surely all that is needed by a child is a sense of right and wrong; a brain does not need to be fully developed to know that serious crime is iniquitous. In one of the most barbaric crimes of the twentieth century, two ten-year-olds were convicted of the murder of Jamie Bulger. The defendants were psychologically assessed and deemed to have the capacity to know right from wrong.[9] In the case of serious crime it would be abhorrent to justice to recommend that a child who has mental capacity is absolved of blame simply because of their age.
When convicted by the Youth Court, it is important to note that the sentences differ from that of an adult. Indeed, section 58(a) of the Sentencing Act 2020 alters the duty of a court to take into account the main aim of youth justice: rehabilitation. This will evidently lead to a lesser sentence to that of an adult, where punishment is an aim.[10] Furthermore, the issue of child custodial sentences was discussed by the Court of Appeal in a judgement that quashed the imprisonment for rape of an underage defendant. The Court was further minded to mention that custodial sentences will be rare for those under the age of fourteen.[11] Therefore, with the likelihood of a custodial sentence being low for even serious crime, it would lend credence to the idea that whilst the abolition of the protection of children from criminal liability would afford them the same culpability as an adult, the repercussions of their actions will not be as lifechanging, mainly as the aim in sentencing them is rehabilitation. Under such circumstances it could be held to be fair to hold children to account for their actions.
In conclusion, the issue of the criminal responsibility of children is extremely divisive and any inference will be subject to criticism. Our advancement as a society has allowed children to develop at a rate previously unseen. This same progress has enlightened neuroscientific research to support the idea that children are not mature enough to make informed decisions. However, with an increase in information it can cloud a child’s moral compass and the science on the matter also suggests maturity is not achieved until adulthood. The current position requiring a child to stand trial at ten strikes the correct balance between the need to serve public policy and punish an individual and the need to protect our youth. Indeed, at ten, the vast majority of children have a sense of right and wrong, especially in the consciousness of serious crime. Any legislative measure to reduce the age of criminal responsibility, leading to minors under ten standing trial in a criminal court, must also enter the court of public opinion. Indeed, it would be tough to suggest to any parent that their child under the age of ten would be held responsible for a crime. Therefore, our youngest in society should be exempt from criminal responsibility, although only to the current age of ten.
[1] A. V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan 1885) 114
[2] (1765) 2 Wils 275
[3] F. L. Attenborough, Laws of the Earliest English Kings (Cambridge University Press, 1922) 39
[4] C (A Minor) v DPP [1994] 3 W.L.R. 888
[5] C. Blackstock, ‘Killing ‘incited by video game’’ The Guardian (London, 29th July 2004) < https://www.theguardian.com/uk/2004/jul/29/ukcrime.colinblackstock > (accessed 23rd July 2022)
[6] S. Hodge, ‘Video games affect your moral development but only until you’re 18 – new study’ The Conversation (Bournemouth, 11th August 2020) < https://theconversation.com/video-games-affect-your-moral-development-but-only-until-youre-18-new-study-142769 > (accessed 23rdJuly 2022)
[7] Royal Society, Brain Waves Module 4: Neuroscience and the law (2011) 13-14
[8] Ibid
[9] R v Secretary of State for the Home Department, ex parte Venables; R v Secretary of State for the Home Department, ex parte Thompson [1998] A.C. 407 16
[10] Sentencing Act 2020, s 57(2)(a)
[11] R v JRO [2022] EWCA Crim 85 [22], [17]
2nd Place: Syed Muhammad Humaid Adil
INTRODUCTION
No one is above the law, or at least no one should be. Shocking as this may sound, there are tens of thousands of people who are entirely exempt from the criminal law of the country in which they are posted. These people are those who have been granted diplomatic immunity as part of their country’s diplomatic mission to another.[1] This essay shall seek to demonstrate that those on diplomatic missions should be exempt from the criminal law, even if it may initially give credence to the idea that there is ‘one rule for them and another rule for us’.
The principle of diplomatic immunity finds its modern formulation within, inter alia, Article 31(1) of the Vienna Convention on Diplomatic Relations,[2] which states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State […]”. This provision was not created ex nihilo and stemmed from well-established customary international law, stretching back centuries. Even within the domestic legislation of the United Kingdom, there were provisions enacted in 1709 which made the prosecution of any ambassador to “be deemed […] utterly null and void”.[3] Effectively, what this meant was that an individual who had been granted diplomatic immunity, was exempted from the criminal law of the country to which they are posted.
THE CASE FOR EXEMPTION
What then is the justification for such total exemptions from the criminal law? Consider the following example of the Tehrān Hostage Crisis (1979-1981), which illustrates the importance of diplomatic immunity in protecting “representatives of foreign governments based abroad from retaliation in time of international conflicts”.[4] In the absence of norms of customary international law, such as diplomatic immunity, Iranian militants seized 66 US citizens at the US embassy in Tehrān, many of whom were diplomatic and consular staff, and held 52 of them as hostages for more than a year, accusing them of being spies.[5] Such an escalation of tensions in international crises is less prevalent where the principle of diplomatic immunity prevails. During the earlier stages of the ongoing Russo-Ukrainian War, Russia expelled Bulgarian diplomatic staff in response to Bulgaria’s decision to expel Russian diplomatic staff over the illegal invasion of Ukraine.[6] This was certainly a ‘tit for tat’ response, but one that was significantly more restrained than the reaction of the nascent Iranian Revolution in 1979.
Diplomatic immunity is therefore “one of the most important tenets of civilised and peaceable relations between nation states.”[7] and is the very “foundation of modern diplomatic relations”.[8] As one commentator put it, “The practical answer [as to why we need such an exemption from the criminal law] is because we depend on other countries to honor our own diplomats’ immunity just as scrupulously as we honor theirs. […] The principle involved isn’t law or treaty so much as [a State’s] blatant self-interest: if we go after their emissaries, they’ll go after ours.”[9] The exemption then from the criminal law provided to diplomatic staff seeks to give a near absolute layer of protection to diplomats against arbitrary arrest, harassment or interference of any kind; all in the interests of helping diplomats to “maintain open lines of communication between states, even in times of tension or conflict.”[10]
THE CASE AGAINST EXEMPTION
The principle of diplomatic immunity however, finds itself in direct conflict with certain fundamental theories of the criminal law. Namely, that “criminal sanctions should be imposed [where] the accused is morally responsible for the wrongful conduct”.[11] However, when you have diplomatic crimes, the result is that the perpetrator cannot be subjected to the criminal sanctions that are ordinarily imposed for that wrongful conduct.[12] This dichotomy between the criminal law’s imposition of sanctions where morally deserved and the protection provided by diplomatic immunity, came to the forefront of the public’s attention with the tragic death of Harry Dunn three years ago. Harry Dunn died, aged just 19, after his motorcycle collided with a car driven down the wrong side of the road by Anne Sacoolas, the wife of a US diplomat. Sacoolas soon afterwards fled to the US with US support, citing diplomatic immunity in response to the criminal charges levied against her within the UK, criminal charges that the US then frustrated by refusing to extradite her.[13]
“Although abuses are the exception rather than the rule, the number of abuses is alarming”,[14] ranging from “parking violations, to drug smuggling, and murder.”[15] The courts are reluctant to intervene in such cases, as to do so would violate diplomatic immunity[16] and so that leaves few, if any avenues for redress for victims and their families. Despite a number of international[17], regional[18] and domestic provisions[19] affirming and requiring equality before the law, the principle of diplomatic immunity effectively changes the ‘rules of the game’, putting those who enjoy its protection firmly in a position out of reach of punishment from the criminal law.
CONCLUSION
In the face of such drastically different positions, certain proposals have been advanced to try and draw a balance between the need to protect diplomatic staff but also provide a method of accountability for diplomatic crimes.[20]These include legislating limits or eliminating diplomatic immunity,[21] providing monetary compensation plans for victims of diplomatic crimes,[22] or a multinational treaty granting a special diplomatic international criminal court jurisdiction over diplomatic crime.[23] None of these proposals have however received widespread support from any State actor.
States remain convinced by “[t]he rationale for immunity, for both diplomats and their families […]: to protect the envoy from any interference in the performance of [their] functions.”[24] This near-absolute layer of protection is especially vital as many diplomats serve in countries where “[p]olitically motivated prosecutions are of particular concern, and examples abound in many countries of government critics and political enemies facing clearly trumped-up charges of sedition, fraud, corruption, and even treason.”[25] Should a State transition to a system whereby diplomats would be subject to criminal prosecution for crimes committed, it may only, “in essence, be allowing [a State’s] own diplomats to be arrested and arbitrarily prosecuted in nations which do not share […] due process and human rights concerns. No matter how horrific a foreign diplomat […] behaves, one must also remember that there is a large […] diplomat population abroad. The chances that [these] diplomats would be subject to harm under these circumstances would increase dramatically.”[26]
In light of this, and for the other reasons explained above, this essay concludes that certain people, namely diplomats, ought to be exempt from the criminal law. While this is not the ideal situation, it remains the most practicable solution to both navigate the murky waters of international politics, while keeping one foot on the dry land that is the law.
[1] Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95, see also articles 1, 22-24, 27-40 and 45
[2] Implemented within the UK by the Diplomatic Privileges Act 1964.
[3] Diplomatic Privileges Act 1709, s3
[4] Mitchell S. Ross, ‘Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities’ (2011) 4(1) American University International Law Review 173, 174 <https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1671&context=auilr> accessed 2 September 2022
[5] ‘Iran hostage crisis’ (Encyclopaedia Britannica, The Editors of Encyclopaedia Britannica 2022) <https://www.britannica.com/event/Iran-hostage-crisis> accessed 2 September 2022
[6] Russian Service, ‘Russia expels 4 Bulgarian Diplomats n Tit-For-Tat Move’ RadioFreeEurope (Moscow, 5 August 2022) <https://www.rferl.org/a/russia-expelling-bulgaria-diplomats/31975317.html> accessed 2 September 2022
[7] A Local Authority v AG [2020] EWFC 18
[8] Ian Birdwell, ‘Consideration of diplomatic immunity’ (2021) UN General Assembly 6th Committee <https://www.odu.edu/content/dam/odu/offices/mun/docs/6th-diplomatic-immunity.pdf> accessed 2 September 2022
[9] Raza Rumi, ‘Raymond Davis and the Vienna Convention’ (2011) 252 Jinnah Institute <https://web.archive.org/web/20110726203911/http://www.jinnah-institute.org/issues/252-raymond-davis-and-the-vienna-convention-> accessed 2 September 2022
[10] ibid
[11] J. Ralph Lindgren, ‘Criminal Responsibility Reconsidered’ (1987) 6(1) Law and Philosophy 89, 92 <https://www.jstor.org/stable/3504680> accessed 2 September 2022
[12] ibid (n 1)
[13] Andrew Macaskill, ‘U.S. diplomat’s wife to face UK court hearing over fatal car crash’ Reuters (London, 13 December 2021) <https://www.reuters.com/world/us-diplomats-wife-face-uk-court-hearing-over-fatal-car-crash-2021-12-13/> accessed 2 September 2022
[14] Rina Goldenberg, ‘Abuse of Diplomatic Immunity: Is The Government Doing Enough?’ (1995) 1 ILSA Journal of International & Comparative Law 197, 198 <https://core.ac.uk/download/pdf/51088939.pdf> accessed 2 September 2022
[15] ibid
[16] R v Madan [1961] 2 WLR 231, cf Basfar v Wong [2022] UKSC 20
[17] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) art. 7; International Covenant on Civil and Political Rights 999 UNTS 171
[18] Council of Europe, European Convention on Human Rights (adopted 4 November 1950 entered into force 3 September 1953) Protocol 12, art 1
[19] Human Rights Act 1998, art 14
[20] William G. Morris, ‘Constitutional Solutions to the Problem of Diplomatic Crime and Immunity’ (2007) 36(2) Hofstra Law Review 1 <https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=2321&context=hlr> accessed 2 September 2022
[21] ibid
[22] ibid
[23] ibid
[24] Alison Pert, ‘Diplomatic immunity: Time to change the rules’ Lowy Institute, The Interpreter (Sydney, 15 October 2019) <https://www.lowyinstitute.org/the-interpreter/diplomatic-immunity-time-change-rules> accessed 2 September 2022
[25] ibid
[26] ibid (n 20)
3rd Place: Francesca Jackson
The killing of Harry Dunn, the British teenager who died in August 2019 after his motorcycle was struck by a Volvo SUV travelling on the wrong side of the road in Northamptonshire, shocked and outraged the country. Not only because the life of a 19-year-old had been cut tragically short, but because the woman driving the vehicle, Anne Sacoolas, had been able to claim diplomatic immunity. As the wife of an American intelligence agent working in the UK at the time, she was able to flee the country and return to the US on a private jet by exercising her entitlement to immunity under the UK’s Diplomatic Privileges Act 1964, while the bereavement felt by Harry’s family was made worse by the fact that justice had not been served.
The eruption of anger in the aftermath of the crash strongly suggested that the court of public opinion did not believe that diplomats and their families should be exempt from the criminal law. Diplomatic immunity, which protects its holders from both civil and criminal proceedings, is a long-standing concept which seeks to maintain diplomatic relations by ensuring that diplomats can carry out their legitimate duties free from the threat of interference by the courts or authorities in their host countries. It is enshrined in Article 31, paragraph 1 of the Vienna Convention on Diplomatic Relations 1961 (‘VCDR’), which provides that foreign envoys and their families have immunity from the criminal jurisdiction of the receiving state and may not be arrested or detained under any circumstances.
The traditional justification in favour of exempting diplomats from the criminal law is that exposing foreign agents to criminal liability in their host state could lead to a breakdown of trust between the two countries involved, and jeopardise international relations. This rationale is reflected in the VCDR, which stresses that the aim of diplomatic immunity is “to ensure the efficient performance of the functions of diplomatic missions as representating States.” However, this justification simply does not hold up to scrutiny today. Diplomatic immunity is not supposed to benefit individuals personally, yet there is mounting evidence to suggest that diplomatic privileges are being routinely abused to protect their holders. Whilst those protected by diplomatic immunity have a duty to “respect the laws and regulations of the receiving State” under Article 41 of the VCDR, behind-the-scenes investigations have found that few diplomats around the world do.
For example, in 2017, Canadian journalists discovered that foreign diplomats and their family members had been allowed to break the law with impunity in the Great White North.[1] These transgressions ranged from minor offences such as speeding tickets – a phenomenon also present elsewhere, such as in London where foreign diplomats owe £58 million in unpaid parking tickets and minor traffic offences[2] – to major felonies. In one instance, this included human trafficking in a diplomatic residence.[3] Far from being an isolated event, this is indicative of a wider trend of diplomats using their status to engage in transnational organised crime. For example, German diplomats have been found to have accepted bribes in exchange for issuing Schengen visas into the EU, which facilitated massive human trafficking operations in Eastern Europe and brought thousands of illegal workers and prostitutes into Germany.[4] In addition, the smuggling of contraband items, such as cigarettes and drugs, has been linked with, inter alia, Polish, Turkish and North Korean diplomatic agents.[5]
Yet, despite the scale of law breaking, it is very rare for diplomatic immunity to be waived. The VCDR is a controversial treaty, since the only way for a diplomat (or their family member) to face prosecution in their host country for the commission of a crime would be for their employing country to waive their right to diplomatic immunity and expose them to prosecution. The Convention thus relies on the good will of employing countries to ‘do the right thing’. Unfortunately, this rarely happens. Law enforcement agencies often overlook minor offences in the interests of maintaining diplomatic relations with the receiving state and avoiding reputational damage, and, in the case of serious crimes, are inclined to be “overly generous” to diplomatic agents without fully understanding the true scope of their diplomatic status.[6]
When deciding whether diplomats and their families should ever be exempt from the criminal law, it is important to distinguish crimes according to their gravity. In cases of isolated, minor offences, it still seems reasonable to argue that diplomats should be exempt from criminal liability to allow them to effectively discharge their duties. However, this traditional justification in favour of diplomatic immunity should not be stretched so far as to grant diplomats and their families an effective carte blanche to routinely transgress minor criminal laws, or to commit serious crimes such as human trafficking. It is promising to see that the law is developing – albeit piecemeal – to reflect this position. For example, in a recent judgement the UK Supreme Court in Basfar v Wong [2022] UKSC 20 held that there can be no immunity from criminal prosecution for diplomats engaged in modern slavery, human trafficking or domestic servitude offences. By a majority of 3:2, the Court found that these activities fell within the exception to Article 31 VCDR for claims relating to “any professional or commercial activity” exercised outside a diplomat’s official functions. It can surely only be a good thing that the law is starting to reflect public opinion on this issue.
Whether or not anyone should ever be exempt from the criminal law for serious crimes does depend largely on the context, however. Whilst perpetrators of serious crimes should never be able to use their diplomatic status to exempt them from the criminal law, exemption may be justified – and indeed, necessary – in a post-conflict state transitioning from totalitarianism to democracy, in order to bring about a peaceful transition of power. For example, amnesties were granted in several Central and Southern American countries in the 1980s and 90s including Uruguay, Haiti, El Salvador and Guatemala, where in each case “the power to prosecute (for serious human rights violations) was bargained away in exchange for peace.”[7] However, they were most famously deployed in post-Apartheid South Africa, where the South Africa Truth & Reconciliation Committee granted 1167 unconditional amnesties, which exempted key actors from criminal liability in exchange for information about their involvement in the former regime.[8]
The international community is divided on whether these exemptions from the criminal law can ever be justified. For example, Article 6(5) of Protocol II to the Geneva Conventions calls for the “broadest possible amnesty” but only following non-international armed conflicts, whilst others, such as Orentlicher, have argued that all amnesties contravene the “duty to prosecute” placed on States by international law.[9] From an objective view, there is certainly evidence to suggest that exemptions from the criminal law can help the nation-building process; for example, the Peace and Conflict Resolution Evidence Platform has concluded that “amnesties are likely to have a positive impact on the sustainability of peace.”[10] However, ultimately, in transitional contexts arguably only the nation state involved is in the position to take the highly individualised decision of whether exemption from the criminal law is justified in order to secure peace.
To conclude, whether or not anyone should ever be exempt from the criminal law depends on the context. In cases of isolated, minor offences committed by diplomatic agents, the traditional rationale in favour of diplomatic immunity should apply. However, members of the international community should instead waive diplomatic immunity where it is clearly being used as a licence to repeatedly offend and commit serious crimes. In the context of post-conflict societies, however, exemption from criminal liability, even for the commission of serious crimes, should be allowed. In this context, there is often a perceived trade-off between justice and peace. Ultimately, only the individual state itself can decide whether compromising on the former, via granting exemptions from the criminal law for perpetrators of crimes committed during the previous regime, is necessary in order to secure the latter.
[1] Rene Chun, ‘Dodgy diplomats: how envoys misuse their immunity’ (2 December 2019, The Guardian) available at <Dodgy diplomats: how envoys misuse their immunity | World news | The Guardian> accessed 29 July 2022.
[2] Leo Benedictus, ‘A fine mess: how diplomats get away without paying parking tickets’ (23 September 2016, The Guardian) available at <A fine mess: how diplomats get away without paying parking tickets | Cities | The Guardian> accessed 29 July 2022.
[3] Chun (n 1).
[4] Yuliya G. Zabyelina, ‘The untouchables: transnational organised crime behind diplomatic privileges and immunities’ (2013) Trends in Organised Crime 3, 353.
[5] Ibid, 354.
[6] Ibid.
[7] Ruti Teitel, Transitional Justice (2000, OUP), 53.
[8] Ibid.
[9] Diane F Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) Yale Law Journal 2537.
[10] Political Settlements Research Programme, ‘Transitional Justice: Key Findings’ (March 2020, University of Edinburgh) available at <Transitional Justice (politicalsettlements.org)> accessed 16 August 2022.
