Diplomatic immunity refers to the General exemption of diplomatic ministers from the operation of

local law (Black’s law Dictionary). Article 1(e) of Vienna Convention on Diplomatic Relations

defines a diplomat as the head of the mission or a member of the diplomatic staff of the mission.  
Diplomatic personnel are immune, subject to exceptions identified in the Vienna Convention, from
criminal jurisdiction and powers of arrest and detention. The host state can, of course, declare a
diplomat persona non grata and require the sending state remove him or her. This reflects the fact
that there is no right of legation and all diplomatic relations are based on consent. 
 
According to Malcom Shaw in his book international Law, the special privileges and immunities
related to diplomatic personnel of various kinds grew up partly as a consequence of sovereign
immunity and the independence and equality of states and partly as an essential requirement of an
international system. Under this, the receiving state is under legal obligation to respect, assist, and
protect the diplomat and not to interfere with their official functions. A diplomatic agent is granted
different inviolabilities and privileges, as well as immunity from the jurisdiction of the receiving
state, in order to enable them to exercise their official functions independently and effectively and
to avoid any interference on the part of the receiving state. In order to carry out their functions more
effectively, states and their representatives benefit from a variety of privileges and immunities.  
 
Diplomatic immunity for the most part covers the functions, property and conduct of a state’s
diplomatic agents. These prevent interference with the as well as public life of diplomatic staff and
so ensure they are able to carry out their mission (ne-impediatur legatio.)  
 
The basis of diplomatic immunity as expounded by Tim Hillier in his book sourcebook on public
international law, Cavendish publishing limited London; he stated that there are three principal
theories justifying diplomatic immunity: 
1. personal representation; 
2. extra-territoriality; and 
3. functional necessity 
 
Personal representation 
This theory dates back to the time when diplomatic relations involved the sending of personal
representatives of the sovereign. Immunity attaching to diplomatic representatives was seen as an
extension of sovereign immunity. 
 
Extra-territoriality 
This theory was founded on the belief that the offices and homes of the diplomat were to be treated
as though they were the territory of the sending state. In 1758 Emmercich de Vattel wrote, ‘an
ambassador’s house is, at least in all common cases of life, like his person, considered as out of the
country’. The theory always rested on a fiction and is now no longer respected. 
 
Functional necessity 
The most widely accepted current justification of diplomatic immunity is the theory of functional
necessity. This theory provides that the diplomat is not subject to the jurisdiction of local courts,
because this would hamper the functions of diplomatic relations. The preferred rationale for the
privileges and immunities attaching to diplomats is that they are necessary to enable
them perform diplomatic functions. Modern diplomats need to be able to move freely and be
unhampered as they report to their governments. They need to be able to report in confidence and to
negotiate on behalf of their governments without fear of let or hindrance.  
 
As explained by Lord Sumption in Al-Malki v Reyes [2017UKSC 61; [2019] AC 735, the legal
immunity of diplomatic agents “is one of the oldest principles of customary international law.” The
law is codified in the Vienna Convention on Diplomatic Relations (“VCDR”), to which over 190
States are Parties. Lord Sumption referred to the primary rule of interpretation laid down in article
31(1) of the Vienna Convention on the Law of Treaties (1969). In summary, that provision requires
that a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose. 
 
The Vienna Convention on Diplomatic Relations 1961 emphasizes the functional necessity of
diplomatic privileges and immunities for the efficient conduct of international relations as well as
pointing to the character of the diplomatic mission as representing the state. Article 31(1) provides
that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State
and he shall also enjoy immunity from its civil and administrative jurisdiction. This was explained
in the case of Wandui V Association for strengthening Agriculture in Eastern and Central
Africa where the question was whether the defendant enjoys immunity from legal process, the court
held that, “the immunities and privileges conferred on diplomatic agent by virtue of the Act extends
to the organizations prescribed in the schedule to these regulations and to their representatives,
officials and employees of those organizations who are not citizens of Uganda or persons
permanently or ordinarily resident in Uganda.” 
The entitlement to privileges and immunities arises from the automatic operation of the VCDR
(given domestic effect by the 1964 Act), not from any ‘grant’ of entitlement by the Secretary of
State. 
This provision conforms to the customary rules of international law and the same is true of the
content of those privileges and immunities. The effect of this is that members of Administrative
and Technical Staff and their families enjoy inviolability and immunity from criminal jurisdiction
automatically (i) as a matter of international law, by operation of Articles 29 to 36 which are all
encrypted under 37(2) VCDR; and (ii) as a matter of primary domestic legislation, by operation
of Section 2(1) of the 1964 Act. Although in one sense, the family of a diplomatic agent or member
of members of Administrative and Technical staff enjoy what can loosely be called a “derivative”
set of privileges and immunities under Articles 37(1) and 37(2), it is clear that the VCDR
confers separate entitlements to inviolability and immunity on (i) the diplomatic agent or member
of members of Administrative and Technical Staff; and (ii) his/her family members. These are
distinct and independent entitlements. In relation to the case of R-Dunn-v-SOS-for-Foreign-and-
Commonwealth-Affairs [2020] EWHC 3185 (Admin) which possessed relatively similar facts, the
court had this to state; 
“It only became clear to us that irrespective of the position of Mrs Sacoolas in relation to
immunity, she enjoyed inviolability. Other than however on the basis that she could have been
arrested, detained and charged by the police.” Similarly, It is a common ground
that Mrs Sacoolas could not have been arrested and detained by the police before she flee for
the US.  
There were three grounds that were argued, reviewed and resolved in the same case and this can be
summarized to be; Immunity, Unlawful advice/obstruction, Article 2 ECHR. 
The main issue in the claim was whether Mrs. Sacoolas enjoyed immunity from criminal
jurisdiction at the time of Harry’s death. The court held that, once the US Government had
exercised its right of appointment under Article 7, and the A&T Staff and their families arrived in
the UK, the UK was bound under international and domestic law to accord them the privileges and
immunities specified in Articles 29-35 VCDR and the 1964 Act. 
In regards to ground 2 and 3, court observed that if Ground 1 failed, then these would also
necessarily fail because they’re parasitic on Ground 1. If in fact there was immunity in law on the
part of Mrs. Sacoolas, these grounds lead nowhere.  
 
With utmost protection given to Diplomatic agents in regards to the enjoyment of  their privileges
and immunities, the diplomats are under an obligation to respect the laws of the receiving country
since diplomatic immunity is not for personal inviolability, but is for the efficient performance of
the functions of diplomatic missions as representative States and thus those provided with this
immunity are not expected to abuse it but promote international relations as specified under Article
41(1) of the Vienna Convention of the Diplomatic Relations which states that; 
“Without prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving State. They
also have a duty not to interfere in the internal affairs of that State.” 
In the case of Empson V Smith, the judge pronounced that, it is elementary law that diplomatic
immunity is not immunity from legal liability but immunity from suit”. This means that the
diplomatic agents are not above the law, they are under an obligation to respect the laws and
regulations of the receiving state and if they violate the law they are still liable, but however, they
cannot be sued in receiving state unless they submit to the jurisdiction. This protects the diplomats
from being subjected to the laws of the host country something that protects their privileges and
immunities. Since the rules of diplomatic law constitute a self-contained regime, which on the one
hand lays down the receiving state’s obligations regarding the facilities, privileges and immunities
to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members
of the mission and specifies the means at the disposal of the receiving state to counter any such
abuse. 
Article 9 of the Vienna Convention allows the receiving state to declare the person in
question persona non grata (PNG) even in advance of his/her arrival in the receiving state. The PNG
procedure enables the receiving state to declare a member of the mission unacceptable. (The State
Department does not need to offer any reason when making a persona non grata declaration). This
requires expulsion of that member from the receiving state. A receiving State retains two remedial
powers under the VCDR, the exercise of which may affect the size and composition of the mission.
A receiving State may other than declaring a member of the mission persona non grata or “not
acceptable” under Article 9(1), may also limit the size of the mission under Article 11(1)
(i.e. impose a limit on the number of its members). Once the sending State appoints a person as a
member of the mission, the effect of the VCDR is that this person will without more be entitled to
privileges and immunities upon entering the territory of the receiving State as provided
under Article 39 
 
Article 39(2) of the Vienna Convention on Diplomatic Relations provides that Immunities and
privileges normally cease when the person leaves the country or on expiry of a reasonable period in
which to do so. However, by article 39(2) there would be continuing immunity with regard to those
acts that were performed in the exercise of his functions as a member of the mission. It follows
from this formulation that immunity would not continue for a person leaving the receiving state for
any act which was performed outside the exercise of his functions as a member of a diplomatic
mission even though he was immune from prosecution at the time. In the Former Syrian
Ambassador to the GDR case, the German Federal Constitutional Court held that article 39(2)
covered the situation where the ambassador in question was accused of complicity in murder by
allowing explosives to be transferred from his embassy to a terrorist group. He was held to have
acted in the exercise of his official functions. It was argued that diplomatic immunity from criminal
proceedings knew of no exception for particularly serious crimes, the only resort being to declare
him persona non grata. 
Article 32 of the Vienna Convention is to the effect that, “the immunity from jurisdiction of
diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the
sending State.” This allows the sending state to waive the diplomat's immunity. One commentator
has argued, however, that “a diplomat's law breaking activity can constitute a constructive waiver of
diplomatic immunity.” This provision allows a sending state to contest civil claims in domestic
courts when waiver would not impede the daily performance of the foreign mission. The Vienna
Convention requires the sending state to make an express waiver of this privilege. The Vienna
Convention on Diplomatic Relations (1961) restricted the privileges granted to diplomats, their
families, and staff. Avoiding controversial issues such as diplomatic asylum and focusing on
permanent envoys.  However, diplomatic immunity is not for personal inviolability, but rather for
the efficient performance of the functions of the diplomatic missions as representative states and
thus those provided with this immunity is not expected to abuse it  
In addition to the safeguards, is the Termination of diplomatic relations; the receiving state can
break relations with the sending state under some extreme conditions necessary for governments to
terminate diplomatic relations. Following the murder of British policewoman, Yvonne
Fletcher, by gunfire that came from inside the “Libyan People's Bureau,” Great Britain terminated
diplomatic relations with Libya. Similarly, the United States, after much internal debate, broke
diplomatic relations with Iran after terrorists seized the United States Embassy in Tehran and
held 52 United States nationals hostage. With such happenings, Governments usually as a matter of
course, resort to such a drastic measure. 
 
The State Department Measures possesses wide policy determining powers which include the
mediation of relations between different states. "The State Department Chief of
Protocol, Selwa Roosevelt, testified before a Senate committee on a number of sanctions available
to curtail abuses of diplomatic immunity. The first measure bars the serious offender from
reentering the other state. The State Department attempts to accomplish this through an automated
visa lookout system. The second sanction addresses the issue of juvenile perpetrators of crime.
Under this sanction, Selwa Roosevelt's testimony cites instances where the Department had
expelled entire families from the United States when the child of the diplomat perpetrated the crime.
This policy seeks to ensure that diplomats, as parents, are fully accountable for the acts of their
children. A third tactic used since 1984 monitors diplomatic traffic violations. The Office of Foreign
Missions of the State Department uses a standardized point system to evaluate diplomats'
observance of traffic regulations.  If a diplomat accumulates eight points over a two year period, or
drives even once under the influence of alcohol, the State Department revokes the diplomat's
driving privileges.  
 
Conclusively, following the decision in the case of, R-Dunn V SOS for Foreign and Common
Wealth Affairs, it’s clear that Mrs Sacoolas enjoyed immunity and privileges from UK criminal
jurisdiction at the time of Harry’s death at the time she entered the country as its compelled by the
operation of the VCDR and in addition, her immunity had not been waived away as demanded
under Article 32. This is evident that the Vienna Convention on Diplomatic Relations (1961) has
acted as a great protection to the diplomats from the laws of the host country by providing them the
privileges equipment to diplomatic missions and relationships among states.