HOUSE OF LORDS. ENGELKE, APPELLANT; AND MUSMANN,
RESPONDENT. [1928] A.C. 433 COUNSEL: Jowitt K.C. and Pritt K.C. (with them W. T. Monckton) for
the appellant. Ritter for the respondent. Sir Thomas Inskip A.-G. (with him Drucquer) for the Attorney-General. SOLICITORS: For the appellant: Buckeridge & Braune. For the respondent: Glynn, Barton & Pocock. For the Attorney-General: Treasury Solicitor. JUDGES: Lord Buckmaster, Viscount Dunedin, Lord Phillimore Lord
Blanesburgh, and Lord Warrington of Clyffe. DATES: 1928. June 14, 15. 1928 July 18. International Law Diplomatic Privilege
Immunity from judicial Process Official at Embassy
Consular Secretary Statement by Attorney-General on Behalf of
Foreign Office Whether conclusive Affidavit of Defendant
as to Grounds of Immunity Right of Plaintiff to cross-examine. A statement made to the Court by the Attorney-General on the
instructions of the Foreign Office as to the status of a person claiming immunity
from judicial process on the ground of diplomatic privilege, whether as
ambassador or as a member of the ambassadors staff, is conclusive. Duff Development Co. v. Kelantan Government [1924] A. C. 797
applied. The defendant in an action in the Kings Bench Division
for arrears of rent took out a summons to set aside the writ on the ground that
he was a member of the staff of the German Embassy and filed two affidavits in
support of his application. The plaintiff applied for leave to cross-examine
the defendant upon his affidavits. Shearman J. ordered the defendant to attend
for cross-examination, but gave leave to appeal. Upon the appeal the
Attorney-General attended at the request of the Foreign Office, and on the
invitation of the Court informed them that the defendant had been appointed a
member of the staff of the German Ambassador under the style of Consular
Secretary, and had been [*434] received in that capacity by the British Government. The Court of
Appeal, by a majority, declined to accept this statement as binding and
affirmed the order for cross-examination:- Held, that the statement of the Attorney-General was binding on
the Court, and that the defendant was therefore entitled to diplomatic
privilege. Per Viscount Dunedin. Apart from that statement, the order for the
cross-examination of the defendant would have been justified. Decision of the Court of Appeal [1928] 1 K. B. 90 reversed. APPEAL from an order of the Court of Appeal(1) affirming an order
of Shearman J. in chambers. The material facts may be shortly stated as follows:- The respondent issued a writ in the Kings Bench Division
against the appellant for payment of arrears of rent and dilapidations under a
lease of a house in Hampstead. The appellant entered a conditional appearance
and took out a summons to set aside the writ on the ground that he was in the
service of the Ambassador of the German Empire. In support of his claim the
appellant filed two affidavits to the following effect. He entered upon his duties
on the staff of the German Embassy in London on November 25, 1920, and had been
exclusively employed as a member of the Ambassadors staff ever since.
He was employed in the commercial department of the Embassy, and in 1923 was
promoted to the post of Consular Secretary. The duties which before the war
were undertaken by a consul or consul-general were now in all towns where a
German Ambassador was appointed performed by that Ambassador, and the appellant
assisted in carrying out the duties of the Ambassador in that regard. Further,
he was from time to time employed in the general duties of the Embassy, such as
the coding and decoding of telegrams. His appointment as a member of the
Embassy staff was notified to the British Foreign Office on November 30, 1920,
by a letter of that date, and his name was on the Diplomatic List issued by the
British Foreign Office. The respondent asked leave to cross-examine the
appellant on his affidavits and filed an affidavit stating that to the best of
his knowledge, information, and belief (1) [1928] 1 K. B. 90. [*435] the appellant was a member of the consular staff and not of the
diplomatic staff. The Master refused leave to cross-examine the appellant, but
Shearman J., in chambers, reversed the order of the Master and ordered that the
appellant should attend for cross-examination, but gave leave to appeal. On the hearing of the appeal the Attorney-General attended to give
information to the Court if so required. At their invitation he informed the
Court, on the instructions of the Secretary of State for Foreign Affairs, that
the defendant had been appointed a member of the staff of the German Ambassador
under the style of Consular Secretary, and that his position as a member of the
Embassy was and had been since his appointment in 1920 recognized by the
British Government without reservation or condition of any sort. The Attorney-Generals statement is given in full in the
opinion of Lord Buckmaster. The Court of Appeal by a majority (Scrutton and Sargant L.JJ.,
Lord Hanworth M.R. dissenting) affirmed the decision of the learned judge. Scrutton L.J., in whose judgment Sargant L.J. concurred, declined
to accept the Attorney-Generals statement as conclusive, as that
would be to substitute a department of the Government for the Courts in a class
of case where such substitution had never hitherto been recognized. In his
opinion the question of immunity should only be decided after the relevant
facts had been ascertained in the usual way, and the cross-examination of the
appellant was necessary for that end. The Attorney-General obtained leave to intervene in the appeal to
this House on the ground that the issues raised in these proceedings might
affect the interests of His Majesty in the conduct of foreign affairs and his
relations with foreign States. The contentions of the Attorney-General were set
out in the following paragraphs of his case:- 26. The Attorney-General submits
that it is a necessary part of His Majestys prerogative in his conduct
of foreign affairs and his relations with foreign States and their [*436] representatives to
accord or to refuse recognition to any person as a member of a foreign
ambassadors staff exercising diplomatic functions. For this purpose a
list of the members of his diplomatic staff is furnished from time to time to
the Secretary of State by every foreign ambassador. This list is not accepted
as of course on behalf of His Majesty, and after investigation it not
infrequently happens that recognition is withheld from a person whose name
appears upon the furnished list, either because his diplomatic status is in
doubt or because the number of persons for whom that status is claimed appears
to the Secretary of State to be excessive. The list prepared by the Secretary
of State and forwarded by him to the sheriffs for the purposes of the statute
of Anne, while it is based upon the list furnished in the first instance by the
ambassador, is not therefore necessarily identical with it. The
sheriffs list, however, is not itself conclusive evidence in a court
of law on the question of diplomatic status, since it is plain that changes may
have occurred in the personnel of the ambassadors staff since the
list was prepared with the result that persons whose names appear in it may
have ceased to be members of the staff and others whose diplomatic status is
undoubted may not yet have been included in it. 27. Since therefore it is for His
Majesty alone, acting on the advice of His Secretary of State for Foreign
Affairs, either to accord or refuse recognition to any particular person as a
member of the diplomatic staff of a foreign ambassador, the Attorney-General
submits that a statement that recognition has been accorded made on behalf of
His Majesty either by the Secretary of State or by H.M. Attorney-General in
person must necessarily be conclusive of the diplomatic status of that person.
It is admitted, however, that such a statement is conclusive upon the question
of diplomatic status alone; and it is still for the Court to determine as a
matter of law whether, the diplomatic status having been conclusively proved,
immunity from process necessarily follows. The Attorney-General desires to
point out that there may be cases in which, though the diplomatic status is
conclusively proved in the [*437] manner indicated, yet immunity from process may still not
exist as, for example, under the statute of Anne if a person employed in the
service of the ambassador is engaged in trade. In no sense, therefore, as is
suggested by the Court of Appeal, is the jurisdiction of the Court to determine
the existence of immunity ousted merely because, as the Attorney-General
submits, a particular form of proof of diplomatic status is conclusive and
cannot be questioned. 28. If a statement made on behalf of
His Majesty that a person has or has not been recognized as a member of the
diplomatic staff of a foreign ambassador is not conclusive, and if the Court
can go behind the statement and themselves seek to investigate the facts,
compelling the person on behalf of whom immunity is claimed to submit to legal
process for that purpose, it would be impossible for His Majesty to fulfil the
obligations imposed on him by international law and the comity of nations,
since the steps taken to investigate the claim would in themselves involve a
breach of diplomatic immunity which in the event the Court might decide to have
been established. 29. Moreover, if His Majesty should
by reason of the action of the Courts find himself unable to make effective the
obligations towards a foreign State involved in the recognition of persons as
members of the diplomatic staff of a foreign ambassador, His Majestys
conduct of foreign affairs will be greatly embarrassed, and a conflict between
the judiciary and the executive would arise in a sphere of action in which such
a conflict would be most dangerous to the public interest. 1928. June 14, 15. Jowitt K.C. and Pritt K.C. (with them W. T.
Monckton) for the appellant. The diplomatic privilege of an ambassador and his
staff depends upon the comity of nations, and is recognized by the common law
of England as forming a part of international law; and the Diplomatic
Privileges Act, 1708 (7 Anne, c. 12), is merely explanatory of that law. That
privilege extends to all persons associated in the performance of the duties of
the Embassy. It is [*438] conceded that a consul is not within the privilege, but a member
of the Embassy does not forfeit his privilege because in the course of his employment
he is engaged in consular work. [On the general law relating to diplomatic privilege they referred
to Ambassador of Muscovys Case (1); Crosse v. Talbot (2); Seacomb v.
Bowlney (3); Triquet v. Bath (4); Heathfield v. Chilton (5); Darling v.
Atkins
(6); Hopkins v. De Robeck (7); Magdalena Steam Navigation Co. v.
Martin
(8); Parkinson v. Potter (9); Macartney v. Garbutt.(10)] As to the mode in which this privilege is to be proved, the
appellant is content to rely upon the statement made to the Court of Appeal by
the Attorney-General on the instructions of the Foreign Office. That statement
is conclusive and binding on the Court. In In re Suarez (11) a letter from
the Foreign Office stating that a foreign Ministers name had been
removed from the Diplomatic List was treated as sufficient evidence that the
Minister had ceased to hold diplomatic office at the date of the letter, and
Scrutton L.J. there speaks of information obtained through the Foreign Office
as to the status of foreign dignitaries and their accredited representatives as
conclusive. In Duff Development Co. v. Kelantan Government (12), where the
question was as to the sovereignty of a foreign ruler, this House laid down the
law as follows: It is the settled practice of the Court to take judicial notice
of the status of any foreign Government and in case of doubt to receive
information from the appropriate department of His Majestys
Government, and the information so received is conclusive. Such information is
not in the nature of evidence; it is a statement by the Sovereign of this
country through one of his Ministers upon a matter peculiarly within his
cognizance. That principle equally applies to the duly (1) (1710) 10 Mod. 4. (2) (1724) 8 Mod. 288. (3) (1743) 1 Wils. 20. (4) (1764) 3 Burr. 1478, 1481. (5) (1767) 4 Burr. 2016. (6) (1769) 3 Wils. 33. (7) (1789) 3 T. R. 79. (8) (1859) 2 E. & E. 94, 113, 114. (9) (1885) 16 Q. B. D. 152, 157. (10) (1890) 24 Q. B. D. 368. (11) [1918] 1 Ch. 176, 195, 199. (12) [1924] A. C. 797, 805, 813, 823-4. [*439] accredited representatives of a foreign power. If His Majesty
chooses to recognize a person as an ambassador his status cannot be called in
question by the Courts of this country, but they must act on the representation
of the Foreign Office. It ill becomes our Courts to question that which the
Foreign Office in the name of the King has conceded: The Parlement Belge (1), per James L.J.
Nor can any distinction be drawn between an ambassador and the ambassadorial
staff. The statute of Anne treats both on the same footing. The privilege is
the privilege of the ambassador. In the United States this principle has been
applied to a chargé daffaires: United States v. Ortega (2); to the secretary
of a foreign legation: United States v. Liddle (3); and to an
attaché: United States v. Benner.(4) And see Torlade
v. Barrozo.(5) The appellant desires to adopt paras. 26-29 of the
Attorney-Generals case as part of his argument. In no event should the claim to cross-examine the appellant on his
affidavits be allowed, for the proper and convenient course is for the Court to
obtain its information as to the status of a person claiming immunity from
legal process on the ground of diplomatic privilege through the Foreign Office.
It is true that the earlier cases appear to have been tried on affidavit
evidence, but in none of those cases was there any cross-examination of the
defendant on his affidavit. No trace can be found of any attempt to
cross-examine a deponent on his affidavit before the Common Law Procedure Act,
1852. Ritter for the respondent. Statements made by the Attorney-General
as to the position of a person not alleged to be an independent sovereign
prince or an ambassador or other public minister received as such by His
Majesty are not binding on the Court. The Attorney-General never had any locus
standi in these proceedings and he ought not to be heard. [LORD BUCKMASTER said that their Lordships had decided to hear
him.] (1) (1880) 5 P. D. 197, 199. (2) (1825) 4 Washington, 531. (3) (1808) 2 Washington, 205. (4) (1830) 1 Baldwin, 234. (5) (1830) 1 Miles (Phil.) 361. [*440] Sir Thomas Inskip A.-G. (with him Drucquer) for the
Attorney-General. The contentions of the Attorney-General are set out in paras.
26, 27, 28, 29 of his case. Those statements were prepared with great care by
my predecessor in office, Sir Douglas Hogg, as he then was, and I desire to add
nothing to them. Ritter, on the merits. The Court will take judicial notice of the
status of a foreign sovereign or of an ambassador, and in case of doubt will
inform itself through the Foreign Office, but this judicial notice is confined
to the case of a representative directly accredited to the Crown or to the
Foreign Office an ambassador or a chargé
daffaires. The case of an ambassador is peculiarly within the
cognizance of the King and the Foreign Office, but the case of an
ambassadors servant is not: Malachi Carolinos Case.(1) Except for an
obscure reference in Heathfield v. Chilton (2) no case can be found in which any
attempt has been made to extend judicial notice to the case of the
ambassadors staff. The question whether or no the appellant is in the
German Ambassadors diplomatic or domestic service is a question of
fact to be ascertained in the ordinary way. [He also referred to Mighell v. Sultan of Johore (3); Foster v.
Globe Venture Syndicate (4); Taylor on Evidence, 11th ed., ¤ 4; Best on Evidence,
12th ed., p. 233.] Jowitt K.C., in reply, said that the German Ambassador would not
press for costs, but would leave the matter to their Lordships. The House took time for consideration. 1928. July 18. LORD BUCKMASTER (read by VISCOUNT DUNEDIN). My
Lords, the privilege affording ambassadors and other accredited representatives
of foreign countries immunity from all writs and processes is an ancient
doctrine of the common law declared in terms by the statute 7 Anne, c. 12. No question is raised on this appeal affecting the existence or
the extent of this protection. The sole point for (1) (1744) 1 Wils. 78. (2) 4 Burr. 2016. (3) [1894] 1 Q. B. 149, 159. (4) [1900] 1 Ch. 811, 813. [*441] determination is the method by which the status of any person who
claims the benefit of this privilege is to be determined. For the appellant it
is contended that the statement of the Attorney-General on the instructions of
the Foreign Office is for this purpose conclusive, while the respondent asserts
that any such dispute should be ascertained in the ordinary way according to
the usual rules of evidence. The present appeal arises out of the following
circumstances: On July 28, 1926, the respondent issued a writ in the
Kings Bench Division of the High Court claiming against the defendant
rent alleged to be due under a lease dated August 18, 1924, and damages for
breach of covenant. A conditional appearance was entered by the defendant and a
summons was issued by him asking that the writ might be set aside on the ground
that he had been a Consular Secretary on the staff of the German Embassy,
London, since November 25, 1920, and had been notified as such to the British
Foreign Office and that his name appeared in the Diplomatic List issued by the
British Foreign Office. It is unnecessary to follow the varying fate of this
application before the Master and the judge, for, pursuant to leave, another
summons was issued by the appellant on October 26, 1926, asking the same relief
as before. On this application, as on the former, the appellant filed an
affidavit; prolonged and fruitless proceedings in chambers ensued until finally
on March 4, 1927 eight months after the issue of the writ
Shearman J. made an order that the appellant should attend for
cross-examination on his affidavit, at the same time granting leave to appeal
against his order. The appellant availed himself of this permission and
appealed to the Court of Appeal, who on June 23, 1927, confirmed the order of
Shearman J., the Master of the Rolls dissenting, and from their judgment this appeal
has been brought. In form, therefore, this appeal is against an order for
cross-examination, but in substance the dispute is far more important. On the first day of the hearing of the appeal the Attorney-General
informed the Court on their invitation that the defendant has been
appointed as a member of the staff of [*442] the German Ambassador under the style of
Consular Secretary and has been received in that capacity by the British
Government. His name has been submitted to the Foreign Office by the Ambassador
in the usual way, and his position as a member of the Embassy is, and has been
since December, 1920, recognized without reservation or condition of any sort.
He has been engaged during the last twelve months, at any rate, as a member of
the staff of the Commercial Division of the Embassy. As such he has been
obliged to take part from time to time in the general work of the Embassy
staff, and particularly as regards the ciphering and de-ciphering of telegrams,
that is, telegrams from the German Ambassador to his Government. He is
responsible in all that he does to the German Ambassador. He further
added that he had himself communicated with the Foreign Office, and was
satisfied that the information was correct as to the defendants
position at all relevant dates. If this statement as to status be accepted, no
question arises upon the construction of the statute: the defendant would then
be entitled to the benefit of the privilege that he invokes. Scrutton L.J.,
with whom Sargant L.J. agreed, felt himself unable to accept this statement as
binding: to do so would, in his opinion, be contrary to principle and
unsupported by authority. I find myself unable to agree with this conclusion. So far as the question of principle is concerned, the case decided
in this House of Duff Development Co. v. Kelantan Government (1) is a clear
authority that the method of proving the status either of the sovereigns or of
the ambassadors who are their representatives is by the very method that is
challenged in the present case. The statute, however, draws no distinction
between the ambassadors and what, in the language of the Act of Parliament, is
described as the domestic or domestic servant of any such
ambassador, and it seems difficult to understand when the principle
is admitted with regard to the one that it should (1) [1924] A. C. 797. [*443] not apply in relation to the other, for the privilege is the same
in each case. With regard to the sovereignty of a particular State and whether
or not a particular person is a sovereign ruler, the case referred to makes the
general principle plain. As Lord Finlay said(1): It has long been
settled that on any question of the status of any foreign power the proper
course is that the Court should apply to His Majestys Government, and
that in any such matter it is bound to act on the information given to them
through the proper department. Such information is not in the nature of
evidence; it is a statement by the Sovereign of this country through one of his
Ministers upon a matter which is peculiarly within his cognizance.
Lord Dunedin expressed the same opinion in these words: It seems to
me that once you trace the doctrine of(2) the freedom of a Foreign Minister from
interference by the Courts of other nations to comity, you necessarily concede
that the home sovereign has in him the only power and right of
recognition. Now the acceptance and recognition of persons who form the staff
of an ambassador are matters which, having regard to the practice in the
conduct of foreign affairs, are equally based on the comity of nations and
necessarily also within the cognizance of the Crown acting through the Foreign
Office. They are in a position to know what are the duties performed and the
persons who perform them, and it is plain that, though they trust the list put
forward if it appears from their knowledge to be a list which might reasonably
be accepted, yet the list itself is scrutinized, inquiries are made and, if
necessary, persons are removed for sufficient reasons. That some such practice
is contemplated under the Act itself is plain from the section which provides
that no person shall be proceeded against for the arrest of a servant of the
ambassador unless his name shall have been registered in the office of one of
the principal Secretaries of State and transmitted to the sheriffs of London
and Middlesex, who are to hang the list up in some public place. This, of
course, (1) [1924] A. C. 813, 820. (2) The report has for, a manifest error. [*444] is a negative provision and does not show that the list should be
accepted as evidence; but it does contemplate the preparation of a list of
people for whom immunity is claimed and its publication in the manner therein
provided. The list is not conclusive, nor is it the list itself on which
reliance is to be placed, but on the statement of the Crown, speaking through
the Attorney-General, stating that a particular person at the critical moment
is qualified to be upon the list. When this statement has been made it is
difficult to see how it can be questioned without the introduction of
proceedings which in the person of the ambassador himself, and equally of his
wife and family and staff, it would obviously be undesirable to institute. But apart from the question of principle, it appears to me that
there is valuable information to be found in the authorities. In the case of Crosse
v. Talbot (1) a question arose as to whether a particular person was on the
staff of the Duke of Holsteins resident here, and a certificate was
produced that he was the valet de chambre of such resident at certain wages.
The Court, however, held that he appeared to be a mere nominal servant and that
he consequently was not within the privilege, but the certificate of the
resident as to what his status actually was does not appear to have been
challenged. In cases like Seacomb v. Bowlney (2) and Triquet v.
Bath
(3) the dispute was, in fact, tried upon affidavit and the only questions
determined were whether these affidavits showed that the status was adequate to
secure the protection. The latter case is interesting because it explains the
origin of the passing of the statute of Anne. In Heathfield v. Chilton (4) the dispute was
as to whether the person in whose service was the defendant who had been
arrested was himself within the privilege. Lord Mansfield there said that
this is not an application by the Attorney-General.
That,
indeed, would have shown that the Crown thought this (1) 8 Mod. 288. [The test there laid down by the Court is that the
servant ought really to execute the duty of his office.
F. P.] (2) 1 Wils. 20. (3) 3 Burr. 1478. (4) 4 Burr. 2016, 2017. [*445] person intitled to the character of a public Minister. It now
remains uncertain what his proper character is. Lord Mansfield also
added that the registration of a particular persons name in the
Secretary of States office was not a condition precedent to his right
of protection. In the case of Fisher v. Begrez (1) the question was
as to whether a chorister was within the protection, and it was there held that
the certificate itself was not a sufficient authority that the defendant was,
as a chorister, a domestic servant and therefore privileged. Beyond this, the earlier cases throw little light upon the
question now under consideration, and this is possibly due to the fact that in
all those cases, the defendant being the subject of arrest, application was
immediately made on affidavit for his release, and that the matter could be
tried by affidavit, if no intervention took place and if the defendant so
liked, is not in dispute. The later cases are more instructive. In Macartney v. Garbutt (2) a question arose as to whether a British
subject accredited to Great Britain by a foreign Government as a member of its
Embassy was liable to distress on the furniture of his house for rent. Such
distress had been levied and had been paid out by the plaintiff, who brought an
action to recover back the sum. In the course of his judgment Mathew J. said
that the plaintiff was an English subject, had been appointed by the Chinese
Government English Secretary to the Chinese Embassy and had been received in
that capacity by the British Government; his name had been submitted to the
Foreign Office in the usual way and his position as a member of the Embassy
recognized without reservation or condition of any sort. He would, therefore,
seem to be clearly entitled to the privileges of the Corps Diplomatique. The
importance of this statement is that the learned judge bases his judgment upon
the reception of the person as Secretary by the British Government, the
submission of his name to the Foreign Office and his recognition by them. Now
those circumstances could only be proved either by a person speaking on behalf (1) (1832) 1 Cr. & M. 117. (2) 24 Q. B. D. 368. [*446] of the Crown as representing the Foreign Office, or by such person
giving evidence and being subject to cross-examination, but directly the matter
is based upon the reception and recognition by the Foreign Office it seems
impossible to suggest a reason why such recognition should be good in the case
of the ambassador and bad in the case of his staff. In the case of The Parlement Belge (1) there is
contained a very important statement by James L.J. Brett L.J. appears to have
doubted whether the recognition by the Crown of an ambassador could be accepted
if the person in question had not, in fact, been sent as an ambassador, but
James L.J. states that that question is outside the authority of any municipal
court, and adds: I apprehend that we should be bound to act on the
representation of the Foreign Office. And, in In re Suarez(2), it was
decided in the Court of Appeal that a letter from the Foreign Office under the
hand of an Assistant Secretary of State stating that a Ministers name
has been removed from the Diplomatic List is sufficient evidence that he had
ceased to hold diplomatic office at the date of the letter. It is, of course, obvious that the privilege claimed has serious
results, as it excludes from their remedies in the Courts the people with whom
members of the ambassadors staff may have incurred obligations, and
it is possible that it is open to abuse. It is of the essence of all privilege
that it may be abused, but that question has nothing to do with the matter we
are called upon to decide; the merits of the dispute out of which this question
has arisen are in no way before us for consideration. The privilege itself
depends upon maintaining the obligations of international law and the comity of
nations. It would, indeed, be unfortunate if, after recognition had been
afforded by His Majesty through the Foreign Office to people as holding such
posts on the ambassadorial staff as entitled them to the privilege and the
statement as to their position had been afforded on behalf of the Crown through
the Attorney-General, it was to be disregarded by the judiciary, for, in such
circumstances, (1) 5 P. D. 197, 199. (2) [1918] 1 Ch. 176. [*447] the ensuing contest could not possibly inure to the public good. My noble and learned friend Lord Blanesburgh concurs in the
opinion I have just read. VISCOUNT DUNEDIN. My Lords, I entirely concur with what has been
said by the noble and learned Lord on the Woolsack as to the unfortunate way in
which this case was begun. Had the question remained merely as to whether
cross-examination was permissible upon an affidavit in which the appellant set
forth his own status, I should have been of opinion with the Court below. But,
in truth, the whole case was altered funditus when the Attorney-General
intervened. The respondent tried to convince us that, if this case was decided
in favour of the appellant, it was opening the door to the granting of
diplomatic privilege to the consular service. It is nothing of the sort. Mr.
Engelke will enjoy diplomatic privilege not because he is styled Consular
Secretary but because he, as an accredited member of the Ambassadors
household, has privilege as such and does not forfeit it because he does some
consular work. In the case of Duff v. Kelantan (1) in this House it
was pointed out that the acknowledgment of diplomatic privilege entitling
immunity from being sued in the tribunals of this country rests on comity, and
that the statute of Anne does no more than confirm the common law and annex
certain penalties to those who transgress it. Mr. Engelke is, in the words of
the statute, a domestic of the Ambassador. In the Oxford
Dictionary domestic as a substantive is defined as
a member of the household; one who dwells in the same house as
another; an inmate; and in 1656 there is a quotation, From
that time he had his accesses
. to His Majesties presence as a
domestique without ceremony. To prove that he is so rests on the fact
that it has been brought to the notice of the Court through the
Attorney-General, as the mouthpiece of the Foreign Office, that Mr. Engelke was
presented to the Foreign Office as belonging to the personal staff of the
Ambassador in the (1) [1924] A. C. 797. [*448] list supplied by him to the Foreign Office and accepted as such by
the Foreign Office. In such a case the comment which I made in Duffs
case
(1) and which, I think, was quoted by the Master of the Rolls, seems to me
directly in point. The Attorney-General, in his very careful statement, shows
that the acceptance of the list is no matter of necessity, but that it is
subjected to careful scrutiny. This seems to me to obviate the possibility of
abuse, or of such extension of privilege if it was sought to include the whole
consular service. The judgment of the Court of Appeal should be reversed and a
declaration made that the appellant is entitled to diplomatic privilege. LORD PHILLIMORE. My Lords, the plaintiff in this case brought an
action claiming certain relief against the defendant in respect of the lease of
a house. The defendant, who claims diplomatic privilege as one of the staff of
the German Embassy, entered a conditional appearance and took out a summons for
an order that the writ be set aside. In support of this summons he filed an
affidavit by his solicitor speaking partly to the deponents own
knowledge, but mainly upon information and belief. This affidavit was rejected,
perhaps unfortunately, by Talbot J. as being insufficient even to raise the
point. Thereupon, the defendant filed his own affidavit and then a further
affidavit on his own behalf, and the plaintiff being minded to contest the
accuracy of the statements contained in these affidavits applied to
cross-examine the defendant upon them. The defendant, upon the instructions of
the Ambassador, declined to submit himself to cross-examination, and after the
matter had been to and fro in a not very edifying series of applications to
Master and judge, it came before the Court of Appeal. Before that Court the Attorney-General appeared, instructed by the
Foreign Office, to give certain information as to the status of the defendant,
and after he had given that information, the Court nevertheless, by a majority,
affirmed the decision of the judge at chambers directing that the defendant
should (1) [1924] A. C. 797. [*449] attend for the purpose of cross-examination. It is from this order
of the Court of Appeal that the appeal has now been brought to your
Lordships House. The description which the defendant gave of himself and which has
been given of him by the Foreign Office is, that he is a Consular Secretary on
the staff of the German Ambassador, and the argument for the plaintiff rested
on the expression consular with a suggestion that an attempt was being made to
get diplomatic privileges for a person who was not truly diplomatic but only in
the consular service. For reasons which will appear in the course of this
opinion, it is not necessary to go very deeply into this point, but I may
observe that the positions of diplomat and consular employee are not mutually
exclusive, and that indeed it has been in the past not uncommon to clothe a
consul or consul-general with certain diplomatic functions and thereby to give
him a diplomatic status. But the question before your Lordships turns on other
matters. If this case now turned upon the question whether the defendant
should be cross-examined upon his affidavit, or not, it may be that the result
would be unfavourable to him. Where an application is made to stop a suit in
limine and the application rests upon a disputed matter of fact, it would be
right that the evidence should be scrutinized. On the other hand, where an
applicant is claiming that he is privileged from litigation it seems a strange
result if he is forced to litigate in order to obtain his exemption from
litigation. But as the defendant is now content to rely solely upon the
certificate of the Foreign Office delivered to the Court by the
Attorney-General, it is unnecessary to consider the question of
cross-examination. The objection taken on behalf of the plaintiff to the reception of
this certificate and the criticism of its weight seem to me to rest upon
misapprehensions as to the nature of diplomatic privilege. By international law, which is part of the common law of this
country, an Ambassador, by which term I intend to include diplomatic agents of
all sorts the stately Ambassador, [*450] in the restricted sense of the word,
the special envoy, the resident minister, and the chargé
daffaires is sent by the one country and received by the
other upon the term that he has among his other diplomatic privileges immunity
from legal process in the Courts of the country which receives him. The reasons
for this immunity are well expressed in Magdalena Steam Navigation Co. v.
Martin.(1) This immunity being accorded to him in order that he may transact
his Sovereigns business, is a privilege which he cannot waive unless
under direction from his Sovereign. The Ambassador further requires, in order that he may effectually
do his Sovereigns business, that there should be a like immunity for
his personal family, that is to say, his wife and his children if living with
him, his diplomatic family, as it is sometimes called, that is to say, his
counsellors, secretaries and clerks, whom I take to be intended by the word
domestic in the statute of Anne, and his ordinary servants,
described in the statute as domestic servants, with a
possible reservation in the case of domestic servants who are nationals of the
receiving country. The privilege of all these persons is a derived privilege
created for the benefit of the Ambassador and may be waived by him, but should,
unless waived, be taken by them for the Ambassadors benefit. But just as the receiving State may intimate that a proposed
Ambassador will not be agreeable to it and will be refused, so, if the
Ambassador tenders a person as a domestic or domestic servant, the receiving
State may refuse to accept and recognize the man as such, and when the person
tendered is a subject of the receiving country conditions may be made. In old
days, a resident minister or chargé daffaires was not
unfrequently a subject of the receiving country, distinguished from an envoy
who, as the derivation of the word shows, would be sent from the one country to
the other. I take it that in living memory our business at the Court of the
ruler of Afghanistan was conducted on this footing. But generally now, the
Ambassador is a subject of the sending and not of the receiving country, and is
therefore said to be (1) 2 E. & E. 94. [*451] extra-territorial. But his domestic servants or some of them will
almost certainly be subjects of the receiving country, and in certain cases
some members of the staff may be drawn from the receiving country. The case of Macartney
v. Garbutt (1) affords such an instance. Sir Halliday Macartney was
appointed English Secretary to the Chinese Legation and as the case narrates,
his appointment was communicated to and accepted by the Foreign Office without
conditions, though, as he was a British subject, it might have been made
subject to the condition that no privilege was claimed for him. The Siamese
Legation has had to my knowledge similar English Secretaries, but whether they
were accepted by the Foreign Office conditionally or unconditionally, I know
not. When we come to the ordinary domestic servant, it may well be,
that if he be a British subject, the Foreign Office may intimate that they
cannot accept him so as to give him privilege. But according to English law
(which may in respect of the domestic servant who is a national go somewhat
beyond general international law) once the man is tendered as a domestic or as
a domestic servant, and the tender is accepted, the status is created and the
privilege attaches. When therefore the certificate from the Foreign Office was
delivered by the Attorney-General, it was not, as suggested on behalf of the
plaintiff, a piece of hearsay evidence, a mere narrative of what the Ambassador
had told the Foreign Office. It was a statement of what the Secretary of State
on behalf of His Majesty had done, not what he was doing ad hoc, or what he was
believing and repeating, but what the Foreign Office had done. The certificate
is no attempt on the part of the executive to interfere with the judiciary of
the country. The status which gives the privilege has been already created by
the Crown in virtue of its prerogative in order to administer its relations
with a foreign country in accordance with international law. For the plaintiff, reliance was not unnaturally placed upon a number
of cases principally in the eighteenth century where privilege was asserted by
an application to discharge (1) 24 Q. B. D. 368; 62 L. T. 656. [*452] the defendant supported by an affidavit of the facts, whether made
by or on behalf of the defendant; and it was submitted that this was the only
way in which the status (except in the case of the actual Ambassador) could be
proved, with a further submission that the proper consequence would be that the
deponent might be cross-examined. It would seem that the privilege might be
claimed and proved in this manner, but there were reasons for this procedure
which no longer exist, and there are objections to it in principle which seem
to me to make it a less desirable course. In these eighteenth century cases, the defendant seems always to
have been a British subject. I should gather that in most of them he was not on
the sheriffs list, and I would insist upon this, not because of the
direct importance of the list, but because he would have been on the list if he
had been made known to the Foreign Office and accepted as one of the
Ambassadors retinue, and it follows therefore that he never had been
tendered and accepted and was reduced to proving his privilege in fact by
showing his service. My next observation would be that according to the procedure of
those days process was initiated by arrest of the person and that a defendant
had perforce to submit so far to the jurisdiction as to procure his release by
giving bail. Further I would observe that counsel have told your Lordships that
the result of their researches is that cross-examination upon affidavit was an
unknown form of procedure till introduced by the Chancery Procedure Act of
1852, so that the affidavit of the eighteenth century was merely a solemn mode
of making a claim. It was indeed the only way, as far as I know the old
procedure, because I conceive that a suggestion on the roll would not be
applicable and that the only form of process would be by a rule nisi supported
by affidavit. Such defendants not having been made known to the Secretary of
State could not well expect to have the benefit of the procedure suggested by
Lord Mansfield in Heathfield v. Chilton.(1) I quote his words: I
find this is not an (1) 4 Burr. 2016, 2017. [*453] application by the Attorney-General, by the direction and at the
expense of the Crown. That, indeed, would have shown that the Crown thought
this person intitled to the character of a public Minister. The case of Fisher v. Begrez (1) is perhaps the most favourable to
the plaintiff. There the claim of privilege was disallowed, and there are
expressions in the report to the effect that the certificate from the Secretary
of State was not conclusive; but what is referred to is not a real certificate,
but the sheriffs list, and the reason given is that a man may well
have been put on the list as being at the time in the suite of an Ambassador,
and yet be no longer in that capacity. There was not, as in this case, a
certificate de praesenti. It may be further noticed that the claim for
privilege was made in respect of a writ of fi. fa., so that the case must have
proceeded to judgment without any such claim having been made, and it seems to
have been an after-thought. The case of the Russian Ambassador which led to the statute 7
Anne, c. 12, is related by Lord Mansfield in the case of Triqet v. Bath (2), and is given
more at length in Blackstones Commentaries, vol. i., p. 255, repeated
by Stephen. Blackstone got his account from Boyers Annals of Queen
Anne, vol. vii., pp. 235-242. Lord Mansfield, following, I think, the train of
thought which he expressed later in Heathfield v. Chilton (3), seems rather to
complain that in that case there was no direct intervention by the Attorney-General.
He observes as follows: If proper application had been immediately
made for his discharge from the arrest, the matter might and doubtless would
have been set right. Instead of that, bail was put in, before any complaint was
made. I do not, however, know what the unfortunate Ambassador could
have done. His carriage was stopped, he was dragged out of it with violence and
taken to a sponging house, where he had to remain till two distinguished
persons put in bail for him. He then went straight to the Queen to complain,
and the whole Diplomatic Corps (1) 1 Cr. & M. 117. (2) 3 Burr. 1478, 1480. (3) 4 Burr. 2016. [*454] joined in protesting, whereupon the delinquents were summoned
before the Privy Council, of which it is stated that the Lord Chief Justice
Holt was sworn a member, apparently in order that he might sit. One of the
persons complained of was discharged, but the rest were committed to prison,
and the Attorney-General was directed to file an information against them, on
which they were convicted, judgment being reserved, in order to consider the
international law; but the Tsar having been mollified by the passing of the Act
of Parliament, and the presentation of an elaborately engrossed copy, desired
that they should not be punished, and they were accordingly released. It does not appear that any steps were taken to vacate the bail
bond or dismiss the suit. Probably, any such step was deemed unnecessary. There
was intervention by the Crown, but after a different fashion. I have already observed that in my judgment there are objections
in principle against driving a defendant to the course adopted in the
eighteenth century cases. The object to be attained is immunity from the
vexation of litigation with its impediments to the discharge of the functions
of the domestic or domestic servant, as illustrated in the case which I have
already quoted of the Magdalena Steam Navigation Co. v. Martin.(1) Absolute freedom
is difficult to procure. Litigation, as Mellish L.J. observed in Ex parte Edwards (2), usually begins
ex parte, and a defendant served with a writ must enter an appearance even if
it be only a conditional appearance, or he will have judgment against him, and
he must follow up appearance by a summons to set aside the writ. All this is
unfortunate, and is intended to be provided against in our country by the
statute of Anne and the sheriffs list. But the only compensation, if
it be compensation, is to give the defendant his costs. If possible, there
should be no further interference with him, but if he is put to file an
affidavit it is a further step in de facto submission. If he has to attend for
cross-examination, it is a further submission and not unlikely to interfere
with the discharge of his other duties. (1) 2 E. & E. 94. (2) (1873) L. R. 9 Ch. 138. [*455] Where the mans chief has not taken the precaution of
tendering the man and procuring his acceptance, the man may have still to prove
his status aliunde. But where the man has been tendered and accepted the joint
act creates a status, which can only be removed by showing that his duties have
ceased or that he has engaged in trade. My Lords, if I am not mistaken, when a question arises in the Law
Courts as to whether a ruler is a Sovereign, and a proper Secretary of State is
consulted, the right answer is not A.B. is a Sovereign, but
A.B. is recognized by His Majesty as a Sovereign, so I
think, the exact inquiry in this case is not whether the defendant is a member
of the Ambassadorial staff but whether he has been accepted and recognized by
the Crown as such a member, and it appears to me that he has so been. Therefore, my Lords, I think that this appeal should be allowed. LORD WARRINGTON OF CLYFFE. My Lords, the appellant is defendant in
an action brought against him by the respondent Musmann for the recovery of
rents reserved by and damages for breach of covenants contained in a lease
dated August 18, 1924, made between the respondent of the one part and the
appellant of the other part of certain premises at Hampstead. The appellant having entered a conditional appearance applied to
have the writ and all subsequent proceedings set aside on the ground that he is
a Consular Secretary on the staff of the German Embassy and, therefore, entitled
to immunity from civil proceedings. In support of this application he filed affidavits stating the
nature of his employment and making the claim to immunity. On March 4, 1927, Shearman J., on an appeal from a decision of
Master Moseley, given in chambers on February 15, 1927, ordered the appellant
to attend for cross-examination, but gave leave to appeal. The appeal came before the Court of Appeal on April 12 [*456] and May 30 and 31, 1927. The Attorney-General attended and at the
request of the Court informed them that the appellant had been appointed a
member of the staff of the German Embassy, under the style of Consular
Secretary, and had been received in that capacity by the British Government,
that his name had been submitted to the Foreign Office by the German Ambassador
in the usual way, and that his position as a member of the Embassy was and had
been since December, 1920, recognized without reservation or condition of any
sort. He gave the Court certain further information as to the particulars of
the appellants employment which it is not necessary to state in
detail, and stated that he gave the information both on the instructions of the
Foreign Office and on his own responsibility as Attorney-General. On June 23, 1927, the Court of Appeal by a majority, Scrutton and
Sargant L.JJ. (the Master of the Rolls dissenting), made an order affirming the
order of Shearman J. This is an appeal from that order. On November 25, 1927, the Attorney-General lodged a petition to
this House praying leave to intervene in this appeal and to lodge a case and to
be heard thereon. The prayer of this petition was granted by the Appeal
Committee, reserving to the respondent Musmann the right to take on the hearing
of the appeal such preliminary objection to the Attorney-General being heard as
he might be advised. The Attorney-General accordingly lodged a case and appeared before
your Lordships, but the respondent objecting to his being heard, and the
Attorney-General stating that the printed case contained all that he desired to
say, he did not address any argument to your Lordships. The real question, therefore, and it is an important one, is
whether in such a case information given by the Attorney-General under the
circumstances stated above as to the diplomatic status of a person claiming
immunity from civil process is conclusive as to the fact of such status. If it
is, then cross-examination on an affidavit with the object of displacing the
effect of the information, would be irrelevant and useless and ought to be
refused. [*457] It must be borne in mind that all that is directly in issue is the
fact of the appellants status. Whether, that fact being established,
a defendant is entitled to the immunity he claims is a further question, which
might have to be determined by the Court. In the present case, however, it does
not appear that there is in issue any question of law or fact other than that
of status. It is now well settled that in certain matters connected with our
relations with foreign States it is for the Court to take judicial notice of
the facts relating thereto, and further that in all matters of which the Court
takes judicial cognizance the Court may have recourse to any proper source of
information, and there is no question that in such a case as the present the
source of information actually applied to was the proper source. The information so obtained is not in the nature of evidence; it
is a statement by the Sovereign of this country through one of his Ministers
upon a matter which is peculiarly within his cognizance, and the Court is bound
to act on such a statement: see the opinion of Lord Finlay in Duff
Development Co. v. Kelantan Government.(1) It is admitted that amongst the matters of which the Court is
bound to take judicial cognizance are the status of an Ambassador himself and
even that of a mere chargé daffaires. In the case of Macartney
v. Garbutt (2), it would seem, though it is not quite clear, that the Court
acted on information obtained from a Government Department, in that case the
Home Secretary, as to the status of the English Secretary of the Chinese
Embassy. But once it is established, and I think it is, that the Court takes
judicial cognizance of the status of any member of a Foreign Embassy, it is impossible
on any principle to draw a distinction between one class of member and another
and to say that the rule applies to the first and not to the second. The Attorney-General states explicitly in para. 26 of his case
that it is a necessary part of His Majestys prerogative in his
conduct of foreign affairs and his relations with foreign (1) [1924] A. C. 797, 813. (2) 24 Q. B. D. 368. [*458] States and their representatives to accord or refuse recognition
to any person as a member of a foreign ambassadors staff exercising
diplomatic functions. The fact of recognition is of course peculiarly within
the knowledge of the Department according it, and a statement by or on behalf
of the Department that it has been accorded to any person must in my opinion
come within the principles above referred to and be conclusive as to the status
of that person. It may be added that the Attorney-General states in his printed
case that, for the purpose of obtaining recognition of the members of an
ambassadors staff exercising diplomatic functions, a list of such
members is furnished from time to time to the Secretary of State by every
ambassador. The list is not accepted as of course on behalf of His Majesty, and
after investigation it not infrequently happens that recognition is withheld
from a person whose name appears upon the furnished list, either because his
diplomatic status is in doubt, or because the number of persons for whom status
is claimed appears to the Secretary of State to be excessive. I have not thought it necessary to discuss the many cases which
were cited in this House. It is enough to say that some of them support and no
one of them is opposed to the views I have above expressed. I have also thought it unnecessary to say anything about the
statute of Anne. It is well settled that the questions we have been discussing
do not depend on the statute but are principles of common law having their
origin in the idea of the comity of nations. For the reasons above expressed I am of opinion that this appeal
should succeed and the orders of the Court of Appeal and Shearman J. should be
discharged, and a declaration made as proposed from the Woolsack. The appellant
does not ask for costs and the order will therefore be without costs here or
below. Order of the Court of Appeal reversed, and declared that the
appellant is entitled to diplomatic privilege. Each party to bear his own costs
here and below. Cause remitted [*459] back to the Kings Bench Division to do therein
as shall be just and consistent with this judgment. Lords Journals, July 18, 1928. |