COURT OF CRIMINAL
APPEAL REX v. A. B. (R. v. Tyler Kent) [1941] 1 K.B. 454, 110
L.J. K.B. 268 COUNSEL: Appellant in person. Sir William Jowitt S.-G. and McClure for the Crown SOLICITORS: For the Crown: Director of Public Prosecutions. JUDGES: Lord Caldecote C.J., Humphreys and Singleton JJ. DATES: 1941 Feb. 4, 5. SUBSEQUENT HISTORY: Case followed by R. v Madan (Kanhya Lal), [1961] 2 Q.B. 1, [1961] 2 W.L.R. 231,
[1961] 1 All E.R. 588, (1961) 45 Cr. App. R. 80, (1961) 125 J.P. 246, (1961)
105 S.J. 160 (CCA) Rose v R., [1947]
3 D.L.R. 618 The appellant was employed as code clerk at a foreign embassy to
this country. He was dismissed by the ambassador and immediately arrested on
charges under the Official Secrets Acts, and of larceny of documents at the
embassy. He claimed diplomatic immunity for a reasonable period after the
cesser of his employment to enable him to make arrangements to leave this
country. The ambassador waived any right to diplomatic immunity:– Held, that the immunity was that of the ambassador and could be
waived. Held, further, that the extension of the immunity for a reasonable
period after the cesser of office usually granted to diplomatic agents does not
apply to a case where the agent has been dismissed and the immunity waived by
the ambassador. Held, further, that although the said documents were part of the
archives of the embassy they could be the subject-matter of a charge of larceny
in an English court, or of a charge under the Official Secrets Acts. APPEAL against conviction. The appellant was employed at the embassy of a foreign power in
England as a code clerk. On May 21, 1940, the Government of the country
represented by the said embassy dismissed him from their service. On the same
day he was arrested on charges under the Official Secrets Acts and of larceny
of certain documents which were copies of documents, and would, in the ordinary
course, have been discarded. On May 20 or 21 the ambassador waived any right of
diplomatic privilege. At the trial the appellant claimed diplomatic privilege,
but the claim was overruled by Tucker J., and the appellant was convicted and
sentenced to seven years penal servitude. He now appealed against the conviction. The appellant in person. Diplomatic privilege is not that of the
ambassador only but extends to the members of his [*455] staff. It is their
independent privilege and cannot be waived by the ambassador; and in any event
can only be waived by him with the consent of his Government: In re Suareza1, and In re Republic of Bolivia Exploration Syndicatea2. That privilege extends over a reasonable
period after service with the embassy ceases (Musurus Bey v. Gadbana3) and I was entitled to have my immunity so extended. In
fact, I was immediately arrested. [HUMPHREYS J. In that case Davey L.J. saida4:
In handing over the affairs of the embassy to his successor the
ex-ambassador is still engaged on his sovereigns business, and must
have a reasonable time allowed for that purpose. Do you suggest that
that is your case?] No, but nevertheless I am entitled to the same privilege although
I was dismissed. An employee might be dismissed for political reasons. [SINGLETON J. The cases cited only deal with cases of recall, not
dismissal.] In Marshall v. Criticoa5, which seems to be
against me on that point, the person claiming privilege was a consul-general,
whose position differs widely from that of a diplomatic agent. [Oppenheims International Law, 5th ed., vol. i., p. 633,
para. 402; Assurantie Compagnie Excelsior v. Smitha6; Magdalena Steam Navigation Co. v. Martina7; Engelke v. Musmanna8 and the Diplomatic
Privileges Act, 1708 (7 Anne, c. 12), were also referred to.] In taking these documents I was doing an act as an official as far
as the British Government was concerned, and my purpose in doing so cannot be
inquired into by a British court (Oppenheims International Law, 5th
ed., vol. i., p. 224, para. 115), even though I took them against the will of
the ambassador of the sovereign state. The jurisdiction of British courts does
not extend to protecting the foreign sovereign against the acts of its
subordinates. A crime committed in a foreign embassy – especially by
its nationals, [*456] cannot be tried here, for the embassy is foreign soil. If a sailor
on a foreign public ship commits larceny on that ship he cannot be tried here,
even though the ship was in British waters at the time. [The appellant also submitted that the learned judge had
misdirected the jury in certain particulars and that certain documents, which
were not produced, ought to have been produced. The argument and judgment on
these points are omitted.] Sir William Jowitt S.-G. and McClure for the Crown were not called
upon to argue. The judgment of the Court (LORD CALDECOTE C.J., HUMPHREYS and
SINGLETON JJ.) was delivered by LORD CALDECOTE C.J. The appellant was convicted at the Central
Criminal Court upon an indictment containing a number of charges, some of them
under the Official Secrets Acts, 1911 and 1920, and one of them a charge of
larceny. He was a code clerk in a foreign embassy in this country at the time
of the commission of the offences of which he was found guilty, having been
appointed to that position some time in October, 1939. It was decided by his
Government to discharge him on May 20, 1940, and the appellant was informed of
that decision, and was accordingly dismissed by letter handed to him on May 21,
1940. On the same day, or perhaps the day before, the ambassador had waived any
right of diplomatic privilege, and his waiver was confirmed by his Government.
The appellant was charged with the offences of which he was afterwards
convicted on August 1, 1940, having been detained in custody since May 20. The appellant at his trial claimed diplomatic privilege, meaning,
as he has contended before the Court on this occasion, that having been a
member of the staff of the said ambassador, he could not be tried for an
offence committed while he was a diplomatic agent or a member of the diplomatic
staff, and was not liable to arrest. The appellant on this occasion has
conducted his own defence because, as he has told us, he [*457] knows more about his
case than anyone else. I am quite sure that he has given us all the assistance
in his power, but as will appear later, it is not easy to state his points as
points of law in the way in which he put them before us. The appellants main contention, with which I will deal
at once, is that he was entitled to diplomatic privilege throughout the whole
term of his employment and for a reasonable time thereafter, a reasonable time
being, as he submitted, such time as was sufficient to enable him to make
arrangements to leave the country freely as he entered it freely. He further
contends, as indeed he must if he is to make good his first contention, that
waiver by his Government and by the ambassador was ineffective to deprive him
of diplomatic privilege. I find it unnecessary to decide whether or not the diplomatic
privilege of the character discussed before us can be claimed by a member of a
diplomatic staff in connection with a criminal charge; but assuming that it
can, the appellant relies for his main contention on a statement which is to be
found in Oppenheims International Law, 5th ed., vol. i., p. 636
(note), to the following effect: It may be stated as a general
principle that, at any rate according to English law, the immunity of an envoy
from civil process continues after the termination of his diplomatic mission
for such reasonable period as is necessary to enable him to wind up his
official business, and Musurus Bey v. Gadbanb1 and In re Suarezb2 are cited. I will
refer to those cases later. The first thing to be said is that the privilege claimed by the
appellant is a privilege which is derived from, and in law is the privilege of,
the ambassador and ultimately of the State which sends the ambassador. It was a
privilege which was originally based on the comity of nations, before it was
declared by 7 Anne, c. 12, in 1708. Lord Buckmaster, in the case of Engelke
v. Musmannb3 said: 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 [*458] the statute 7 Anne, c. 12;
and the statement that I have made that the privilege is the privilege of the
ambassador was stated by Lord Hewart C.J. in his judgment in Dickinson v.
Del Solarc1. The
privilege is the privilege of the Sovereign by whom the diplomatic agent is
accredited, and it may be waived with the sanction of the Sovereign or of the
official superior of the agent. Then he refers to two cases, Taylor
v. Bestc2 and In re Suarezc3. Further, in Marshall v. Criticoic4 Lord Ellenborough says: This is not a privilege of the
person, but of the State which he represents. The cases which have been relied upon by the appellant, which are
to be found in the note that I have read from Oppenheims
International Law, 5th ed., vol. i., p. 636 (note), are not any authority for
the proposition that an official after dismissal and waiver of diplomatic
privilege by the ambassador or by his country, can continue to claim the
protection of the privilege. The privilege is the privilege of the ambassador
and not of the individual, and therefore, from the moment of waiver by the
ambassador and a fortiori by his Government, the privilege ceases. The cloak of
the ambassador no longer covers the individual and the individual then becomes
liable to any process of law to which ordinary people are subject. If not, the
strange result would follow that a member of an ambassadors staff who
had been dismissed and in respect of whom there had been a waiver of privilege,
could snap his fingers at the law of the country to which his ambassador was
accredited for an indefinite period called a reasonable time. The first of the two cases to which I have referred, is the case
of Musurus Bey v. Gadbanc5. In the Court of
first instance, Wright J. saidc6:
Lord Ellenborough, in refusing to allow the privilege, did it simply
on the ground that the State by whom the ambassador was accredited had
dismissed him from his office, and, therefore, that he was disentitled to claim
the privilege of an ambassador. The [*459] existence of the general privilege of an
ambassador - namely, that he is exempted from being sued in the courts of the
country to which he is accredited - has not been seriously contested. It was
said that there is no English authority for the proposition that the privilege
continues until the return of the ambassador to his own country, or, at any
rate, so long as he is reasonably and properly occupied in winding up the affairs
of his embassy and preparing to return there. We think that there is sufficient
authority in the text-books which were cited to show that the privilege may
continue in the manner which the defendants counsel contended for;
and, even if there were no authority to that effect, we should come to the same
conclusion on principle. In the Court of Appeal, in the same case,
Davey L.J. said thisd1:
Paragraph 2 of the reply avers that Musurus Pacha remained
in England only for the purpose of making the necessary preparations for his
departure, and no longer than was necessary for the purpose. Nothing
to the contrary is stated in the special case, and there is nothing from which
we can infer that he stayed longer than a reasonable time. I am therefore of
opinion that the privilege continued until his return to Turkey, as it appears
to me it would be almost an outrage on common sense to say that the privilege
ceases the moment he has presented his letter of recall. So far as the other case is concerned, In re Suarezd2, it was held by Swinfen Eady L.J. and Warrington L.J.
that (see headnote) An ambassador or public minister can with the
consent of his Government effectually waive his privilege and that the
ministers immunity had ceased, but it is assumed in that
case that, apart from waiver, the privilege extends for a reasonable time after
the ambassador or other minister has ceased to hold office in order that he may
wind up the affairs of the legation and transfer them to his successor. In
neither of these cases do I find any reference at all made to what the
consequences might be of waiver of privilege by the ambassador whose privilege
it was originally, or waiver [*460] by the State, in a case in which the person claiming the
privilege was dismissed from the post which he had held. They were dealing with
the ordinary case which arises when the period of service of an ambassador or
of his staff comes to an end; and those cases are authority for the proposition
that the privilege extends to a reasonable period after the duties of the
ambassador, or of the member of his staff, have been concluded; but they are
not any authority for the proposition that when the person claiming the
privilege has been dismissed and the ambassador for the country has waived the
privilege, notwithstanding that waiver, the official can still claim to be
entitled to its protection. One further observation I may make on this point is that the
appellant has quite rightly submitted that the privilege is derived from, or is
based on, the comity of nations. It is now enshrined in the Act of Anne, but
the comity of nations would be a strange source for the doctrine for which the
appellant contends, for it would lead rather to the embroilment of nations than
to their comity if, notwithstanding the dismissal of the person claiming the
privilege and waiver of the privilege, he was still to be entitled, contrary to
the interests of the country in which he had been serving, to commit criminal
offences with impunity. In our judgment, there is not any authority for the
proposition for which the appellant contends, that in spite of his dismissal
and in spite of waiver, he can claim immunity from a criminal charge. I now proceed to deal with the other points which the appellant
has taken. The first is that the Official Secrets Acts of 1911 and 1920 do not
apply to acts done by a diplomatic agent in respect of the archives of the
diplomatic mission in which he is employed. This is one of the points that I am
not sure that I have correctly appreciated from the appellants
argument. I understand his argument broadly to be that if he was doing acts in
respect of documents in the embassy, he could not be charged with an offence
under the Official Secrets Acts. It is very difficult to state the proposition
in a form in which it is intelligible, but as I understand it, I think that it
is really the contention, or part [*461] of the contention with which I have already
dealt, that if he was doing an act in connection with the business of the
embassy, he was immune from prosecution; indeed, that he was unable to commit
an offence under the Official Secrets Acts at all. If I have correctly
understood his argument, I am bound to say that I see no foundation for it. The
Official Secrets Acts and the provisions under which he was charged are capable
of applying to the circumstances of this case just as much as if he had
obtained a document from a department of the Government in this country. The next point which is taken by the appellant is that he was not
guilty of larceny in law. The argument upon that point was that inasmuch as the
document which he was found guilty of stealing was a copy of another document,
and that the copy would in the ordinary course have been discarded, and was
taken by him after it had been discarded, he could not be found guilty of
stealing it. The definition in s. 1 of the Larceny Act, 1916 (6 & 7 Geo. 5,
c. 50), which the learned judge read to the jury, makes it quite plain that the
jury were within their rights in coming to the conclusion on the facts of this
case, that the appellant had committed the offence of stealing this document.
He took it with the intention, as he says, perhaps of destroying it, perhaps of
keeping it. There is no doubt that he took it and retained it with the
intention of depriving the owner of the document of its possession and, in
those circumstances, the direction to the jury being perfectly accurate, the
point that he was not guilty of larceny in law cannot be sustained. In these circumstances, we find that there is no ground upon which
the verdict of the jury can be interfered with, and this appeal must be
dismissed. Appeal dismissed. [See: Journal of Historical Review: The Roosevelt Legacy and
The Kent Case, vol. 4 no. 2 (Summer 1983), p. 173. —ed.] a4 Ibid. 362. a5 (1808) 9 East. 447[, 103
E.R. 643]. a6 (1923) 40 Times L.R. 105. a7 (1859) 2 El. & El. 94[, 121
E.R.36]. b3 [1928] A.C. 433, 440. c2 (1854) 14 C.B. 487. c4 (1808) 9 East. 447[, 103
E.R. 643]. c6 [1894] 1 Q.B. 533, 541. |