REX v A. B
[R. v. Tyler Kent]
COURT OF CRIMINAL APPEAL
 1 K B 454
HEARING-DATES: 4, 5 February 1941
5 February 1941
Criminal law - Diplomatic privilege - Employee at foreign embassy - Dismissal - Waiver of privilege by ambassador - Extension of privilege for reasonable time after dismissal - Diplomatic Privileges Act, 1708 (7 Anne, c. 12), s. 3.
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
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 Suarez n(1) , and In re Republic of Bolivia Exploration Syndicate n(2) . That privilege extends over a reasonable period after service with the embassy ceases (Musurus Bey v. Gadban n(3) ) and I was entitled to have my immunity so extended. In fact, I was immediately arrested.
[HUMPHREYS J. In that case Davey L.J. said n(4) : 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. Critico n(5) , 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. Smith n(6); Magdalena Steam Navigation Co. v. Martin n(7) ; Engelke v. Musmann n(8) 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,
n(1)  1 Ch. 176.
n(2)  1 Ch. 139.
n(3)  2 Q. B. 352.
n(4) Ibid. 362.
n(5) (1808) 9 East, 447.
n(6) (1923) 40 Times L. R. 105.
n(7) (1859) 2 El. & El. 94.
n(8)  A. C. 433.
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 (
PANEL: LORD CALDECOTE C.J., HUMPHREYS and SINGLETON JJ
JUDGMENT BY-1: LORD CALDECOTE C.J
LORD CALDECOTE C.J: ,
JUDGMENTBY-3: SINGLETON JJ
SINGLETON JJ: ) was delivered by
JUDGMENTBY-4: LORD CALDECOTE C.J
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 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. Gadban n(1) and In re Suarez n(2) 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. Musmann n(3) 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
n(1) (1894) 2 Q. B. 352.
n(2)  1 Ch. 176.
n(3)  A. C. 433, 440.
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 Solar n(1) . 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. Best n(2) and In re Suarez n(3) .
Further, in Marshall v. Critico n(4) 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. Gadban n(5) . In the Court of first instance, Wright J. said n(6) : 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
n(1)  1 K. B. 376, 380.
n(2) (1854) 14 C. B. 487.
n(3)  1 Ch. 176.
n(4) 9 East, 447.
n(5)  2 Q. B. 352.
n(6)  1 Q. B. 533, 541.
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 this n(1) : 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 Suarez n(2) , 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
n(1)  2 Q. B. 362.
n(2)  1 Ch. 176.
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
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.
Solicitor for Crown: Director of Public Prosecutions.
W. L. L. B.