On 1 March 2019, the Chief Magistrate, Senior District Judge Arbuthnot sitting at Westminster Magistrates’ Court, has decided that diplomatic immunity could not be claimed where death threats were used during carrying out of duties otherwise covered by such an immunity. This decision constitutes an important development regarding the extent to which diplomatic immunity can legitimately be relied on by foreign nationals in the UK.
MS, a Sri Lankan national, brought a private prosecution against the then Defence Attaché to the Sri Lankan High Commission in London, Brigadier Fernando. MS was protesting with others outside the Sri Lankan High Commission on Sri Lankan National Day on 4 February 2018. During this protest the Brigadier is said to have drawn his fingers across his throat on three occasions, in a cut-throat gesture, whilst looking at the protesters, including MS. The protesters felt very frightened by what they witnessed.
Brigadier Fernando claimed diplomatic immunity, which it was agreed he benefited from whilst in post. However, since returning to Sri Lanka after leaving his post he further claimed residual immunity under the Vienna Convention in Diplomatic Relations.
It was argued on behalf of MS that this “cut-throat” gesture could not be considered to have been an act carried out in the exercise of the Brigadier’s functions in his diplomatic mission, and as such he could not claim immunity from prosecution.
The Senior District Judge Arbuthnot agreed by relying on guidance provided by the Supreme Court in the case of Al-Malki v Reyes  1 All ER 629. In that case it was held that the Courts in dealing with this issue should proceed in two stages. Firstly, identify relevant functions at the mission to which that person was attached – in this case the job description of Brigadier Fernando, which including monitoring anti-Sri Lankan activities in the UK. Secondly, whether the relevant act – the cut-throat gesture in this case – was part of those functions.
The Senior Judge found that clearly such acts were not part of Brigadier’s job description and thus they could not be part of the mission functions. Therefore, his behaviour was not covered by the diplomatic immunity provided for in Article 39(2) of the Vienna Convention or any residual immunity. The decision can be found here.