Harry Dunn: UK-US diplomatic relations strained  

On 11th May, an INTERPOL Red Notice was circulated against US citizen Anne Sacoolas, marking the latest development in the ongoing battle by the family of Harry Dunn to have Sacoolas returned to the UK to face prosecution for causing his death by dangerous driving.

The case continues to highlight significant concerns over the operation of diplomatic immunity and the perceived inequity in the extradition relationship between the UK and US, placing considerable strain on diplomatic relations between the two states. Separately, the case also provides a timely reminder of how INTERPOL’s Red Notice regime can be abused for political gain in other cases.

How did we get here?              

On 27th August 2019, 19-year-old Harry Dunn was killed when the motorcycle he was riding collided with a car driven by Sacoolas near RAF Croughton, a US Air Force communication station in Northamptonshire staffed by US intelligence agents. Soon after, Sacoolas left the United Kingdom, claiming diplomatic immunity by virtue of her husband’s position as a US intelligence officer.

In December 2019, she was charged by the Crown Prosecution Service (CPS) with causing Mr Dunn’s death by dangerous driving and her extradition was sought. However, an interesting turn of events in January saw the US State Department refuse the UK’s request, doubling down on diplomatic immunity arguments, pursuant to an arcane 1995 bilateral agreement between the UK and the US.

Under this agreement, the US authorities contend that RAF Croughton serves as an ‘annex’ of the US embassy in the UK, allowing staff and their families immunity under the 1961 Vienna Convention on Diplomatic Relations.  This claim is disputed by lawyers acting for the Dunn Family, who are bringing judicial review proceedings against both the Foreign Secretary, Dominic Raab, and Northamptonshire Police, claiming they acted unlawfully in allowing Sacoolas’ departure from the UK.

INTERPOL Red Notice Issued

Following the CPS’ charging decision, INTERPOL issued a Red Notice against Sacoolas in May this year. However, the diplomatic import of this decision has been limited to date. US officials, having already rejected the UK’s extradition request as being “highly inappropriate” and amounting to an “egregious abuse” of law – hinging this defence on Sacoolas’ purported diplomatic immunity claim – have reiterated that the US decision not to extradite Sacoolas is “final”. Accordingly, despite the oft-cited ‘special relationship’ said to exist between the UK and the US, it appears highly unlikely that under the current US administration Sacoolas will be arrested in the US.

It is of course possible that other INTERPOL member states may adopt a different position. For example, were Sacoolas to set foot outside the US, the risk of arrest and extradition would be activated immediately. Her safe passage to – or through – another country would depend on that country’s willingness to accept Sacoolas’ position, and desire not to cooperate with the UK.

Even if Sacoolas were not arrested at a foreign border, she may well face difficulty when entering or exiting a country and could be delayed by questions at immigration or turned away at entry. Unless safe passage has been secured in advance, which is an administrative feat that relies in large part on significant diplomatic goodwill, the prospect of arrest outside the US is likely to dissuade her from travelling.

Since Sacoolas is relatively young, it remains to be seen how long this position can be sustained. Although Brexit is complicating the UK’s co-operation agreements with the EU and it appears increasingly likely that it will lose access to the European Arrest Warrant (EAW) scheme, close-knit cooperation between the UK and the EU remains likely. As such, Sacoolas should not necessarily expect safe passage through Europe in the years ahead.

The Extradition (Provisional) Arrest Bill

The apparent disregard shown to the UK’s extradition request by US authorities in Sacoolas’ case, and subsequent Red Notice issued against her, highlights a perverse imbalance in the approach taken between the two countries to co-operation in cross-border criminal matters, and further serves to undermine the UK’s position in international law enforcement.

In a stark illustration of this point, in October 2019, following an announcement first made in the Queen’s Speech, the UK government introduced the Extradition (Provisional) Arrest Bill. Should it be passed, this Bill would amend the Extradition Act 2003 to create a new power of arrest without a domestic warrant, in the event that the individual’s arrest for extradition purposes (including in relation to requests issued in the form of an INTERPOL Red Notice) has been certified as issued by a specified “trusted” country for a serious offence.[1] Interestingly, the US is identified as one of the so-called “trusted” countries in the Bill.

This Bill would be a worrying development if it came to pass and present a diplomatic absurdity in the context of the Sacoolas case. The current requirement to obtain a domestic arrest warrant prior to arrest for extradition purposes ensures that there is judicial scrutiny before an individual is arrested in this country at the behest of a foreign state. The current proposals create the risk of warrantless arrest on the back of unlawful or politically motivated processes in the “trusted” country concerned.

As for the Sacoolas case, it would not be surprising if those acting for her, supported by the US authorities, are seeking to persuade INTERPOL to remove the Red Notice from its files. If that were to happen, it would be interesting to see how UK authorities react.

Frayed relations and heightened tensions

As it stands, the wider impact of the Sacoolas case on UK-US relations remains to be seen. However, without swift political and judicial intervention, the approach taken by the US authorities holds, arguably, the potential to create an unjust outcome for the Dunn Family, and undermine UK-US extradition and INTERPOL relations in respect of which both countries are expected to serve as role models on the international stage.

By Jasvinder Nakhwal, Partner, and Craig Hogg, Associate, at Peters & Peters Solicitors LLP

 [1] Defined as punishable in the UK with a custodial sentence of three years or more, where the conduct is “sufficiently serious” to make it appropriate to issue a certificate.

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