22 Oct 2016, 40 mins ago

A major diplomatic row between America and India culminated in India’s deputy consul general in New York being ordered to leave the USA on 9 January 2014. Ms Khobragade was arrested in December 2013 after a complaint from her maid, Sangeeta Richard. US prosecutors claim that Ms Khobragade lied to US visa officials about the salary she would pay her maid. Ms Khobragade has relied upon her diplomatic status and India has refused to waive her immunity. The charges will remain pending against her.

Diplomatic immunity is a longstanding but often misunderstood concept of international law and is governed by the 1961 Vienna Convention on Diplomatic relations and the 1963 Vienna Convention on Consular Relations. More than 160 countries are signatories to these treaties. The Vienna Conventions are applied in the UK by the Diplomatic Privileges Act 1964.

There are different levels of immunity from full diplomatic immunity down to consular immunity which covers the acts of embassy and consular staff for acts performed as part of their official duties.

A common misconception is that a diplomatic passport automatically grants the bearer of it diplomatic immunity internationally and acts as guaranteed shield against prosecution. This is not the case.

In the UK only diplomats officially recognised by the Foreign and Commonwealth Office as being a member of an approved mission are entitled to rely upon diplomatic immunity. Diplomatic immunity in the UK is conferred on all entitled members of a foreign mission (and entitled family members forming part of their household, provided they are not nationals of the UK) who have been notified to, and accepted by, the Foreign and Commonwealth Office as performing a diplomatic function.

The Diplomatic Privileges Act 1964 confers immunity from criminal jurisdiction on diplomatic agents and their families. Without a waiver, a diplomatic agent, or dependant, may only be detained if deemed likely to harm either themselves or the public.

The Foreign and Commonwealth Office may, in certain circumstances, request a waiver of a person’s diplomatic immunity in order to arrest, interview under caution and, if appropriate, bring charges.

A diplomat cannot waive his or her own immunity. Waivers can only be granted by the sending State. The Foreign and Commonwealth Office requests a waiver of immunity through the diplomatic mission concerned.

The Crown Prosecution Service has issued guidance on the decision to request a waiver in the UK. Ordinarily a waiver will only be sought for serious offences, defined by the Foreign and Commonwealth Office as “an offence that might carry a custodial sentence of over 12 months”.

Where a waiver is sought but not granted it is open to the Foreign and Commonwealth Office to decide that it is undesirable for the individual to remain in the UK and to declare them persona non grata. This will effectively lead to the expulsion of the diplomat from the UK.

©Gherson 2014