Immunity loophole ‘never intended’ to be used for Anne Sacoolas – ex-minister

A former Foreign Office minister who signed off an agreement which allowed the US government to assert diplomatic immunity on behalf of Anne Sacoolas has said it was “never intended” to be used in that way.

Sir Tony Baldry, who was a junior minister when the documents were drawn up in the 1990s, told the PA news agency he was “horrified” when the US administration suggested there was a “loophole” in the original agreement following Harry Dunn’s death.

“I don’t think it was ever intended, I’m quite sure, when the Foreign Office legal team thought out the agreements, or agreed to the agreements, that you are covered by diplomatic immunity when you weren’t actually acting as a diplomat,” he said.

Harry Dunn death
Spouses of staff at RAF Croughton were deemed to be entitled to greater immunity than the staff themselves at the time of Harry Dunn’s death (Steve Parsons/PA)

Following the conclusion of the case, Foreign Secretary James Cleverly acknowledged that “important lessons” had been learned from the incident, “including improvements to the process around exemptions from diplomatic immunity”.

Mr Dunn, 19, was killed when Sacoolas’s Volvo crashed into his motorbike while she was driving on the wrong side of the road outside RAF Croughton in Northamptonshire in August 2019.

She was sentenced on Thursday at the Old Bailey to eight months in prison suspended for 12 months for causing Mr Dunn’s death by careless driving.

Due to an “Exchange of Notes” crafted between the UK and the US in 1995, administrative and technical staff at the US military base are entitled to diplomatic immunity for actions performed in the course of their professional duties under the Vienna Convention.

The immunity was granted to those staff members on a condition of a pre-waiver for actions outside the course of their duties – but as spouses were not specifically mentioned in that part of the agreement, Sacoolas was deemed to be entitled to immunity, while her husband was not.

In July 2020, then-foreign secretary Dominic Raab said the UK and US agreed to close the loophole.

Giving his view on whether spouses of staff at RAF Croughton should have been allowed greater immunity than the staff themselves, Sir Tony told PA: “I don’t think that was ever envisaged or intended.

“But, even if the US Embassy did conclude that she had diplomatic status, they could have waived that status.

“Here was a person who, on all the facts, had run down a young man on a road in front of RAF Croughton.

“Clearly the Northamptonshire Police wanted to interview her.

“And what did the US authorities do? They bundled her out on a plane to avoid UK jurisdiction and sent her back to the US.

“So, whatever the terms of the agreement, they could have quite properly waived that diplomatic immunity, and all of this would have been resolved a long, long time ago.”

In May 1995, a briefing note sent to Sir Tony during his time as a junior minister at the Foreign Office expressed concerns that “an accident involving the claim of immunity could make the local if not national headlines”.

Asked how he felt when the news of Mr Dunn’s death broke, Sir Tony said: “There was nothing about that particular agreement that would cause it to stick out particularly in my mind, but I was obviously horrified.

“I was just simply horrified that anyone in those circumstances had effectively done a runner and sought to evade reasonable questions from Northamptonshire Police.

“Then I was even more horrified to discover that the US government was seeking to suggest that there had been some loophole in the original agreement.

Harry Dunn death
Harry Dunn was killed when Anne Sacoolas’s Volvo collided with his motorbike in August 2019 (Family handout/PA)

“Because, actually, knowing the Foreign Office lawyers who would have drawn up that agreement at that time, I would have been very surprised if there had been a loophole in that agreement – and certainly no intended loophole.”

Sir Tony added: “What was seeking to be achieved was that some officials working for the US government at Croughton should be given diplomatic immunity when they were working at Croughton. Straightforward.

“It was never intended to result in a situation where someone like Mrs Sacoolas, who was supposedly the wife of someone working at Croughton, could claim she was protected and do a runner.”

Questioned on whether he believed the US would have acted in the same way had the incident happened while he was a minister in the 1990s, Sir Tony said: “I can’t remember a similar incident where the US government had claimed diplomatic immunity to avoid a US citizen being dealt with for what is essentially a serious traffic offence.

“The Foreign Office used to be concerned that other embassies would claim diplomatic immunity if they didn’t pay parking fines and that kind of stuff – but that was never the case for the US Embassy or the US government.

“So the way in which the US government has behaved in this case has been pretty bizarre.”

Commenting on the so-called loophole which allowed the US government to assert immunity on Sacoolas’s behalf, Sir Tony said: “In 1994 the head of the legal department at the Foreign Office was a very formidable individual, and I cannot imagine the Foreign Office lawyers at the time knowingly creating a loophole of any kind.

“So if there was a loophole, it clearly was not ever intended.

“So, it could only have been relied upon if the lawyers acting for the US government sought to find a loophole and rely upon a loophole.

“If you think about it, that’s all the worse…

“Because what you’ve then got, if that is correct, you’ve got a situation where the US government have bundled Mrs Sacoolas out of the country so as to avoid jurisdiction and then seek to justify or defend that by finding or trying to discover some loophole within the original agreement – which they know could only have been a loophole and not ever intended.

“And that is not the way in which one expects one’s closest friends and allies to behave.”

In a statement released after Sacoolas was handed eight months in prison suspended for 12 months, Mr Cleverly said: “Anne Sacoolas has finally been sentenced in a British court.

“Since Harry’s death in August 2019 we have been clear that Ms Sacoolas should return to the UK to face British justice.

“Since she chose not to, virtual hearings were arranged as the most viable way to bring the case to court and give justice to Harry’s family.

“I want to pay tribute to the incredible resolve of Harry’s family and I hope that the judgment provides some closure.

“We have learnt important lessons from this tragic incident, including improvements to the process around exemptions from diplomatic immunity and ensuring the US takes steps to improve road safety around RAF Croughton.”

Shadow foreign secretary David Lammy said the Government needed to be “honest and transparent” about the mistakes it had made in its handling of the case.

“Today’s judgment marks at least some justice after the Dunn family’s courageous and unwavering fight for Harry following his tragic death. Today we pay tribute to them,” he said.

The Labour MP added: “The UK Government must be honest and transparent about its mistakes under Dominic Raab’s leadership and learn meaningful lessons from them.

“Sacoolas should not have been allowed to leave the country and the US should have waived her immunity.

“The ordeal the family have had to endure, made worse by a series of failures in Foreign Office, must never be repeated. No other family can ever be allowed to go through the same.”