K.

K LUTHERA MEMORIAL MOOT COURT, 2023

URN NO. - 2191

THE K.K LUTHRA MEMORIAL MOOT COURT COMPETITION

BEFORE
THE HONBLE SUPERIOR COURT OF KRET

IN THE MATTER OF

MR. J. J CROOK ............................................................................... PETITIONER

VERSUS

STATE OF KRET ................................................................................ RESPONDENT

WRIT OF CERTIORARI

UPON SUBMISSION
TO THE HON’BLE JUSTICES OF THE HON’BLE COURT OF KRET

- MEMORENDUM ON THE BEHALF OF THE PETITIONER –

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TABLE OF CONTENT

LIST OF ABBRIVIATION 2

INDEX OF AUTHORITIES 3

STATEMENT OF JURISDICTION 4

STATEMENT OF FACT 5

STATEMENT OF ISSUE 6

SUMMARY OF AGRUMENT 6

ARGUMENT IN ADAVANCED 7

PRAYER 24

LIST OF ABBRIVIATION

AIR ALL INDIA REPORTER

SCC SUPREME COURT OF CASES

ICJ INTERNATIONAL COURT OF

JUSTICES
PCJ PERMANENT COURT OFJUSTICES

U.S.A UNITED STATE OF AMERICA

DETECTIVE INSPECTOR
D. I
UNITED KIGDOM SUPREME COURT
UKSC
INTERNATIONAL LAW REPORT
ILR
UNITED NATION
U. N
ENGLAND AND WALES COURT OF
EWCA APPEAL CIVIL DIVISION
UNITED KINGDOM
UK

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INDEX OF AUTHORITIES

INTERNATIONAL CONVENTION
1
VIENNA CONVENTION ON DIPLOMATKIC RELATION 1961

2 VIENNA CONVENTION ON CONSULOR RELATION 1963

3 VIENNA CONVENTION ON CONSULOR RELATION 1963

4 INTERNATIONAL HUMAN RIGHTS

BOOKS

1 INTERNATIONAL LAW MALCOLM N SHAW

COMMENTRIES BY EILEE DENZA

2

RESEARCH ARTICLES
1
ILSA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW

2 REPORT ON DIPLOMATIC AND STATE IMMUNITY IN RESPECT OF CLAIMS

OF EMBASSY.
BY – M. GOGNA, S. HLOBIL, M. PODSIEDLIK

3 NONE OF TEHRE BUSINESS DIPLOMATIC INVILVEMNET IN HUMAN RIGHT

BY- PAUL BEHRENS

4 THE PLAINTIFF DILEMMA ILLEGALLY OBTAINED EVIDENCES AND

ASMISSIBLILTY IN INTERNATIONAL ADJUDICATION.
BY W. MICHAEL REISMAN AND ERIC E FREEDMAN

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CASES

Anvar P.V vs P.K Basheer........................................................................................................ 20

Bancoult v. Secretary of State for Foreign and Commonwealth Affairs. ................................. 19
Boos Vs Baryy 99 L Ed 2d 333,346 (1988);121 ILR). ........................................................ 9, 12
Bosnia and Herzegovina Serbia and Montenegro ICJ Reports 2007 pp 43,202.).................... 17
Chorzo factory ................................................................................................................... 13, 15
Chorzow Factory case PCIJ Series A, No 17 1928 pp,47 ......................................................... 17
Congo v Belgium (ICJ Reports 2002 pp 3,20 128 ILR p.76 ................................................... 12
Congo v. Uganda (ICJ Paras 338-340)..................................................................................... 10
Congo vs. Uganda .................................................................................................................... 16
Dickinson v. Del Solar 1930 1KB 376;5AD p.299 ................................................................. 11
Fayed v Al-Tajir ....................................................................................................................... 19
Fermont Weeks v. United States reported as [1914 SCC OnLine SC 61: 232 US 383 (1914)]
..............................................................................................................................................18
Germany v. Italy ICJ Reports 2012 pp.138 .............................................................................. 11
Jones v. Saudi Arabia [2006] UKHL 26 Para ........................................................................... 11
Lambège et Pujol v Etat d’Espagne, 22 Jan 1849, Dalloz (1849 ............................................... 9
Mariam Aziz v Aziz and Sultan of Burnie [2007] EWCA Civ 712 ......................................... 10
R v. Governor of Pentonville, Prison ex parte teja [1971] 2QB 274;52 ILR, p,368 ................ 11
Reyes v. Al Maliki [2017] UKSC 61 ....................................................................................... 12
Spanish Zone of Morocco claims. Great Britain v. Spain (1924 2 R.I.A 615) ........................ 13
Third Avenue Associates v, Permanent Mission of Republic of Zaire to the United Nations
988 F.2d 295 [1993] 99 ILR p,14 ..................................................................................... 10
Third Avenue Association v. Permanent Mission of Republic of Zaire to the United Nations
988 ........................................................................................................................................ 19
United States of America v. Iran ICJ Reports 1980 pp 30-2 .................................................... 16
Westminster City Council v Government of Iran .................................................................... 16
Wong Kam-ming v. R, [1979] 1 All ER 939, at p. 946 ............................................................ 22

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STATEMENT OF JURISDICTION

It is most humbly submitted that the petitioner has approached the Hon’ble Superior Court of
Kret by filing the writ of certiorari.

STATEMENT OF FACTS

1. Kret is a country located in the heat of Europe it is boarder by Germany to the north
Austria to the south and Czech Republic to east the country covers an area of 125000
square kilometre and has a population of approximate 50 million people. The capital
of kret is emerald city. Ferrwa is a vibrant diverse county situated in the northern
region of Africa but berber and French are also widely spoken.
2. Both the country is the founding member of the united nation and are signatory to the
various treaties and convention on the diplomatic relation of 1961 and the Vienna
convention on the consular relation of 1963. On 24.1 informed to the police that his
wife had gone to the work at the freeway embassy on the night of 23.12.2023 but
never returned home and suspect that she has been kidnapped. Her cell phone is
unreachable and her car is still parked outside the ferrwa embassy. The police
registered the crime report under the section 265 kretan penal code and started
investigating was assigned to detective Inspector P.V Bain. Detective inspector P.V
Bain sought police custody of Mr. JJ Crook for a period of 15 days from the court of
learned metropolitan magistrate, emerald city court complex emerald city which was
granted for 15 days on 25.12.2023 despite various legal objection raised by Mr.J. J
Crook lawyers. Meanwhile the DI investigated the case and filed a police
investigation report after concluding the investigation against Mr. JJ Crook. The
magistrate has taken a view that offence under section 202, 103, and 88 KPC are

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made out and is proceeding to try the case. Mr Crook continue to in the custody of the
police.
3. Writ petition criminal no. 4/2024 Mr Crook has moved the Superior court of kret by
the way of writ petition inter alia seeking his immediate release and challenging the
proceeding pending against him including the crime report police investigation report
and the order dated 25.12.23 passed by the court of Ld. Metropolitan Magistrate
emerald city court complex emerald city.

STATEMENT OF ISSUE

ISSUE 1. Is Mr. J.J Crook entitled to get Diplomatic Immunity?

ISSUE 2. Could the D.I. have investigated the offenses committed inside the premises of the
Ferrwan embassy without the prior consent of the Ferrwan embassy without prior consent of
the ferrwan authorities?

ISSUE 3. Was the evidences collected by the D.I from the embassy including CCTV footage
to be excluded from the consideration by the magistrate being illegally obtained?

Issue 4. Were the further recoveries made including of remain of Mrs. watts liable to be
rejected and exclude from the reliance by the police on the account of objection as to the illegal
search at the embassy and the of the arrest of Mr. J.J Crook?

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SUMMARY OF ARGUMENTS

ISSUE 1: Is Mr. J.J Crook entitled to get Diplomatic Immunity?

The counsel humbly submits that Mr.J. J Crook is entitled to Diplomatic immunity because
arrest and detention were invalid under Article 29 of the Vienna Convention and as it is a
well-established fact that Mr.J. J Crook was a member of administrative staff and he is
entitled to diplomatic immunity in the present matter as he was the bodyguard of Ambassador
and it also important to note that Kret and Ferrwa are in Diplomatic relations with each other.

ISSUE 2 Could the D.I. have investigated the offenses committed inside the premises of
the Ferrwan embassy without the prior consent of the Ferrwan embassy without prior
consent of the ferrwan authorities?

The counsel humbly submits that D.I. has no authority to investigate inside the premises of the
ferrwan embassy without the consent of Ferrwan which clear violation of Article 22 of the
Vienna Convention on Diplomatic Relations 1961

ISSUE 3: Was the evidence collected by the D.I from the embassy including CCTV footage
excluded from the consideration by the magistrate being illegally obtained?

It is most humbly submitted that D.I from the embassy including CCTV footage excluded from
the Magistrate has been illegally obtained by the D.I P. V Bain it is important to note that it is
clear cut case of violation of article 22 of Vienna convention on diplomatic relations also there
are many other legal problems regarding the admissibility of the CCTV footage which cannot
be ignored.

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ISSUE 4 Were the further recoveries made including of remains of Mrs. Watts liable to
be rejected and exclude from the reliance by the police on the account of objection as to
the illegal search at the embassy and the of the arrest of Mr. JJ Crook

It is most humbly submitted that recoveries made including remains of Mrs.Wats Liable to be
rejected and excluded from the reliance by the police and shall be considered as illegal search
and arrest of Mr.J.J Crook in the present case the lower court fail to quantify of measure the
illegality of the search and seizure.

ARGUMENT IN ADVANCED

ISSUE 1: Is Mr. J.J Crook entitled to get Diplomatic Immunity?

[1.1] Arrest and Detention of Mr.J. J Crook is a clear violation of Article 29 of the Vienna
Convention and Mr.J. J Crook is entitled to Diplomatic Immunity

1. The counsel humbly submits to the Hon’ble bench of the Superior Court that Diplomatic
immunity is provided to every diplomat or ambassador main function of these diplomats
is to protect the interests of nationals of the sending state in the present Mr. J.J Crook was
the bodyguard of Ambassador of Ferwann embassy was a Kret national he is entitled to
Diplomatic immunity because the allegations against him are only based on mere
apprehensions and are based only on the circumstantial evidence which will be
disapproved by my co-counsel in issue no 3 of the moot problem Mr.J.J Crook is entitled
to get Diplomatic immunity in this matter as there is no strong evidence against Mr.J.J
Crook that he has murdered Mrs.Penny Watts and J.J Crook is entitled to diplomatic
immunity because States recognizes that the protection of Diplomats is mutual interest
founded on the functional requirements and reciprocity.1And no one can deny that the
foundation of international law is the sovereignty and independence of states. 2

2. It is most humbly submitted that Article 29 of the Vienna Convention on Diplomatic

Relations 1963 clearly states that the person of a diplomatic agent shall be inviolable. He
shall not be liable for any form of arrest or detention in this matter Mr. J.J Crook is arrested

1
Boos Vs Baryy 99 L Ed 2d 333,346 (1988);121 ILR).
2
Lambège et Pujol v Etat d’Espagne, 22 Jan 1849, Dalloz (1849

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and detained by the police of Kret and has not complied with Article 29 of the Vienna
Convention on Diplomatic Relations 1963 arresting Mr.J.J Crook only based on
apprehensions and without any strong evidence which is a clear violation of Article 29 of
the Vienna Convention on Diplomatic relations 1963 as receiving state is under the
obligation to take all appropriate steps to prevent any attack on the person, the dignity of
diplomatic agents. 3

3. It is pertinent here to take into the account of the case Congo v. Uganda 4 in this matter, the
international court held that the maltreatment by Congo forces of persons within the Ugadan
Embassy constituted a violation of Article 29 of the Vienna Convention on Diplomatic
Relations 1963 in so far as persons were diplomats, while the maltreatment of Ugandan
Diplomats at the airport similarly breached the obligations laid down under Article 29.
Similarly in this case Mr. J.J Crook is ill-treated by the police and he is entitled to diplomatic
immunity and privileges as his arrest is unlawful.

4. The counsel humbly submits that there is no right as such under international law to
diplomatic relations and they exist by mutual consent. It is a well-established fact that Ferrwan
and Kret are signatories to the Vienna Convention on diplomatic relations so detaining Mr.J. J
Crook is a violation of basic principles of international law this convention emphasizes the
functional necessity of diplomatic privileges and immunities for the efficient conduct of
international relations. 5

1.2 Mr.J. J Crook has immunity from the criminal jurisdiction of receiving state

5 The counsel humbly submits that the police of ferwan arrested Mr. J.J Crook without any
strong evidence and his arrest is a clear violation of Article 31 of the Vienna Convention which
clearly states that diplomatic agent shall enjoy immunity from criminal jurisdiction and arrest
and detention is illegal as far as criminal jurisdiction is concerned diplomatic agents enjoy

3
Mariam Aziz v Aziz and Sultan of Burnie [2007] EWCA Civ 712
4
Congo v. Uganda (ICJ Paras 338-340)
5
Third Avenue Associates v, Permanent Mission of Republic of Zaire to the United Nations 988 F.2d 295 [1993]
99 ILR p,14

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complete jurisdiction from receiving state 6 so it is a well-established fact arrest of Mr.J.J Crook
is not justified he is entitled to get diplomatic immunity because he was the member of
administrative staff

1.3 Article 39 of the Vienna Convention was not considered in the present matter

6 It is most humbly submitted that Article 39 every person is entitled to privileges and
immunities from the moment he enters the territory of the receiving state it is fundamental to
claiming diplomatic immunity that a diplomatic agent in some form accepted or received by
7
this country by referring this case counsel humbly submits that Mr.J.J crook entitled
diplomatic immunity under Article 39 because he is on a diplomatic as he is bodyguard
ambassadors bodyguard he was doing his duty in the state of ferrwa so he is entitled diplomatic
immunity and Ferrwa cannot deny the fact that Mr.J.J Crook was from administrative staff so
he entitled to get diplomatic immunity

7 It is pertinent here to take into account the case Jones v. Saudi Arabia[2006] UKHL 26 Para8
the House of Lords held that there was a wealth authority to show that a foreign state is entitled
to claim immunity for its servants as it could if sued itself for the foreign state right to immunity
cannot be circumvented by suing its servants or agents concerning this case similar
circumstances have taken place in the present matter Mr.J.J Crook right of diplomatic immunity
has been taken from Mr.J.J Crook he is entitled to diplomatic immunity as per basic principles
of international law and State immunity has made provision for the limitation of immunity on
the grounds of the gravity of the acts alleged9 and gravity of offence has not been decided. Mr.
J.J Crook is arrested only based on mere apprehensions without any strong evidence.
8. The counsel humbly submits that the concept of providing immunities to diplomatic agents
is to protect them from any mishappening in the foreign state so if the immunity provided by
the state is waived then it would be a violation of diplomatic relations between and also the
violation basic principles of international law and in this matter, Mr. J.J Crook has been arrested
for the offence of murder but as per the Vienna convention Article 31 he is entitled to
diplomatic immunity head of the state head of the government and minister of foreign affairs

6
Dickinson v. Del Solar 1930 1KB 376;5AD p.299
7
R v. Governor of Pentonville, Prison ex parte teja [1971] 2QB 274;52 ILR, p,368
8
Jones v. Saudi Arabia [2006] UKHL 26 Para
9
Germany v. Italy ICJ Reports 2012 pp.138

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enjoys immunities from the jurisdiction of other states both civil and criminal10 and it is well-
established fact that Mr.J.J Crook though is a bodyguard. Still, he is also entitled to immunity
under Article 31 of the Vienna Convention as a diplomatic agent.

11
9 It is pertinent here to take into account of the case Reyes v. Al Maliki this case the court
held that -
“Diplomatic immunity is not an immunity from liability. It is a procedural immunity
from the courts of the receiving state. During their diplomatic mission, a diplomat (and
family members forming part of his or her household) is generally immune from the
criminal, civil, and administrative jurisdiction of the receiving state. The Convention
draws a fundamental distinction between the acts of a diplomat that are performed in
the exercise of an “official function” as a member of a diplomatic mission and those
that are not. The former are immune because they are committed on behalf of the
sending state. The immunity of the latter acts of a diplomat in their personal or non-
official capacity is justified on the pragmatic basis that it facilitates diplomatic relations.
With limited exceptions (the main one concerns “any professional or commercial
activity” outside a diplomat’s official functions) the diplomatic immunity of diplomats
(as opposed for example to the administrative and technical staff of a mission) covers
both types of acts, official and private. However, once a diplomat’s posting ends, his or
her immunity after leaving the receiving state (or on expiry of a reasonable time in
which to leave) exists only in respect of acts performed in the course of exercising
official functions on behalf of the sending state”.

Scope of State responsibility in this matter:

10. The counsel humbly submits that state has the responsibility to address this matter
procedurally not in an arbitrary manner as in this case Mr. J.J Crook has been ill-treated by the
state of Kret it is the responsibility of Kret to deal with this case with the in a procedural
rectified manner arresting Mr.J.J Crook only based on apprehension and depriving him of
diplomatic immunity is a violation of the basic principle of international law and it is the
responsibility to provide him immunity and it is important to address the fact that kret has not

10
Congo v Belgium (ICJ Reports 2002 pp 3,20 128 ILR p.76
11
[2017] UKSC 61

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declared Mr.J.J Crook persona non grata which means to unwelcome a person or to expel that
person from the country in this matter no such action has been taken against the Mr.J.J Crook

11. It is most humbly submitted that Kret and ferrwa are signatories to the Vienna Convention
on Diplomatic Relations of 1961 Vienna Convention on Consular Relations of 1963 so it is
well established fact that both Kret and Ferrwa have diplomatic relations and in this matter is
the responsibility of kret to solve this issue through diplomacy responsibility is the necessary
corollary of a right. All rights of international character involve international responsibility.
Responsibility results in the duty to make reparation if the obligation in question is not met.12

12. It is most humbly submitted that with reference to the above argument in this matter, Kret
has the responsibility to give immunity to Mr.J.J Crook, and as they have diplomatic relations
with Ferrwa and they have the responsibility to protect the embassy of the ferrwa and also they
are obligated to give immunity to Mr.J.J Crook and also protect premises of the embassy it is
the principle of international law and even a greater conception of law that any breach of
engagement involves an obligation to make reparation. Chorzo factory case13 The Government
of Germany, represented by Dr. Ericli Kaufmann, Professor at Bonn, Applicant, versus The
Government of the Polish Republic, represented by Dr. Thadeus Sobolewski, Agent for the
Polish Government before the Polish-German Mixed Arbitral Tribunal.

13. It is most humbly submitted that the act of Mr.J. J Crook was in an official capacity and he
was doing his work which was given to him by the state of kret as he was the bodyguard of the
ambassador so not providing him diplomatic is a violation of basic principle of international
law

14. It is most humbly submitted that to prove that Mr.J. J Crook is entitled to get diplomatic
immunity because he has the nationality of Kret and he has not been declared persona non grata
to justify this argument counsel would like to mention Article 22 of the Vienna Convention on
Consular Relations 1963 which clear states that:

1. Consular officers should, in principle, have the nationality of the sending State.

12
Spanish Zone of Morocco claims. Great Britain v. Spain (1924 2 R.I.A 615)
13
PCIJ SERIES NO. 17

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2. Consular officers may not be appointed from among persons having the nationality of the
receiving State except with the express consent of that State which may be withdrawn at any
time.

3. The receiving State may reserve the same right with regard to nationals of a third State who
are not also nationals of the sending State.

In this matter, all ingredients of Article 22 of the Vienna Convention Consular Relations,1963
are present in this matter.

● Mr. J Crook has the nationality of Kret as it is well established, he is working in the
ferrwa embassy
● Mr.J.J Crook has been appointed by the consent of Kret his appointment comes within
the ambit of exception given under Article 22 of the Vienna convention
● Mr.J. J crook is not national of third state he is national of kret.

ISSUE 2 Could the D.I. have investigated the offenses committed inside the premises of the
Ferrwan embassy without the prior consent of the Ferrwan embassy without prior consent of
the ferrwan authorities?

1.1 Investigation inside the ferrwan embassy is a clear violation of Articles 22 of the Vienna
Convention

1. The counsel humbly submits that D.I. has no authority to investigate the; premises of the
ferrwan embassy without the consent of ferrwan authorities because according to Article 22 of
the Vienna Convention 1963,

● The premises of the mission shall be inviolable the agents of the receiving state may
not enter them except with the consent of the head of the mission.
● The receiving state is under the special duty to take all appropriate steps to protect the
mission's premises against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity.
● The premises of the mission their furnishings other property and other property thereon
and means of transport mission shall be immune from search, requisition, attachment,
or execution.

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In the present matter, there is a clear violation of Article 22 of the Vienna Convention on
Diplomatic Relations as D.I. Mr. P.V. Bain has conducted the investigation in the ferrwan
embassy without the consent of ferrwan authorities, which clearly violates basic principles of
international law.

2. It is most humbly submitted that to facilitate the operations of normal diplomatic activities
article 22 of the convention specifically declares that the premises of the mission are inviolable
and the agents of the receiving state are not to enter them without the consent of the mission.
This appears to be an absolute rule.14

3. The counsel humbly submits that in this matter the investigating officer P.V Bain and the
authorities of kret were negligent and ignored the fact that they had to obtain consent from the
ferrwan state of Kret brazenly offended the basic principles of international law the actions
taken by the state of kret were arbitrary and unethical

4. It is pertinent here to note the case of the inviolability of embassies goes beyond the
deference that states give to the territorial integrity of other states. Indeed, Article 45(a) of the
Vienna Convention states that “even in cases of armed conflict,” states must “respect and
protect the premises of the mission, together with its property and archives.” Both the Kingdom
and the United States expect other states to zealously “protect the premises of the mission
against any

5. It is pertinent here to take into account the case Congo vs. Uganda15 the International Court
held attacks on the Ugandan embassy in Kinshasa the capital of Congo and attacks on persons
on the premises by Congolese armed forces which constituted a violation of Article 22 of the
Vienna convention. With reference to this, the counsel humbly submits that in this case also
there is a violation of Article 22 of the Vienna Convention as police authorities have no right
to investigate the ferrwan embassy without the consent of Ferrwan authorities.

6 The counsel humbly submits that the Vienna Convention not only prohibits any infringements
of the inviolability of mission by the receiving state itself but also protects the state under the
obligation to prevent others such as armed militant groups from doing so.16

14
Third Avenue Associates permanent Mission of Republic Zaire 295 (1993) 99 ILR
15
ICJ Paras 338-340

16
United States of America v. Iran ICJ Reports 1980 pp 30-2

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8. It is most humbly submitted that in the case of Westminster City Council v Government of
Iran17 held that if the premises are not used for the purpose of diplomatic mission Article 22
of the Vienna Convention is not violated and, in this matter, the premises was used for
diplomatic missions thus investigation inside the embassy without the prior permission is a
clear violation of basic principles of international law.

● Scope of State responsibility in this matter

9 The counsel humbly submits that a state has the responsibility to maintain diplomatic
relations with another and it is the basic principle of international law that whenever a state
commits an unlawful act against another state international responsibility is established and
breach of international obligation gives rise to the requirement for reparation and this matter
the negligence by the police authorities of Kret has created international responsibility of Kret
to solve this issue through diplomacy and explain the reason to the ferrwan authorities that why
police authorities investigated in ferrwan embassy without their prior consent is the
responsibility of kret to justify their act and they clearly violated basic principles of
international law.

10. It is most humbly submitted that one of the cornerstones of state responsibility that the
conduct of any state organ is to be considered as an act of state under international law and
therefore gives rise to the responsibility of the state if it constitutes a breach of obligation of
the state.18 So in this matter also state has the responsibility to justify the act.

● Basic principle of reparation

11. The counsel humbly submits that the basic principle of reparation clearly states that there
is an international responsibility of the state to remedy a breach of such obligation the essential
principle contained in the actual notion of an illegal act is that reparation must as far as possible
wipe out all the consequences of the illegal act and re-establish the situation which would in
all probability have existed if that act had not been committed19 so in this matter also it is the
obligation of the Kret to provide remedy of the act which they have committed and principle
of reparation shall be applied in this matter.

17
1985 W.NO.5113
18
Bosnia and Herzegovina Serbia and Montenegro ICJ Reports 2007 pp 43,202.)
19
Chorzow Factory case PCIJ Series A, No 17 1928 pp,47

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12. The counsel humbly submits that the investigation by the D,I in the premises of ferrwan is
a violation of basic principles on international and it is the responsibility of the state of kret to
now provide the remedy to the ferrwan authorities and solve this matter through diplomacy
there has been negligence by the police authorities of Kret so it shall be repaired by the state
of kret because investigation inside the ferwaan embassy is clear violation of basic principles
of international law.

3. Was the evidence collected by the D.I. from the Embassy including CCTV footage to
be excluded from consideration by the Magistrate, being illegally obtained?

1) It is most humbly submitted before this court that Yes, the evidence collected by the D.I.
from the Embassy including CCTV footage, is to be excluded from consideration by the
Magistrate, being illegally obtained.

2) It is most humbly submitted before this hon’ble court that as it is mentioned on page 29 of
the moot problem20

Fruit of the poisonous tree

3) As it was held in Fermont Weeks v. United States reported as “the evidence which is
21
obtained illegally shall not be admissible in the court” as in the present case there was no
written permission which the officer-in-charge has when he collected all the evidence.

20
“The principle of using/excluding illegally obtained evidence is evolving in Kret and the view taken in Pooran
Mal v. Director of Inspection (Investigation) New Delhi and Others reported as [(1974) 1 SCC 345] has not been
accepted so far by Kretan Superior Court. Instead, it initially accepted the line of reasoning in Fermont Weeks v.
United States reported as [1914 SCC OnLine SC 61: 232 US 383 (1914)], but there is no finality in the law yet”.

21
[1914 SCC OnLine SC 61: 232 US 383 (1914)]

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Violation of international convention

Under Article 22 of the Vienna Convention, the mission's premises are inviolable and, together
with their furnishing and other property thereon and the means of transport, are immune from
search, requisition, attachment, or execution.

Also, it is important to note that by Article 24 of the Vienna Convention on Diplomatic relation
1961, the archives and documents of the mission are inviolable at any time and wherever they
may be it is to be noted that the terms ‘archives and documents’ are not defined but that
definition can be drawn from Vienna Convention on consular relation 1963 as Article 1(1)(K)
of Vienna Convention on consular relation 1963 which says that “consular archives” includes
all the papers, documents, correspondence, books, films, tapes and registers of the consular
post, together with the ciphers and codes, the card-indexes and any article of furniture intended
for their protection or safekeeping’’.

The terms as used in diplomatic relations conventions cannot be less than this.22 And describing
its importance it is treated as an absolute rule23

If we see the moot problem, it clearly says that D. I P. V. Bain and his team collected CCTV
footage of the embassy including the footage of the room of H. E Mr. Kamrun Hadwan the
Ferrawan ambassador to kret.24 That CCTV footage comes under the purview of ‘Archives and
documents and that clearly shows that it is a clear-cut violation of Article 22 and Article 24 of
the International Vienna Convention on Diplomatic Relations 1961.

On the question of whether it can be admissible in court or not?

It is most humbly submitted before this court the view regarding this question is already clear
among courts in the judgment of Fayed v Al-Tajir25 , Rex v Rose26, underlining the principle
of international law held that “International law creates a presumption of law that documents
coming from an embassy have a diplomatic character and that every court of justice must refuse
to acknowledge jurisdiction or competence with regard to them.”

22
(Denza, Diplomatic law, p.160)
23
(See e. g Third Avenue Association v. Permanent Mission of Republic of Zaire to the United Nations 988 F.2d
295(1995);99 ILR p.194 and Equatorial Guinea v. France, ICJ Reports, Order on provisional measures, 7
December 2016, para 79.
24
MOOT Supra Para 12 Page 9
25
[1988] QB 712
26
1998 3 SCR 262

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Also, it is important to note that commentaries by Professor Eileen Denza in her work, cited
above, pp 158-159, and by Professor Rosalyn Higgins (as she then was) in Problems and
Process: International Law and how we use it (OUP) (1995), pp 88-89. Professor Denza
observes that the words quoted

“That archives not on the premises of the mission and not in the custody of a member of the
mission are entitled to inviolability”, and that: “If archives fall into the hands of the receiving
State after being lost or stolen, they must therefore be returned forthwith and may not be used
in legal proceedings or for any other purpose of the receiving State.”

The same was affirmed in the case of27 Bancoult v. Secretary of State for Foreign and
Commonwealth Affairs.

4) But even if we allow such evidence for the interest of justice, all such evidence has to fulfil
all the ingredients necessary for admissibility.

Other legal Problem with the admissibility of CCTV FOOTAGE

5) It is the most humbly submitted before this hon’ble court that if we look at page 19 of the
moot problem it clearly says that “ASI Foul hacked into the central database of the Embassy
and copied the video footage of the last 30 days onto a pen drive. The computer from which the
data was copied could not be lifted as it was bolted to the floor. The entire process was video-
graphed to prove no tampering or manipulation while copying the data. “The D.I. used his
phone to record the footage of 23rd December from the camera installed in the room of the
Ambassador where Mrs. Wats is seen lying on the floor with the Ambassador and Mr. Crook
standing next to her body. Mr. Crook is seen dragging the body out of the room. The pen drive
and the DI’s mobile phone were seized and sealed in plastic bags and sent for forensic
examination”

6) This means that the so-called CCTV collected in the form of evidence is not in a primary
form which means that it is secondary evidence, as it was held in the case of28 Anvar P.V vs
P.K Basheer that if electronic evidence as such used as primary evidence under section 62 of

27
[2013] EWHC1502(Admin), at paras.40,44and 51

(2014), 10 SCC 473

28

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the Indian evidence act, the same is admissible without compliance of section 65 B Of the
evidence act.

Was CCTV footage in primary form?

7) Indian stance on the Admissibility of electronic records.

7.1) Section 65B (4) of the Indian Evidence Act clearly says that a certificate is required when
secondary evidence is presented before the court to ensure the content and authenticity of the
evidence. The same was held in the landmark judgment of Arjun Panditrao Khotkar v.
Kailash KishanraoGoratyal29 as in the present case no certificate is provided by the
prosecution to support their claim, as it cannot be admissible. Santhoshkumar Vs State Rep.
by Inspector of Police Perundurai Police Station30 wherein it has been held that oral
evidence cannot take the place of section 65-B (4) certificate.

8) Canada’s stance on the admissibility of electronic records.

8.1) The main legislation for evidence in Canada is the Canada Evidence Act 1985, Division 4
talks about the “Authentication of electronic records”

Section 55 talks about the authentication of electric records which says that A person seeking
to enter an electronic record must prove its authenticity and under section 58 standards mention
evidence may be presented respecting any standard by again they may file an affidavit for the
authenticity of the evidence which almost same provision of section 65B (4) of Indian evidence
act.

The motive of the legislature behind making such laws.

The main motive or intention behind implementing such a law is requiring a person offering
an electronic record as evidence to lay a foundation for its admissibility, by presenting to the
presiding judge evidence that the record is what the person claims it to be (Ross v. Redl Estate,
31
also it is very pertinent here to take account of the case of Ram Singh & Ors vs Col. Ram
Singh32, an English judgment R. VS Maqsud Ali33 and R. Vs Robson34

29
(2020) 7 SCC 1
30
2021(2) MLJ (Crl) 225
31
2008 SKQB 298
32
1986 AIR, 3 1985 SCR Supl. (2) 399
33
1966 1QB 688
34
1972 1 WLR 651CCC

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Issue 4: Were the further recoveries made including the remains of Mrs. Wats liable to be
rejected and excluded from reliance by police on account of objections as to the illegal
search at the Embassy and the arrest of Mr. J. J. Crook?

1. It is most humbly submitted before this court that, even the hon’ble lower court
neglected one of the most important points in admitting this illegally obtained evidence.
That is a) How serious was the illegality of the search and seizure?

Now the question arises why is it important to quantify or measure the illegality of the
search and seizure?

2. It is most humbly submitted before this court that if all illegally obtained evidence is
admitted in the court it will nullify the protection that is given in the constitution and
international conventions e.g if all pieces of evidence will be admitted irrespective
without the measure of illegality, it will lead to a direct message to the police authority,
that they are free to raid any place, house or embassy also they are free to use all illegal
and unhuman way to obtain the evidence and it will also nullify the power of courts to
grant a warrant for search and seizure
3. Now this same tone of caution was used in the US case of Wong Kam-Ming v. R,
[1979] 1 All ER 939, at p. 946:35 by Lord Hailsham of St. Marylebone, where he
mentioned that

"... any civilized system of criminal jurisprudence must accord to the judiciary some means
of excluding confessions or admissions obtained by improper methods. This is not only because
of the potential unreliability of such statements but also, and perhaps mainly, because in a
civilized society persons in custody or charged with offenses mustn't be subjected to ill-
treatment or improper pressure to extract confessions”

4. It is most humbly submitted before this court that when the Indian Law Commission
submitted its 94 reports on the topic “EVIDENCE OBTAINED ILLEGALLY OR
IMPROPERLY” that particular report recommended the insertion of section 166A of the Indian
Evidence Act 1872 and that particular section mentioned the same tone caution (mention
section 166Aof law commission report) which is mentioned earlier that is why is it important
to quantify or measure the illegality of the search and seizure. It has been established that the

35
[1979] 1 All ER 939, at p. 946

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judge has the discretion to disallow the evidence in a criminal case if the strict rule of
admissibility would operate unfairly against the accused, that caution is the golden rule in
criminal jurisprudence (R.M. Malkani vs state of Maharashtra, equivalent citations)36,
Shamsher Singh Verma vs State of Haryana.37

a) How serious was the illegality of the search and seizure in the present case?

5. It is most humbly submitted before this court that it is true that in most commonwealth
countries the illegally obtained evidence is admissible but even the court follows some
principles before admitting such evidence one such principle is How serious is the illegality
of the search and seizure?

6. It is most humbly submitted before this hon’ble court that from the start of this case, the
police authority has violated many provisions of the Vienna Convention on diplomatic relations
as the inviolability of premises under Article has already been discussed. Rest to be discussed
in this particular issue.

Can a person holding diplomatic immunity be a witness?

7. It is most humbly submitted before this court as it is given in the fact of the case that police
authority made J.J. Crook a witness, to give a piece of evidence which again is a clear-cut
violation of article 31(2) which clearly says that “A diplomatic agent is not obliged to give
evidence as a witness”. The person cannot be forced to give evidence unless his/her immunity
has been waived by the sending state or there is written permission from the sending state.
(Public Prosecutor (Malaysia) v Orhan Olmez38

Brain mapping without a court order

8. Now after detaining Mr. J.J. Crook the police authority did the brain mapping to get the
evidence, this thing is a grave breach of any person's rights, a person who holds diplomatic
immunity has been detained in custody regardless of what international law says about it. But
they did not stop there they used brain mapping for the questioning, and they did this without

36
1973 AIR 157, 1973 SCR (2) 417
37
(2016) 15 SCC 485
38
1987,87 ILR 212

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the order of the court, which ultimately made it illegal now this thing is more problematic
because while brain mapping, they did not use a single guideline which is set by The National
Human Rights Commission had published `Guidelines for the Administration of
Polygraph Test (Lie Detector Test) on an Accused' in 2000. These guidelines should be
strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis
technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has
been reproduced below:

(i) No Lie Detector Tests should be administered except based on the consent of the accused.
An option should be given to the accused whether he wishes to avail of such a test.

(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and
the physical, emotional, and legal implications of such a test should be explained to him by the
police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly
represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement
that is made shall not be a `confessional' statement to the Magistrate but will have the status of
a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of
detention and the nature of the interrogation.

(vii) The actual recording of the Lie Detector Test shall be done by an independent agency
(such as a hospital) and conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of the information received must be
taken on record.

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9. Apart from the violation of guidelines set by the Human Rights Commission the police
officer also violated Principle139 and principal 21.40

2. No detained person while being interrogated shall be subjected to violence, threats, or

methods of interrogation which impair his capacity of decision or judgment.)

Of the Body of Principles for the Protection of all persons under any form of Detention or
Imprisonment [GA Res. 43/173, 76th plenary meeting, 9 December 1988] set by the United
Nations General Assembly.

10. When any medical examination is done without consent and without court order just to
procure some evidence it amounts to assault. Bhondar v. Emperor41, even on some occasions,
the court has advised the use of rights in private defense, if any forceful examination is done
by the police authority Deomam Shamji Patel v. State of Maharashtra42

So, at the end I would like to conclude with the wise words of, Eric Hoffer.

"The ends do not justify the means. No matter how noble the objectives of a government,
if it blurs decency and kindness, cheapens human life, and breeds ill will and suspicion;
it is an evil government."

39
Principle 1 All persons under any form of detention or imprisonment shall be treated in a humane manner and
with respect for the inherent dignity of the human person. Principle 6 No person under any form of detention or
imprisonment shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment. No
circumstance may be invoked as a justification for torture or other cruel, inhuman, or degrading treatment or
punishment
40
Principle 21 1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned
person to compel him to confess, to incriminate himself otherwise, or to testify against any other person.
41
1931 Cal 601, Lord Williams, J. held, at p. 602
42
AIR 1959 Bom 284

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PRAYER

WHEREFORE IN LIGHT OF THE FACTS STATED, ISSUES RAISED, ARGUMENTS

ADVANCED, AUTHORITIES CITED, SUBMISSIONS MADE HERETO ABOVE AND

THOSE TO BE URGED AT THE TIME OF HEARING,

1. To quash the order of lower court and declare that Mr JJ Crook is entitled to diplomatic
immunity.
2. To declare that D I could have investigated in the inside the premises of ferrwan
embassy only with the consent of ferrwan authorities.
3. To exclude evidences on the bases that is collected or obtained by illegal means.
4. To declare that further recoveries made including remains of Mrs Sean Watts shall be
rejected and excluded from reliance on account of objection to illegal search and arrest
of Mr.J. J Crook.
AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS
HON’BLE

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COURT MAY DEEM FIT AND APPROPORIATE IN THE INTERESTS OF

JUSTICES, EQUITY AND GOOD CONSCIENCES

ALL WHICH IS HUMBLY PRAYER,

URN: 2191
COUNSELS FOR THE PETITIONER

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