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28 September 2015
Case Commentary: R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs,  UKSC 44
Whether the "blanket" policy of the Secretary of State to refuse legal assistance, such as the payment of legal representation, for British citizens in difficulty abroad is legal under either domestic law or Article 6 of the ECHR
A joint-judgment was handed down by Lords Carnwath and Mance, with whom Lords Clark and Toulson agreed (Lord Sumption giving a concurring judgment), in the case of R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs,  UKSC 44 on 16 July 2014. The appeal challenges the legality of the Secretary of State's policy to provide consular assistance in cases where British subjects are in difficulty abroad, but not funding their legal representation.
The facts for this case are complicated yet well-known, having been extensively reported in the mainstream press. The appellant is a 57 year old British national arrested in May 2012 and convicted of drug offences in Indonesia on 22 January 2013 in the District Court of Denpasar. Following her arrest she cooperated with the police, enabling them to arrest and convict four others from the syndicate. Before the District Court the prosecutor put forward a strong case for her to receive a custodial, as opposed to death, sentence of 15 years paired with a heavy fine and supported her appeal to the Indonesian High Court. For that appeal she sought financial assistance from the UK government to pay for legal representation, for the necessary preparation and presentation of her case. The British consulate put her in contact with the experienced lawyer Mr Agus, working on a pro bono basis but unfortunately no longer able to represent her on medical grounds.
The government refused to financially contribute towards any of the costs incurred, citing the "Support foir British Nationals Abroad: A Guide" policy. Instead they provided her with diplomatic representation and submitted amicus briefings to the Indonesian courts. While she has afforded representation through public donations, appeals to the High Court and Supreme Court of Indonesia have so far failed. As it stands the appellant's last resort, to have her sentence commuted, is to apply to the Supreme Court of Indonesia to reopen her case or apply to the President for clemency. The former will cost a substantial sum.
The current judicial review proceedings were commenced to challenge the legality of the policy, both under Article 6 of the European Convention on Human Rights (ECHR) and the common law. In a "rolled up hearing" before the Divisional Court, on 31 January 2013, Gloster and Nicola Davies JJ granted permission for an order requiring the Secretary of State to make arrangements for an adequate lawyer to represent her in the Indonesian proceedings, but refused the substantive application. Her appeal before the England and Wales Court of Appeal was dismissed on 22 May 2013. She therefore brought the current appeal.
Grounds of Appeal:
- Whether the appellant is within the jurisdiction of the UK for the purpose of article 1 of the European Convention on Human Rights
- If so, whether the respondent was and is obliged by the Convention to provide funds for the appellant's legal representation in capital proceedings against her in Indonesia, or alternatively to consider her claim for funding.
- Whether the UK government's blanket policy to refuse to consider providing such funding in any case, including the appellant's, is unlawful and/or irrational and/or (if material) disproportionate.
Handing down judgment the Lords felt it unnecessary to address the second issue, being in "substantial agreement with the [domestic] courts below". Before considering the first and third grounds they accepted that the case fell under Article 6 ECHR on the right to a fair trial. Having established the relevant supra-national law, they then considered the first issue. Referring to the principle in Al-Skeini v United Kingdom (2011) 53 EHRR 18 that jurisdiction is primarily territorial they questioned whether her case, falling outside of this rule, could be accommodated by one of the exceptions in relation to acts of diplomatic and consular agents where they exert authority and control over others. Answering in the negative, they decided that she was under "the authority and control of the Indonesian state and relevant criminal authorities", in line with the opinion of the Divisional Court; see paragraph 19. Refusal to fund or instruct lawyers on her behalf did not satisfy the principle.
As to issue two, the Lords did not rule out that the UK could provide her with funds for the foreign proceedings. The Secretary of State had a prerogative power to provide such assistance—there was just no obligation under law. Article 5(i) of the Vienna Convention on Consular Relations 1963 lays out that diplomatic and consular agents may represent or arrange the representation for nationals of the "sending state before the tribunals and other authorities of the receiving state". Equally there was no obligation under the ECHR for the UK, within the Convention's jurisdiction, to avoid exposing their citizens among others to injury to rights they would have if the ECHR had extra-territorial application. The rights could not be divided and tailored, as was done in Al-Skeini. The appellant "was not and is not within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention". Article 6 was not capable of imposing any obligation on the UK in respect of criminal proceeedings and the corresponding capital penalty.
On the third (common law) issue of the "blanket" policy, the Lords concluded that the Secretary of State had the power to provide assistance for Britain's facing capital charges abroad whether as a common law or prerogative power. A power may be made enforceable in domestic law based on established governmental policy statements or practises, underpinnned by the law of legitimate expectation and made justiciable in line with Council of Civil Service Unions v Minister for the civil Service  AC 374.
Turning to the entitlement of the Secretary of State to place restrictions on the policy and its application to the appellant's case, the Court followed the reasoning of Lord Dyson MR in R (Elias) v Secretary of State for Defence  1 WLR 3213. "A decision-maker is not bound to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case". The Secretary of State had the power to decide on the extent to which he exercised the power granted by the scheme. These prerogative powers do not imply that a blanket policy is inappropriate nor that there must always be room for exceptions. It was hardly irrational, according to the Lords, to consider the family unable to raise the money for legal representation themselves. In fact they achieved this through public donations. After all, "the problem at the appeal was not the lack of competant legal representation, but the apparent unwillingness of the court to ake any notice of it. This cannot be laid at the door of the Secretary of State". The challenge to the decision made in January 2013, and the policy on which it was based, failed.
Before dismissing her appeal the Lords nevertheless stressed the appellant's continuing state of jeopardy and urgent needs, her limited options by which to proceed, and their serious concerns as to the functioning of the Indonesian judicial system to which she was subject and its ability to deal with her case. There seemed to be a distinct lack of appreciation by the Indonesian courts of the mitigating factors in her case. Accordingly the Court called on the Secretary of State to urgently review the application of the policy in light of that information.
In his concurring judgment Lord Sumption attached some observations on the rule against the fettering of discretions in the context of exercising a common law power.
Appeal unanimously dismissed.
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