No cash from the UK to avoid Indonesian firing squad

8 February 2013 by Rosalind English

Sandiford, R(on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] 168 (Admin) – read judgment

In this highly publicised case, the Administrative Court has come up with some firm criteria for the scope of the Convention’s protective reach for UK citizens abroad. The judgment is also something of a body blow for those who are looking to the EU Charter of Fundamental Rights and Freedoms for a wider human rights umbrella.

Lindsay Sandiford, the 56 year old claimant, was arrested for drug smuggling in Indonesia and sentenced to death. She issued judicial review proceedings seeking an order requiring the FCO to provide and fund an “adequate lawyer” on the basis that she had not had proper representation in Indonesia. The broad basis of this claim was that the UK government should back up its opposition to the death penalty by putting its money where its mouth is. The FCO’s response  was that the government does not, and should not operate a legal aid scheme to cover legal expenses for British nationals involved in criminal proceedings abroad. If it were to do so, it would encounter intractable obstacles, including the following questions –

• why should the government stop at death penalty cases? Plenty of punishments abroad would violate Article 3 of the Convention by being “degrading”
• should representation be provided for trial as well as for appeal: if so, this would end to potentially open-ended financial liability for legal fees at trial
• how would the UK’s consular officials perform the task (which the Legal Services Commission undertakes for domestic cases) of assessing whether any particular step was justified in the context or whether the fees sought were justified

Legal arguments

The claimant contended that the FCO’s failure to provide and fund an adequate lawyer for her appeal was unlawful because it breached her right to life under Article 2 and failed in its positive obligation under Article 3 to ensure that her human dignity was respected. She also invoked the right to a fair trial under Article 6, arguing that the government had failed to protect her against disproportionate punishment. These submissions were backed up by the EU Charter of Fundamental Rights.

She also argued that the government had acted unlawfully in unjustifiably departing from its own policy statement on “Strategy for the Abolition of the Death Penalty”, and that by setting its face against any legal representation for British nationals overseas, it had unlawfully adopted a blanket policy and fettered its own discretion to consider individual cases.

Gloster J rejected all these arguments and dismissed the application.

Reasons behind the judgment

ECHR rights protect the interests of individuals within the territory of ECHR signatory states. The efforts by the British consulate in Indonesia to assist the claimant did not bring her into the jurisdiction of the United Kingdom so that the defendant came under an obligation to protect her Convention rights under the “extra-territoriality principle” established in Al-Skeini and Others v United Kingdom (2011) 53 EHRR 18.

The mere provision of advice and support by the consular authorities, and the engagement of the FCO and the defendant at a diplomatic level, do not amount to an exercise of authority or control over the claimant such as to result in the United Kingdom being regarded as, exceptionally, exercising its jurisdiction over the claimant.[25]

The exception to the jurisdictional rule only cuts in in exceptional circumstances, where for instance where diplomatic agents exert authority and control over others (Bankovic v Belgium [2001] ECHR 52207/99), or where an ECHR state exercises some of the public powers as a result of the government of that territory’s invitation to do so (Bankovic, again). Finally the ECHR may extend to individuals who have been taken into the custody of agents of the ECHR state when they are abroad, for example where Kenya handed the applicant over to Turkish officials (Öcalan v Turkey [2005] ECHR 46221/99). But these are exceptional instances of the ECHR state exercising, through its agents, control and authority over an individual when abroad. It is simply not enough that a state’s consular officials offer assistance to an individual, to bring him or her into the jurisdiction of that State’s Convention obligations. On the contrary, in this case it was “manifestly clear” that

from the moment she was arrested, throughout the time she was in custody, throughout the trial process, and after her conviction when held in prison, the claimant was and remains under the authority and control of the Indonesian state and relevant criminal authorities. The mere fact that the consular officials provided her with advice and support, and that the FCO engaged in diplomatic representations, cannot be regarded as any kind of exertion of authority or control by agents of the United Kingdom so as to engage its responsibilities under the Convention. [40]

Nor did the Soering “death row” principle have any application. Whilst the claimant was plainly at risk of suffering treatment in Indonesia which, if she were subjected to it in a Contracting State, would constitute a serious violation of her Convention rights, she was not being exposed to this risk as a “direct consequence” of “action” taken by the United Kingdom. There is no authority for the proposition that Articles 2 or 3 impose obligations on a Contracting State to safeguard nationals who are in a third country from risks to which they are subject in that country through no action of the Contracting State.

The byzantine means with which the claimant’s arguments were pinned to the operation of the EU Charter are difficult to summarise here. Suffice it to say that the EU has passed a Framework Decision on sanctions for drug trafficking to regulate the actions of member states of the EU. But EU law is not engaged by criminal sanctions for drug offences adopted by non-EU countries, nor by assistance provided to EU member states to their own nationals caught smuggling drugs into those countries. The UK, in short, could not exercise jurisdiction because the claimant is in Indonesia.

There is some very interesting commentary in the judgment about EU Framework Decisions and the extent to which they fall within the “material scope of EU law”, being  in the same category as the EU measure considered by the Supreme Court in Assange v Swedish Prosecution Authority (Nos I and 2) [2012] 2 AC 471. In that case,

the Supreme Court held that such measures are not part of United Kingdom law under the European Communities Act 1972. The consequence of this is that the measures themselves and the jurisprudence of the CJEU in relation to them are not part of the domestic law of the United Kingdom, and thus not binding.

In short, there was no authority for the argument that UK has a positive obligation to protect its nationals from risks to which they are exposed by a third country not subject to the laws of the European Union.

The submissions regarding departure from the death penalty strategy and unlawful fettering of discretion were dealt with briefly.

As a matter of logic and as matter of law, the fact that a Government adopts a policy of opposing X and of using all appropriate influence to prevent X does not mean that the Government has to do everything that it could in principle do to lower the risk of X. Nor does it mean that the Government is under an obligation to justify a decision not to take a particular action which would or might lower the risk of X.

The “fettering discretion” argument was based on the wrong question. It was not a matter of whether the government had considered whether to make an exception in this case, but rather whether it should change the policy of not providing funding to cover the legal costs of British nationals subject to criminal proceedings abroad, either in death penalty cases or more widely. The government has decided that it should not do so. Thus the only question for the Court was whether that decision was a rational one. In Gloster J’s view, there was no basis for concluding that such a decision was irrational. The claimant understandably invited the Court of focus its attention on her own position and the small amount of money – £2,500 – that was in fact required for legal representation on her appeal – but the hard truth is that the government has to consider the need to treat all British nationals fairly and consistently. It was not irrational for the Secretary of State to decide agains setting up an extra-territorial legal aid scheme.

The Secretary of State might in principle be able to set up a very limited scheme along the lines suggested by [counsel for the claimant], which was limited to small amounts in extreme hardship cases. But it cannot in my view be irrational for him not to do so

Any policy of paying legal expenses in individual cases would have to be one for the executive to consider, not the courts.

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Related posts:

• EU fundamental rights do not extend to US death row
• War, power and control: the problem of jurisdiction
• Other posts on “extra-territorial effect”