R (on the application of Sandiford) v Secretary of State for Foreign & Commonwealth Affairs  168 (Admin) – read judgment
On 22 April 2013 the Court of Appeal upheld the decision of the Foreign and Commonwealth Office in refusing to pay for a lawyer to assist Lindsay Sandiford as she faces the death penalty for drug offences in Indonesia. Last Wednesday, they handed down the reasons for their decision.
On 19 May 2012 Lindsay Sandiford was arrested at Ngurah Rai International Airport in Bali following the discovery of almost five kilograms of cocaine in the lining of her suitcase. A number of southeast Asian countries take a notoriously hard line on drugs offences, and following her conviction on 19 December 2012, Ms Sandiford was sentenced to death. Many media outlets have reported that in Indonesia, death sentences are generally carried out by a firing squad.
Following this decision, Ms Sandiford sought assistance from the British Government. Specifically, she wanted the Government to pay for the services of a local Indonesian lawyer, to assist her as she navigated the various routes for challenging her sentence. Although the Government has a policy of opposing the death penalty (most recently set out in HMG Death Penalty Strategy: October 2010) it nevertheless refused to provide the financial assistance that Ms Sandiford was seeking.
She challenged this decision by way of judicial review in the High Court, but on 31 January 2013, Gloster and Davis JJ dismissed her challenge. She subsequently appealed to the Court of Appeal, renewing the arguments she had advanced at first instance, and asserting that the High Court’s decision had been wrong. The Court of Appeal disagreed.
Limits of the Human Rights Act
In respect of Human Rights law, the case is an important one in demarcating the jurisdictional limits of Article 1 of the European Convention on Human Rights. The Court of Appeal reiterated the test for coming within the scope of that instrument, most recently expressed in the European Court of Human Rights decision in Al-Skeini and others v United Kingdom (2011) 53 EHRR 18 . In that case, the Grand Chamber found that the UK’s military actions in Southeast Iraq fell within the scope of the Convention, due to its assumption of responsibility for the maintenance of security in the region. The test is essentially one of sufficient control, and in Ms Sandiford’s case, the Court of Appeal agreed with the High Court that the actions of consular and diplomatic officials to assist Ms Sandiford did not amount to the UK having a degree of control sufficient to engage its ECHR obligations. Ms Sandiford was therefore unable to challenge the decision to refuse legal aid on the basis of alleged breaches of Article 6, or for that matter Articles 2 or 3 of the Convention.
Lord Dyson explained:
A motif that runs through the cases is that it is a condition of the engagement of article 1 that the acts or omissions of which complaint is made come within the scope of an exercise of control and authority by the state in question. That is the governing principle in relation to diplomatic and consular activities… The mere provision of assistance by consular officials is not enough to engage the article 1 jurisdiction. Whether the involvement amounts to the exercise of control and authority sufficient to engage the jurisdiction is a question of fact and degree. But in circumstances where the individual is completely under the control of and detained by the foreign state, it is difficult to see how the necessary degree of authority and control can be exercised by diplomatic and consular agents who do no more than provide the kind of assistance that was provided to the appellant in the present case.
Pausing here, in the previous blog post about this case, it was explained the Soering principle was held not to apply by the High Court. That principle provides that a signatory state could be liable under the ECHR “by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment” (Soering v United Kingdom (1989) 11 EHRR 439 at paragraph 91), and it was decided that Ms Sandiford was not being exposed to a risk of death as a direct consequence of action taken in the UK. That argument was not reviewed in the Court of Appeal, but some have queried whether or not the High Court was right on this point. As was pointed out in a blog at the Huggington Post, where there is statistical evidence that people without legal representation are significantly more likely to fail in their appeals against the death penalty, there is an argument that the risk of death they face is directly impacted upon by a decision not to grant legal aid. The answer mnay be that there is a distinction between act and omission in these circumstances, or between creating a risk and materially increasing an existing risk, but as the issue was not re-examined, the decision of the High Court stands.
Another key part of Ms Sandiford’s case was her reliance on the Charter of Fundamental Rights of the European Union. This instrument may be less familiar to readers of this blog than the ECHR, but it is nevertheless a legally binding document (it entered into force on 1 December 2009) which is increasingly referred to by courts throughout the EU. Its content replicates many of the articles of the ECHR, but it also includes a number of additional protections such as freedom in scientific and artistic research, and intellectual freedom. Importantly for Ms Sandiford, Article 2 of the Charter enshrines the right to life and specifically prohibits the death penalty, but it only applies when EU member states are implementing EU law (per Article 51).
Ms Sandiford’s argument in reliance on the Charter was highly technical, and it is worth reading the judgment carefully for the details. In summary, it was not argued that the decision to refuse legal aid in itself amounted to an implementation of EU law. Rather, it was argued that logically prior to this decision was the decision of the Government not to exercise jurisdiction in Ms Sandiford’s case, and that it was that decision which amounted to an implementation of EU law under Framework Decision 2004/757/JHA of the Council of Euope (“the Framework Decision”), which lays down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.
This argument was ultimately rejected, because the Court of Appeal decided that there was no “decision” not to exercise jurisdiction in this case. There was no extradition treaty with Indonesia, and so there was no decision not to exercise jurisdiction which otherwise did or should have existed. Further, as Lord Dyson noted, if Ms Sandiford’s argument was right, then the UK would be obliged to provide legal assistance to anyone charged with drugs trafficking offences anywhere in the world, no matter how serious the offence or penalty. That was a consequence the Court of Appeal was not willing to facilitate.
That decision was reasoned on the basis that the Framework Decision applied to offences committed outside the EU. It appeared to be accepted by both parties that it did, although Lord Dyson indicated his view that when properly interpreted, the Framework Decision did not apply to non-EU drugs trafficking offences. That would also dispose of Ms Sandiford’s case in reliance on the Charter.
The remaining grounds of argument were based upon well-known domestic law principles of judicial review. Ms Sandiford argued that the blanket policy of refusing legal aid to overseas nationals facing the death penalty without exception amounted to an unlawful fetter of discretion, but this was rejected on the basis that, unlike statutory discretions, exercises of prerogative discretion (as in this case) were able to be limited in that way. The argument that the policy was irrational was also rejected, with the Court of Appeal noting that the resource-focused reasoning of the Foreign and Commonwealth Office, whilst perhaps harsh and unreasonable in the eyes of some, could not be said to be perverse. In a situation where the Government has a policy goal of “using all appropriate influence to prevent the execution of British nationals” and actively seeking to reduce the number of executions abroad, this particular aspect of the decision was a stark reminder of the strictness of this irrationality test.
Fortunately for Ms Sandiford, it appears that in her case she may have been able to raise the necessary funds for her appeal by way of private donations. She has lodged an appeal with the Supreme Court of Indonesia, with further options for judicial review or an application for a pardon if that fails.
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