Constitutional law

R (on the application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs: Supreme Court: 16 July 2014

Exercise of power – Discretion – Appellant, British national, in prison in Bali, Indonesia, awaiting execution by firing squad, following conviction for drug offences – Secretary of state providing substantial consular assistance but declining to pay for legal help, relying on rigid policy

The appellant, a British national 57 years of age, was in prison in Bali, Indonesia, awaiting execution by firing squad, following her conviction for drug offences. That followed her arrest in May 2012 and her subsequent trial on 22 January 2013 in the District Court of Denpasar. She had admitted the offences, but claimed that she had been coerced by threats to her son’s life.

Following her arrest, she had co-operated with the police, leading to the arrest of four others. Following various unsuccessful appeals, her only legal options to avoid execution were an application to the Supreme Court to reopen the case, and an application to the president for clemency. The time-limit for both expired in August 2014 and she required legal help to prepare her case.

The defendant secretary of state had provided substantial consular assistance, including putting the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis. However, he had declined to pay for legal help, relying on what was said to be a rigid policy. The blanket policy, recently reviewed, was motivated largely by domestic policy and funding considerations. The department had considered the points put forward as justifying exceptional treatment of the claimant, but had decided not to accept them.

The appellant issued judicial review proceedings in England, challenging the validity of the secretary of state’s policy of refusing to provide funding for legal fees and expenses to British nationals who were facing the death penalty abroad. The court dismissed the appellant’s application for judicial review and she appealed. The Court of Appeal, Civil Division, dismissed the appeal and the appellant appealed to the Supreme Court.

The central issue was the legality of that approach, either under domestic law, or (if it applied to her case) the European Convention on Human Rights. The Convention issues included, whether the appellant was within the jurisdiction of the UK for the purpose of article 1 of the Convention. It was article 6 of the Convention, enshrining the right to a fair trial, alone on which reliance was placed.

The case advanced was that the UK could and should secure to the appellant free legal assistance under article 6(3)(c) of the Convention, in circumstances where she could not afford to fund herself and no such assistance was available to her in Indonesia. The common law issue was whether the UK government’s blanket policy to refuse to consider providing such funding in any case, including the appellant’s, was unlawful and/or irrational and/or (if material) disproportionate.

The issue which divided the parties was, whether there existed, in relation to prerogative powers, any principle paralleling that which, in relation to statutory powers, precluded the holder of the statutory power from deciding that he would only ever exercise the power in one sense. The basis of the statutory principle was that the legislature, in conferring the power, rather than imposing an obligation to exercise it in one sense, had to have contemplated that it might be appropriate to exercise it in different senses in different circumstances.

The appeal would be dismissed.

(1) Jurisdiction under article 1 of the Convention was ‘primarily territorial’, but there were certain recognised exceptions, one of which was in relation to the acts of diplomatic and consular agents, which might amount to an exercise of jurisdiction when those agents exerted authority and control over others. Whether the exception existed or not depended on the facts of the particular case (see [19], [24], [25] of the judgment).

The appellant was and remained under the authority and control of the Indonesian state and relevant criminal authorities. The mere fact that the consular officials had provided her with advice and support, and that the Foreign and Commonwealth Office had engaged in diplomatic representations, could not be regarded as any kind of exertion of authority or control by agents of the UK.

Looking at the matter more broadly, the appellant had been apprehended, convicted and tried for drug smuggling in Indonesia. If one had asked, by reference to any common-sense formulation, under whose authority or control she had been, the answer would be that of the Indonesian authorities. It was they who ought to be ensuring her fair trial. If they were party to the Convention, it would be their duty to do so and to provide appropriate legal assistance in a case of impecuniosity, under art 6 of the Convention.

The appellant was not within the jurisdiction of the UK for the purposes of article 1 of the Convention, so that no part of article 6 of the Convention was capable of imposing any obligation on the UK in respect of the criminal proceedings and capital penalty to which she was now subject in Indonesia (see  [25], [26], [32], [34] of the judgment).

Al-Skeini v United Kingdom [2011] All ER (D) 70 (Jul) applied; Smith v Ministry of Defence; Ellis v Ministry of Defence; Allbutt v Ministry of Defence [2013] All ER (D) 167 (Jun) applied.

(2) Prerogative powers did not stem from any legislative source, nor therefore, from any such legislative decision and there was no external originator who could have imposed any obligation to exercise them in one sense, rather than another. They were intrinsic to the Crown and it was for the Crown to determine whether and how to exercise them in its discretion. That had the consequence that prerogative powers had to be approached on a different basis from statutory powers.

There was no necessary implication, from their mere existence, that the state, as their holder, had to keep open the possibility of their exercise in more than one sense. There was no necessary implication that a blanket policy was inappropriate, or that there had always to be room for exceptions, when a policy was formulated for the exercise of a prerogative power. In so far as reliance was placed on legitimate expectation derived from established published policy or established practice, it was to the policy or practice that one had to look for the limits, rigid or flexible, of the commitment so made and of any enforceable rights derived from it.

In circumstances where the secretary of state had laid down a detailed scheme, recently reviewed, covering those to be included or excluded, there could be no legitimate expectation that he would consider further categories of exception outside those specifically provided for. That did not mean that the formulation or exercise of a prerogative power might not be susceptible to review on other grounds. There was no reason why action or inaction in the exercise of such a power should not be reviewable on the grounds of irrationality or breach of other judicial review principles (see [61], [62], [64] of the judgment).

The challenge to the decision and the policy on which it was based, had to fail. A review of the evidence, indicated that the relevant department had, in fact, considered the points put forward as justifying exceptional treatment for the appellant, but had decided for good reasons not to accept them. The department seemed to have responded with appropriate urgency to the wholly unexpected death sentence. They had been able to put the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis.

The problem at the appeal was not the lack of competent legal representation, but the apparent unwillingness of the court to take any notice of it. That could not be laid at the door of the secretary of state (see [59], [72], [73] of the judgment).

R (on the application of Elias) v Secretary of State for Defence [2006] All ER (D) 104 (Oct) applied; R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] All ER (D) 70 (Nov) considered.

Per curiam: ‘ … the secretary of state ought now to revisit the question whether the policy should be broadened or an exception made in order to accommodate the particular case of [the appellant] in the light of the fresh information about the course of the proceedings in Indonesia. But that is not because the secretary of state has a duty to broaden his policy or make an exception. It is because he has already undertaken a review of that policy on the information available to him at the time, and because consistency and rationality require him not to treat that review as closed at a time when relevant further information is still becoming available which might alter his assessment’ (see [85] of the judgment).

Decision of Court of Appeal [2013] 3 All ER 757 affirmed.

Aidan O’Neill QC, Adam Straw and Joanna Buckley (instructed by Leigh Day & Co) for the appellant; Martin Chamberlain QC and Malcolm Birdling (instructed by the Treasury Solicitor) for the secretary of state.