Claimant being convicted of drug-trafficking offences in Bali and being sentenced to death
R (on the application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs: Queen's Bench Division, Divisional Court: 4 February 2013
Article 1 of the European Convention on Human Rights, so far as material, provides: 'The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention'. In May 2012, the claimant, a British national, was arrested at Bali airport in connection with suspected drug-trafficking offences. She was subsequently convicted of three charges of trafficking in narcotics and was sentenced to death by firing squad. The claimant issued judicial review proceedings seeking a mandatory order requiring the defendant secretary of state to provide and fund an 'adequate lawyer' to represent her in her appeal against conviction and sentence.
The claimant submitted that the secretary of state's failure to provide and fund an adequate lawyer for her appeal was unlawful because: (i) it amounted to a breach of her rights under: (a) articles 2, 3 and 6 of the European Convention on Human Rights, amongst others; and (b) her rights under the Charter of Fundamental Rights of the European Union (the Charter); (ii) in doing so it was unjustifiably departing from government policy as set out in 'HMG Strategy for Abolition of the Death Penalty' (the strategy) without giving a good reason for doing so; and (iii) it was unlawfully fettering its discretion by applying to the claimant a blanket policy to the effect that the government did not provide legal representation for British nationals overseas. Such a blanket policy unlawfully prevented the secretary of state from considering each case on its facts, making an exception where appropriate and from taking into account relevant considerations. In relation to (i)(a), the claimant submitted that she fell within the 'jurisdiction' of the UK for the purposes of art 1 of the Convention because she was subject to the 'authority' of the Foreign and Commonwealth Office (FCO) and the consular officials in Indonesia as their actions or omissions had 'affected' her. Consequently, the defendant was under an obligation to protect her Convention rights. In relation to (i)(b), the claimant submitted, amongst other things, that: (i) European Union law could apply extra-territorially; (ii) she was an EU citizen and therefore within the personal scope of EU law; (iii) because the offences with which she had been charged were the subject of Framework Decision 2004/757/JHA (the Framework Decision) which had extra-territorial effect, her situation was within the material scope of EU law; (iv) the Secretary of State was implementing or derogating from EU law in not seeking her extradition for such offences; therefore the Charter applied and it required the FCO to fund a lawyer for her. In relation to (ii) the strategy committed the Secretary of State to work to ensure that EU minimum standards, which included the right to adequate legal assistance, were met in countries which retained the death penalty. The claim would be dismissed.
(1) It was settled law that the relevant test for determining whether an individual was within the jurisdiction of a contracting state for the purposes of art 1 of the Convention was whether he or she was in the 'authority and control' of its agents. Individuals might be within the 'authority and control' of diplomatic and consular staff when they were on the premises of an embassy or consulate which had assumed responsibility for their protection (see  of the judgment).
Applying established principles, it was clear that the claimant did not fall within the 'jurisdiction' of the UK for the purposes of art 1 of the Convention and accordingly, she had not established any breach of her Convention rights. At all relevant times she had been 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 FCO had engaged in diplomatic representations, could not be regarded as any kind of exertion of authority or control by agents of the UK so as to engage its responsibilities under the Convention. Even if, contrary to that conclusion, the Convention applied, the relevant case law did not establish that, in circumstances such as those of the instant case, where the claimant was outside the territorial jurisdiction of the contracting state, the UK owed any duty to safeguard individuals from risks to which they were or would be subject in the third country, save to the extent that the UK had contributed to the risk by its actions, for example, by extraditing or deporting such individuals knowing of the risk. The obligation of a state to protect individuals from the actions of another state arose in much more limited circumstances than the obligation owed to individuals who were within the state's territorial jurisdiction. The claimant was plainly at risk of suffering treatment in Indonesia which, if she were subjected to it in a contracting state, would have constituted a serious violation of her Convention rights. However, she was not being exposed to that risk as a direct consequence of action taken by the UK (see , -, ,  of the judgment). X v United Kingdom (1977) 12 DR 73 explained; Cyprus v Turkey (1975) 2 DR 125 considered; Soering v United Kingdom (Application 14038/88) 11 EHRR 439 considered; Al-Skeini v United Kingdom  All ER (D) 70 (Jul) considered.
(2) It was settled law that, in order for the Charter to be engaged, a claimant had to show both that he had a sufficient personal connection with EU law to be entitled to rely on its provisions and that the member state was implementing or derogating from EU law (see  of the judgment).
On the facts, none of the claimant's arguments established that the Charter applied or that her situation was within the material scope of EU law. In order to establish that her situation fell within the scope of EU law, the claimant had to establish that the Secretary of State's decision not to pay for a lawyer to act on her behalf was one which fell within that scope. It was not sufficient for her simply to say that she had been charged with offences of the kind that were dealt with in the Framework Decision. The Framework Decision regulated member states' actions, amongst others, with respect to criminal sanctions associated with drug trafficking into, and within, the EU. It did not purport to regulate the type or extent of assistance provided by member states to their own nationals when charged with drug trafficking in third countries. Further, so far as authority within the UK was concerned, framework decisions were not part of the corpus of EU law. Accordingly, even if the claimant's situation was within the material scope of the Framework Decision, it was not within the material scope of EU law, as understood and applied by the UK courts. Even if the Charter were to have applied, the issue arose as to what it would have required the UK to have done in the circumstances of the instant case. The question was whether the UK had a positive obligation to protect its nationals from risks to which they were exposed by a third country not subject to the laws of the EU. Nothing in the case law considered suggested that the UK, or indeed any other member state, had any such obligation (see , , , ,  of the judgment).
R (on the application of Zagorski) v Secretary of State for Business, Innovation and Skills  All ER (D) 295 (Nov) applied; Assange v Swedish Prosecution Authority  4 All ER 1249 applied.
(3) On the facts, none of the claimant's arguments justified the grant of the relief sought. The Secretary of State had not departed from the UK Government's policy by refusing to fund the claimant's legal representation. Neither had he failed to give any adequate reason for r
efusing to do so. As a matter of both logic and law, the fact that a Government adopted a policy of opposing X and of using all appropriate influence to prevent X did not mean that it had to do everything that it could in principle do to lower the risk of X. Nor did it mean that it was under an obligation to justify a decision not to take a particular action which would or might lower the risk of X. The Secretary of State's policy of not funding legal representatives was indeed a 'blanket policy'. Where a statute conferred a discretion, it was unlawful to apply a blanket policy without considering on the facts of each particular case whether to make an exception from it. However, in the instant case, there was no statutory discretion. The power of the Secretary of State to make payments for legal representation for British nationals abroad was a common law power and, in such circumstances, the principles were different. There was no prohibition on rigid policies provided that they were rational. Where a policy was made in the exercise of prerogative or common law powers, there was no rule which required a decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in that particular case. On the evidence, the Secretary of State had indeed considered the circumstances of the case and had examined the existing policy in the light of those circumstances. The question it had asked was 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. It had decided that it should not do so and there was no basis for concluding that such a decision was irrational. It was against the background of the need of the government to treat all British nationals fairly and consistently that the rationality of the policy had to be considered. Whilst the Secretary of State could lawfully have paid for legal representation for certain British nationals under common law powers as an exception to his policy, consistency would inevitably require him to set up at least some sort of a scheme, even if he were to consider only limited payments of small amounts to British nationals in extremity. That would inevitably require complex policy choices which were the type of decision normally left to legislation. In the absence of legislation, it was not irrational for the Secretary of State to decline to establish such a scheme under common law powers or to make an exception from his current policy for particular cases. All the practical difficulties clearly illustrated that any departure from the current policy was clearly a matter for the executive and not for the court (see , , , , , , ,  of the judgment).
The court would decline to grant the relief sought (see  of the judgment).
R (on the application of Elias) v Secretary of State for Defence  All ER (D) 104 (Oct) applied.
Aidan O'Neill QC, Adam Straw and Joanna Buckley (instructed by Leigh Day & Co) for the claimant.
Martin Chamberlain and Malcolm Birdling (instructed by the Treasury Solicitor) for the Secretary of State.