New Judgment: R (Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs  UKSC 44
16 Wednesday Jul 2014
On appeal from:  EWCA Civ 581
The appellant was convicted of drug trafficking offences in Indonesia and sentenced to death. She is currently awaiting execution in prison in Bali. The respondent has a strict policy not to provide legal funding in criminal proceedings abroad, even where the death penalty may apply. The Supreme Court was asked to decide whether the respondent’s policy is unlawful.
The Supreme Court unanimously dismissed the appeal. However, the Court urgently called on the Secretary of State to review the application of the policy to the appellant’s case in the light of new information as to the fairness of the proceedings in Indonesia.
The appellant did not come within the jurisdiction of the UK for the purposes of the ECHR, art 1. The responsibility for ensuring a fair trial lay with the Indonesian authorities. As the Secretary of State’s power to provide assistance to citizens facing capital charges abroad derives not from statute but from prerogative powers, it is not necessarily the case that a blanket policy is inappropriate. Nevertheless, the Foreign Office had made attempts to provide the appellant with legal representation, putting her in touch with a local lawyer who was willing to work for expenses only and providing an Amicus brief. The issue in the Indonesian courts was not the lack of representation but the ineffectiveness of such representation.