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Background

Ms Sandiford is a 57-year-old British National who is currently in prison in Bali, awaiting execution by firing squad in relation to a conviction for drug trafficking offences.

Following her conviction in December 2012, there remained only two options open to Ms Sandiford to avoid the death penalty; the first was to appeal against her sentence and the second was to submit a petition for clemency. These options necessitated either an in-depth knowledge of the Indonesian legal system or a close knowledge of the Indonesian judicial and political situation.

Therefore Ms Sandiford sought financial assistance from the UK government to pay for legal representation. However, this request was refused in light of a ‘bright line’ policy never to fund legal representation in relation to criminal proceedings abroad, even where the death penalty may be applied (notwithstanding the FCO’s policy to oppose the death penalty). Ms Sandiford was provided with consular assistance only.

Ms Sandiford brought a claim challenging that policy, which was refused by the Court of Appeal ([2013] EWCA Civ 581). Permission to appeal against that decision to the Supreme Court was granted in relation to the rationality of the policy and its compatibility with the ECHR.

The Supreme Court judgment

The Supreme Court unanimously dismissed the appeal holding that the policy was lawful, while still calling on the Secretary of State to review the application of the policy in Ms Sandiford’s case noting that the transcripts from of the judgments against Ms Sandiford in the Indonesian courts made for ‘very disturbing reading’.

Article 1 jurisdiction is primarily territorial and the Supreme Court agreed with the lower court’s decision that Ms Sandiford’s case did not come within any of the established exceptions.

“The United Kingdom has no territorial jurisdiction over Mrs Sandiford in prison in Indonesia. But the United Kingdom could, in one way or another, provide her with funds for her legal proceedings in Indonesia. It could on the face of it do so without using any diplomatic or consular agents, by providing funds here which could then be remitted to Indonesia. However, there is no general Convention principle that the United Kingdom should take steps within the jurisdiction to avoid exposing persons, even United Kingdom citizens, to injury to rights which they would have if the Convention applied abroad.” [23]

The Court thus found that Ms Sandiford did not come within the jurisdiction of the UK for the purposes of the ECHR; she had been apprehended and tried by the Indonesian authorities and was clearly under their authority and control thus the responsibility for ensuring a fair trial lay solely with them.

“Looking at the matter more broadly, the position is that Mrs Sandiford has been apprehended, convicted and tried for drug smuggling in Indonesia. If one asks, by reference to any common-sense formulation, under whose authority or control she is, the answer is: that of the Indonesian authorities. It is 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 article 6. Since Al-Skeini, it is possible in certain respects to divide and tailor the Convention rights relevant to the situation of a particular individual: see para 137 in that case. But to divide and tailor the rights under article 6, so as to isolate the duty to fund from the remaining package of rights involved in fair trial, and to treat it as applying to the United Kingdom and as putting Mrs Sandiford to that extent under the authority or control of the United Kingdom, is in our opinion impossible in circumstances where the United Kingdom has deliberately not assumed or performed any role in relation to funding.” [32]

Although domestic law provided the Secretary of State with the power to offer assistance, including legal funding, to Ms Sandiford this power was not derived from statue. It was therefore lawful to implement a blank policy against providing assistance to British nationals facing the death penalty abroad.

“There was no material dispute as to the existence or source of the power of the Secretary of State to provide assistance, including legal funding, for British citizens facing capital charges abroad. It is immaterial for the present purposes to consider whether this is properly described as a common law or a prerogative power … The significant point is that it is not derived from statute, and accordingly any legal constraints on its exercise must be found elsewhere.” [49]

As a consequence,

“There is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power. In so far as reliance is placed on legitimate expectation derived from established published policy or established practice, it is to the policy or practice that one must look for the limits, rigid or flexible, of the commitment so made, and of any enforceable rights derived from it.” [62]

The Court concluded that there was therefore nothing irrational about the policy, or the reasons given for not departing from it in Ms Sandiford’s case, noting that the Respondent,

“… seems to have responded with appropriate urgency to the wholly unexpected death sentence. They were able to put the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis. Although it is argued that the small amount involved was a reason for making an exception to their policy, it could equally point in the other direction. It was hardly irrational to think that it was a sum which the family should be able to raise for themselves, as indeed turned out to be the case. In the event 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. This cannot be laid at the door of the Secretary of State.” [72]

Comment

There are only a few British nationals facing the death penalty aboard so it may be said that this judgment has limited implications, however it is likely that this case will have more wide reaching political implications. Many states do in fact providing funding for its nationals who face the death penalty abroad and arguably the Court’s comments in this case may put pressure on the UK Government to consider doing the same. Arguably, providing funding for legal representation abroad is one of the most effective ways of avoiding the imposition of the death penalty, alongside campaigning for its abolition all together.