R (Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44

Judgment handed down: 16 July 2014

This appeal is concerning a British national, aged 57, whom is imprisoned in Bali, Indonesia, awaiting execution by firing squad following her conviction for drug offences. Mrs Sandiford was arrested in May 2012 and admitted to the offences she was accused of. Mrs Sandiford struggled to cover the legal costs for her appeal to the High Court of Indonesia. The consulate provided her with an experienced local lawyer, who agreed to assist Mrs Sandiford on an expenses only basis however, they refused to make any financial contribution to her legal costs. They relied on their published policy, under which the government was willing to provide consular support and assistance in finding suitable legal representation, but were not obligated to fund them. They sought to rely on their rigid policy, as stated in its publication Support for British Nationals Abroad: A guide (first published in June 2007) stating:

“Although we cannot give legal advice, start legal proceedings, or investigate a crime, we can offer basic information about the local legal system, including whether a legal aid scheme is available. We can give you a list of local interpreters and local lawyers if you want, although we cannot pay for either.”

The issue that was raised in this Supreme Court appeal case is regarding the blanket policy of refusing to fund legal representation in such cases. Mrs Sandiford began judicial review proceedings to challenge the legality of the policy under the European Convention on Human Rights and domestic law. This claim was rejected by the Divisional Court in January 2013 and her appeal to the Court of Appeal was dismissed in May 2013.

Mrs Sandiford in the meantime, received funding by donations for legal funding which allowed her legal representation in Indonesia to take proceedings to the High Court of Indonesia but was unsuccessful, as was Mrs Sandiford’s subsequent appeal to the Indonesian Supreme Court. Mrs Sandiford sought the assistance of the UK Supreme Court to assist in relation to these matters.

The Supreme Court unanimously decided in this case that the appeal should be dismissed. The court stated that Mrs Sandiford is not within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Such jurisdiction is territorial with only limited recognised exceptions. One such exception is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction when the agents exert authority and control over others. The courts concluded that it was not possible to identify any relevant acts of diplomatic or consular agents or any relevant exercise of authority or control by such agents over Mrs Sandiford which could bring such exception into play. The court explained that refusal to instruct or fund legal representation on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her.

The court further stated that there is no implication that a blanket policy such as the one faced in this instance, is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power. Mrs Sandiford’s lawyer provided her with competent representation at the appeal but unfortunately, the court was unwilling to take notice of it. The Supreme Court decided that this therefore, was a crucial factor within this appeal. The challenge to the decision to refuse funding and to the policy on which this appeal is based subsequently failed as the funding and policy was not an issue due to her receiving competent representation.

Full judgment found here: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0170_Judgment.pdf

Press summary found here: http://supremecourt.uk/decided-cases/docs/UKSC_2013_0170_PressSummary.pdf