R Lindsay Sandiford v The Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Gloster |
| Judgment Date | 04 February 2013 |
| Neutral Citation | [2013] EWHC 168 (Admin) |
| Docket Number | Case No: CO/862/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2013 |
[2013] EWHC 168 (Admin)
Mrs Justice Gloster, DBE
Mrs Justice Nicola Davies, DBE
Case No: CO/862/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan O'Neill Esq, QC (Scot), Adam Straw Esq & Ms. Joanna Buckley (instructed by Leigh Day & Co) for the Claimant
Martin Chamberlain Esq & Malcolm Birdling Esq (instructed by The Treasury Solicitor's Department) for the Defendant
Hearing dates: 31 st January 2013
Introduction
These are my reasons for our decision, given on 31 January 2013, to grant permission to the claimant, Lindsay Sandiford ("the claimant"), to apply for judicial review, but to refuse the relief which she seeks in her claim form.
The claimant is a British national aged 56, who was arrested on 19 May 2012 at Bali airport, Indonesia, in connection with suspected drug-trafficking offences. On 4 October 2012 she was indicted on three charges of trafficking in narcotics, two of which carry the death penalty. Her trial began shortly afterwards and regular hearings were held weekly or at short intervals until 22 January 2013. She was convicted, and although, on 20 December 2012, the prosecutor had requested a sentence of imprisonment of 15 years, on 22 January 2013, the judge sentenced her to death by firing squad.
At the hearing before this Court on 31 January 2013, this Court was informed that: the required notice of appeal had been filed on behalf of the claimant on 28 or 29 January 2013 with the Indonesian Court, within the requisite seven days after sentence; that grounds of appeal (containing the substantive arguments) were required to be lodged within 14 days thereafter; and that there was no scope for extending such time-limit. It was unclear whether the time limits were expressed in calendar days or working days, but, on a worst-case scenario, the grounds of appeal have to be filed by Monday, 11 February 2013.
On 24 January 2013 the claimant issued judicial review proceedings seeking a mandatory order requiring the Secretary of the State for Foreign and Commonwealth Affairs ("the defendant") to provide and fund an "adequate lawyer" to represent the claimant in her appeal against conviction and sentence. She sought relief in the following terms:
"A mandatory order requiring the defendant to make arrangements forthwith for the provision of an adequate lawyer to represent the claimant's interests"; and
"Such further declaratory or other relief as the Court may consider appropriate."
On 25 January 2013, Cranston J directed that permission and the substance of the claimant's claim should be considered at a rolled-up hearing by no later than Thursday, 31 January 2013.
The claimant's evidence, contained in a witness statement of Harriet McCulloch, an investigator at the well-known charity Reprieve, dated 23 January 2013, in summary, states that:
i) the claimant is a vulnerable individual, suffering from physical and mental health problems, a mother of two children one of whom suffers from learning difficulties;
ii) the claimant has not had adequate legal assistance at any stage of the proceedings, having had three different Indonesian lawyers, none of whom (it was alleged) have provided her with effective legal representation;
iii) the claimant was currently without any legal representation, and her family, in particular her sister Hilary Parsons, had exhausted all of their available resources in paying for her legal representation to date;
iv) despite efforts to secure pro bono representation, there was currently no prospect that competent counsel, with the relevant experience, could be retained to act without the provision of some funding;
v) Reprieve and the Foreign and Commonwealth Office ("FCO") approached three capital defence lawyers to ask whether they would be prepared to represent the claimant free of charge; one, Fadillah Agus ("Mr. Agus"), the Honorary Legal Adviser to the British Ambassador to Indonesia, informed the FCO on 23 January 2013 that he would be willing to represent the claimant on a pro bono basis, but only if his operational costs of approximately £2500 were covered;
vi) the claimant had asked the FCO to fund such costs, but it had refused to do so;
vii) without the provision of some funding, there was no prospect that competent counsel could be appointed to represent the claimant.
The defendant's position, as set out in his detailed grounds for resisting the claim and in the witness statement of Louise Proudlove, Head of Assistance Department, Consular Directorate of the FCO, in summary, was as follows:
i) The UK Government's position has been clear from the start. The Government opposes the death penalty in all circumstances as a matter of principle. It supports initiatives designed to encourage States which retain the death penalty to change their position; it makes grants to charities such as Reprieve, which assist individuals who are charged with capital offences; and, in appropriate cases, it makes State to State representations both in the form of diplomatic representations and, exceptionally, in the form of amicus curiae briefs where local law permits.
ii) But it does not operate a legal aid scheme to cover legal expenses for British nationals involved in criminal proceedings abroad. Its published policy on consular assistance, Support for British Nationals Abroad: a Guide ("the Guide"), provides:
"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." (Emphasis added.)
iii) The policy applies in this case. It is important that it be applied consistently. If the Government were to start making payments to British nationals involved in foreign criminal proceedings, it would have to establish a scheme akin to the legal aid scheme for domestic proceedings, so as to ensure consistency of treatment. There is no statutory authority for any such scheme. Establishing one would give rise to serious practical difficulties, as described in Ms Proudlove's witness statement. These difficulties would include the following:
a) whether the government could rationally stop at death penalty cases; consideration would need to be given as to whether assistance should be provided where punishments might be imposed that, if carried out in a Contracting State, would violate article 3 of the European Convention on Human Rights;
b) consideration as to whether representation should be provided for trial as well as for appeal; this might lead to a potentially open-ended financial liability for legal fees at trial;
c) difficulties about obtaining assurance about the adequacy of the local lawyer;
d) consistency would demand some kind of system for assessing the ability of a British National to pay or that of his family;
e) consideration as to whether the Government would be required to assess whether a particular step was justified in the context of the case and whether the fees sought were justified; it would be unclear how the government or its consular officials could perform any supervisory function in the context of a foreign legal system in which they were not experts.
Although necessarily the claimant's submissions were directed at her own particular circumstances, it was clear that the claim was regarded by both sides as having a "wider public interest", in that the principles upon which it is based might affect other cases. Thus in paragraph 68 of the claimant's "Amended Statement of Facts, Grounds for Judicial Review and Relief Sought" it was stated:
"This matter has a wider public interest. Reprieve is aware of at least two other cases within the last year in which the defendant failed to work to ensure the EU standards were met at all stages, including the case of Gareth Cashmore."
In support of this proposition, Miss McCulloch served a second witness statement dealing specifically with the circumstances of Mr. Cashmore's situation. Likewise, the defendant in its Grounds for resisting the claim agreed with the proposition that the principles involved might well have a wider impact.
During the course of the hearing, the Court asked counsel representing the claimant whether any attempts had been made by the claimant to obtain donations, whether from charitable or philanthropic institutions, or otherwise, to fund the costs of her appeal. The only answer which we received to this question (other than information that a web site had been, or might be, established, but that no funds had been received through such web site to date), was the submission that, whether any attempts had been made by the claimant to obtain donations, was irrelevant to the claimant's case as against the defendant. We announced our decision refusing the claimant's claim for relief at approximately 5pm on 31 January 2013. On the following day, 1 February 2013, the Court was informed that, following the announcement of our decision, donations in excess of £2,500 had been received to fund the costs of the claimant's appeal.
The claimant's grounds of challenge
The claimant contends that the defendant's failure to provide and fund an adequate lawyer for her appeal was unlawful because:
i) Ground 1: Breach of rights guaranteed by (i) the European Convention on Human Rights and (ii)...
To continue reading
Request your trial
-
R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs
... ... Between: The Queen on the Application of Lindsay Sandiford Appellant and The Secretary of State for Foreign and Commonwealth Affairs Respondent [2013] EWCA Civ 581 ... Master of the Rolls ... Lord Justice Elias ... Lord Justice Patten ... Case No: ... ...
-
R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs
...and Nicola Davies JJ) granted permission but refused the substantive application, for reasons given in a judgment on 4 February [2013] EWHC 168 (Admin). 4 The applicant's grounds had complained of inadequate legal assistance before and at the trial. She had been represented by a local lawy......
-
Sea Shepherd UK v Fish & Fish Ltd
... ... Society (SSCS), now based in the state of Washington, USA. SSCS has since become the ... SSCS, although its affairs appear to be directed from Washington State USA, ... , para 94, and Laws LJ in Subesh v Secretary of State for the Home Department [2004] Imm AR ... ...
-
Death Row, Human Rights And The Limits Of The Law: An Analysis Of The Judgment In 'Sandiford'
...the recent High Court judgment in R. (on the application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 168 (Admin) illustrates how difficult their task will be: the British courts will not readily succumb to convoluted attempts to stretch the fingers of......