R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Elias:,Lord Justice Patten: |
| Judgment Date | 22 May 2013 |
| Neutral Citation | [2013] EWCA Civ 581 |
| Docket Number | Case No: C1/2013/0456 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 2013 |
[2013] EWCA Civ 581
Master of the Rolls
Lord Justice Elias
and
Lord Justice Patten
Case No: C1/2013/0456
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MRS JUSTICE GLOSTER, DBE &
MRS JUSTICE NICOLA DAVIES, DBE
CO/862/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan O'Neill QC (Scot), Adam Straw and Joanna Buckley (instructed by Leigh Day & Co) for the Appellant
Martin Chamberlain QC and Malcolm Birdling (instructed by The Treasury Solicitor's Department) for the Respondent
Hearing date: 22 April 2013
Approved Judgment
This appeal concerns the Secretary of State's decision to adhere to his policy of refusing to provide funding for legal fees and expenses to UK nationals who are facing the death penalty abroad.
The factual background
The appellant is a UK national. She is 56 years of age and is a vulnerable person suffering from physical and mental health problems. On 19 May 2012, she was apprehended at the airport in Bali, Indonesia, by customs officials who found 10 packets of cocaine in her luggage. She was later charged with offences relating to trafficking in narcotics contrary to articles 112(2), 113(2) and 114(2) of Law 35, year 2009. Two of the charges carry the death penalty. On 20 December 2012, the Indonesian prosecutor requested a sentence of 15 years' imprisonment. On 22 January 2013, the judges of the District Court of Denpasar found her guilty of contravention of article 113(2) and sentenced her to death by firing squad. She appealed against conviction and sentence to the High Court of Denaspar.
On 24 January 2013, she issued judicial review proceedings in England seeking a mandatory order requiring the Secretary of State "to make arrangements forthwith for the provision of an adequate lawyer to represent the [appellant's] interests" in relation to her pending appeal. On 31 January, the Divisional Court (Gloster and Davies JJ) granted her permission to apply for judicial review, but dismissed her application. Full reasons were given in the judgment of Gloster J which was handed down on 4 February.
On 10 April, the High Court of Denpasar dismissed the appeal. The appellant now wishes to appeal further to the Supreme Court of Indonesia. She wishes to instruct Mr Agus, an Indonesian lawyer, to represent her. He is willing to do so, but he requires a sum equivalent to approximately £8,000 to cover the cost of his work (at a discounted rate), his expenses and the expenses and salaries of his two assistants. The appellant does not have the means to pay this sum. The only potential sources of funds to pay Mr Agus are by means of third party donations or monies provided by the UK Government. By the time the appeal from the decision of the Divisional Court was heard by us, some part of the sum required had been donated to the appellant. It seems that, since the date of the hearing, she has received by third party donations the whole of the sum that is required. It may, therefore, be that the appellant no longer has an interest in the outcome of the appeal. But the appeal raises points which have implications for other UK nationals facing the death penalty abroad.
In view of the imminent deadline for the lodging of the appeal papers in Indonesia, we were requested to announce our decision immediately or shortly after the conclusion of the hearing. We announced our decision to dismiss the appeal on 22 April. This judgment contains my reasons for doing so.
The relevant policy
The Secretary of State's current policy on funding for legal representation which was applied to the appellant's case and which is under challenge in these proceedings is contained in Support for British Nationals Abroad: a Guide. This policy was first published on 7 June 2007. Although it has been updated seven times since it was first published, the material parts of the policy have remained unchanged. It includes the following:
"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. "
It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle. Its strategy and policy in relation to the death penalty is set out in the HMG Death Penalty Strategy: October 2010. The Strategy confirms that the goals of the UK Government are to increase the number of abolitionist countries or countries where a moratorium exists on the use of the death penalty; to seek further restrictions on the use of the death penalty in countries where it is used and a reduction in the number of executions; and to ensure that EU minimum standards are met in countries which retain the death penalty. The first involvement of the Foreign and Commonwealth Office ("FCO") in cases where British nationals are arrested and detained abroad (including in cases where they may face the death penalty) is following notification of their arrest by the host State's authorities. The consular assistance that may be provided in potential death penalty cases includes (i) contacting the national within 24 hours of being notified of their arrest; (ii) making enquiries about his or her welfare and treatment; (iii) conveying messages from the detained national to their families, legal representatives or other organisations; (iv) providing information about NGOs which provide assistance to British nationals abroad (including Reprieve in death penalty cases); (v) offering basic information about the local legal system, including whether a legal aid scheme is available, as well as providing a list of local interpreters and local lawyers if requested; (vi) making representations to relevant police authorities, prosecuting authorities, senior government officials and Ministers and Heads of Government and State; and (vii) giving consideration to making representations to judicial authorities, by way of an amicus curiae brief (if admissible under local law), and where inadmissible to making representations through more informal means
The policy that was in operation before the publication of the Guide was expressed in slightly less uncompromising terms on the funding issue. As at January 1997, the policy was described as follows:
"Central government funds are not available to fund legal representation for British nationals facing charges overseas, including those appealing against execution. If a British national is unable to pay for legal representation, and if legal aid is not available, it is our normal practice, if asked, to approach relatives or friends of the detained to provide financial help. If there is no possibility of obtaining funds, we will consider whether, exceptionally, a loan can be made from public finds against an undertaking to repay."
In her second witness statement, Louise Proudlove (Head of Consular Assistance, Consular Directorate, of the FCO) says that no record has been found of any case in which funds were made available for legal representation pursuant to the previous policy. Funding was, however, made available in two cases for expert evidence in the form of a loan against an undertaking to repay.
Ms Proudlove explains in her two witness statements the reasons for the current policy in relation to the funding of legal representation for British nationals in overseas cases (including death penalty cases). I discuss these when I deal with the challenge to the rationality of the policy at para 51 below.
The issues
On behalf of the appellant, Mr Aidan O'Neill QC submits that the Secretary of State's refusal to fund the instruction of Mr Agus is unlawful for three reasons. First, the appellant's situation falls within the material scope of EU law and the Secretary of State is in breach of the duty to protect the appellant's rights under the Charter of Fundamental Rights of the European Union ("the Charter"). Secondly, the appellant is within the jurisdiction of the UK for the purpose of article 1 of the European Convention on Human Rights ("the Convention") and the Secretary of State is in breach of article 6 of the Convention. Thirdly, the policy of the Secretary of State never to fund legal representation in death penalty cases regardless of the circumstances is irrational and therefore unlawful as a matter of domestic law. The Divisional Court rejected the appellant's case in relation to each of these issues. Mr O'Neill submits that it was wrong to do so.
The first issue: is there a breach of the Charter?
The appellant says that her case falls within the material scope of EU law because her situation is within the scope of the Framework Decision 2004/757/JHA ("the Framework Decision") which lays down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. The Divisional Court rejected this case on the grounds that (i) the Framework Decision does not purport to regulate the type or extent of assistance provided by Member States to their own nationals when they are charged with drug trafficking offences in third countries; and (ii) in any event, so far as the UK is concerned, the Framework Decision is not part of the corpus of EU law.
Within the material scope of the Framework Decision?
The Charter...
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