This is a must know case for anyone representing British citizens in legal proceedings abroad. Mrs Sandiford (S), a fifty-seven year old Yorkshire grandmother and legal secretary imprisoned in Indonesia for being convicted in December 2012 of trafficking £1.6 million of cocaine from Thailand to the paradise island of Bali, faces death by firing squad. S’s cooperation with Indonesian authorities resulted in four others being convicted but they were lightly sentenced to terms of imprisonment of between only one and six years. She pleaded guilty at trial but said that she was forced to commit her crime because of death threats to her son. The Supreme Court (Lords Mance, Clarke, Sumption, Carnwath & Toulson JJSC) unanimously dismissed S’s appeal and held that the Foreign Secretary’s policy of not providing funding for legal representation to Britons facing capital punishment abroad is indeed lawful.
Collaborating with the Indonesian authorities has not helped S in escaping the death penalty. Despite the prosecutor’s support for a sentence of fifteen years’ imprisonment, the High and Supreme Courts of Indonesia upheld the District Court of Denpasar’s sentence of execution by firing squad. Her only options, the exercise of which requires funding, now are to appeal by the end of August 2014 to the Indonesian Supreme Court to reopen her case and to petition the Indonesian President to spare her life.
S was not provided financial assistance by the UK government when she requested it but the consulate did put her in touch with Mr Agus, the British Ambassador’s honorary legal advisor and a human rights specialist with experience of acting in death penalty cases, who took her case pro bono but requested reimbursement of expenses (Mr Agus did not represent her in the District Court where she was represented by another inexperienced lawyer who was paid £5,000 to lose her case). Mr Agus needed £2,600 as expenses for the High Court appeal and £8,000 for the appeal to the Indonesian Supreme Court. However, relying on Support for British Nationals Abroad: a Guide, the consulate did not contribute any money to S’s case because of the Foreign Office’s policy that:
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.
As S’s case progressed the money for her legal representation was raised by public donations, she was represented – albeit unsuccessfully – by Mr Agus in the High Court and the Supreme Court.
Initially, judicial review proceedings were launched in relation to the £2,600 but the Divisional Court refused the application at  EWHC 168 (Admin). The Court of Appeal (Lord Dyson MR, Elias & Patten LJJ) also dismissed S’s appeal at  EWCA Civ 581; by then S needed the £8,000 for her further appeal, which was rejected, to the Supreme Court of Indonesia. And of course now she needs even more money to have her case reopened in the Indonesian Supreme Court and to petition the President for clemency.
Three issues, two related to the ECHR and one to the common law, arose in this case. The Convention issues were whether S is within the UK’s jurisdiction within the meaning of article 1 ECHR (requiring the United Kingdom to secure Convention rights to everyone within its jurisdiction) and if so whether the Foreign Secretary had an obligation under the Convention to provide funding to S, or consider her claim thereof, in order for her to be legally represented in capital proceedings in Indonesia. The second Convention issue did not need answering because of the court’s decision on the first issue.
The Supreme Court noted at paragraph 18 that S’s counsel did not make her case on article 2 (right to life) or article 3 (anti-torture and inhumane treatment) but that he relied exclusively on S’s right to a fair trial as enshrined in article 6 ECHR, particularly that the UK “can and should secure to Mrs Sandiford free legal assistance under article 6(3)(c), in circumstances where she cannot afford to fund herself and no such assistance is available to her in Indonesia.”
The common law issue was whether the UK’s blanket policy of refusing funding in cases like S’s matter is unlawful and/or irrational and/or (if material) disproportionate.
The Supreme Court
In a joint judgment, Lords Carnwath & Mance JJSC (with whom Lords Clarke & Toulson JJSC agreed) explained that they had greater information about proceedings in Indonesia’s lower courts than the Divisional Court and the Court of Appeal and were disturbed by the judgments endorsing S’s execution by firing squad. Their Lordships noted that the Denpasar District Court rejected the prosecutor’s recommendation for a fifteen-year sentence (as there were no aggravating circumstances) and a fine and the defence’s arguments regarding duress and threats by a third-party. Rather, the Indonesian judges found it just and fitting to impose the death penalty because of aggravating factors such as S’s lack of remorse, making complicated statements to the court and using her ailing son as an excuse – it was Indonesia: they thought that some white British woman, syndicated with other foreigners, contaminating the world’s largest Muslim country with narcotics deserved the full punishment.
The Indonesian High Court was similarly unsympathetic and rejected arguments about coercion, lack of previous convictions, mental illness and co-operating with the police; it concluded that the well-deserved sentence was both just and proportionate. The UK supported S by virtue of an amicus curie brief highlighting a decision of the Indonesian Constitutional Court where the death penalty was thought to be a measure of last resort in special or exceptional cases from which S’s case could easily be distinguished. Lord Macdonald QC submitted another amicus brief in support of S but the High Court found her to be part of a highly systematic international criminal organisation involved in extraordinary narcotics crimes (regarding which Indonesia was in a state of emergency) and therefore the court reasoned that the death penalty in S’s case would deter narcotics related crime and give the right message to the world. Therefore, the prosecutor, Lord Macdonald and the defence’s arguments were groundless and the High Court elided even to mention the UK government’s amicus brief. Against that background, noting that the full judgment of the Indonesian Supreme Court was still awaited, the UK Supreme Court expressed its despair:
14. … In the absence of the judgment, and since the sentence was confirmed, there seems little reason to hope that the arguments on her side were given any more weight than in the lower courts.
S’s predicament is further complicated by the fact that Mr Agus, who thinks that a reversal of the death penalty in S’s case would expose the flaws in the Indonesian judicial system, is unable to represent her because he suffered a stroke. No one wants to represent her for free and the lawyer identified to represent her wants a fee of US $35,000 plus expenses. A lawyer is indispensible for S’s clemency petition to the President and the linked application to the Supreme Court to reconsider her case because the new clemency laws require interpretation and re-application to the Supreme Court allows new evidence and oral arguments.
The Supreme Court “at once” agreed with the lower courts that S is not within the UK’s jurisdiction for the purposes of article 1 ECHR (“[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”) and in line with the Grand Chamber’s reasoning in Al-Skeini v United Kingdom (2011) 53 EHRR 18 they held at paragraph 19 that jurisdiction under article 1 is primarily territorial, but there are certain recognised exceptions. One of these relates to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction when they exert authority and control over others.
The court noted that the UK had no territorial jurisdiction over S in her Indonesian prison cell. The funds could be provided to her without consular or diplomatic agents and Soering v United Kingdom (1989) 11 EHRR 439 did not apply because the UK was not proposing surrendering or removing from its jurisdiction someone whose Convention rights may be infringed abroad. On the other hand, as both parties indeed accepted, the UK could use consular and diplomatic agents to pay for S’s defence. Although the Vienna Convention on Consular Relations 1963 encouraged such behaviour, it did not as such create an obligation. Noting that they could identify nothing indicative of authority and control, their Lordships explained that the first extra-territorial exception was not engaged because the UK elected not to use its agents to arrange or fund S’s representation and the court accordingly went on to hold that:
26. The United Kingdom’s diplomatic and consular agents in Indonesia have of course been active in relation to Mrs Sandiford’s predicament, particularly making representations and filing an amicus brief. But their support for her and their activity in this regard have hitherto excluded any involvement in instructing or funding lawyers on her behalf. A deliberate refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her. It is the opposite – a decision not to undertake or exercise any relevant authority or control.
Reliance placed in X v United Kingdom (1977) 12 DR 73, which was at the apex of S’s counsel’s arguments, did not help her case and their Lordships said at paragraph 31 that “[i]n our opinion, Commission dicta made in passing in 1977 cannot and do not determine the scope of article 1 today.”
Moreover, the Supreme Court explained at paragraph 32 that a broad common-sense look at the case shows that S was arrested, tried and convicted for smuggling narcotics into Indonesia and so she was under the control of the Indonesian authorities and it was up to them to give her a fair trial. Therefore, article 6 ECHR was incapable of imposing any obligation on the UK as regards the criminal proceedings and capital penalty confronting S in Indonesia. Observing that under Al-Skeini it is possible in certain respects to divide and tailor the Convention rights relevant to the situation of a particular individual, the court opined that:
32. … 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.
The full implications of the way S advanced her case on the Convention made article 6 a free-for-all because on her construction it would be engaged whenever, irrespective of the gravity of the charge, a British citizen was charged overseas. Therefore, at paragraph 33 the Supreme Court held that on that view, “article 6 would become a compulsory world-wide legal aid scheme for impecunious British citizens abroad, presumably even for those who had decided to live permanently abroad.”
The Foreign Secretary’s power to provide assistance, including legal funding, for Britons facing execution overseas, was not a statutory power and, in the instant case, it was immaterial to consider whether it was a common law or prerogative power. The point was assisted by the judgment of the Court of Appeal (Lord Philips MR, Waller & Carnwath LJJ) in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs  EWCA Civ 1598 – a case about the possible responsibility of the UK government to make representations to the American government or take other action on behalf of British citizens detained in Guantanamo bay in the aftermath of the 9/11 Attacks.
Moreover, their Lordships concurred at paragraphs 61 and 63 with the Court of Appeal’s application of R (Elias) v Defence Secretary  EWCA Civ 1293 that prerogative powers have to be approached on a different basis from statutory powers and they therefore held that:
62. 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.
Their Lordships held at paragraph 67 that as applied to S the legality of the blanket policy was not determinative because despite the policy’s strict parameters, the Foreign Office “did not treat its existence as the end of the matter” and indeed remained open to considering modifying their stance in the particular circumstances of S’s case.
The court went on to hold at paragraph 72 that the attitude of the Indonesian courts could not be laid at the Foreign Secretary’s door and that the problem “was not the lack of competent legal representation, but the apparent unwillingness of the [Indonesian] court to take any notice of it.” Ultimately, the Foreign Office “responded with appropriate urgency to the wholly unexpected death sentence” and it “put the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis.” Therefore, it was wholly rational to think that S’s family would be able to raise £2,600 and that is exactly what happened: so the policy and decision to refuse funding easily withstood the challenge advanced by S.
On the other hand, the Supreme Court emphasised S’s tough predicament and said that the present situation is such that her life is in danger and she is in urgent need of legal assistance. To say the least, things had not turned out as expected in S’s case. Because the Indonesian judiciary disregarded serious mitigating factors like S’s age, mental problems, lack of any previous record, co-operation with the police and because they sentenced her much more severely than the members of the syndicate whom she helped to bring to justice, the Supreme Court opined that:
74. … Logic and consistency, if nothing else, call for an urgent review of the policy as it applies to her in the light of the current information.
Yet at paragraph 76 their Lordships explained that it was not open to them to express their own views about the outcome that the review may take. Lord Sumption JSC agreed with the above and advanced his own analysis about the rule against the fettering of discretions in the context of the exercise of a common law power. Ultimately, in his Lordship’s view:
84. The problem in this case is that neither the practice nor the public statements of the Foreign Office can be said to give rise to a legitimate expectation that the legal fees of British subjects in difficulty abroad will be paid. On the contrary, it has been clear for some years that the policy of the Secretary of State is not to pay them. The result is that there is no basis for any criticism of the self-imposed limitations of the Secretary of State’s policy, other than the fact that he could have made it broader had he wished to. The limitations are certainly not irrational.
For me personally, the encounter with the Foreign Office in representing British citizens abroad is quite an interesting one. In comparison with the Home Office, it is in many ways the other, or much brighter, side of the coin. Things are of course quite different, perhaps even “easier”, when the British citizen in a far away country is the victim and not the accused. On the other hand, it is still quite hard to get foreign, say Pakistani or Indonesian or Thai, police and judges to give justice to British victims abroad and they might even want a bribe even to take notice of the complaint.
With the utmost of respect to the UK Supreme Court regarding its views about the certain failure of the Indonesian judiciary to take S’s defence on board, it must be said the Indonesian judges involved are probably afraid that sparing S will make them look soft on drugs; with almost five kilos of cocaine concealed in her luggage, she wasn’t exactly carrying a dime bag. The Indonesian judges could also be accused of corruption and probably fear reprisals from Islamist quarters. From their perspective, it is not so much that they want to take this unfortunate lady’s life. Rather, they are simply saving their own skin by calling for her execution. But I do hope that they do spare her life and reduce her sentence to fifteen years’ imprisonment – after all that is the punishment the Indonesian State seeks.