Introduction
Although both the law surrounding human rights and the use of judicial review to uphold it have grown exponentially in the UK in recent times, there are still plenty of jurisdictions where even fundamental principles of justice are not respected with any consistency. With that combination, it is not surprising that the last decade has seen a number of cases where those faced with perceived injustice abroad turn homewards for redress. However, 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 European human rights law to areas where they simply do not reach.
Facts
Lindsay Sandiford was convicted by an Indonesian court of trafficking drugs into the island resort of Bali, and on 22 January 2013 sentenced to death by firing squad. She claimed to have received inadequate and incompetent legal representation throughout the proceedings. She launched an appeal against conviction and sentence but was told that, in line with its published policy, the Foreign and Commonwealth Office (FCO) would not fund the costs of her legal representation. She issued judicial review proceedings, primarily seeking a mandatory order that the defendant Secretary of State for Foreign and Commonwealth Affairs pay for adequate legal representation, which she could not afford herself. She claimed that the decision not to fund her appeal was unlawful as:
- It amounted to a breach of rights guaranteed by the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (the Charter);
- It represented an unjustified departure from the defendant's published policy to oppose the death penalty and work to ensure that EU minimum standards were upheld in countries which retained it; and
- The defendant's blanket policy of not providing legal representation overseas was an unlawful fetter of his discretion.
Analysis
Ground one: breach of ECHR and Charter rights
It was common ground that only those who fell within the jurisdiction of the UK (or another Contracting State) would benefit from the rights bestowed by the ECHR. Mrs Sandiford claimed that she fell within that jurisdiction by virtue of the assistance and support offered to her by British consular staff in Indonesia. She relied on a line of European cases led by Al-Skeini and others v UK (2011) 53 EHRR 18, which held that the acts of diplomatic and consular agents could amount to an exercise of jurisdiction where those agents exert "authority and control" over an individual. But in Al-Skeini the UK, as an occupying power which had assumed responsibility for maintaining control over a large area of Iraq, was held to exercise jurisdiction over those killed in its security operations; the other cases cited involved individuals under the physical control of agents of a Contracting State. Into this definition, Mrs Sandiford sought to slot her own case.
A hefty chunk of the judgment is devoted to a careful analysis of this argument before its inevitable rejection. Giving judgment for the court, Gloster J held, unsurprisingly, that the offering of advice and support by consular staff to a prisoner who was at all times under the authority and control (and indeed in the custody) of the Indonesian state and its criminal justice system cannot amount to an exercise of jurisdiction. She also rejected the submission that the UK has a duty to protect its citizens from ECHR breaches by third countries which were not a direct consequence of anything done by the UK.
The judgment in Sandiford provides (more) clear authority that ECHR rights will operate extra-territorially only in truly exceptional circumstances. Although the court did not purport to set out full guidance of when individuals in third countries might enjoy the rights bestowed by the ECHR, it seems that the answer is probably only when the state or its agents exercise a form of physical control over the individual, or real governmental control over the territory in which he is located.
Mrs Sandiford also claimed that the defendant was in breach of his obligation to protect her rights granted under the Charter, which contains no territorial limit. She sought to bring herself within the scope of the Charter ratione personae by virtue of her EU Citizenship, and ratione materiae because the offences with which she was charged were the subject of a Framework Decision concerning extradition arrangements. This was also rejected, the court holding that the decision being reviewed has to fall within the ambit of EU law, and it is not enough merely that it concerns a general subject covered by a Framework Decision. And in any case, held Gloster J, Framework Decisions are not part of the corpus of EU law, and thus not binding.
Sandiford makes it clear that claimants cannot rely on the territorially unlimited effect of the Charter to bypass the jurisdictional difficulties inherent in the ECHR. In reality, this submission failed for the same reason as the last: the breaching of Mrs Sandiford's rights simply was not the fault of the UK, and no amount of intricate legal reasoning would persuade the court that any obligations should be imposed on its government as a result.
Grounds two and three: departure from policy and fettering of discretion
These two grounds were addressed together. Firstly, it was submitted on behalf of Mrs Sandiford that the government, having published a policy of opposing the death penalty world-wide, could not rationally refuse to fund her appeal against its imposition. This was rejected pithily at paragraph 68: "As a matter of logic and as a matter of law, the fact that a Government adopts a policy of opposing X and of using all appropriate influence to prevent X does not mean that the Government has to do everything that it could in principle do to lower the risk of X. Nor does it mean that the Government is under an obligation to justify a decision not to take a particular action which would or might lower the risk of X."
Secondly, Mrs Sandiford claimed that the adoption of a blanket policy not to fund legal representation abroad was an unlawful fetter on the defendant's discretion. But the court seemed greatly influenced by the defendant's arguments that anything other than a blanket policy would create unfairness and inconsistency, and could create a significant drain of time and resources. If one opens the floodgates to death sentence appeals, says the FCO, why stop there? Why not funding for trials, or for sentences of corporal punishment? In fact, the defendant's submissions were not watertight (as the court implicitly recognised): any such scheme could be so tightly defined that only the handful of Brits on death row worldwide would ever be eligible, and the expense involved in funding them could be limited and probably insignificant. Law aside, one wonders at the Solomonic logic of claiming that it is fairer for all of those people to die than to allow a hypothetical possibility of future inconsistency.
Nonetheless, the court was undoubtedly right to hold that the blanket policy not to provide funding was lawful and not irrational. Any granting of legal funding would be an exercise of a common law power; in the absence of any duty to protect British citizens from the vagaries of a foreign justice system, it is for the FCO to decide whether and how to assist, and entirely reasonable to limit UK government involvement to advice, diplomatic representations and general assistance.
Conclusion
As is surely obvious, what Mrs Sandiford really sought was fair treatment by the Indonesian justice system. She hoped no doubt that her British and EU citizenship, and the panoply of rights and legal remedies which accompanies both, might somehow be enough to rescue her from facing yet another Indonesian hearing with inadequate representation and fatal consequences. It is understandable that people drowning in a foreign prison will clutch at legal straws. But Sandiford shows that the High Court will not easily force human rights breaches elsewhere in the world under the European rights umbrella, and will not easily be persuaded that the remedy to them lies, somehow, in a post-hoc decision from Whitehall.
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