The Queen on the Application of Lindsay Sandiford v. The Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 581 (Delivered 22 May 2013)
On 19 May, 2012, Lindsay Sandiford carried 4.8kgs of cocaine in her hand luggage on a Thai Airways flight from Bangkok, Thailand, and was arrested at Bali’s Ngurah Rai International Airport. She was subsequently tried and sentenced to death for trafficking in narcotics, and she issued judicial review proceedings seeking a mandatory order requiring the Secretary of State to make monetary provision for her appeal against her sentence.
The British government’s policy on funding legal representation for British nationals overseas is detailed within, FCO, Support for British Nationals Abroad: A Guide, (Crown Copyright Publications, 2011), and it states in the Section, If something happens to you: British nationals in detention or prison overseas:
“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” (p. 17).
Following Mr. Aidan O’Neill QC’s submission for the appellant, the Court of Appeal considered the case under three issues; (i) the material scope of EU law, (ii) the jurisdictional application of the European Convention of Human Rights, and (iii) a domestic law challenge to the blanket policy ban by the Secretary of State to refuse to fund capital representation, based on a claim of irrationality.
The Material Scope of EU Law
The appellant claims that her crime in Bali is a crime recognised within the European Council Framework Decision 2004/757/JHA of 25 October 2004, laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. Framework Article 2(1) applies to those who, “dispatch in transit, importation or exportation of drugs.” Article 8 (1) provides that, “Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in [Article 2] where; (a) the offence is committed in whole or in part within its territory, (b) the offender is one of its nationals...(2) A member state may decide that it will not apply, or that it will apply only in specific cases or circumstances...where the offence is committed outside its territory.”
The Court of Appeal held that the appellant’s case was within, “the scope of EU law because she is a UK citizen,” and she had satisfied the ratione personae principle. However, the court proceeded from an extremely narrow interpretation of EU law, and stated that there was not a specific bilateral arrangement (para 23) and that there is:
“no decision implementing EU Law which is material to the present case. The United Kingdom has not decided to take the necessary measures to establish jurisdiction (article 8(1)) or not to do so (article 8(2))...the appellant’s situation does not fall within the material scope of EU law” (para 29).
The Court of Appeal held that the general principles of EU law are not activated in this context of criminal proceedings, unless a specific statutory measure had been implemented. This appears to be an unreasonable confinement of EU law, and this is explored below.
The Application of the European Convention on Human Rights
ECHR Article 1 establishes that, “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined [in the ECHR].” The appellant claims that although she was arrested, tried and convicted in Indonesia, she is within the jurisdiction of the United Kingdom because of the assistance of the Foreign and Commonwealth Office and the British Consular officers in Indonesia. The appellant had received assistance from the British Consular in Indonesia in conformity with the HMG Death Penalty Strategy: October, 2010, which included, the consular making enquiries about the appellant’s welfare and treatment, conveying messages to family and providing basic information about the Indonesian legal system.
The key legal issue for the Court of Appeal to decide for the activation of Convention rights, was whether this consular activity was sufficient, or whether the appellant had to be within the “exercise of control and authority,” of the British consular (para. 47). The respondent argued that Ms Sandiford’s case was different to those established by Al-Skeini and Others v. the United Kingdom (2011) 53 EHRR 18, which established that “jurisdiction” under ECHR Article 1, occurs when, “the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq...[and] exercised authority and control over individuals killed in the course of such security operations (para. 149).” Hence for the ECHR to be activated, “authority and control” is a necessary component. The court applied this principle with specific reference to cases concerning consular assistance to states in a variety of circumstances, including X v. Federal Republic of Germany, Application no. 1611/62 (1965), where the consul in Morocco had solicited the expulsion of the applicant, in WM v. Denmark (1993) 15 EHRR CD 28, where the applicant had entered the premises of the Danish Embassy in East Berlin, and in R (B) v. Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1344, where the applicants had been given shelter at the British Consulate in Melbourne.
The Court stated that these cases demonstrated that the consular authorities had, “assumed some responsibility or exercised some authority in respect of the applicant” (para 42), and that there was no comparable responsibility or authority exercise by the British Consular in Indonesia for the applicant in the current case. Ms Sandiford did not approach the British Consular as a free woman, which would have created an obligation under ECHR Article 1, as she would have placed herself within the auspice of consular activity amounting to responsibility and authority. Unfortunately she is a person with a criminal conviction under the control of the Indonesian criminal justice system, and is now placed in Kerobokan Prison awaiting her execution.
Assessment of Domestic Law
Under English law, the Court of Appeal considered whether the Secretary of State’s blanket policy to refuse to fund legal representation in death penalty cases was “rational” as a principle of public law. The court considered the practical issues of providing financial assistance, including, inter alia, whether payment should be for the trial or for each appeal stage, the burden on consuls to assure that local counsel provides adequate representation, the justification for providing financial assistance in the death penalty and not other litigation which involves other violations of the ECHR and EU law, a means test for British nationals abroad to assess ability to pay, and the difficulties for the Secretary of State to assess the reasonableness of local lawyers’ fees (para 50).
The court conceded that it was not impossible for the Secretary of State to find workable solutions for these issues. Counsel for the appellant, Mr. Aidan O’Neill QC, argued that the Secretary of State only had to meet the EU Minimum Standards (para 52). The Court considered this issue within the discretionary use of statutory powers by a public body under the case of R (Elias) v. Secretary of State for Defence  EWCA Civ 1293:
“it is within the power of the decision-maker to decide on the extent to which the power is to be exercised in, for example, setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be” (para 191).
The court considered that the Secretary of State’s policy to formulate a “bright line” criteria against funding British nationals involved in any criminal proceedings abroad is accepted, and held, “A decision not to take a particular measure does not signal a departure from the policy. It is challengeable only if the decision is irrational, viewed in the light of the objectives underlying the policy. The practical problems referred to [in para 50] are sufficient to demonstrate that the policy is not irrational” (para 56).
One of the major hurdles which the Court of Appeal thought was insurmountable, was that Louise Proudlove, Head of Consular Assistance, Consular Directorate of the Foreign and Commonwealth Office, had provided evidence to the court stating that the government’s policy was rational, because, she stated, “if funding for legal representation were provided in the present case, it would have to be provided in other cases because there ‘were a number of analogous death penalty cases’ both in Indonesia and other countries” (para 58). In effect, the floodgates would be opened for more claims.
The applicant had a difficult task to meet the criteria of irrationality in English public law. Those involved with the campaign for the abolition of the death penalty (I am myself an abolitionist) may think this judgment to be “harsh and inhumane” (the court concedes that this view is possible at para 59), but then it stated at para 59:
“The test of irrationality presents a stiff hurdle for the applicant to surmount. A timely reminder of the nature of the hurdle was recently given by Lord Sumption in Hayes v. Willoughby  UKSC 17:
‘Rationality is a familiar concept in public law...Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a person’s thoughts and intentions. The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. A test of rationality, by comparison, applies a minimum objective standard to the relevant person’s mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) as absence of arbitrariness, or capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse” (para 14).
The balance is tipped in favour of the Secretary of State, because all that is needed to be demonstrated is a “logical connection between the evidence and the ostensible reasons for the decision.” In the court’s view this was established. The practical vicissitudes and the possibility of an exponential growth in claimants was enough. Apparently, this was too high of a hurdle for the appellant to surmount, so Lord Dyson, the Master of the Rolls, concluded:
“One is bound to have great sympathy for the appellant. She is seeking to challenge a decision which, if not overturned by the Supreme Court of Indonesia, will mean that she will be executed (unless she is pardoned). The death penalty is (in my view) rightly regarded by the Government as immoral and unacceptable. The appellant has argued that the Secretary of State’s policy of not providing funding for legal representation to any British national who faces criminal proceedings abroad (even in death penalty cases) is unlawful. For the reasons that I have endeavoured to explain, I consider that the Divisional Court was right to conclude that it is not” (para 61).
The concluding paragraph in the Court of Appeal judgment presents two sides of the same coin; on one side is the “immoral” and “unacceptable” punishment of death, and on the other side the lawfulness of a Secretary of State’s policy that prevents a British national abroad who faces a capital charge, and now appeal against sentence, to receive financial help for her defence. Lord Dyson’s use of the words “immoral” and “unacceptable” need to be deconstructed.
The British executive and judiciary would consider that the death penalty in British boarders and, in occupied territory within military command and control circumstances (e.g., Al-Saadoon and Mufdhi, v. the United Kingdom, Application no. 61498/08, 2 March 2010), to be “immoral.” This would be consistent with the morality, or the natural law and rights, inherent within the ratification of Protocol 13 of the ECHR, which provides for the abolition of the death penalty in all circumstances. In addition with the signing of the Lisbon Treaty, these regional laws provide statements that sovereign power should no longer wield the right to put people to death through capital punishment.
However, what the Sandiford decision demonstrates is that as long as there is a confined interpretation of EU law, the ECHR, and the public law principle of “rationality,” a quixotic outcome is very possible. There are some circumstances in which the application of the death penalty on British nationals in third countries will be “acceptable.” This is achieved through a legitimate application of the “rule of law,” and rules of legal positivism are not violated.
So it is difficult to understand Lord Dyson’s use of this word “unacceptable” as stating his principled position against the punishment, when the implementation of his judgment allows for the death penalty. The punishment becomes “acceptable” through the judiciary selecting one interpretative method (literal interpretation) over another (for example, purposive interpretation). If the death penalty was “unacceptable” as Lord Dyson states, then in the interest of justice and human rights, the Court of Appeal could have applied EU law, the ECHR, and the principle of rationality to demonstrate how it is “unacceptable.” Indeed, if it really is “unacceptable” in the opinion of the court, it needs to be so within a practical political and legal framework. If this was the case, it could therefore not be “acceptable” through the application of any unintended or unforeseen consequences in the adoption of legislative or policy provisions. But the Court of Appeal chose not to apply such an interpretation, and so it cannot hide behind its mere acknowledgement, or concession, that its reasoning may appear, “harsh and inhumane.” Let there be no mistake, this is no antidote for this flawed decision.
There are other British nationals abroad who face capital charges and capital appeals. However, the growing momentum which the abolitionist community is achieving, for example, in the most recent vote (December 2012) in the United Nations General Assembly on the Resolution on the moratorium on the use of the death penalty (67/226, 2012), 111 countries voted in favour, 41 against, and 34 abstained – a clear abolitionist majority. The Fifth World Congress Against the Death Penalty, held in Madrid, 11-16 June 2013, displayed a solidification of the abolitionist mechanisms and there was a positive demonstration by many eminent speakers that just as slavery and torture have been legally abolished, so too will the death penalty. As more-and-more countries abolish the death penalty, rather than an increase in British nationals being sentence to death abroad, the numbers will diminish over time. Hence, this is not a fiscal issue that will overly drain the coffers of the British government in the future. The Court of Appeal adopted unsound methodology on the possible growth in future cases, if it did not apply the FCO policy and ordered for payments to be made in capital cases. It fails both the “reasonableness” and “rationality” tests.
Recalling the test for reasonableness, “an external, objective standard applied to the outcome of a person’s thoughts and actions,” and the test for rationality, “a minimum objective standard to the relevant person’s mental process. It imports a requirement of good faith.” The British government is one of the foremost actors in the global efforts to abolish the death penalty. It has detailed knowledge of the abolitionist community, state use of the death penalty around the world, and also, the up-to-date information on the decline of the punishment around the world. It is therefore, evident that the government fails both the requirements for “reasonableness” and “rationality” through this blanket policy on the death penalty. At best, there would only be a rise of funding in capital defence in the immediate future, and as more and more countries abolish the death penalty, the monies spent by the British government would diminish, not increase. As states imposing the death penalty decline, so too will capital charges on British nationals. It is manifestly incorrect to state that this expenditure would increase and be unsustainable, and instead of the blanket ban continuing, it could be tailored and reduced as time goes on.
The court saw no grounds for a wider consideration of EU human rights principles, for example, according to Article 2 of the Treaty on European Union, which states that the, “Union is founded on the value of respect for human dignity...the rule of law and respect for human rights,” and under Article 3 the Union must uphold and promote these values in its relations with the “wider world.” This task is also taken up in Article 21(a), which states that the:
Union’s action on the international scene shall be guided by the principles which have inspired its own creation...and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms.
On 16 June 2010, Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy, in her speech in the Parliament in 2008, declared the EU’s work on abolishing the death penalty worldwide to be a, “personal priority.” The 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy, list the fight against the death penalty as one of the EU’s priority human rights issues. The EU Strategic Framework states that the death penalty constitutes, “a serious violation...of human rights and human dignity. Encouraged by the growing momentum towards abolition of the death penalty worldwide, the EU will continue its long-standing campaign against the death penalty.” Furthermore, the Lisbon Treaty, Article 6, established that the EU Charter of Fundamental Rights, has the same legal value as the Treaty, and that Article 1 (protects human dignity), Article 2 (protects the right to life and prohibits the death penalty and executions), and Article 4 (prohibits inhuman or degrading treatment or punishment). The European Union has established a “principled position” against the death penalty in their EU Policy on the Death Penalty, and it is perceived that the British government stood with the EU and the Council of Europe, in this “principled position.” However, the judiciary has revealed that there is a severe chink in the abolitionist armour.
British Courts have a track record of providing overly narrow interpretations of the applicability of European human rights law to questions surrounding the death penalty. In addition to the present case, and in the next blog post in the case of Omar, in R (on the application of Zagorski and Baze) v. Secretary of State for Business, Innovation and Skills  EWHC 3110 (Admin), the High Court considered European Council Regulation 1236/2005 which prohibits the trade in certain good which could be used in capital punishment, the EU Charter and the ECHR. It held that all were not activated, even though a UK pharmaceutical company had sold sodium thiopental to US prisons to initiate executions through lethal injection. It was held by the British High Court that Regulation 1236/2005 only covered the syringe and needle, but not the chemicals inserted into the syringe. This unreasonably confined High Court decision was corrected by the change of mind of Mr Vince Cable, the Secretary of State, in amending the export orders under the Export Control Act. Furthermore, the European Commission noted the lacuna in the text of the legislation, and following pressure from civil society, expanded the provisions of Regulation 1236/2005 in 2011, to cover lethal substances.
Furthermore, it should be clearly stated that the British government initiates complex bilateral and multilateral initiatives to argue against the death penalty (for example in the UN, EU, and in various retentionist countries). The British government is a vigorous proponent of the abolition of the death penalty on the world scale. It also advises on EU demarches and other communications on death sentences, appeals and executions, by Catherine Ashton, the High Representative of the Union for Foreign Affairs and Security Policy, and the European External Action Service (EEAS).
These are amicable procedures which have proved, in many cases, effective in achieving a curtailment of the capital judicial process. However, in the case of Lindsay Sandiford, it cannot be denied that if she had received immediate financial help for more effective capital defence representation, there may not have been the need for the FCO and EU intervention following the conclusion of her trial.
[NB: The “Save Lindsay Sandiford” Campaign has (as of 7 August 2013) raised over £10,000 for her defence, which is organised by the death penalty charity, Reprieve. See, www.justgiving.com/save-lindsay-sandiford]