R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44

Lindsay Sandiford, a British national sentenced to death in Indonesia for drug offences, challenged the UK government's blanket policy refusing to fund legal representation for British nationals facing capital charges abroad. The Supreme Court dismissed her appeal but urged reconsideration of her case.

Facts

The appellant, Lindsay Sandiford, a 57-year-old British national, was convicted of drug offences in Bali, Indonesia, in January 2013 and sentenced to death by firing squad. She had admitted the offences but claimed she had been coerced by threats to her son’s life, and following her arrest she cooperated with police, leading to the arrest of four other members of a drug syndicate. Notably, the Indonesian prosecutor had sought only 15 years’ imprisonment and supported her appeals.

The UK government provided substantial consular assistance, made diplomatic representations, and submitted amicus briefs to the Indonesian High Court and Supreme Court. However, it refused to fund legal representation, relying on a policy stated in its publication Support for British Nationals Abroad: a Guide (2007), which stated:

“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.”

The appellant sought judicial review to compel the Secretary of State to fund legal representation. Initially the sum sought was approximately £2,600 for expenses of a local human rights lawyer, Mr Agus, who was willing to act pro bono. Public donations raised the funds required for the initial appeals, but Mr Agus subsequently suffered a stroke, and a further lawyer was identified at a fee of US$35,000 to prepare a Peninjuan Kembali (PK) application and clemency petition due by 29 August 2014.

Issues

Three issues arose:

• Whether the appellant was within the jurisdiction of the UK for the purpose of article 1 of the European Convention on Human Rights.
• If so, whether the respondent was obliged under the Convention (specifically article 6(3)(c)) to provide funds for the appellant’s legal representation in Indonesia.
• Whether the UK government’s blanket policy refusing to consider providing funding was unlawful, irrational, or disproportionate under common law.

Arguments

Appellant

Mr O’Neill QC argued that the Convention applied because the UK exercised authority through its consular powers under the Vienna Convention, and the focus should be on the state’s activity rather than physical control. On the common law issue, he argued the blanket policy improperly fettered discretion, was inconsistent with modern principles of judicial review, and was irrational given the UK’s stated policy of using “all appropriate influence” to prevent execution of British nationals.

Respondent

Mr Chamberlain QC argued that the appellant was not within UK jurisdiction under article 1, being under the authority and control of the Indonesian state. On the common law issue, he submitted that the no-fettering rule does not apply to prerogative or common law powers, and that in any event the department had considered whether the policy should be changed for the appellant’s case.

Judgment

Convention Issue

The Supreme Court held that the appellant was not within UK jurisdiction under article 1. Applying Al-Skeini v United Kingdom (2011) 53 EHRR 18, jurisdiction is primarily territorial, with a recognised exception for acts of diplomatic and consular agents who “exert authority and control over others”. The UK had deliberately not undertaken to fund the appellant’s legal representation, and a refusal to act cannot constitute an exercise of authority or control. Lord Mance and Lord Carnwath observed that accepting the appellant’s argument would effectively create a “compulsory world-wide legal aid scheme for impecunious British citizens abroad”.

Common Law Issue

The Court of Appeal had held (following R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213) that the rule against fettering discretion does not apply to prerogative or common law powers. The Supreme Court agreed. Prerogative powers do not stem from a legislative source imposing any obligation to keep options open, and a blanket policy without exceptions may be adopted. However, the exercise of such powers remains reviewable on grounds of irrationality or breach of legitimate expectation, per R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2003] UKHRR 76.

Crucially, the Court found that even if a blanket policy could not stand, the department had in fact considered whether an exception should be made in the appellant’s case and rejected it for rational reasons — namely the difficulty of drawing principled distinctions between cases, and evidence that the appellant’s family could raise modest sums. The decision made in January 2013 was therefore not irrational.

Lord Sumption’s Separate Observations

Lord Sumption emphasised that a common law power is “a mere power” and does not confer a discretion in the same sense as a statutory power. There is no identifiable class of beneficiaries with a right to be considered, save through legitimate expectation created by actual exercise of the power.

Present Position

Although dismissing the appeal, the Court urged the Secretary of State to undertake an urgent review of the policy as applied to Mrs Sandiford in light of new information regarding the conduct of the Indonesian proceedings, Mr Agus’s illness, and the imminent deadline for further legal steps. The Court noted the “most serious issues” apparent regarding the Indonesian courts’ apparent disregard for substantial mitigating factors including her cooperation with police, mental illness, and the disparity between her sentence and those of the syndicate members she helped bring to justice.

Implications

The decision confirms an important distinction between statutory and prerogative/common law powers: the well-established rule against fettering discretion (from British Oxygen Co Ltd v Board of Trade [1971] AC 610) does not apply to non-statutory powers in the same way. Ministers exercising common law powers may adopt “bright line” policies without exceptions, though such policies remain subject to review for irrationality, legitimate expectation, and (potentially) proportionality.

The judgment also confirms and applies the Al-Skeini approach to extraterritorial jurisdiction under article 1 ECHR: mere possession of consular powers is insufficient; there must be actual exercise of authority and control by consular or diplomatic agents. A refusal to act does not itself amount to jurisdiction. This limits the extraterritorial reach of the Convention in respect of British nationals in difficulty abroad.

The case is significant for British nationals facing serious criminal proceedings abroad, particularly capital cases, because it confirms that there is no legal right to funded legal representation from the UK government. However, the Court’s clear direction that the Secretary of State should reconsider the policy in Mrs Sandiford’s case demonstrates that even lawful blanket policies must remain open to reconsideration when circumstances materially change. The Court further hinted that irrationality may be “easier than otherwise to surmount in a case involving an imminent risk of death by execution”, and that consistency between the Foreign Office’s abolitionist strategy and its refusal to fund representation might in future be tested by proportionality analysis of the kind discussed in Kennedy v Information Commissioner [2014] UKSC 20.

Verdict: Appeal dismissed. The appellant was not within UK jurisdiction under article 1 ECHR, and the Secretary of State’s blanket policy refusing to fund legal representation for British nationals facing capital charges abroad was lawful; the January 2013 decision was not irrational. However, the Court directed that the Secretary of State should urgently review the policy as applied to Mrs Sandiford in light of new information.

Source: R (on the application of Sandiford) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44