Sandiford, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs

A public body exercising prerogative or common-law powers may adopt a bright-line policy containing no exceptions. It need not reconsider each case unless the policy is irrational. Irrationality requires good faith, a logical connection between the evidence and stated reasons, and an absence of arbitrariness, capriciousness or perversity.

For Charter purposes, a Member State implements EU law when exercising an EU-law derogation, but no Charter obligation arose where the United Kingdom had made no relevant jurisdictional decision. Consular assistance abroad engages Convention jurisdiction only where it amounts to authority and control; ordinary assistance to a person detained by a foreign state is insufficient.

The appellant, a British national detained and sentenced to death in Indonesia for drug trafficking, sought judicial review of the Secretary of State’s refusal to fund Indonesian legal representation. The Divisional Court granted permission but dismissed the claim. She appealed, arguing that the decision engaged the EU Charter, fell within the United Kingdom’s Convention jurisdiction, and was irrational under domestic public law.

The Court of Appeal considered whether the Framework Decision created an EU-law implementation decision, whether consular activities brought the appellant within the United Kingdom’s jurisdiction, and whether the blanket funding policy was irrational.

The appeal was dismissed. The Master of the Rolls gave the reasons, with Lord Justice Elias and Lord Justice Patten agreeing.

1. EU Charter. The court accepted the general principle illustrated by Elleniki Radiophonia Tileorassi (ERT) v Dimotiki Eatairia Pliroforissis [1993] ECR 1-2925 and applied in R (on the application of Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin): exercising a power of derogation recognised by EU law may amount to implementing EU law for article 51(1) of the Charter of Fundamental Rights of the European Union.
2. There was, however, no relevant implementation of EU law. The United Kingdom had made no decision under article 8(2) of the Framework Decision 2004/757/JHA not to apply jurisdictional rules to drug-trafficking offences committed in Indonesia. There was no extradition treaty and therefore no unilateral decision capable of notification under article 8(4). The court proceeded on the assumption that the Framework Decision could apply to offences outside the EU, but did not decide that issue or whether it formed part of the corpus of EU law applicable to the United Kingdom.
3. Convention jurisdiction. Article 1 jurisdiction is primarily territorial. Extra-territorial jurisdiction arises only in exceptional circumstances. In relation to diplomatic and consular agents, the necessary jurisdictional link requires authority and control over the person or property. The question is fact-sensitive. Advice, visits, liaison, assistance with legal representation and diplomatic representations did not amount to such control where the appellant remained wholly detained and controlled by Indonesia. The court therefore found no United Kingdom jurisdiction and did not need to decide whether a Convention breach would otherwise have occurred.
4. Domestic rationality. The rule against fettering discretion applies to statutory powers. Where the policy is made under prerogative or common-law powers, the decision-maker may establish bright-line criteria and exclude exceptions. The only question was whether the blanket policy was irrational. Applying the demanding rationality test in Hayes v Willoughby [2013] UKSC 17, the court held that the policy was coherent and neither arbitrary nor perverse. The practical difficulties concerning scope, funding limits, lawyers’ competence, means-testing and fees provided a rational basis for refusing a death-penalty exception.

1. Court of Appeal (Civil Division) dismissed the appeal. The decision was announced on 22 April 2013, with reasons handed down on 22 May 2013.
2. Divisional Court of the High Court, Administrative Court granted permission to apply for judicial review on 31 January 2013 but dismissed the application. Reasons were handed down on 4 February 2013.