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

Extra-territorial jurisdiction under Article 1 of the Convention requires authority and control by the respondent State’s agents. Consular advice, support and diplomatic representations do not, without more, establish such jurisdiction over a person detained and prosecuted by a foreign State.

A State generally owes no positive Convention duty to protect a person abroad from risks created by a third State unless the State has directly contributed to the risk, for example by extradition or deportation. The Charter applies only where the claimant falls within its personal scope and the Member State is implementing or derogating from EU law.

A rigid policy made under common-law or prerogative powers is lawful if rational. The decision-maker need not consider exceptional departures in individual cases.

The claimant, a British national detained and sentenced to death in Indonesia for drug-trafficking offences, sought judicial review of the Secretary of State’s refusal to fund an Indonesian lawyer for her appeal.

She alleged breaches of the Convention and Charter, unjustified departure from the Government’s Strategy for Abolition of the Death Penalty, and unlawful fettering of discretion by a policy not to fund legal representation for British nationals facing criminal proceedings abroad.

Permission to apply for judicial review was granted at a rolled-up hearing. The central issues were whether the claimant was within the United Kingdom’s Convention jurisdiction, whether the Charter applied, and whether the funding policy was unlawful or irrational.

1. Outcome. Permission to apply for judicial review was granted, but the relief sought was refused and the claim was dismissed.
2. Convention jurisdiction. Article 1 jurisdiction outside a State’s territory is exceptional. The relevant test is whether the individual is under the authority and control of the State’s agents. The claimant remained under the authority and control of Indonesia. Visits, advice, welfare assistance, liaison concerning lawyers and diplomatic representations did not amount to United Kingdom authority or control.
3. The Court declined to treat the broad language in X v the United Kingdom as establishing jurisdiction merely because consular acts or omissions affected a person abroad. Such a reading would be inconsistent with the definitive approach in Al-Skeini v United Kingdom.
4. Positive obligations. Even if the Convention applied, the authorities did not establish a duty to protect a person abroad from risks created by a third State, absent a direct causal contribution by the United Kingdom. The claimant had not been extradited or deported by the United Kingdom.
5. Charter. The claimant was within the personal scope of EU law as an EU citizen, but she had not shown that the Secretary of State’s refusal to fund legal representation fell within the material scope of EU law. The Framework Decision regulated jurisdiction and prosecution of drug-trafficking offences, not assistance to nationals prosecuted in third countries. It did not make the United Kingdom’s decision one to exercise or decline criminal jurisdiction.
6. The Framework Decision was a pre-Lisbon third-pillar measure and, under European Communities Act 1972, was not part of United Kingdom law. The Charter therefore did not apply. In any event, the Charter’s legal-aid guarantee concerned proceedings before EU or Member State courts, not proceedings in Indonesia.
7. Policy and discretion. The Secretary of State had not departed from the Strategy or Guide. A blanket policy may fetter a statutory discretion, but the power here was common-law or prerogative. A rigid policy was permissible if rational, and there was no legal requirement to consider an exceptional departure in each individual case.
8. The refusal to create an exception or scheme was rational. Consistency, eligibility, adequacy of lawyers, funding limits, means assessment and the scope of any scheme involved complex policy choices for government, potentially requiring legislation. They were not matters for the Court.