R v The Secretary of State for Foreign and Commonwealth Affairs

Jurisdiction under article 1 of the European Convention on Human Rights is primarily territorial. Diplomatic or consular conduct abroad engages jurisdiction only where agents act so as to exert authority and control over a person. A deliberate refusal to arrange or fund legal representation is not such an exercise of authority.

A common law or prerogative power differs from a statutory discretion. Its existence does not imply that government must retain exceptions to every policy governing its exercise. Published policy and established practice define any legitimate expectation. The formulation and application of such a policy nevertheless remain reviewable for irrationality and other public law errors. Imminent risk to life requires keen scrutiny. A refusal remains lawful where the authority genuinely considers changing its policy in light of the individual circumstances and rationally declines to do so.

The appellant, a British national sentenced to death for drug offences in Indonesia, sought judicial review of the Foreign Secretary’s refusal to fund legal representation for her Indonesian appeals. The Divisional Court granted permission but refused the substantive application in [2013] EWHC 168 (Admin). The Court of Appeal dismissed her appeal in [2013] EWCA Civ 581, reported at [2013] 1 WLR 2938.

The appeal concerned whether the appellant was within United Kingdom jurisdiction under article 1 of the European Convention on Human Rights, so that article 6 could require legal funding. It also concerned whether the Foreign Office’s policy against funding legal representation abroad unlawfully fettered a common law or prerogative power, or was irrational in its formulation or application.

1. The appeal was dismissed unanimously. Lord Carnwath and Lord Mance delivered the joint judgment, with which Lord Clarke and Lord Toulson agreed. Lord Sumption agreed with the order and the joint reasons, adding observations about the distinction between statutory discretions and common law powers.

2. The appellant was not within United Kingdom jurisdiction for article 1 of the European Convention on Human Rights. Under Al-Skeini v United Kingdom (2011) 53 EHRR 589, jurisdiction is primarily territorial. Diplomatic or consular acts abroad may constitute an exception where the agents exert authority and control over another person. The United Kingdom’s deliberate refusal to arrange or fund representation was a decision not to assume such authority or control. Article 6, including article 6(3)(c), therefore imposed no obligation concerning the Indonesian proceedings.

3. The ordinary rule against fettering a statutory discretion did not apply in the same way to a common law or prerogative power. Such a power has no legislative source from which an obligation to keep open every possible mode of exercise can be inferred. Its mere existence does not require the Crown to permit exceptions to a policy governing its use. Any enforceable legitimate expectation depends upon the scope, including the rigidity or flexibility, of the published policy or established practice. The approach in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 was followed.

4. A prerogative refusal to fund foreign litigation is nevertheless amenable to judicial review. It may be challenged for irrationality, breach of legitimate expectation or another recognised public law error. Imminent risk of execution requires keen scrutiny, although irrationality remains a high threshold. Here the department had considered the appellant’s circumstances and whether its policy should change. Its reasons for maintaining the policy, including the difficulty of distinguishing cases fairly and the appellant’s ability at that time to raise the relatively modest sum required, were not irrational.

5. The legality of the asserted blanket policy was consequently not determinative. The decision made in January 2013 was lawful on the information then available. The court nevertheless stated that the radically changed circumstances required an urgent review. Any decision to maintain an absolute policy in those circumstances would need a clear justification by reference to rationality and, potentially, proportionality. The court expressed no view on the proper outcome of that review.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously in [2014] UKSC 44.
2. Court of Appeal: The appeal from the Divisional Court was dismissed in [2013] EWCA Civ 581, reported at [2013] 1 WLR 2938.
3. Divisional Court of the High Court: Permission for judicial review was granted, but the substantive application was refused in [2013] EWHC 168 (Admin).