R (Sandiford) v Foreign Secretary [2014] UKSC 44; [2014] 1 WLR 2697; [2014] 4 All ER 843

The Crown's role in the UK is largely ceremonial, with real power exercised by ministers who manage daily governance and administration on behalf of the Crown.

• Prerogative powers are historical rights once held by the Crown, now exercised by ministers, such as issuing passports and conducting foreign affairs, within modern legal constraints.

The Secretary of State provides consular support to British nationals imprisoned abroad but does not fund their legal expenses, which remains the individual's responsibility.

• The UK government’s blanket policy not to fund legal expenses for British nationals abroad aims to manage resources but may be challenged as overly restrictive.

• A blanket policy on legal funding could be seen as unlawfully restricting a minister's discretion if it fails to account for exceptional cases requiring individual consideration.

• Determining if a British national imprisoned abroad is within UK jurisdiction for funding legal appeals involves interpreting human rights obligations under the Convention.

Article 6 of the Human Rights Act 1998 guarantees the right to a fair trial, ensuring that legal proceedings are conducted fairly and impartially.

• Article 1 of the Convention requires member states to protect the rights and freedoms outlined in the Convention for everyone under their jurisdiction.

 Lindsay Sandiford (“Claimant”), a British national, was convicted in Indonesia of serious drug trafficking offenses and subsequently sentenced to death.

• Following her conviction and sentencing, the Claimant pursued an appeal against both the conviction and the sentence imposed.

• Despite receiving consular assistance and having diplomatic representations made on her behalf to the Indonesian authorities, the Secretary of State maintained a policy of not funding legal expenses for British nationals involved in foreign criminal proceedings, including cases where the death penalty was imposed.

In response to this policy, the Claimant sought judicial review through a mandatory order requiring the Secretary of State to make arrangements for her to have legal representation in her appeal. The grounds for her application included:

1. First, the assertion that she was within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which, she argued, necessitated the provision of legal representation to ensure her right to a fair trial under Article 6 of the Convention.

2. Secondly, she contended that the Secretary of State’s policy of never funding legal representation in death penalty cases was irrational and unlawful according to domestic law.

The Divisional Court of the Queen’s Bench Division granted permission to proceed with the judicial review claim but ultimately dismissed the claim.

• The Claimant’s subsequent appeal to the Court of Appeal was also dismissed, upholding the original decision.

The court acknowledged that, while a state's jurisdictional competence under Article 1 of the Convention was generally territorial, actions by a contracting state's diplomatic and consular agents outside its territory could, in certain circumstances, be considered an exercise of jurisdiction if those agents were exerting authority and control over others.

• However, the court found that a deliberate refusal to instruct or fund lawyers for a person facing capital charges abroad did not amount to such an exercise of authority or control.

• Therefore, the claimant was not deemed to be within the jurisdiction of the United Kingdom for the purposes of Article 1.

• No obligation under Article 6 of the Convention was applicable to the criminal proceedings and capital penalty the claimant faced in Indonesia.

The court determined that, under domestic law, the Secretary of State's power to provide assistance to British nationals facing capital charges abroad did not originate from statutory provisions that would require exceptions to be permissible, but rather from the prerogative powers of the Crown.

• This meant that a blanket policy or no-exception rule was not necessarily impermissible.

• Nonetheless, such powers were subject to judicial review on grounds such as irrationality.

 The court found that, despite the existence of the no-funding policy, the Secretary of State had been willing to consider modifying the policy in the claimant’s case, and the reasons for not making an exception were not deemed unlawful or irrational.

• As a result, the challenge to the decision not to deviate from the no-funding policy was unsuccessful.

• However, given that the Secretary of State had previously considered the possibility of making an exception, consistency and rationality required a review of the decision in light of current circumstances.

The Crown in the UK holds a largely ceremonial role, with real power exercised by ministers who manage day-to-day governance.

• Historically, the Crown had prerogative powers now carried out by ministers under modern legal constraints.

• The Secretary of State provides consular support to British nationals abroad but does not fund their legal expenses.

• This policy, aimed at resource management, has faced criticism for being overly restrictive.

In the case of Lindsay Sandiford, a British national sentenced to death in Indonesia, the Secretary of State's refusal to fund her legal representation was challenged.

• Sandiford argued that this refusal violated her rights under the Convention for the Protection of Human Rights and Fundamental Freedoms and the Human Rights Act 1998.

The courts upheld the Secretary of State's decision, finding that the refusal did not amount to an exercise of jurisdiction or authority.

• They also concluded that the policy, derived from prerogative powers rather than statutory law, was not unlawful or irrational, though it should be reviewed for consistency and rationality in light of current circumstances.