MOSCOW, May 23 (RAPSI, Ingrid Burke) – The Court of Appeal of England and Wales released a judgment Wednesday detailing its earlier decision to dismiss an appeal launched by Lindsay Sandiford – a 56-year-old British woman sentenced to death by firing squad in Indonesia after having been caught with ten packets of cocaine in the Bali airport – challenging the Secretary of State’s decision not to assist in funding her death-penalty appeal.
Two days after being sentenced to death in late January, Sandiford appealed to England seeking an order compelling the Secretary of State to arrange for the availability of funds for an adequate legal team to assist in her efforts to appeal.
Specifically, Sandiford sought £8,000 – a discounted rate offered by the Indonesian lawyer of her choice. Having no funds of her own, she sought government assistance to supplement third-party donations she had been receiving.
Notably, Wednesday’s decision mentioned that she may no longer be in need of the government’s assistance at all: “It seems that, since the date of the hearing, she has received by third party donations the whole of the sum that is required. It may, therefore, be that the appellant no longer has an interest in the outcome of the appeal.”
The court opted to render its judgment no less, however, due to its implications for other UK nationals facing capital punishment abroad.
The Secretary of State’s decision was based on the following policy rationale, quoted by the court from the guide Support for British Nationals Abroad: “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. ”
On appeal, Sandiford asserted the unlawfulness of the Secretary of State’s decision not to stray from the above policy on three bases: 1) she claims that the Secretary’s decision breaches her rights under the Charter of Fundamental Rights of the European Union (Charter); 2) she claims that the decision violates her rights as guaranteed by the European Convention on Human Rights (Convention); and 3) she claims that the Secretary’s policy never to fun legal costs in death penalty cases no matter the particular circumstances of a case is “irrational and therefore unlawful as a matter of domestic law.”
With regard to the first point, Sandiford claimed that her case is within the scope of EU law due to the fact that it is within the scope of a certain Framework Decision governing elements and penalties for drug trafficking crimes.
The Appeals Court held that the Secretary of State did not render his decision within the meaning of the Framework Decision, and that no other decision has been rendered which would serve to implement EU law in this case. As the Secretary had not been implementing the Framework decision when issuing his decision refusing to pay Sandiford’s legal fees, the decision was not in violation of EU law.
With regard to the second point, Sandiford argued that the Convention had been invoked by the fact that her situation fell within the scope of UK jurisdiction owing to the involvement of the UK Foreign & Commonwealth Office (FCO) and its consular officers in her case. These activities included: visits to Sandiford in custody, providing consular assistance and support, speaking with prison officials and police about various concerns, attending court hearings, assisting her and her family in obtaining legal representation, and providing light legal assistance.
After considering the relevant case law, the Appeals Court concluded that in certain cases, the activities of diplomatic and consular officials can draw a case into the jurisdiction of a given member state to the Convention. However, this tends only to occur when “the acts or omissions of which complaint is made come within the scope of an exercise of control and authority by the state in question.”
The Appeals Court held that Sandiford’s case did not give rise to such a jurisdictional finding, due to the nature of the assistance provided by the consular officials involved in the case. According to the judgment: “in circumstances where the individual is completely under the control of and detained by the foreign state, it is difficult to see how the necessary degree of authority and control can be exercised by diplomatic and consular agents who do no more than provide the kind of assistance that was provided to the appellant in the present case.”
With regard to the third point, Sandiford argued that the Secretary of State’s blanket policy excluding the provision of legal funds for any UK national facing the prospect of capital punishment abroad is irrational due to its failure to take into account individual circumstance.
Speaking to this point, an FCO official explained that a policy change would introduce its own crises of logic. Various arguments included, among others, the idea that the provision of legal funds for death penalty cases could create a slippery slope as far as other cases are concerned, and the assertion that it would be quite difficult for local consular officers to vet each lawyer involved in such cases for competency.
The Appeals Court held that while the practical problems presented by the FCO can be overcome, “the question is not whether the Secretary of State could produce a different policy which many would regard as fairer and more reasonable and humane than the present policy. It is whether the policy that he has produced is irrational.” To this, the judgment concludes that the policy is not irrational, and that it is in fact based in reasoning that is “neither arbitrary nor perverse.”
Accordingly, the Appeals Court upheld the lower court’s decision concluding that the Secretary’s decision was not unlawful.