ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MRS JUSTICE GLOSTER, DBE &
MRS JUSTICE NICOLA DAVIES, DBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PATTEN
| THE QUEEN on the application of LINDSAY SANDIFORD
|- and -
|THE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
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Martin Chamberlain QC and Malcolm Birdling (instructed by The Treasury Solicitor's Department) for the Respondent
Hearing date: 22 April 2013
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Master of the Rolls:
The factual background
The relevant policy
"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. "
"Central government funds are not available to fund legal representation for British nationals facing charges overseas, including those appealing against execution. If a British national is unable to pay for legal representation, and if legal aid is not available, it is our normal practice, if asked, to approach relatives or friends of the detained to provide financial help. If there is no possibility of obtaining funds, we will consider whether, exceptionally, a loan can be made from public finds against an undertaking to repay."
The first issue: is there a breach of the Charter?
Within the material scope of the Framework Decision?
"The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. "
"the production, manufacture, extraction, preparation, offering, offering for sale distribution, delivery, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, importation or exportation of drugs".
"1. Each Member State shall take the necessary measures to establish its jurisdiction over the offences referred to in Articles 2 and 3 where:
(a) the offence is committed in whole or in part within its territory;
(b) the offender is one of its nationals; or
(c) the offence is committed for the benefit of a legal person established in the territory of that Member State.
2. A Member State may decide that it will not apply, or that it will apply only in specific cases or circumstances, the jurisdiction rules set out in paragraphs 1(b) and 1(c) where the offence is committed outside its territory.
3. A Member State which, under its laws, does not extradite its own nationals shall take the necessary measures to establish its jurisdiction over and to prosecute, where appropriate, an offence referred to in Articles 2 and 3 when it is committed by one of its own nationals outside its territory.
4. Member States shall inform the General Secretariat of the Council and the Commission when they decide to apply paragraph 2, where appropriate with an indication of the specific cases or circumstances in which the decision applies."
"(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States…
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. "
"The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:
(a) adopt common positions defining the approach of the Union to a particular matter;
(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not be of direct effect."
"43. In particular, where a Member State relies on the combined provisions of Articles 56 and 66 in order to justify rules where are likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question can fall under the exceptions provided for by the combined provisions of Article 56 and 66 only if they are compatible with the fundamental rights the observance of which is ensured by the court.
44. It follows that in such a case it is for the national court, and if necessary, the Court of Justice to appraise the application of those provisions having regard to all the rules of Community law, including freedom of expression, as embodied in Article 10 of the European Convention on Human Rights, as a general principle of law the observance of which is ensured by the Court."
"We are concerned here with the question whether, in taking a decision, the defendant is acting within the material scope of EU law. The field in question—the imposition of export restrictions—is one occupied by EU law which nevertheless includes a power of derogation to Member States. It would be surprising if the answer to the question whether the defendant was acting within the material scope of EU law depended on which way his decision went. Nor do I consider that to be the case. Rather, in deciding whether or not to exercise the power of derogation the defendant is implementing EU law in the sense of applying it or giving effect to it and he is bound to do so in accordance with the fundamental principles and rights which form part of EU law."
"53. Mr. O'Neill's first argument as to why the claimant's situation falls within the material scope of EU law was that, by reference to the Framework Decision, the United Kingdom, by not seeking the claimant's extradition, is exercising a derogation under Article 8(2) of the Framework Decision. But in order to establish that the claimant's situation falls within the material scope of EU law, she has to establish that the defendant's decision not to pay for a lawyer to act on her behalf is one which falls within the material scope of EU law. In my judgment, it is not sufficient for her simply to say that she is charged with offences of that kind that are dealt with in the Framework Decision. The Framework Decision regulates Member States' actions, amongst others, with respect to criminal sanctions associated with drug trafficking into, and within, the European Union. It does not purport to regulate the type or extent of assistance provided by Member States to their own nationals when charged with drug trafficking offences in third countries. Moreover the fact that Article 8(1) of the Framework Decision requires each Member State to take necessary measures to "establish its jurisdiction" over drug trafficking offences committed outside its territory (subject to a derogation in Article 8(2)) does not change this position. This provision is directed at ensuring that nationals of a Member State can be prosecuted in that Member State for offences committed in third countries. But these proceedings are not directed at any decision of the UK Government either to exercise jurisdiction (i.e. to prosecute the claimant) or to decline to exercise such jurisdiction (i.e. to decline to prosecute her). I accept Mr. Chamberlain's submission that the question of exercising jurisdiction, in the sense in which that term is used in the Framework Decision, simply does not arise in this case. The UK cannot exercise jurisdiction over the claimant because she is in Indonesia. It is that State alone which is exercising jurisdiction over her in the relevant sense. Moreover, in my judgment, none of the decisions of the CJEU referred to by the claimant at paragraph 28 of her grounds, provide any support for the proposition that her situation falls within the material scope of EU law."
The second issue: the Convention question.
Is the appellant within the jurisdiction of the UK?
"These activities were described in Ms Proudlove's witness statement. So far as consular staff in Indonesia were concerned, these activities variously included: visiting the claimant in custody and discussing her case with her, providing her with consular assistance and support, raising concerns about her welfare with the police and prison authorities, attending Court, liaising with Reprieve and her family in relation to the obtaining of legal representation, contacting Mr. Agus to enquire whether he would be willing to act, informing the claimant of the requirement to and the time limits for, filing notice and grounds of appeal, and assisting in the obtaining of necessary Court documents. The Consular Directorate in London was also involved in various discussions about the case with Reprieve and others. Various diplomatic representations were made by the FCO to the Indonesia and Ministry of Foreign Affairs. On 31 October 2012 the defendant raised the claimant's case with the Foreign Minister of Indonesia. Her Majesty's Ambassador to Indonesia wrote to the Attorney-General of Indonesia on 26 September 2012 raising the claimant's case and made further representations on her part in a meeting with him on 20 December 2012. "
"the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the court considers that the United Kingdom, through its soldiers engaged in security operations in Basra during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of art 1 of the Convention. "
"131. A state's jurisdictional competence under art.1 is primarily territorial. Jurisdiction is presumed to be exercised normally throughout the state's territory. Conversely, acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of art.1 only in exceptional cases.
132. To date, the Court in its case law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the state was exercising jurisdiction extra-territorially must be determined with reference to the particular facts.
(ib)General principles relevant to jurisdiction under article 1 of the Convention: state agent authority and control
133. The Court has recognised in its case law that, as an exception to the principle of territoriality, a contracting state's jurisdiction under art.1 may extend to acts of its authorities which produce effects outside its own territory. The statement of principle, as it appears in Drozd and the other cases just cited, is very broad: the Court states merely that the contracting party's responsibility "can be involved" in these circumstances. It is necessary to examine the Court's case law to identify the defining principles.
134. First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others."
"The applicant's complaints are directed mainly against the British consular authorities in Jordan. It is clear, in this respect, from the constant jurisprudence of the Commission that authorised agents of a State, including diplomatic or consular agents bring other persons or property within the jurisdiction of that State to the extent that they exercise authority over such persons or property. Insofar as they affect such persons or property by their acts or omissions, the responsibility of the State is engaged (cf. Applications No. 1611/62, Yearbook 8, p. 158 (168); Nos 6780/74, 6950/75, Cyprus v Turkey, Decisions and Reports 2, p. 125 (1371)). Therefore, in the present case the Commission is satisfied that even though the alleged failure of the consular authorities to do all in their power to help the applicant occurred outside the territory of the United Kingdom, it was still "within the jurisdiction" within the meaning of Article 1 of the Convention."
"Whereas, in certain respects the nationals of a contracting state are within its 'jurisdiction' even when domiciled or resident abroad; whereas, in particular, the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may, in certain circumstances, make that country liable in respect of the Convention."
"It remains to be examined whether Turkey's responsibility under the Convention is otherwise engaged because persons or property in Cyprus have in the course of her military action come under her actual authority and responsibility at the material times. In this respect it is not contested by the respondent Government that Turkish armed forces have entered the island of Cyprus, operating solely under the direction of the Turkish Government and under established rules governing the structure and command of these armed forces are authorised agents of Turkey and that they bring any other persons or property in Cyprus "within the jurisdiction" of Turkey, in the sense of Art. 1 of the Convention, to the extent that they exercise control over such persons or property. Therefore, insofar as these armed forces, by their acts or omissions, affect such persons' rights or freedoms under the Convention, the responsibility of Turkey is engaged."
"In my judgment it is manifestly clear on the facts of this case, that, at all relevant times, from the moment she was arrested, throughout the time she was in custody, throughout the trial process, and after her conviction when held in prison, the claimant was and remains under the authority and control of the Indonesian state and relevant criminal authorities. The mere fact that the consular officials provided her with advice and support, and that the FCO engaged in diplomatic representations, cannot be regarded as any kind of exertion of authority or control by agents of the United Kingdom so as to engage its responsibilities under the Convention."
The domestic law issue
"Rationality is a familiar concept in public law........ Rationality is not the same as reasonableness. Reasonableness is an external, objective standard applied to the outcome of a person's thoughts or intentions. The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. A test of rationality, by comparison, applies a minimum objective standard to the relevant person's mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse."
Lord Justice Elias:
Lord Justice Patten: