Death Row, Human Rights And The Limits Of The Law: An Analysis Of The Judgment In 'Sandiford'

Article by Rosalind Earis, pupil at 6 King's Bench Walk

Introduction

Although both the law surrounding human rights and the use of judicial review to uphold it have grown exponentially in the UK in recent times, there are still plenty of jurisdictions where even fundamental principles of justice are not respected with any consistency. With that combination, it is not surprising that the last decade has seen a number of cases where those faced with perceived injustice abroad turn homewards for redress. However, the recent High Court judgment in R. (on the application of Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 168 (Admin) illustrates how difficult their task will be: the British courts will not readily succumb to convoluted attempts to stretch the fingers of European human rights law to areas where they simply do not reach.

Facts

Lindsay Sandiford was convicted by an Indonesian court of trafficking drugs into the island resort of Bali, and on 22 January 2013 sentenced to death by firing squad. She claimed to have received inadequate and incompetent legal representation throughout the proceedings. She launched an appeal against conviction and sentence but was told that, in line with its published policy, the Foreign and Commonwealth Office (FCO) would not fund the costs of her legal representation. She issued judicial review proceedings, primarily seeking a mandatory order that the defendant Secretary of State for Foreign and Commonwealth Affairs pay for adequate legal representation, which she could not afford herself. She claimed that the decision not to fund her appeal was unlawful as:

It amounted to a breach of rights guaranteed by the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union (the Charter); It represented an unjustified departure from the defendant's published policy to oppose the death penalty and work to ensure that EU minimum standards were upheld in countries which retained it; and The defendant's blanket policy of not providing legal representation overseas was an unlawful fetter of his discretion. Analysis

Ground one: breach of ECHR and Charter rights

It was common ground that only those who fell within the jurisdiction of the UK (or another Contracting State) would benefit from the rights bestowed by the ECHR. Mrs Sandiford claimed that she fell within that jurisdiction by virtue of the assistance and support offered to her by...