Trinity Term [2014] UKSC 44 On appeal from: [2013] EWCA Civ 581

JUDGMENT
R (on the application of Sandiford) (Appellant) v
The Secretary of State for Foreign and
Commonwealth Affairs (Respondent)
before
Lord Mance
Lord Clarke
Lord Sumption
Lord Carnwath
Lord Toulson
JUDGMENT GIVEN ON
16 July 2014
Heard on 4 June 2014
Appellant Respondent
Aidan O’Neill QC Martin Chamberlain QC
Adam Straw
(Instructed by Leigh Day
& Co)
Malcolm Birdling
(Instructed by Treasury
Solicitor)
LORD CARNWATH AND LORD MANCE (with whom Lord Clarke and
Lord Toulson agree)
Introduction
1. The appellant, a British national now 57, is in prison in Bali, Indonesia,
awaiting execution by firing squad, following her conviction for drug offences. That
follows her arrest in May 2012 and her subsequent trial on 22 January 2013 in the
District Court of Denpasar. She had admitted the offences, but claimed that she had
been coerced by threats to her son’s life. Following her arrest she had co-operated
with the police, leading to the arrest of four others. The prosecutor had called for a
sentence of 15 years’ imprisonment, and supported her appeal to the Indonesian
High Court. But that was unsuccessful, as was her further appeal to the Supreme
Court on 29 August 2013. The only legal options now available to her to avoid
execution are an application to the Supreme Court to reopen the case, and an
application to the President for clemency. The time-limit for both expires on 29
August 2014. She needs legal help to prepare her case.
2. The UK government has provided substantial consular assistance since it was
notified of her arrest, has made diplomatic representations to the Indonesian
authorities, and submitted amicus briefs to the High Court and Supreme Court in
support of her appeals. But it has declined to pay for legal help, relying on what was
said to be a rigid policy, as stated in its publication Support for British Nationals
Abroad: a Guide (first published in June 2007):
“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.” (emphasis added)
The central issue in this case is the legality of that approach, either under domestic
law, or (if it applies to her case) the European Convention on Human Rights.
The course of the proceedings in UK and Indonesia
3. The present proceedings sought an order requiring the Secretary of State to
make arrangements for an adequate lawyer to represent her in the Indonesian appeal.
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They proceeded with remarkable and commendable urgency. They were lodged on
24 January 2013, only two days after her conviction. The urgency was dictated by
the need for her notice of appeal to the Denpasar High Court to be lodged within
seven days, and grounds 14 days thereafter. A “rolled-up” hearing took place on 31
January, when the Divisional Court (Gloster and Nicola Davies JJ) granted
permission but refused the substantive application, for reasons given in a judgment
on 4 February [2013] EWHC 168 (Admin).
4. The applicant’s grounds had complained of inadequate legal assistance
before and at the trial. She had been represented by a local lawyer, paid with funds
(£5,000) raised by her sister, but who (according to her) spoke little English and had
no experience of capital defence litigation. Following her conviction, and by the
time of the judicial review application, the consulate had put her in touch with Mr
Agus, a local lawyer. He was the British Ambassador’s honorary legal adviser and
was also a human rights specialist, who had acted in previous death penalty cases.
He was willing to act for the appellant on a pro bono basis, subject to payment of
his expenses, estimated at some £2,600. Accordingly, it was that seemingly modest
sum which was initially the subject of the judicial review proceedings.
5. In the event, following the dismissal of her application by the Divisional
Court, the necessary sum was raised by donations from the public. Her appeal to the
High Court in Indonesia then proceeded with the assistance of Mr Agus. On the
issue of sentence it was supported by the prosecutor, and by amicus briefs submitted
by Lord Macdonald and by the UK Government. On 10 April, the High Court of
Denpasar dismissed the appeal.
6. In this country her appeal against the order of the Divisional Court was heard
by the Court of Appeal on 22 April and judgment was given on 22 May 2013
dismissing the appeal: [2013] 1 WLR 2938. By that time her request was for £8,000
to instruct Mr Agus in the appeal to the Supreme Court (again principally for his
expenses). The Court of Appeal noted that some of the money had by that time been
raised by donations. In the event, the full sum was raised and the appeal proceeded
in the Supreme Court with Mr Agus’ assistance, but unfortunately was again
unsuccessful.
7. We have had the advantage of more detail than the lower courts about the
course of proceedings in the lower courts. We were told that translations of the
District Court and High Court judgments only became available in March 2014. As
will be seen, even allowing for problems of translation, they make very disturbing
reading.
Page 3
8. We have also some further evidence on the appellant’s side, including
information as to the legal options now open to the appellant in Indonesia and their
consequences, and also of the practice of other countries in providing funding in
comparable cases. We have not seen evidence of any more recent consideration of
the case by the Secretary of State. Nor is there before us any ground of challenge
based on action or inaction since the Court of Appeal hearing. The appeal to this
court has proceeded as one of principle, directed to the legality of the policy and its
application in relation to the decision to refuse funding in January 2013. While
however we are principally concerned with the legality of the decision made at that
time, and the policy on which it was based, there is as we understand it no objection
to us taking account of the new material in so far as it assists in resolving those
questions.
The Indonesian proceedings in more detail
9. The District Court judgment recorded that she had been accompanied by a
lawyer and a translator, and that she had been able to understand the proceedings
and respond to questions put to her. It also summarised her statement to the court.
She admitted her knowledge that she was carrying narcotics, but said that they
belonged to a Julian Ponder (a member of a syndicate), who had threatened to kill
her child if she did not comply, and that she felt “very bad and ashamed”. The
judgment noted that the prosecutor was seeking a sentence of 15 years imprisonment
and a substantial fine, and that her lawyers had filed a plea “for the lightest sentence
by reason that she committed the deeds not on her own accord but solely under the
threats of the other party”. The court, however, held that it was “just and fitting” that
the maximum sentence be imposed. It rejected the prosecution’s submission that
there were no aggravating circumstances. Instead it found no mitigating
circumstances. Rather it listed five “aggravating circumstances”, including her
making of “complicated statements” to the court, her lack of remorse, and her “resort
to continued excuse for her ailing son, making herself subject to Julian’s threat into
committing the deeds”.
10. A fully reasoned notice of appeal to the High Court was prepared by Mr
Agus. This repeated her claim that she had been forced to commit the crime because
of threats to her son by a narcotics syndicate. It also relied, by way of mitigation, on
the facts that she had no previous criminal record and suffered from mental illness;
that following her arrest she had co-operated with the police in a “sting operation”
which had led to the arrest of four members of the syndicate (including Mr Ponder);
that they had been convicted and sentenced only to terms of imprisonment of
between one and six years; and that her attempts at trial to read a full statement of
apology had been interrupted by flash photography at short distance from
photographers in court. The district court had failed to consider her mitigating
factors, especially her role as a collaborator with the police, and the sentence was
unjust and disproportionate.
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11. The appeal was supported by a substantial amicus brief (14 pages) on behalf
of the UK government. This relied on a decision of the Indonesian Constitutional
Court (Decision No. 2-3/PUU-V/2007), which had upheld the permissibility of the
death penalty for drug offences, but only “in special or exceptional cases”, and
taking account of any mitigating circumstances. The appellant’s case came
“nowhere near” that category. The mitigating circumstances included her cooperation with the police, her previous good character, her remorse, and the
circumstances in which she came to be involved. A further substantial amicus brief
(20 pages) was submitted by Lord Macdonald QC (formerly Director of Public
Prosecutions) in his own name. He gave particular emphasis to the appellant’s
“status as a cooperating witness”, having regard to the vital role of such witnesses
in combating the drug trade, and the need for leniency in sentencing as an incentive
to such co-operation.
12. The court dismissed the appeal and confirmed the death penalty. With respect
to the court, their treatment of the defendant’s case seems cursory in the extreme.
The judgment noted, without further discussion, that the prosecutor had objected to
the death penalty, and that a brief had been submitted by Lord Macdonald QC, but
there was no mention of submissions of the UK Government. The court described
the appellant’s action as “highly systematic and organised as a criminal organisation
network with an international scale… with the involvement of many individuals
who are all foreign nationals…” Narcotics crimes were categorised as
“extraordinary crimes”, for which the State of Indonesia had established a “state of
emergency to eradicate narcotic crimes…” The death penalty to the appellant would
give “the positive response to the society to not commit narcotic crimes”. Of the
case of the appellant and her supporters, it said simply:
“…based on the above consideration the defendant’s appeal brief, the
appeal brief of the Public Prosecutor… as well as the Amicus Curiae
brief of Lord Macdonald are groundless and must be put aside.”
13. We have been given limited information about the subsequent appeal to the
Supreme Court, and events thereafter. As we have said, the appellant was
represented by Mr Agus before the Supreme Court, again with funds raised from
public donations. We have been told that an amicus brief was submitted by the UK
government to the Supreme Court. We assume it was in terms similar to that
submitted to the High Court. In a witness statement dated 19 March 2014, Zoe
Bedford, casework lawyer for Reprieve, indicated that the full judgment of the
Supreme Court was still awaited. We understand that is still the position. In the
absence of the judgment, and since the sentence was confirmed, there seems little
reason to hope that the arguments on her side were given any more weight than in
the lower courts.
Page 5
14. According to Ms Bedford, the only two avenues now open to her to avoid
execution are a Peninjuan Kembali (PK) application to the Supreme Court and a
clemency petition to the President. We were told that they are normally filed at the
same time, with the clemency petition being held over to await the decision on the
PK. According to Ms Bedford, the PK application enables the court to review a
decision on the grounds of new evidence, a fundamental error or misapplication of
the law; and “unlike at the appeal stages, there will be the opportunity for oral
argument…” She asserts that a lawyer is essential for this stage, and that legal advice
is also needed on the implications of “the complex new clemency laws and their
interpretation, which remain the subject of much debate within the legal community
in Indonesia”.
15. This documentation apparently needs to be lodged within one year of the
Supreme Court decision, that is by 29 August 2014. Unfortunately, Mr Agus
suffered a severe stroke in October 2013 and is unable to represent her. Attempts to
find other lawyers prepared to work on a pro bono basis have failed, and Reprieve
itself has no Indonesian lawyers qualified to undertake the task. A suitable lawyer
has been identified but only if his fees (said to be US$ 35,000, excluding expenses)
can be provided for. (We assume, although this is not entirely clear, that this fee
would cover both the clemency petition and the linked application to the Supreme
Court.) A statement from Mr Agus himself gives his view that the failings in this
case are not unique, and that if the death penalty were reversed by the Supreme Court
it would be “a persuasive decision” for future cases “highlighting the flaws in the
system which make the death penalty such a dangerous sentence to impose”.
The issues
16. Three issues are identified in the agreed statement:
The Convention issues
i) Whether the appellant is within the jurisdiction of the UK for the
purpose of article 1 of the European Convention on Human Rights.
ii) If so, whether the respondent was and is obliged by the Convention to
provide funds for the appellant’s legal representation in capital proceedings
against her in Indonesia, or alternatively to consider her claim for funding.
Page 6
The common law issue
iii) Whether the UK government’s blanket policy to refuse to consider
providing such funding in any case, including the appellant’s, is unlawful
and/or irrational and/or (if material) disproportionate.
The Convention issues
17. We say at once that on issue (i) we are in substantial agreement with the
courts below. This will make it unnecessary to consider in issue (ii).
18. We note at the outset the Convention right on which Mr O’Neill QC relies on
behalf of Mrs Sandiford. The death sentence under which she suffers might have
suggested article 2 or 3. But it is actually article 6, enshrining the right to a fair trial,
on which alone reliance is placed. The case advanced is that the United Kingdom
can and should secure to Mrs Sandiford free legal assistance under article 6(3)(c),
in circumstances where she cannot afford to fund herself and no such assistance is
available to her in Indonesia.
19. Lord Dyson MR (para 35ff) reviewed the relevant case law of the European
Court of Human Rights, culminating in the authoritative restatement of the
principles by the Grand Chamber in Al-Skeini v United Kingdom (2011) 53 EHRR
589. As was confirmed in that judgment (para 131ff), jurisdiction under article 1 is
“primarily territorial”, but there are certain recognised exceptions one of which is in
relation to the acts of diplomatic and consular agents which may amount to an
exercise of jurisdiction “when these agents exert authority and control over others”
(para 134). Having discussed in detail the other Strasbourg cases relied on by the
appellants, he concluded that the test was not satisfied in the present case. He
adopted a passage from of the judgment of Gloster J in the Divisional Court (para
40):
“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 [Foreign and Commonwealth Office]
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.”
Page 7
20. Since the Court of Appeal’s decision in this case, the issue of jurisdiction
under article 1, and in particular of the exceptions to the principle of territoriality,
has been considered by the Supreme Court in Smith v The Ministry of Defence
(JUSTICE intervening) [2013] UKSC 41, [2014] AC 52. It is unnecessary to look in
detail at Lord Hope of Craighead’s leading judgment on this issue, since it confirms
that it is to the Strasbourg authorities, in particular Al Skeini, that we must look for
detailed guidance. It is enough to say that there is nothing inconsistent with the Court
of Appeal’s approach.
21. Mr O’Neill challenged this approach as too narrow. It was wrong to limit the
scope of “authority and control” to situations in which a state is exercising physical
control over a person. Physical power and control, in his submission, were not
relevant to the separate category, recognised in Al-Skeini, of acts of diplomatic and
consular agents. In that context the correct approach was to focus on the activity of
the member state, even if its authority was only partial. So in this case, the fact that
the appellant is in custody in Indonesia does not prevent the UK exercising its
authority, under the Vienna Convention, to arrange for her legal representation. The
focus is on whether the state had jurisdiction over the act or omission complained
about, not whether she is under its authority and control in other ways.
22. In our view, however, the Strasbourg authorities on which he relies do not
support such an extension. In Al-Skeini the court identified the consular exception
in these terms (para 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 Court footnoted this head with a number of references. The main reference was
to Banković v Belgium (2001) 11 BHRC 435, para 73, where the court said that
customary international law and treaty provisions had recognised “extra-territorial
exercise of jurisdiction by a state” in cases including those “involving the activities
of its diplomatic or consular agents abroad”. The court added:
“see also X v Federal Republic of Germany, (1965) 8 Yearbook of the
European Convention on Human Rights 158, 169; X v United
Kingdom (1977) 12 DR 73; M v Denmark (1992) 73 DR 193; 15
EHRR CD 28 (sub nom V v Denmark)).
Page 8
23. The United Kingdom has no territorial jurisdiction over Mrs Sandiford in
prison in Indonesia. But the United Kingdom could, in one way or another, provide
her with funds for her legal proceedings in Indonesia. It could on the face of it do so
without using any diplomatic or consular agents, by providing funds here which
could then be remitted to Indonesia. However, there is no general Convention
principle that the United Kingdom should take steps within the jurisdiction to avoid
exposing persons, even United Kingdom citizens, to injury to rights which they
would have if the Convention applied abroad. The principle recognised in cases like
Soering v United Kingdom (1989) 11 EHRR 439 only applies where the United
Kingdom is proposing a step such as the surrender or removal from the jurisdiction
of a person which may lead to infringement of that person’s Convention rights
abroad.
24. The exceptional extra-territorial jurisdiction described in Al-Skeini 53 EHRR
589, para 134 was expressed as depending on “acts of diplomatic or consular agents”
abroad where such agents “exert authority and control over others”. It is common
ground that the United Kingdom could use its diplomatic or consular agents to fund
the defence in Indonesia of a United Kingdom citizen. The Vienna Convention on
Consular Relations of 24 April 1963 provides that the consular functions exercisable
by consular posts or diplomatic missions consist in inter alia –
“[Article 5] (i) …. representing or arranging appropriate
representation for nationals of the sending state before the tribunals
and other authorities of the receiving state ….. where, because of
absence or any other reason, such nationals are unable at the proper
time to assume the defence of their rights and interests. ….
(m) performing any other functions entrusted to a consular post by the
sending state that are not prohibited by the laws and regulations of the
receiving state or to which no objection is taken by the receiving state
…..”
25. The Convention on Consular Relations permits, but it is not suggested that it
obliges, the exercise of any such functions. In the present case, the United Kingdom
has decided not to use its agents to arrange or fund representation of Mrs Sandiford
for this purpose. In these circumstances, it is not possible, in our opinion, to identify
any relevant acts of diplomatic or consular agents or therefore any relevant exercise
of authority or control by such agents over Mrs Sandiford, which could bring the
first extra-territorial exception into play.
26. The United Kingdom’s diplomatic and consular agents in Indonesia have of
course been active in relation to Mrs Sandiford’s predicament, particularly making
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representations and filing an amicus brief. But their support for her and their activity
in this regard have hitherto excluded any involvement in instructing or funding
lawyers on her behalf. A deliberate refusal to instruct or fund lawyers on behalf of
Mrs Sandiford cannot constitute an exercise of authority or control over her. It is the
opposite – a decision not to undertake or exercise any relevant authority or control.
27. The authorities footnoted in Al-Skeini para 134 do not lead to any different
conclusion. In X v Germany the allegation was that the German Consul had asked
the Moroccan authorities to expel him. The case failed on the facts, with the
Commission merely remarking that “diplomatic and consular representatives ….
perform certain duties with regard to [nationals of a contracting state abroad] which
may, in certain circumstances, make that country liable in respect of the
Convention” ((1965) 8 Yearbook of the European Convention on Human Rights
158, 168). The potential liability referred to was therefore based on duties
undertaken and performed. M [or V] v Denmark involved the positive act of the
Danish Ambassador to East Germany in inviting the East German police to enter the
Danish Embassy in East Berlin where a group of East Germans had taken refuge
and been promised immunity. Not surprisingly, the Commission held that he had
thereby exercised authority over the group, although again the claim failed on the
facts, because the group had by then left voluntarily.
28. The high point of Mr O’Neill’s argument is perhaps the Commission decision
in X v United Kingdom (1977) 12 DR 73. The British court had ordered a Jordanian
father to return his daughter to England. According to the summary, the English
mother “got in touch with the British consulate in Amman asking it to obtain the
custody of her daughter from the Jordanian Court” and the Consulate reported on
the child’s well-being, and provided the mother with a list of lawyers practising in
Jordan and registered her daughter in her passport, but with no result. The mother
complained that the Consul had failed “to intervene in her domestic dispute and help
reunite mother and child”, so allegedly violating articles 8 and/or 13, and that the
Consul refused to ask its legal adviser to answer questions about Jordanian law in
order to help her prepare her case for court in Jordan, so violating article 6.
29. The complaint failed again on the facts, with the Commission reciting what
had been done and concluding that “the consular authorities had done all that could
be reasonably expected of them”. But first the Commission made what appears to
have been a statement of legal principle in relation to jurisdiction:
“authorized 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 … Therefore, in
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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.” (p 74)
30. The statement refers to responsibility for acts “or omissions” and treats “the
alleged failure of the consular authorities to do all in their power” as bringing the
case within article 1. So it lends a superficial support to Mrs Sandiford’s case that a
mere unexercised consular power suffices for the purposes of establishing
jurisdiction under article 1. But, read literally, that would appear to imply that any
omission to exercise any power which could be exercised by diplomatic or consular
means would bring the circumstances within the jurisdiction under article 1. On that
basis, jurisdiction under article 1 would depend not on activities undertaken or duties
performed, but simply on powers possessed. That would be contrary to the later
statements of principle in Banković and Al-Skeini. (Logically, it would also mean
that Banković itself must be wrong, since, if a mere unexercised power suffices, then
an actual exercise of a power affecting a person abroad must surely also suffice.)
31. In our opinion, Commission dicta made in passing in 1977 cannot and do not
determine the scope of article 1 today. To the extent that they are inconsistent with
later statements, they must be regarded as too extensively phrased. But it is not
uninteresting to note that, even though they were so widely expressed, their
application on the facts in no way favours Mrs Sandiford’s current case. If states
have any duty to arrange and fund representation on behalf of their citizens abroad,
the result in X v United Kingdom ought on the face of it to have been the opposite at
least in respect of the complaint made under article 6.
32. Looking at the matter more broadly, the position is that Mrs Sandiford has
been apprehended, convicted and tried for drug smuggling in Indonesia. If one asks,
by reference to any common-sense formulation, under whose authority or control
she is, the answer is: that of the Indonesian authorities. It is they who ought to be
ensuring her fair trial. If they were party to the Convention, it would be their duty to
do so, and to provide appropriate legal assistance in a case of impecuniosity, under
article 6. Since Al-Skeini, it is possible in certain respects to divide and tailor the
Convention rights relevant to the situation of a particular individual: see para 137 in
that case. But to divide and tailor the rights under article 6, so as to isolate the duty
to fund from the remaining package of rights involved in fair trial, and to treat it as
applying to the United Kingdom and as putting Mrs Sandiford to that extent under
the authority or control of the United Kingdom, is in our opinion impossible in
circumstances where the United Kingdom has deliberately not assumed or
performed any role in relation to funding.
Page 11
33. Before leaving the Convention position, it is also worth considering the full
implications of the appellant’s case that the Convention applies. Logically, article 6
would be engaged in respect of every criminal charge, however serious or minor,
brought against a British citizen in any overseas country in the world. Article 6
would become a compulsory world-wide legal aid scheme for impecunious British
citizens abroad, presumably even for those who had decided to live permanently
abroad.
34. For reasons we have given, however, in our opinion Mrs Sandiford was not
and is not within the jurisdiction of the United Kingdom for the purposes of article
1 of the Convention, so that no part of article 6 is capable of imposing any obligation
on the United Kingdom in respect of the criminal proceedings and capital penalty to
which she is now subject in Indonesia.
The common law issue
The “blanket” policy – history and practice
35. Before considering the legal issues, it is convenient to refer to the evidence
as to how the policy has evolved and how it has worked in practice. Although the
policy itself is not in dispute, evidence of the sources of that policy and of the
reasoning behind it has proved somewhat elusive.
36. The best evidence now available is contained in two statements (approved
we are told by Foreign Office ministers), submitted by Louise Proudlove (Head of
Consular Assistance, Consular Directorate, of the FCO). The first was available to
the Divisional Court and was necessarily prepared in great haste. The second was
submitted to the Court of Appeal in April 2013, partly in response to evidence from
Reprieve of a case in 2003 where funding had been provided for a British citizen
(Mr Maharaj) facing the death penalty in Florida. It was said to be based on a search
of all relevant sources (including documentary and electronic files and interviews
with former FCO employees), which was “as comprehensive as possible” in the time
available. It is safe to assume that, if there were further material, it would have come
to light in the time that has elapsed since then.
37. There is no doubt as to the longstanding policy of the UK government to
oppose the death penalty as a matter of principle. Its current strategy (published in
revised form in 2011) is set out in HMG Strategy for Abolition of the Death Penalty
2010-2015. This has the appearance of a formal policy statement, approved by
Ministers, and appears as such on the FCO website. According to the Executive
Summary it “sets out the UK’s policy on the death penalty, and offers guidance to
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FCO overseas missions on how they can take forward our objectives”. Appendix 1
identifies Indonesia as one of a “second tier of priority countries” where consular
posts should be “working towards one or more of our goals”. We were told, for
example, the FCO has recently funded a project in Indonesia for training lawyers in
handling death penalty cases, in particular by improving understanding of human
and constitutional rights. Appendix 2 notes that the FCO is funding three multicountry projects (not currently including Indonesia), two of which provide free legal
representation for prisoners facing the death penalty.
38. The stated objectives include increasing the number of abolitionist countries,
seeking further restrictions in countries where it is used, and ensuring that EU
minimum standards are applied. Those standards (as recorded in appendix 4 of the
strategy) include the requirement that capital punishment must only be carried out
pursuant to a final judgment by an independent and impartial court after legal
proceedings complying with international standards –
“including the right of anyone suspected of or charged with a crime
for which capital punishment may be imposed to adequate legal
assistance at all stages of the proceedings, and where appropriate, the
right to contact a consular representative.”
The methods for achieving these goals include “bilateral initiatives” including
raising individual cases of British nationals: “HMG policy is to use all appropriate
influence to prevent the execution of any British national” (emphasis added; as will
be seen “appropriate influence” is a phrase which is regularly repeated in ministerial
statements on the subject). “Delivery” methods include “lobbying on individual
cases of British Nationals who have been sentenced to the death penalty or are facing
death penalty charges”, the strategy being “specifically tailored to each case”.
39. The strategy says nothing in terms about the funding of legal representation
for individual cases, but equally there appears to be nothing which rules it out.
Appendix 6, which lists further recommendations of possible actions by consular
posts, does not exclude legal action as such. The list includes:
“Legal challenges to the constitutionality of the imposition and
application of the death penalty are a good tool to use, eg to the
mandatory nature of the death penalty, delay on death row or the
mercy process…”
Such legal challenges are also suggested as possible actions under the heading
“adherence to international standards”.
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40. By contrast with this strategy, there appears to be no comparable published
statement covering the current policy for funding legal representation. Ms Proudlove
explains her own understanding of the practice in individual cases, following
notification of an arrest by the host country (as required by the Vienna Convention
on Consular Relations 1963). In that connection, she refers to an internal guidance
note, the precise date and status of which are unclear, which sets out a “checklist”
of actions. The note starts by affirming the government’s policy to use “all
appropriate influence to prevent the execution of any British national”. It includes
advice on working with the subject’s local lawyer, preparing representations which
can be made “before, during and after the trial… right up to execution”, and
considering the possibility of “a legal brief to court, if admissible under local law”
but in respect of which, it is said, “there are strict HMG criteria”. There is special
advice about involving Reprieve.
41. For the current policy on funding legal representation, as already noted, she
relies on the 2007 guide (and subsequent revisions), and its statement that “we
cannot pay” for local lawyers. That does not purport itself to be a policy-making
document, nor does it explain the reasons for the prohibition. We were given no
direct evidence as to how, or under whose authority, it came to be published in that
form.
42. Ms Proudlove’s researches, going back to 1987, have shown that the previous
policy, though strict, was not inflexible. Thus she refers to a Consular Department
Circular dated July 1987 which recommends that if there is “no possibility of
obtaining funds for the defence” a report should be submitted with an estimate of
costs, to Consular Department for decision “whether public funds can be used
against a UTR (undertaking to repay)”. According to the writer: “this facility is
rarely used (I cannot recall a single case in the last four years) but should remain an
option”. This position did not change in the ensuing decade. (A letter from the head
of the consular division dated January 1997 to Phillip Sapsford QC is to similar
effect.)
43. Ms Proudlove also explains the circumstances in which in 1997 it was agreed
to offer funding of up to £20,000 for expert evidence (against an undertaking to
repay) to Mr Maharaj who was facing capital charges in the USA. Apart from that
and one other similar case (Mr Elliott), also from the USA and relating to expert
evidence, no record has been found of any case in which funds were made available
for legal representation pursuant to the previous policy.
44. She has attempted to discover in the FCO records the circumstances of a
change of policy in 2006-7 to a blanket policy allowing no exceptions. She refers to
the decision to refuse assistance in another case from the USA (Ms Carty) in 2004.
The Minister was at that time recorded as confirming the existing policy that loans
Page 14
should not in general be provided for death penalty cases, although it was recognised
that there be would be exceptions which would continue to be considered “on a case
by case basis”. She infers that the change of policy occurred at some time between
that decision and the first publication of the guide in 2007. But she frankly admits
that in spite of her extensive searches she has been unable to find any documentation
recording such a change of policy. She also notes that shortly thereafter the decision
was made to provide annual funding to Reprieve, in amounts rising from £20,000 in
2005/6 to £60,000 in 2012/3. According to the terms of reference, Reprieve is to
provide a range of services including helping to ensure the best available legal
representation, and securing pro bono services from experts and lawyers where
possible.
45. The next formal record of a review of the policy (and the last of which we
have evidence before the present case) was in May 2010 when there was a detailed
submission to the Foreign Secretary. This was triggered, it was said, by two cases
“at a critical stage”, in which the department was in consultation with lawyers and
Reprieve, and a “steer from Ministers” would be welcomed. The scope of the
submission is apparent from the introductory passage, under the heading “Options”:
“We recommend that Ministers agree we should, as a matter of general
policy, continue to seek to use all appropriate influence to prevent the
execution of any British national, beginning that effort from the time
the death penalty becomes a possibility’.
4. Alternatives would include:
A) to limit our action to cases clearly in breach of international
standards;
B) to limit out action to cases where we judged there was a strong
chance of success;
C) to consider providing direct legal assistance.”
The paper reviewed the merits and disadvantages of the three alternatives and
concluded:
“Overall we judge that the risks of a more selective approach (in
particular defending judgements not to raise cases) outweigh the
Page 15
benefits. So we recommend that we retain our strong advocacy on
behalf of all British nationals facing the death penalty abroad.”
A minute dated 8 June 2010 recorded (without further comment on the three
alternatives) that the Secretary of State accepted “your recommendation that the UK
should seek to use all appropriate influence to prevent the execution of any British
National”.
46. There appears to be no record of what action was taken in relation to the two
cases which triggered the submission. On the other hand we have been shown no
specific case where assistance has in practice been refused on the basis simply of
the blanket policy, without any consideration of the individual circumstances.
47. We note from this evidence that, while the FCO has resisted requests to fund
legal representation as such, it has been willing on occasions to spend relatively
substantial sums on legal advice in connection with the preparation of amicus briefs.
For example, in the Maharaj case two briefs were prepared in 2003 and 2005, at a
cost of over US$25,000. A similar amount was spent in 2010 in another American
case (Kenneth Gay). In Indonesia in 2012 Mr Agus on the instructions of the FCO
had prepared an amicus brief for another British citizen faced with a possible death
penalty (Gareth Cashmore) for a fee equivalent to some £17,000. This was the
template used for the preparation of the amicus brief in the appellant’s case.
48. Finally, although the evidence explains the practical difficulties in operating
a fair and consistent scheme for funding legal representation, it is not suggested that
it would be impossible. There is no challenge in principle to the evidence more
recently submitted on behalf of Reprieve, which shows that many comparable
governments do provide such funding for their nationals facing capital charges
abroad, although (as Mr Chamberlain fairly points out) the court has no material to
judge what practical difficulties may have arisen in the countries concerned.
The Secretary of State’s powers and the role of the courts
49. There was no material dispute as to the existence or source of the power of
the Secretary of State to provide assistance, including legal funding, for British
citizens facing capital charges abroad. It is immaterial for the present purposes to
consider whether this is properly described as a common law or a prerogative power
(see eg Wade and Forsyth Administrative Law 10th ed (2009), pp 181-183). The
significant point is that it is not derived from statute, and accordingly any legal
constraints on its exercise must be found elsewhere.
Page 16
50. Assistance in this respect can be found in the judgment of the Court of Appeal
in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002]
EWCA Civ 1598, [2003] UKHRR 76, which concerned the possible responsibility
of the UK government to make representations to the USA government or take other
action on behalf of British citizens detained in Guantanamo bay. The court noted
that, subject to issues arising under the European Convention on Human Rights,
international law had not yet recognised any general duty for a state to intervene by
diplomatic means (para 69). Enforceable rights could however arise in domestic law
based on established government policy statements or practices, underpinned by the
law of legitimate expectation and justiciable in accordance with the principles
established in the GCHQ case (Council of Civil Service Unions v Minister for the
Civil Service [1985] AC 374): (paras 81ff). The Court of Appeal held that, although
the Foreign Office’s discretion as to exercise its prerogative powers in such a case
was “a very wide one” and although “the court cannot enter the forbidden areas,
including decisions affecting foreign policy”, there was “no reason why its decision
or inaction should not be reviewable if it can be shown that the same were irrational
or contrary to legitimate expectation” (para 106). Neither party in the present case
sought to question that analysis.
51. Relevant also in the present context is the court’s discussion of Butt’s case (R
v Secretary of State for Foreign and Commonwealth Affairs, Ex p Ferhut Butt (1999)
116 ILR 607), in which the applicant had sought an order that the FCO should make
representations to the President of the Yemen relating to a criminal trial in progress
in the Yemen. Henry LJ recorded the concession by the respondent Secretary of
State that he was under “a common law duty to protect its citizens abroad”, but that
“the extent and the limits of that duty (were) set out in a leaflet that is available for
those who travel abroad”. As the court noted in Abbasi, the leaflets in question
“expressly excluded intervention in a criminal trial, which was fatal to the
application”. Rather than “a common law duty” as such, as suggested by Henry LJ,
the Abbasi court preferred to characterise it as a legitimate expectation “that such
assistance as was proffered in the leaflets would be provided” (paras 93-4).
52. The court’s role is dependent on the nature and the subject matter of the
power or its exercise, particularly on whether the subject matter is justiciable:
Council of Civil Service Union v Minister for the Civil Service [1985] AC 374, 417-
418 per Lord Roskill, R v Secretary of State for the Home Department, Ex p Bentley
[1994] QB 349. In the former case, at p 418B-C, Lord Roskill suggested as
prerogative powers which would not be justiciable those relating to the making of
treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the
dissolution of Parliament and the appointment of Ministers. Even so, it has been held
that a decision to refuse to issue any pardon based on a failure to identify the
possibility in law of a conditional pardon may be reviewable (see Ex p Bentley); and
it has also been held that a decision to refuse to issue a passport is reviewable (R v
Secretary of State for the Foreign Office, ex p Everett [1989] 1 QB 81)
Page 17
53. In the present case, there has been no dispute that the Secretary of State, in
accordance with his published policies and established practice, has some
responsibility for British citizens facing capital charges abroad, nor that his exercise
of that responsibility is subject to review by the courts in accordance with the
principles outlined in Abbasi. On the other hand it is also common ground that he
has a wide discretion in the formulation and application of that policy. The issues
turn on the restrictions on which he is entitled to place on that policy and on its
application to the appellant’s case.
Fettering discretion – the issues
54. In the courts below, as in this court, the argument has turned principally on
his right to adopt a blanket policy not permitting of any exceptions, having regard
to the well-known rule that a public body may not fetter the exercise of a
discretionary statutory power (exemplified by British Oxygen Co Ltd v Board of
Trade [1971] AC 610). As recorded in the agreed statement of facts, the existence
of such a policy, since about 2007, has not been in dispute. The Court of Appeal
decided (following its decision in R (Elias) v Secretary of State for Defence [2006]
1 WLR 3213) that that rule had no application to the exercise of a prerogative or
common law power as in this case (para 53, per Lord Dyson MR), and that the
decision to adopt such a rule was not irrational (para 60).
55. The reasoning of the Court of Appeal is encapsulated in a short passage in
the judgment of the Master of the Rolls:
“53. It is clearly established that a public body may not unlawfully
fetter the exercise of a discretionary statutory power: see, for example,
British Oxygen Co Ltd v Board of Trade [1971] AC 610. But where a
policy is made in the exercise of prerogative or common law powers
(rather than a statutory discretion), there is no rule of law which
requires the decision-maker to consider the facts of every case with a
view to deciding whether, exceptionally, to depart from the policy in
a particular case. This is because ‘it is within the power of the
decision-maker to decide on the extent to which the power is to be
exercised in, for example, setting up a scheme. He can decide on broad
and clear criteria and either that there are no exceptions to the criteria
in the scheme or, if there are exceptions in the scheme, what they
should be’: R (Elias) v Secretary of State for Defence [2006] 1 WLR
3213, para 191.”
Page 18
The Court of Appeal in Elias had in turn adopted the reasoning of Girvan J in In re
W’s Application [1998] NI 19, in a passage approved by the Northern Ireland Court
of Appeal [1998] NI 219.
56. Mr O’Neill argues that this is too narrow an approach. He challenges the
distinction between statutory and common law powers as inconsistent with modern
principles of judicial review as it has developed since GCHQ:
“… judicial review is as applicable to decisions taken under
prerogative powers as to decisions taken under statutory powers save
to the extent that the legality of the exercise of certain prerogative
powers (eg treaty-making) may not be justiciable.”: R v Secretary of
State for the Home Department, Ex p Fire Brigades Union [1995] 2
AC 513, 553C-D, per Lord Browne-Wilkinson)
Further, at least where human rights are at stake, the rule against fettering discretion
is a general principle of the rule of law (see eg Gillan v United Kingdom (2010) 50
EHRR 1105, para 77).
57. Furthermore he submits, in the context of the present case such a rigid policy
is inconsistent with the objects and purpose of the government’s adopted strategy on
the death penalty and as such is irrational. A more flexible policy would allow
exceptional cases to be dealt with on their own merits in accordance with the
strategy, but need not be open-ended. Mr O’Neill accepts for example that it would
be open to the Secretary of State to adopt a total cap on fees (say £20,000) in an
individual case, or even to refuse funding altogether if he had reached the limit of
resources allocated for a particular year. What he cannot do is to exclude
consideration altogether.
58. Mr Chamberlain adopts the reasoning of the Court of Appeal. As he points
out, the leading cases on the no-fettering principle are directed in terms to the
exercise of “statutory” discretions (see eg British Oxygen [1971] AC 610, 625D per
Lord Reid). The principle has been explained as founded on the Parliamentary
intention that a power exercisable by statute from time to time must reflect the
circumstances at the time: it cannot be exercised “nunc pro tunc” (R v Secretary of
State for the Home Department ex parte Venables [1998] AC 407, 496-497 per Lord
Browne-Wilkinson). The same rationale cannot be applied to non-statutory
governmental powers
Page 19
59. However his case does not rest on that legal proposition alone. While he
asserts the right of ministers exercising a common law power to formulate a “bright
line” policy, not subject to exceptions, he submits:
“In any event, even in relation to statutory discretions, decisionmakers are entitled to adopt policies admitting of no exceptions,
provided that they are prepared to consider, by reference to the facts
of an individual case, whether to change the policy. That is what
happened here.” (Secretary of State’s printed case, paragraph 6)
A review of the evidence, he says, shows that the department did in fact consider
the points put forward as justifying exceptional treatment for Mrs Sandiford, but
decided for good reasons not to accept them.
Discussion
60. The issue which divides the parties is, in short, whether there exists in relation
to prerogative powers any principle paralleling that which, in relation to statutory
powers, precludes the holder of the statutory power from deciding that he will only
ever exercise the power in one sense.
61. The basis of the statutory principle is that the legislature in conferring the
power, rather than imposing an obligation to exercise it in one sense, must have
contemplated that it might be appropriate to exercise it in different senses in different
circumstances. But prerogative powers do not stem from any legislative source, nor
therefore from any such legislative decision, and there is no external originator who
could have imposed any obligation to exercise them in one sense, rather than
another. They are intrinsic to the Crown and it is for the Crown to determine whether
and how to exercise them in its discretion.
62. In our opinion, in agreement with the Court of Appeal, this does have the
consequence that prerogative powers have to be approached on a different basis
from statutory powers. There is no necessary implication, from their mere existence,
that the State as their holder must keep open the possibility of their exercise in more
than one sense. There is no necessary implication that a blanket policy is
inappropriate, or that there must always be room for exceptions, when a policy is
formulated for the exercise of a prerogative power. In so far as reliance is placed on
legitimate expectation derived from established published policy or established
practice, it is to the policy or practice that one must look for the limits, rigid or
flexible, of the commitment so made, and of any enforceable rights derived from it.
Page 20
63. The point is well illustrated by the case on which the Court of Appeal relied.
Elias [2006] 1 WLR 3213 concerned a non-statutory compensation scheme set up
by the government in November 2000 “to repay the debt of honour” owed by the
UK to “British civilians” interned by the Japanese during the Second World War. In
July 2001, following some uncertainty about the scope of the scheme, and further
discussion within the department, more detailed “eligibility criteria” were
announced to Parliament. This order of events was subject to critical comment in
the Court of Appeal. As Mummery LJ observed:
“It does not require much foresight to appreciate the importance of
giving proper consideration to establishing lawful eligibility criteria
before starting to make ex gratia payments to claimants. Astonishing
though it may seem, very many payments were made under the
Compensation Scheme (though not to Mrs Elias), even before the
eligibility criteria had been settled and announced and without giving
proper consideration to whether there was potential discrimination on
racial grounds.” (para 19)
64. Mrs Elias’ challenge was based on a number of grounds, including direct and
indirect racial discrimination, as well as fettering of discretion. Under the latter head,
she argued that the Secretary of State should have been willing to consider any
exceptional circumstances, in which payment might be paid to those owed “a debt
of honour”, even though they fell outside the scope of the eligibility criteria. The
court rejected this submission in the words cited by the Master of the Rolls in the
present case. It is of interest to note also the terms in which the court refused
permission to amend the claim to include a ground based on the failure to review
the policy. Mummery LJ observed that the duty to keep the scheme under review in
the light of developments was not disputed, but said:
“There was, however, no such duty here. The criteria had been laid
down with full knowledge of the facts and a decision was made as to
who should be excluded from the Scheme. In the ABCIFER case this
court had decided that this was a rational and lawful decision. There
was no duty to reconsider the criteria on the grounds suggested by Mrs
Elias…” (para 189: the reference is to R (Association of British
Civilian Internees: Far East Region) v Secretary of State for Defence
[2003] QB 1397)
In other words, in circumstances where the Secretary of State had laid down a
detailed scheme, recently reviewed, covering those to be included or excluded, there
could be no legitimate expectation that he would consider further categories of
exception outside those specifically provided for.
Page 21
65. As we have already made clear, this does not mean that the formulation or
exercise of a prerogative power may not be susceptible to review on other grounds.
In particular there is no reason why a prerogative refusal to fund foreign litigation
should be immune from all judicial review. It does not raise any real issues of foreign
policy. As we understand it, the Government’s current blanket policy is motivated
largely by domestic policy and funding considerations. In particular, as Abbasi made
clear, there is no reason why action or inaction in the exercise of such a power should
not be reviewable on the grounds of irrationality or breach of other judicial review
principles.
66. “Irrationality” is a high threshold, but it may be easier than otherwise to
surmount in a case involving an imminent risk of death by execution of a British
citizen deprived of financial support abroad. The court’s role is given added weight
in a context where the right to life is at stake (see R (Bugdaycay) v Secretary of State
for the Home Department [1987] AC 514). A keen scrutiny of the policy and its
application must on any view be required in such circumstances. There may be scope
in an appropriate case to test the legitimacy of the blanket policy that the Foreign
Office currently advances, by reference to a broader framework of proportionality
discussed in a non-Convention context in Kennedy v Information Comr (Secretary
of State for Justice intervening) [2014] UKSC 20, [2014] 2 WLR 808. Issues of
consistency may also arise when the blanket policy is compared with the strong and
apparently flexible approach to the exercise of “appropriate influence” advocated by
the FCO’s published strategy for abolition of the death penalty. However, for
reasons which will become apparent, these questions are not critical to the outcome
of this particular appeal.
Policy as applied to the appellant
67. In the event, the legality or otherwise of the blanket policy is not
determinative, because, regardless of the strict limits of the policy as described in
the evidence, Mr Chamberlain is right in our view to submit that the department did
not treat its existence as the end of the matter, but was on the evidence prepared to
consider whether it should be modified in the face of the particular circumstances
disclosed by the appellant’s case.
68. Ms Proudlove explains the steps taken by her department following letters
before action from the appellant’s solicitors in October 2012. Consideration, she
says, was given to the policy issues:
“Consular Directorate officials came to the view, having considered
our policy in general and the circumstances in Mrs Sandiford’s case,
that if we were to pay for the provision of her legal representation, this
Page 22
would inevitably result in having to change our policy of not paying
for legal representation on the basis that there were a number of
analogous death penalty cases.
Consideration was then given to whether or not the policy ought to be
changed. However, having considered the serious points of principle
and practicability that I have outlined above, we came to the view that
we should not change our policy. Of course, as is the case with policies
in general in the Consular Directorate, they are under regular review
with a view to providing the best consular service that we can provide
to British nationals abroad.”
69. She also explains the Department’s view of the special factors put forward in
the judicial review proceedings as justifying an exception in the case of the
appellant. These were, first, that legal representation was available (through Mr
Agus) at relatively low cost, and, secondly, that she had no other means of payment.
Ms Proudlove’s response, in short, was, first, that there was no fair way of
distinguishing between cases on the basis of cost, nor of limiting the costs of appeals;
secondly, there was some evidence that the appellant’s family were able to raise
sums of the order required, but in any event their financial circumstances were in no
way exceptional as compared to others facing the death penalty abroad.
70. It may be said (as Gloster J suggested: para 78) that there is a difference
between formulating or reformulating policy, and considering exceptions to policy
once made. In many contexts, no doubt, that may be a significant difference, where
for example the making of policy is itself subject to a formal process, perhaps
including consultation, distinct from its application in individual cases. However, in
the present context that seems a distinction without a difference. Our review of the
development of policy shows that, on the one hand, policy submissions were made
to ministers without any formal procedure, and generally in response to issues raised
by individual cases. On the other, it was sensibly recognised that if an exception
were to be approved it would be taken as setting a precedent, and to that extent
would be tantamount to a variation of the policy.
71. In his written case to this court, Mr O’Neill maintains his challenge to the
rationality of the actions and decisions of the Secretary of State in January 2013.
However, we see nothing arguably irrational in the reasons given by Ms Proudlove
for not making an exception to the policy in this case, at least as matters stood in
January 2013. The challenge is all the more difficult to sustain in the light of what
followed.
Page 23
72. The department seems to have responded with appropriate urgency to the
wholly unexpected death sentence. They were able to put the appellant in contact
with an experienced local lawyer who was willing to conduct the appeal on an
expenses-only basis. Although it is argued that the small amount involved was a
reason for making an exception to their policy, it could equally point in the other
direction. It was hardly irrational to think that it was a sum which the family should
be able to raise for themselves, as indeed turned out to be the case. In the event the
problem at the appeal was not the lack of competent legal representation, but the
apparent unwillingness of the court to take any notice of it. This cannot be laid at
the door of the Secretary of State.
73. It follows that the challenge to the decision made in January 2013, and the
policy on which it was based, must fail.
The present position
74. While this is enough to dispose of the appeal, we cannot leave the matter
there. Mrs Sandiford remains in jeopardy and urgently in need of legal help. Since
January 2013, as a result of the surprising course of the Indonesian proceedings,
circumstances have radically developed in respects which appear to have been quite
unforeseeable. However, we have no up to date information as to the department’s
consideration of those matters. As has been seen, those responsible have been
willing to consider whether the policy should be departed from or qualified in her
case, but that has been on information which is now out of date. Logic and
consistency, if nothing else, call for an urgent review of the policy as it applies to
her in the light of the current information.
75. The evidence now available as to the course of the Indonesian proceedings
appears to raise the most serious issues as to the functioning of the local judicial
system and its ability to deal justly with the appellant’s case. In particular, on the
material we have been shown, the local courts seem to have ignored the substantial
mitigating factors in her case, including her age and mental problems, her lack of
any previous record, her co-operation with the police, and not least the remarkable
disparity of her sentence with those of the members of the syndicate whom she
helped to bring to justice. On the face of it, there is substantial material to support
her application to the Supreme Court or the President. She needs a competent lawyer
to present it. It is through no fault of her own that Mr Agus’ illness has deprived her
of his expert support, and with it her only opportunity of pro bono representation.
Nor is this simply a matter of justice to her. If Mr Agus’ view is accepted, an
application to the Supreme Court, supported by appropriate oral submissions and
new evidence, may offer the prospect of a lasting improvement to the approach of
the local courts to comparable cases in the future.
Page 24
76. It is not, of course, for this Court now to express any view as to what the
outcome might be of such a review. But we note that, even under the old pre-2007
policy, it appears that the Foreign Office did not experience real difficulty in
controlling and limiting the financial exposure which it incurred in a very few
exceptional cases. It is not clear to us that the creation or recognition of an exception
for a case as extreme as the present would risk opening a floodgate to future demands
for financial support. However that may be, the further review needs to be
undertaken and the outcome to be supported by a clear justification of the rationality
and/or proportionality of maintaining an absolutely blanket policy covering even the
present circumstances.
77. Without prejudice to that review, but for the reasons given above, the present
appeal must be dismissed.
LORD SUMPTION
78. I agree with the order proposed by Lord Carnwath and Lord Mance, for the
reasons given in their joint judgment. I wish only to add some observations of my
own on the rule against the fettering of discretions in the context of the exercise of
a common law power.
79. The rule is of long standing. It was articulated by Bankes LJ in more or less
its modern form in R v Port of London Authority Ex p Kynoch Ltd [1919] 1 KB 176,
184:
“ There are on the one hand cases where a tribunal in the honest
exercise of its discretion has adopted a policy, and, without refusing
to hear an applicant, intimates to him what its policy is, and that after
hearing him it will in accordance with its policy decide against him,
unless there is something exceptional in his case. I think counsel for
the applicants would admit that, if the policy has been adopted for
reasons which the tribunal may legitimately entertain, no objection
could be taken to such a course. On the other hand there are cases
where a tribunal has passed a rule, or come to a determination, not to
hear any application of a particular character by whomsoever made.
There is a wide distinction to be drawn between these two classes.”
80. Commenting on Bankes LJ’s statement of principle, Lord Reid observed in
British Oxygen Co Ltd v Board of Trade [1971] AC 610, 625,
Page 25
“The general rule is that anyone who has to exercise a statutory
discretion must not ‘shut his ears to an application’ (to adapt from
Bankes LJ on p 183). I do not think there is any great difference
between a policy and a rule. There may be cases where an officer or
authority ought to listen to a substantial argument reasonably
presented urging a change of policy. What the authority must not do
is to refuse to listen at all. But a Ministry or large authority may have
had to deal already with a multitude of similar applications and then
they will almost certainly have evolved a policy so precise that it could
well be called a rule. There can be no objection to that, provided the
authority is always willing to listen to anyone with something new to
say – of course I do not mean to say that there need be an oral hearing.
In the present case the respondent’s officers have carefully considered
all that the appellants have had to say and I have no doubt that they
will continue to do so. The respondent might at any time change his
mind and therefore I think that the appellants are entitled to have a
decision whether these cylinders are eligible for grant.”
81. The basis of the rule against the fettering of discretions, as Bankes LJ and
Lord Reid pointed out, is that a discretion conferred on a decision-maker is to be
exercised. Within the limits of that discretion, which will normally be derived from
terms in which it was conferred, members of the class of potential beneficiaries have
a right to be considered, even if they have no right to any particular outcome. The
effect of the decision-maker adopting a self-imposed rule that he will exercise his
discretion in only some of the ways permitted by the terms in which it was conferred,
is to deny that right to those who are thereby excluded. It also leads to the arbitrary
exclusion of information relevant to the discretion conferred, and thereby to
inconsistent, capricious and potentially irrational decisions.
82. Since the decision in Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374, the principles of public law applicable to the exercise of
common law and statutory powers have in many respects been assimilated. But there
remain inevitable differences arising from the distinct origins of these powers. One
of them relates to the rule which precludes a decision-maker from fettering his own
discretion. In Elias v Secretary of State for Defence [2006] 1 WLR 3213, the Court
of Appeal held that the rule had no application to the exercise of common law
powers. The decision concerned the rules of a scheme for compensating certain
categories of British subject who had been interned by the Japanese during the
Second World War. The scheme had no statutory basis. It was created under the
common law powers of the Crown. Mummery LJ, at para 191 said:
“The analogy with statutory discretion… is a false one. It is lawful to
formulate a policy for the exercise of a discretionary power conferred
by statute, but the person who falls within the statute cannot be
Page 26
completely debarred, as he continues to have a statutory right to be
considered by the person entrusted with the discretion. No such
consideration arises in the case of an ordinary common law power, as
it is within the power of the decision-maker to decide on the extent to
which the power is to be exercised in, for example, setting up a
scheme. He can decide on broad and clear criteria and either that there
are no exceptions to the criteria in the scheme or, if there are
exceptions in the scheme, what they should be. If there are no
exceptions the decision-maker is under no duty to make payments
outside the parameters of the scheme.”
83. The Court of Appeal in the present case were guided by this decision, which
was plainly correct. A common law power is a mere power. It does not confer a
discretion in the same sense that a statutory power confers a discretion. A statutory
discretionary power carries with it a duty to exercise the discretion one way or the
other and in doing so to take account of all relevant matters having regard to its
scope. Ministers have common law powers to do many things, and if they choose to
exercise such a power they must do so in accordance with ordinary public law
principles, ie fairly, rationally and on a correct appreciation of the law. But there is
no duty to exercise the power at all. There is no identifiable class of potential
beneficiaries of the common law powers of the Crown in general, other than the
public at large. There are no legal criteria analogous to those to be derived from an
empowering Act, by which the decision whether to exercise a common law power
or not can be assessed. It is up to ministers to decide whether to exercise them, and
if so to what extent. It follows that the mere existence of a common law power to do
something cannot give rise to any right to be considered, on the part of someone
who might hypothetically benefit by it. Such a right must arise, if at all, in other
ways, usually by virtue of a legitimate expectation arising from the actual exercise
of the power: see R (Abbasi) v Secretary of State for Foreign and Commonwealth
Affairs [2003] UKHRR 76.
84. The problem in this case is that neither the practice nor the public statements
of the Foreign Office can be said to give rise to a legitimate expectation that the
legal fees of British subjects in difficulty abroad will be paid. On the contrary, it has
been clear for some years that the policy of the Secretary of State is not to pay them.
The result is that there is no basis for any criticism of the self-imposed limitations
of the Secretary of State’s policy, other than the fact that he could have made it
broader had he wished to. The limitations are certainly not irrational.
85. In common with Lord Mance and Lord Carnwath I consider that the Secretary
of State ought now to revisit the question whether the policy should be broadened
or an exception made in order to accommodate the particular case of Mrs Sandiford
in the light of the fresh information about the course of the proceedings in Indonesia.
But that is not because the Secretary of State has a duty to broaden his policy or
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make an exception. It is because he has already undertaken a review of that policy
on the information available to him at the time, and because consistency and
rationality require him not to treat that review as closed at a time when relevant
further information is still becoming available which might alter his assessment.
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