The appellant is a British national who was convicted of drug trafficking offences in Indonesia and sentenced to death. She is currently awaiting execution in prison in Bali. The respondent claimed to have a strict “bright line” policy never to provide legal funding in criminal proceedings abroad, even where the death penalty may apply. The Supreme Court granted permission to appeal from the judgment of the Court of Appeal  EWCA Civ 581 only on the issue of whether the respondent’s policy was irrational or Convention incompatible.
The Supreme Court unanimously dismissed the appeal. The appellant did not come within the jurisdiction of the UK for the purposes of the ECHR, art 1. The responsibility for ensuring a fair trial lay with the Indonesian authorities. As the Secretary of State’s power to provide assistance to citizens facing capital charges abroad derives not from statute but from prerogative powers, the rule against fettering discretion did not apply and so a blanket policy could not be said to be ipso facto unlawful. Nevertheless, the Court urgently called on the Secretary of State to review the application of the policy to the appellant’s case in the light of information before the court calling into question as to the fairness of the proceedings in Indonesia. In particular, the Court said that transcripts of the judgments against Mrs Sandiford in Indonesia “make very disturbing reading”. They “raise the most serious issues as to the functioning of the local judicial system… the local courts appeared 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.” The Court noted that, despite the Foreign Secretary’s purported policy never to provide funding, in fact the respondent considered whether to depart from that policy in Mrs Sandiford’s case. Logic and consistency would require him to review the policy and decide whether to provide Mrs Sandiford legal funding in light of this information about the Indonesian court proceedings.
Aidan O’Neill QC was involved in this case.