Factual and Procedural Background
The Appellant, a 57-year-old British national, was arrested in May 2012 at The City airport in Bali for drug trafficking. She admitted the offence but claimed coercion stemming from threats to her child. After cooperating with police (which led to four further arrests) she was tried on 22 January 2013, convicted, and sentenced to death. Indonesian prosecutors had sought 15 years’ imprisonment, but the District Court imposed the death penalty and found no mitigating factors.
On 24 January 2013 the Appellant applied in England for judicial review seeking an order that the Secretary of State fund Indonesian legal representation estimated at approximately £2,600. A rapid “rolled-up” hearing on 31 January 2013 resulted in permission being granted but the substantive claim refused ([2013] EWHC 168 (Admin)). Public donations then funded the Indonesian High Court appeal, which was dismissed on 10 April 2013.
An appeal to the Court of Appeal of England and Wales was dismissed on 22 May 2013 ([2013] 1 WLR 2938). Further donations funded representation before the Indonesian Supreme Court, which on 29 August 2013 upheld the death sentence. With domestic appeals exhausted, only a “PK” reopening application to the Indonesian Supreme Court and a presidential clemency petition (deadline 29 August 2014) remain. The Indonesian lawyer who had acted pro bono suffered a stroke, and replacement counsel has quoted fees of US $35,000.
Throughout, the UK Government (the Respondent) provided consular support and filed amicus briefs but—by reference to its published guide “Support for British Nationals Abroad” (2007)—refused to pay for legal representation.
Legal Issues Presented
- Whether the Appellant was “within the jurisdiction” of the United Kingdom for the purposes of Article 1 of the European Convention on Human Rights (ECHR), thereby engaging Article 6 (right to a fair trial).
- If Article 6 applied, whether the Respondent was obliged to fund or at least consider funding the Appellant’s legal representation in the Indonesian capital proceedings.
- At common law, whether the Respondent’s blanket policy of refusing to fund foreign legal representation unlawfully fettered discretion, was irrational, or disproportionate.
Arguments of the Parties
Appellant's Arguments
- The UK exercised sufficient “authority and control” through its consular functions; therefore the Appellant fell within UK jurisdiction under Article 1 ECHR.
- Article 6(3)(c) ECHR mandated free legal assistance where necessary for a fair trial; absent Indonesian legal aid, the UK must provide or at least consider it.
- The Respondent’s categorical refusal unlawfully fettered discretion contrary to principles in British Oxygen and was irrational given the modest sum initially sought.
Respondent's Arguments
- Primary territoriality under Article 1 ECHR was not displaced: the Appellant was always under the authority of Indonesian authorities, not UK agents.
- Any consular assistance rendered did not amount to “authority and control”; thus Convention obligations were not engaged.
- The power to fund is a non-statutory (prerogative) power; the no-fettering principle applicable to statutory discretions does not apply. Even so, the policy had been reconsidered and remained rational, taking account of fairness, resources and consistency across comparable cases.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Al-Skeini v United Kingdom (2011) 53 EHRR 18 |
Extra-territorial jurisdiction exists only where state agents exercise “authority and control”. |
Used to conclude that UK consular activity did not place the Appellant within UK jurisdiction. |
| Bankovic v Belgium (2001) 11 BHRC 435 |
Confirmed primary territorial jurisdiction; acknowledged limited exceptions. |
Cited to underscore narrowness of extra-territorial exceptions. |
| X v Federal Republic of Germany (1965) 8 YB ECHR 158 |
Consular acts may, in certain circumstances, engage Convention responsibility. |
Distinguished: potential liability based on positive consular acts, not omissions. |
| X v United Kingdom (1977) 12 DR 73 |
Early statement suggesting consular omissions could engage jurisdiction. |
Held inconsistent with later Grand Chamber jurisprudence; not followed. |
| M (V) v Denmark (1992) 73 DR 193 |
Consular invitation to foreign police amounted to authority/control. |
Distinguished as involving positive exercise of power, unlike current refusal to fund. |
| Soering v United Kingdom (1989) 11 EHRR 439 |
State responsibility arises when expelling a person to face Convention violations abroad. |
Considered in distinguishing “removal” cases from present facts. |
| Smith v Ministry of Defence [2013] UKSC 41 |
UK Supreme Court endorsement of Al-Skeini principles. |
Cited as consistent authority. |
| British Oxygen Co Ltd v Board of Trade [1971] AC 610 |
No-fettering rule for statutory discretions; decision-makers must not refuse to consider exceptions. |
Highlighted distinction between statutory and prerogative powers. |
| R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 |
No-fettering rule does not apply to common-law (prerogative) powers. |
Formed basis for upholding blanket policy. |
| R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1598 |
Prerogative powers subject to review for irrationality and legitimate expectation. |
Set framework for court’s supervisory jurisdiction. |
| R (Bugdaycay) v Secretary of State for the Home Department [1987] AC 514 |
Enhanced scrutiny where right to life is engaged. |
Confirmed need for “keen scrutiny” but did not change outcome. |
| Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 |
Prerogative powers are reviewable except in “forbidden areas”. |
Re-affirmed court’s competence to review the funding policy. |
| R v Port of London Authority ex p Kynoch Ltd [1919] 1 KB 176 |
Distinction between permissible policy and impermissible refusal to consider exceptions. |
Discussed in separate concurring opinion on fettering. |
Court's Reasoning and Analysis
Jurisdiction under the ECHR. The Court unanimously held that the Appellant was not within UK jurisdiction under Article 1. She was under the “authority and control” of Indonesian authorities; UK consular assistance amounted to diplomatic support, not the exercise of control contemplated in Al-Skeini. Earlier Commission dicta suggesting that mere consular power suffices (X v UK) were rejected as incompatible with later Grand Chamber case law.
Consequences for Article 6. As jurisdiction was absent, Article 6(3)(c) ECHR imposed no duty on the UK to fund, or to consider funding, the Appellant’s defence.
Common-law (prerogative) power. The power to provide financial assistance abroad is non-statutory. Relying on Elias, the Court held that the no-fettering doctrine governing statutory discretions does not apply to prerogative powers. Consequently, a blanket policy is in principle lawful, provided it is not irrational.
Rationality of the policy and its application. Evidence showed the policy had been reviewed, including in January 2013, against resource constraints and fairness to other nationals in capital cases. The Department did consider whether to depart from the policy for the Appellant but decided not to do so, partly because the modest funds then required were ultimately raised privately. The Court found this decision was within the range of reasonable responses.
Provisional observations. Although dismissing the appeal, the Court urged the Respondent to re-examine the policy in light of new developments: the deterioration of Indonesian legal representation, approaching procedural deadlines, and the broader human-rights implications identified by fresh evidence.
Holding and Implications
HOLDING: APPEAL DISMISSED.
Immediate Effect: The Secretary of State is not legally required to fund the Appellant’s Indonesian legal representation.
Broader Implications: The judgment confirms that UK nationals tried abroad are ordinarily outside UK jurisdiction for ECHR purposes and that, unlike statutory powers, prerogative powers may be governed by rigid policies. Nonetheless, the Court signalled that in extreme capital cases the Executive should keep such policies under active review, suggesting potential future adjustments without establishing new precedent.