Sandiford, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWHC 168 (Admin)

Case No CO/862/2013[2013] EWHC 168 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 th February 2013
Before
Mrs Justice Gloster, DBEMrs Justice Nicola Davies, DBE
Between
THE QUEENClaimanton the application ofClaimantLINDSAY SANDIFORDClaimantThe Secretary of State for Foreign and Commonwealth AffairsDefendant
Aidan O’Neill Esq, QC (Scot), Adam Straw Esq & Ms. Joanna Buckley(instructed by Leigh Day & Co) for ClaimantMartin Chamberlain Esq & Malcolm Birdling Esq(instructed by The Treasury Solicitor’s Department) for DefendantHearing Hearing dates: 31 st January 2013
Judgment

Introduction

[1]These are my reasons for our decision, given on 31 January 2013, to grant permission to the claimant, Lindsay Sandiford (“the claimant”), to apply for judicial review, but to refuse the relief which she seeks in her claim form.[2]The claimant is a British national aged 56, who was arrested on 19 May 2012 at Bali airport, Indonesia, in connection with suspected drug-trafficking offences. On 4 October 2012 she was indicted on three charges of trafficking in narcotics, two of which carry the death penalty. Her trial began shortly afterwards and regular hearings were held weekly or at short intervals until 22 January 2013. She was convicted, and although, on 20 December 2012, the prosecutor had requested a sentence of imprisonment of 15 years, on 22 January 2013, the judge sentenced her to death by firing squad.[3]At the hearing before this Court on 31 January 2013, this Court was informed that: the required notice of appeal had been filed on behalf of the claimant on 28 or 29 January 2013 with the Indonesian Court, within the requisite seven days after sentence; that grounds of appeal (containing the substantive arguments) were required to be lodged within 14 days thereafter; and that there was no scope for extending such time-limit. It was unclear whether the time limits were expressed in calendar days or working days, but, on a worst-case scenario, the grounds of appeal have to be filed by Monday, 11 February 2013.[4]On 24 January 2013 the claimant issued judicial review proceedings seeking a mandatory order requiring the Secretary of the State for Foreign and Commonwealth Affairs (“the defendant”) to provide and fund an “adequate lawyer” to represent the claimant in her appeal against conviction and sentence. She sought relief in the following terms:
“A mandatory order requiring the defendant to make arrangements forthwith for the provision of an adequate lawyer to represent the claimant’s interests”; and “Such further declaratory or other relief as the Court may consider appropriate.”
[5]On 25 January 2013, Cranston J directed that permission and the substance of the claimant’s claim should be considered at a rolled-up hearing by no later than Thursday, 31 January 2013.[6]The claimant’s evidence, contained in a witness statement of Harriet McCulloch, an investigator at the well-known charity Reprieve, dated 23 January 2013, in summary, states that: i) the claimant is a vulnerable individual, suffering from physical and mental health problems, a mother of two children one of whom suffers from learning difficulties; ii) the claimant has not had adequate legal assistance at any stage of the proceedings, having had three different Indonesian lawyers, none of whom (it was alleged) have provided her with effective legal representation; iii) the claimant was currently without any legal representation, and her family, in particular her sister Hilary Parsons, had exhausted all of their available resources in paying for her legal representation to date; iv) despite efforts to secure pro bono representation, there was currently no prospect that competent counsel, with the relevant experience, could be retained to act without the provision of some funding; v) Reprieve and the Foreign and Commonwealth Office (“FCO”) approached three capital defence lawyers to ask whether they would be prepared to represent the claimant free of charge; one, Fadillah Agus (“Mr. Agus”), the Honorary Legal Adviser to the British Ambassador to Indonesia, informed the FCO on 23 January 2013 that he would be willing to represent the claimant on a pro bono basis, but only if his operational costs of approximately £2500 were covered; vi) the claimant had asked the FCO to fund such costs, but it had refused to do so; vii) without the provision of some funding, there was no prospect that competent counsel could be appointed to represent the claimant.[7]The defendant’s position, as set out in his detailed grounds for resisting the claim and in the witness statement of Louise Proudlove, Head of Assistance Department, Consular Directorate of the FCO, in summary, was as follows: i) The UK Government’s position has been clear from the start. The Government opposes the death penalty in all circumstances as a matter of principle. It supports initiatives designed to encourage States which retain the death penalty to change their position; it makes grants to charities such as Reprieve, which assist individuals who are charged with capital offences; and, in appropriate cases, it makes State to State representations both in the form of diplomatic representations and, exceptionally, in the form of amicus curiae briefs where local law permits. ii) But it does not operate a legal aid scheme to cover legal expenses for British nationals involved in criminal proceedings abroad. Its published policy on consular assistance, Support for British Nationals Abroad: a Guide (“the Guide”), provides:
“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.)
iii) The policy applies in this case. It is important that it be applied consistently. If the Government were to start making payments to British nationals involved inforeign criminal proceedings, it would have to establish a scheme akin to the legal aid scheme for domestic proceedings, so as to ensure consistency of treatment. There is no statutory authority for any such scheme. Establishing one would give rise to serious practical difficulties, as described in Ms Proudlove’s witness statement. These difficulties would include the following: a) whether the government could rationally stop at death penalty cases; consideration would need to be given as to whether assistance should be provided where punishments might be imposed that, if carried out in a Contracting State, would violate article 3 of the European Conventionon Human Rights; b) consideration as to whether representation should be provided for trial as well as for appeal; this might lead to a potentially open-ended financial liability for legal fees at trial; c) difficulties about obtaining assurance about the adequacy of the local lawyer; d) consistency would demand some kind of system for assessing the ability of a British National to pay or that of his family; e) consideration as to whether the Government would be required to assess whether a particular step was justified in the context of the case and whether the fees sought were justified; it would be unclear how the government or its consular officials could perform any supervisory function in the context of a foreign legal system in which they were not experts.[8]Although necessarily the claimant’s submissions were directed at her own particular circumstances, it was clear that the claim was regarded by both sides as having a “wider public interest”, in that the principles upon which it is based might affect other cases. Thus in paragraph 68 of the claimant’s “Amended Statement of Facts, Grounds for Judicial Review and Relief Sought” it was stated:
“This matter has a wider public interest. Reprieve is aware of at least two other cases within the last year in which the defendant failed to work to ensure the EU standards were met at all stages, including the case of Gareth Cashmore.”
[9]In support of this proposition, Miss McCulloch served a second witness statement dealing specifically with the circumstances of Mr. Cashmore’s situation. Likewise, the defendant in its Grounds for resisting the claim agreed with the proposition that the principles involved might well have a wider impact.[10]During the course of the hearing, the Court asked counsel representing the claimant whether any attempts had been made by the claimant to obtain donations, whether from charitable or philanthropic institutions, or otherwise, to fund the costs of her appeal. The only answer which we received to this question (other than information that a web site had been, or might be, established, but that no funds had been received through such web site to date), was the submission that, whether any attempts had been made by the claimant to obtain donations, was irrelevant to the claimant’s case as against the defendant. We announced our decision refusing the claimant’s claim for relief at approximately 5pm on 31 January 2013. On the following day, 1 February 2013, the Court was informed that, following the announcement of our decision, donations in excess of £2,500 had been received to fund the costs of the claimant’s appeal.

The claimant’s grounds of challenge

[11]The claimant contends that the defendant’s failure to provide and fund an adequate lawyer for her appeal was unlawful because: i). Ground 1: Breach of rights guaranteed by(i) the European Convention on Human Rights and(ii) the Charter of Fundamental Rights of the European Union (2012/C326/02). :[12]The defendant was acting unlawfully in breach of his obligations to take all reasonable steps to ensure that:(a) the claimant’s inviolable human dignity is respected and protected;(b) the claimant’s right to life is respected and she does not face the death penalty;(c) the claimant is not subjected to torture or to inhuman and degrading treatment;(d) the claimant receives a fair trial and her rights of the defence are guaranteed and protected; and(e) the claimant is not sentenced to a penalty which is disproportionate to any criminal offence of which she was convicted. The defendant’s failure amounted to a breachof the claimant’s rights under: i) the European Convention on Human Rights (“the Convention”), including: Article 2 (right to life and prohibition of the death penalty); Article 3 (prohibition on torture and inhuman and degrading treatment) and Article 6 (right to a fair trial and respect for the rights of the defence); This ground was relied upon for the first time in the claimant’s skeleton argument. Permission was given at the hearing to amend her original grounds to plead the new point. and ii) the Charter of Fundamental Rights of the European Union (“the Charter”), including Article 1 (respect for human dignity); Article 2 (right to life and prohibition of the death penalty); Article 3 (right to the integrity of the person); Article 4 (prohibition on torture and inhuman and degrading treatment); Article 47 (right to a fair trial); Article 48 (respect for the rights of the defence to anyone charged with a criminal offence); and Article 49 (principle of proportionality of criminal offences and penalties). ii). Ground 2: Unjustified departure from the Strategy:[13]In failing to make arrangements for an adequate lawyer to represent the claimant’s interests, the defendant was acting unlawfully in unjustifiably departing from Government policy as set out in a document entitled HMG Strategy for Abolition of the Death Penalty, revised in October 2011 (“the Strategy”), without giving a good reason for doing so. The Strategy commits the defendantto work to ensure that the EU Minimum Standards, which include the right to adequate legal assistance, are met in countries which retain the death penalty. iii). Ground 3: Unlawful fettering of discretion by adopting the blanket policy as set out in the Strategy This ground was also an additional ground relied upon bythe claimant. It was first indicated in an e-mail from the claimant’s instructing solicitors dated 29 January 2013 and appeared in the claimant’s skeleton argument. Permission was given at the hearing to amend her original grounds to plead the new point. :[14]In failing to make arrangements for an adequate lawyer to represent the claimant’s interests, the defendant unlawfully fettered his discretion by applying to the claimant a blanket policy to the effect that:
“HMG does not provide legal representation for British nationals overseas. However, we assist British nationals in identifying potential legal representation, including by working closely with NGOs.”
Such a blanket ban or policy unlawfully prevented the defendant from considering each case on its facts, making an exception when appropriate, and from taking into account relevant considerations.[15]I deal with each of these grounds in turn.

(i) The Convention

[16]Article 1 of the ECHR provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention”
(emphasis added).[17]It was common ground that, if the death penalty were imposed or implemented by a Contracting State in respect of drug trafficking offences, it would contravene a person’s right to life and the prohibition on the death penalty under Article 2 of the Convention, as supplemented by Article 1 of Protocol 6 and Protocol 13, as well as the right under Article 3 not to be subjected to torture or inhuman or degrading treatment. It was also common ground that, under Article 6, if the claimant’s trial had been within a Contracting State, she would have been entitled to free legal assistance if she had not sufficient money to pay for it herself.[18]The defendant accepted that he is bound by section 6 of the Human Rights Act 1998 (“the HRA”) to act compatibly with the rights guaranteed by the Convention. However, his position, as presented by Mr. Martin Chamberlain and Mr. Malcolm Birdling of counsel, who appeared on his behalf, was that the persons who are entitled to benefit from those rights are limited to those within the “jurisdiction” of the United Kingdom for the purposes of Article 1 of the Convention; that, under Strasbourg jurisprudence, it was only in exceptional circumstances that a person outside the territorial jurisdiction of Contracting State fell within the “jurisdiction” of that State; and that, accordingly, in circumstances where the claimant was in prison in Indonesia, following her arrest, trial and conviction there, it could not be said, on any of the established exceptional bases, that she was within, or subject to, the “jurisdiction” of the United Kingdom.[19]Mr. Aidan O’Neill QC (Scotland), who appeared on behalf of the claimant, together with Mr. Adam Straw and Ms Joanna Buckley, submitted that, notwithstanding the claimant’s circumstances (namely, the fact that she had been arrested at the airport, placed in custody, tried and convicted in Indonesia and remained in prison there), she nonetheless fell within the “jurisdiction” of the United Kingdom because of the engagement by, and the activities of, the FCO and its consular officers in Indonesia in connection with her case.[20]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.[21]The essence of Mr. O’Neill’s submission, as developed in his oral argument, that the claimant was within the “jurisdiction” of the United Kingdom for the purposes of Article 1, and that consequently the defendant was under an obligation to protect her Convention rights, was that the claimant was subject to the “authority” of the FCO and the consular officials in Indonesia, because their actions or omissions “affected” her.[22]In support of this submission Mr. O’Neill referred to the decision of the European Court of Human Rights (“the ECHR”) in Al-Skeini and Others v United Kingdom (2011) 53 EHRR 18. He referred to the statement at paragraph 134 where the Court stated:
“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 (Bankoviæ, cited above, paragraph 73; see also X v Federal Republic of Germany, No. 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v the United Kingdom, no. 7547/76, Commission decision of 15 December 1977; WM v Denmark, no. 17392/90, Commission decision of 14 October 1993).”
[23]Mr. O’Neill submitted that this reflected the decision of the Commission in X v Federal Republic of Germany (1965) Yearbook of the European Convention on Human Rights, vol. 8, p.158 that:
“… 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 that Convention;”
He submitted that, similarly, in X v the United Kingdom, No. 7547/76, (1977) 12 DR 73 the Commission held:
“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 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 (cf. Applications No. 1611/62, Yearbook 8, p.158 (168); Nos 6780/74, 6950/75, Cyprus v Turkey, Decisions and Reports 2, p. 125 (137)). 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.” (Emphasis added.)
[24]Thus, Mr. O’Neill submitted, the fact that the FCO and the consular authorities had provided, and were willing to provide, the assistance of the type envisaged in the Guide to the claimant was sufficient to involve their engagement and the exertion of their authority, and thus the consequential liability of the United Kingdom in respect of the Convention.[25]I do not accept these arguments. In my judgment, and largely for the reasons presented in the written and oral submissions of Mr. Chamberlain, it is clear that the claimant does not fall within the “jurisdiction” of the United Kingdom for the purposes of Article 1. The mere provision of advice and support by the consular authorities, and the engagement of the FCO and the defendant at a diplomatic level, do not amount to an exercise of authority or control over the claimant such as to result in the United Kingdom being regarded as, exceptionally, exercising its jurisdiction over the claimant.[26]My reasons for this conclusion may be summarised as follows.[27]In R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29, [2010] [2011] 1 AC 1, Lord Phillips at paragraph 60 endorsed the view expressed by Lord Brown in R (Al-Skeini) v Secretary of State for Home Department [2008] AC 153, at paragraph 107 that the UK Courts should not construe “jurisdiction” in Article 1 as reaching any further than existing Strasbourg jurisprudence clearly shows it to reach.[28]The Grand Chamber of the ECHR recently considered the meaning of the term “jurisdiction” for the purposes of Article 1 of the Convention in Al Skeini v United Kingdom (2011) 53 EHRR 18. The case was brought by the relatives of Iraqi citizens who had been killed in Iraq in the period following the invasion of the country by the United Kingdom, the United States and their coalition partners in March 2003 and prior to the passing of authority to the Interim Iraqi Government in May 2004. Some of the Iraqi citizens had been killed by British soldiers, others had died in custody. The Court addressed in some detail the principles relevant to jurisdiction under Article 1 of the Convention at paragraphs 130-142 of its judgment. I cite paragraphs 130-137 as being of particular relevance to the present case:
“(b) The Court’s assessment (i) General principles relevant to jurisdiction under art 1 of the Convention 130. Article 1 of the Convention reads as follows: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.’ As provided by this Article, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v UK [1989] ECHR 14038/88, paragraph 86; Banković v Belgium [2001] ECHR 52207/99, paragraph 66). ‘Jurisdiction’ under art 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu v Moldova and Russia [2004] ECHR 48787/99, paragraph 311). (α) The territorial principle 131. A State’s jurisdictional competence under art 1 is primarily territorial (see Soering, cited above, paragraph 86; Banković, cited above, paragraphs 61 and 67; Ilaşcu, cited above, paragraph 312). Jurisdiction is presumed to be exercised normally throughout the State’s territory (Ilaşcu, cited above, paragraph 312; Assanidze v Georgia [2004] ECHR 71503/01, paragraph 139). 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 (Banković, cited above, paragraph 67). 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. (β) 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 (see Drozd v France and Spain, paragraph 91; Loizidou v Turkey (preliminary objections), 23 March 1995, paragraph 62, Series A No. 310; Loizidou v Turkey (merits), 18 December 1996, paragraph 52, Reports of Judgments and Decisions 1996-VI; and Banković, cited above, 69). The statement of principle, as it appears in Drozd and Janousek 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 (Banković, cited above, paragraph 73; see also X v Federal Republic of Germany App no 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v UK App no 7547/76, Commission decision of 15 December 1977; WM v Denmark App no 17392/90, Commission decision of 14 October 1993). 135. Secondly, the Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (Banković, cited above, paragraph 71). Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme v France [2002] ECHR 48205/99, 48207/99 and 48209/99, judgment of 14 May 2002; and also X and Y v Switzerland, nos. 7289/75 and 7349/76, Commission’s admissibility decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court’s case-law demonstrates that, in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s art 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan v Turkey [2005] ECHR 46221/99, paragraph 91, the Court held that ‘directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the ‘jurisdiction’ of that State for the purposes of art 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory’. In Issa v Turkey [2004] ECHR 31821/96, 16 November 2004, the Court indicated that, had it been established that Turkish soldiers had taken the applicants’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers’ authority and control over them. In Al-Saadoon and Mufdhi v UK [2009] ECHR 61498/08, paragraphs 86-89, 30 June 2009, the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev v France [2010] ECHR 3394/03, paragraph 67 the Court held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. 137. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under art 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘divided and tailored’ (compare Banković, cited above, paragraph 75).” [Emphasis added]
‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.’ As provided by this Article, the engagement undertaken by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed rights and freedoms to persons within its own ‘jurisdiction’ (see Soering v UK [1989] ECHR 14038/88, paragraph 86; Banković v Belgium [2001] ECHR 52207/99, paragraph 66). ‘Jurisdiction’ under art 1 is a threshold criterion. The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention (see Ilaşcu v Moldova and Russia [2004] ECHR 48787/99, paragraph 311).[29]The Court’s conclusion in relation to jurisdiction on the particular facts was set out in paragraph 149:
“(iii) Conclusion as regards jurisdiction 149. It can be seen, therefore, that following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, 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 Basrah 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 Article 1 of the Convention.”
[30]It is clear from paragraphs 134 and 137 of Al Skeini v United Kingdom that the Court was, in that case, identifying the defining principles which would establish the exercise of “jurisdiction” by a Contracting State, by the acts of its diplomatic and consular agents, by reference to the test as to whether those agents were exerting “authority and control over others” outside the territory of the particular Contracting State.[31]Mr. O’Neill sought to suggest that a true analysis of the two admissibility decisions of the Commission (which, prior to its abolition in 1999, was the junior of the Council of Europe’s judicial organs), to which he referred, namely X v Federal Republic of Germany (1965) 8 Yearbook of the European Court of Human Rights 158 and X v United Kingdom (1977) 12 DR 73, established that all that was necessary to bring a person within the jurisdiction of the Contracting State, so as to engage the responsibility of the Contracting State in respect of acts or omissions committed outside its territory, was to show that its diplomatic and consular representatives had performed certain duties in relation to the claimant, or that their acts or omissions affected the claimant. That, submitted Mr. O’Neill, was sufficient to amount to the exertion of authority over the claimant.[32]In my judgment neither of these cases, or the other cases to which Mr. O’Neill referred, support his propositions either that the test is one of mere “authority”, or that the exertion of such “authority” can be demonstrated by providing consular and diplomatic assistance of the type afforded in the present case.[33]X v Federal Republic of Germany concerned allegations that the German consul in Morocco had solicited the applicant’s expulsion from Morocco in breach of his Convention rights. The Commission dismissed the application as inadmissible on the basis that there was insufficient evidence to substantiate the allegations of German complicity in the applicant’s expulsion. The Commission’s decision contains no finding that the German Government’s “jurisdiction” was engaged. The statement of the Commission (at p. 168) that:
“... 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...” (Emphasis added.)
is far too generalised (particularly in its factual context) to support the proposition that in every case where diplomatic and consular authorities offer assistance to a person they are exerting authority or control over him, or affecting his person, in a manner sufficient to bring him within the jurisdiction of the relevant Contracting State for the purposes of Article 1 of the Convention. In any event, in my judgment such a wide formulation would be inconsistent with the identification of the principle in Al Skeini v United Kingdom.[34]The second case relied upon by Mr. O’Neill was X v United Kingdom (1977) 12 DR 73. This concerned a complaint by a UK national that the UK had breached its obligations under the ECHR because the British Consulate in Amman had (amongst other things) failed to take sufficient steps to obtain the custody of her abducted daughter. The Commission held that the consular authorities had “done all that could reasonably be expected of them”. It was not, therefore, strictly necessary for it to address the question of jurisdiction. Nevertheless it did so in a single paragraph:
“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 (137). 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 I of the Convention.” (Emphasis added.)
[35]The passage underlined above indicates that the Commission did not consider itself to be departing from its “constant jurisprudence”. As Mr. Chamberlain submitted, and as I accept, on a proper analysis of the above passage, the Commission was not deciding that mere acts or omissions by consular authorities and agents of a Contracting State, which affect the property or persons in a foreign jurisdiction are sufficient to engage the Contracting State’s responsibility. The test is clearly linked to the exercise of authority. The Commission’s judgment provided two sources for that constant jurisprudence. The first was the German case dealt with above. The second was the decision of the Commission in Cyprus v Turkey (1975) 2 DR 125.[36]In that case, Turkish troops had occupied parts of Northern Cyprus. The Commission concluded (at p. 137) 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.... It follows that these armed forces are authorised agents of Turkey and that they bring any other persons 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, in so far as these armed forces, by their acts or omissions, affect such persons’ rights or freedoms under the Convention, the responsibility of Turkey is engaged.” (Emphasis added)
As Mr. Chamberlain submitted, that is a perfectly orthodox reading of the term “jurisdiction”. The Turkish soldiers brought those in the areas they were occupying within the “jurisdiction” of Turkey for the purposes of Article 1 ECHR because people in those areas were – as the ECHR later put it in Al Skeini – under the “control and authority” of the Turkish soldiers and, therefore, the Turkish Government.[37]One other Commission case dealing with the position of an Embassy was brought to our attention: WM v Denmark (also known as V v Denmark) (App. No. 17392/90), (2003) 15 EHRR Commission Supplement CD 28, decision of 12 October 1992. In that case, the applicant with others entered the premises of the Danish Embassy in East Berlin and requested the Danes to intervene to apply for permits so that the group could leave East Germany. The group was apparently offered immunity. It also appears that the Embassy officials conducted negotiations with the East German authorities on behalf of the applicant and, in that context, may be said to have assumed some responsibility (or exercise some authority) in respect of the applicant; see R(B) v Secretary of state for Foreign and Commonwealth Affairs [2005] QB 643, at paragraph 66. The Danish Ambassador subsequently asked the East German police to enter the premises to remove the group, and the applicant left the embassy with the East German police when asked to do so. The Commission regarded the applicant as prima facie falling within the jurisdiction of Denmark on the grounds, apparently, that the acts of the Danish ambassador within the Embassy amounted to the exercise of authority over the group. However since the applicant had left the embassy with the East German police when asked to do so, he had been deprived of his liberty not by the Danish, but by the East German, authorities and that accordingly his subsequent treatment did not engage the responsibility of Denmark and his claim against it was held to be manifestly ill-founded. Again, in my judgment, that admissibility decision provides no support for Mr. O’Neill’s propositions.[38]In R(B) v Secretary of State for Foreign and Commonwealth Affairs (supra) the Court of Appeal was prepared to assume (without reaching a positive conclusion on the point) that a group of individuals, who were physically present in the UK Consulate in Melbourne, and who had been told that they would be kept safe there and were given some protection by being brought from the reception area into the office area, were sufficiently within the authority of the consular staff to be within the jurisdiction of the United Kingdom for the purposes of Article 1”: see per Lord Phillips MR. at pargraph 66. Likewise in my judgment the statements in this case, given the factual context, afford no assistance to Mr. O’Neill’s submissions.[39]As Mr. Chamberlain submitted, and as I accept, the following conclusions can be distilled from the authorities: i) The relevant test for determining whether an individual is within the jurisdiction of a Contracting State for the purposes of Article 1 ECHR is whether he or she is in the “authority and control” of its agents: see Al Skeini, at [134], [137] and [149]; see also Cyprus v Turkey, at p. 137. ii) Individuals may be within the “authority and control” of diplomatic and consular staff when they are on the premises of an embassy or consulate which has assumed responsibility for their protection (although even this point the Court of Appeal declined to decide definitively): see WM and B’s case, at [66] (above). iii) If, contrary to my view, on a proper analysis of the Commission’s language in its judgment in X and the United Kingdom (supra), at page 74, the Commission actually purported in that case to decide that a State’s responsibility might be engaged simply by virtue of the fact that the actions or omissions of their consular staff might “affect” persons or property (even when those persons or property are not within the “authority and control” of the relevant staff), it travelled beyond the “constant jurisprudence” of the ECHR and is inconsistent with the definitive articulation of the principle by the ECHR in Al Skeini v United Kingdom. As Lord Collins noted in Smith v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 at [251], the Commission’s formulation in X v United Kingdom was:
“… inconsistent with the text of article 1, which is about persons within the jurisdiction, and not about acts or omissions within the jurisdiction.”
[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 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.[41]Moreover, even if, contrary to the above conclusion, the Convention applies, in my judgment the relevant case law does not establish that, in circumstances such as this case, where the claimant is outside the territorial jurisdiction of the contracting state, the United Kingdom owes any duty to safeguard individuals from risks to which they are (or will be) subject in the third country, save to the extent that the United Kingdom had contributed to this risk by its actions; for example by extraditing or deporting such individuals knowing of the risk.[42]In this context Mr. O’Neill relied upon on Van Colle v United Kingdom, App. No. 7678/09, unreported, 13 November 2012 for the proposition that a state owes a positive obligation to those within its jurisdiction to protect them from a real and imminent risk to their lives from the criminal acts of a third party. As a general proposition, the defendant accepted that it was well established that Contracting States owe certain positive obligations to individuals who are within their territorial jurisdiction; thus, for example, in certain circumstances a state may owe a duty to protect an individual within its territorial jurisdiction where there is a real and imminent threat to his life from the criminal acts of others: see Osman v United Kingdom (2000) 29 EHRR 245, at paragraph 115. However, as Mr. Chamberlain submitted, and I accept, the obligation of a state to protect individuals from the actions of another state arises in much more limited circumstances. Soering v United Kingdom (1989) 11 EHRR 439 established that a state may violate Article 3 of the Convention by extraditing an individual to another state where there is a real risk that he will be subject to treatment which, if done by a Contracting State, would constitute a breach of Article 3. The ECHR said at paragraph 91:
“In so far as any liability under the Convention is or may be incurred, it isliability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.” (Emphasis added.)
The above passage was repeated by the Grand Chamber of the ECHR in Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, at paragraph 67, in a passage describing the “settled case law of the Court”.[43]In the present case, the claimant is plainly at risk of suffering treatment in Indonesia which, if she were subjected to it in a Contracting State, would constitute a serious violation of her Convention rights. But she is not being exposed to this risk as a “direct consequence” of “action” taken by the United Kingdom. The United Kingdom did not extradite her or deport her. Nor, unlike in the expulsion cases, is she within the control of the United Kingdom Government.[44]The Court was not referred by either counsel to any Convention case law suggesting that Articles 2 and/or 3 of the Convention impose positive obligations on a Contracting State to safeguard nationals who are in a third country from risks to which they are subject in that country through no action of the Contracting State. Mr. O’Neill submitted that in circumstances where a claimant is brought within “the jurisdiction” of the United Kingdom on an exceptional ground, for example by the exercise of authority by officials outside the territorial jurisdiction, it is irrelevant that the claimant is not within the territorial jurisdiction of the United Kingdom and there was no need to establish that the risks to which she is exposed arise as a direct consequence of any action of the United Kingdom or its agents.[45]In Al Skeini (supra), the ECHR said that, when jurisdiction arises through the exercise of control and authority by an agent, the obligation to secure rights and freedoms under Article 1 of the Convention only arises insofar as they are “relevant to the situation of that individual” and in that sense the Convention rights can be “divided and tailored”: see at paragraph 137. This shows that the content of any positive duty owed under Article 2 of the Convention differs depending on whether the individual is within the territorial jurisdiction or not.[46]In my judgment, the case law to which we have been referred does not establish that the United Kingdom is under a duty to safeguard individuals (whether British nationals or otherwise) from risks to which they are (or will be) subject in a third country, save to the extent that the Contracting State has contributed to this risk by its actions (e.g. by extraditing or deporting them knowing of the risk). Although the claimant is undoubtedly subject to serious risks, not only to her life, but also to the risk of an appeal process, which may be unfair in circumstances where she does not receive adequate legal representation, she is not so subject as a direct consequence of any action of the United Kingdom.[47]For all the above reasons, I conclude that the claimant has not established any breach by the defendant of her Convention rights.

The Charter

[48]Under this head of his argument Mr. O’Neill submitted inter alia as follows: i) By virtue of Article 6(1) of the Treaty on European Union (“the TEU”) the Charter has the same legal value as the Treaties and accordingly forms part of the primary law of the European Union. It follows from the above Treaty provisions that not only the EU and its institutions, but also the Member States when acting within the ambit of EU law, will be bound by the Charter. ii) Unlike the Convention, the Charter contains no express jurisdictional limitation akin to that of article 1 of the ECHR. The Court of Justice of the European Union (“CJEU”) has expressly recognised that the provisions of the EU Treaties do not preclude the application of EU law outside the territory of the Union. In C-214/94 Boukhalfa v Germany [1996] ECR I-2253 (“Boukhalfa”) at paragraph 14, the CJEU observed that:
“…the geographical application of the Treaty is defined in Article 227 [of the Treaty of Rome, now, after amendment Article 52 of the Treaty on European Union (“TEU”) and Article 52 of the Treaty on the Functioning of the European Union (‘TFEU’)]. That article does not, however, preclude Community rules from having effects outside the territory of the Community.” (Emphasis added by Mr. O’Neill).
iii) Accordingly, the provisions of EU Treaties and the Charter are applicable to the Member States wherever they exercise their sovereignty or their jurisdiction, even in international spheres, in relation to a subject-matter within the substantive scope of EU law. iv) This more extensive application of EU law reflects the principle outlined at Article 3(5) TEU that:
“In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.” v) In contrast to the Council of Europe, the European Union has explicitly resolved to implement a common foreign and security policy (“CFSP”) with the aim, as outlined in the preamble of the TEU, of “reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world”
. Article 21 TEU confirms that:
“The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.” (Emphasis added by Mr. O’Neill)
vi) Article 24(3) TEU specifies that:
“The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.” vii) Member States are also required actively to promote the decisions and actions adopted in relation to the Union’s CFSP through their consular and diplomatic missions as provided by Article 35 TEU: “The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments. They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.” viii) It is unambiguous that the abolition of the death penalty is a key objective of the EU’s human rights policy, promoted by the European Union External Action Service (“EEAS”). That can be demonstrated by reference to the “Council Conclusions on the tenth anniversary of the EU Guidelines on the Death Penalty and adoption of the revised and updated version of the EU Guidelines on the Death Penalty”. ix) The circumstances of this case are materially different from those in R(Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6, [2010] EWHC 3110 (Admin) (“Zagorski”) and would not result in the effects alluded to by Lloyd Jones J: “If the claimants were correct in their submission that the Charter recognises Convention Rights without the limitation imposed by art.1 ECHR, the result would be very radical indeed. Whereas States party to the Convention undertake to secure Convention rights to persons within their jurisdiction (in the sense explained in Bankovic) the Charter would confer such rights on anyone, anywhere in the world, regardless of whether they have any connection with the European Union. That such a result should be brought about without any express reference to the massive extension which was being effected would be most surprising.” [At paragraph 73(5)] x) The claimants in Zagorski were United States citizens with no connection with the EU. By contrast, in the present case the claimant is a British national and an EU citizen resident in the UK. EU citizenship is automatically afforded to and supplements the national citizenship of every person holding the nationality of a Member State, as confirmed by Article 20(1) of the Treaty on the Functioning of the European Union (“TFEU”) which provides: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.” xi) Article 20(2) TFEU sets out a number of rights owed to all EU citizens, by virtue of their EU citizenship. The rights specified in this Treaty provision include consular protection for EU citizens in third-party (i.e. non-EU) states in which the Member State of which they are nationals is not represented: “Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: … (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.”
This EU law right to consular protection for EU nationals when outside the EU is included in similar terms at Article 23 TFEU and Article 46 of the Charter. xii) The preamble to the Charter observes, inter alia, as follows:
“Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.” [Emphasis added]
xiii) The fact of the claimant’s EU citizenship is sufficient to establish a connection ratione personae with the provisions of the Charter. She does not lose her Charter rights when she travels, whether within the European Union or outside the European Union. The emanations of the Member States, including the defendant, accordingly remain bound to respect the claimant’s Charter rights in their dealings with her. xiv) Article 51(1) of the Charter provides that the provisions of the Charter bind the Member States when they are implementing EU law. When a provision of EU law (whether primary EU law in the Treaties or secondary provisions of EU law in directives or regulations) expressly allows for the exercise of a discretionary power by a Member State, the Member State must exercise that power in accordance with EU law: see among other decisions C-5/88 Wachauf v Germany [1989] ECR 2609. Consequently, as the Grand Chamber of the CJEU confirmed in Joined Cases C-411/10 and C-493/10 NS v Home Office 21 December [2011] ECR I-nyr, [2012] 3 WLR 1374:
“… a Member State which exercises that discretionary power must be considered as implementing EU law within the meaning of art.51(1) of the Charter.” [At paragraph 68] xv) Similarly, a Member State is implementing EU law for the purposes of Article 51(1) if it exercises a power of derogation from a provision of EU law: C-260/89 Elleniki Radiophonia Tileorassi (ERT) v Dimotiki Eatairia Pliroforissis [1993] ECR I-2925 (“ERT”) as applied in R (Zagorski) at paragraph paragraph 68-71. xvi) The crimes with which the claimant has been charged fall within the ambit of EU law, namely Framework Decision 2004/757/JHA (“the Framework Decision”) laying down the minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking. The provisions of the Framework Decision have to be interpreted in such a way that fundamental rights set out in the Charter are respected: see C-105/03 Criminal Proceedings against Maria Pupino [2005] ECR I-5285 at paragraph 59 and Joined cases C-483/09 and C-1/10 Criminal proceedings against Magatte Gueye and Valentín Salmerón Sánchez 15 September [2011] ECR I-nyr, [2012] 1 WLR 2672 at paragraph 55. xvii) Framework Decision 2004/757/JHA is an instrument of EU secondary law. It regulates Member States’ actions, amongst others, with respect to criminal sanctions associated with drug trafficking into, and within, the European Union. It is intended to have extra-territorial effect, as evidenced by Article 2(1)(a) which provides that it applies to “the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of drugs” [Emphasis added].
xviii) Articles 2 and 3 relate, respectively, to crimes linked to trafficking in drugs and incitement, aiding and abetting and attempt in relation to drug trafficking. Most importantly, Article 8 provides: “Article 8: Jurisdiction and prosecution 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. [Emphasis added]. (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. [Emphasis added]. Article 8(2) states that: “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.” xix) The effect of these jurisdictional provisions is that the United Kingdom may act in a manner which would ensure the protection of the Convention and Charter rights (for example, say freedom from the death penalty, fair trial, right to a proportionate penalty in respect of the offence for which convicted) of any of its nationals charged with drug-trafficking offences in two possible ways. In the first instance it can – under Article 8(1)(b) – decide to take the necessary measures to establish its own jurisdiction in such a case (and so by seeking the extradition of any of its nationals where the offence in question is committed outside its territory). Alternatively if – by reference to Article 8(2) - it decides not to establish or seek to exercise its jurisdiction over its own nationals where the drug-trafficking offence in question is committed outside its territory, it still must do all in its power to ensure that this offender’s Convention and Charter rights (for example, say freedom from the death penalty, fair trial, right to a proportionate penalty in respect of the offence for which convicted) are respected in any trial for these offences which proceeds outside its territory. Both decisions – to take, and not to take, the necessary measures to establish jurisdiction – fall within the ambit of EU law and hence of the Charter. xx) Thus, if and insofar as the UK has decided in the circumstances of the present case not to take the necessary measures to establish (or exercise) its own as jurisdiction over this matter (as provided for under Article 8(1)(b) of the Framework Decision) it is exercising the derogation allowed for under Article 8(2). The exercise of this derogation has to be done in a manner which is in conformity with the general principles of EU law, and in particular the protection of the Convention and Charter rights of the individual who is directly affected by that decision. xxi) But it is not the responsibility of that individual - the claimant in the present case - to establish that “the decision not to pay for a lawyer is one that falls within the material scope of EU law”, as argued in the defendant’s Detailed Grounds at paragraph 11.1. This is to conflate two different considerations. Instead, the proper analysis requires the Court to determine whether or not the claimant’s situation falls within the material scope of EU law. Thereafter, the actions of the defendant should be assessed for compatibility with her Charter rights. The UK is bound in the present case to have regard to, and act in accordance with, the provisions of the Charter and the general principles of EU law: see ERT. It can only lawfully decide not to take the necessary measures to establish its jurisdiction in relation to drugs offences committed outside its territory by one of its nationals if it can properly make a judgment that he/she is not thereby “deprived… of the genuine enjoyment of the substance of his or her rights as EU citizen”: see C-135/08 Rottmann v Freistaat Bayern [2010] ECR I-1449 and C-34/09 Zambrano v Office National de L’Emploi [2012] QB 265. xxii) In exercising its consular functions in a third party non-EU state in relation to the claimant (who is also an EU citizen), the defendant is bound both by the Convention and by the Charter to do so in a manner which is compatible with Lindsay’s fundamental rights (both as set out in the ECHR and as expressed in the Charter). xxiii) This does not result in a general positive obligation to establish a “scheme to pay the legal expenses of its nationals subject to criminal proceedings in other jurisdictions” as suggested in the defendant’s Detailed Grounds at paragraph 23. A Member State is obliged to assess in each case what actions are required, and would be proportionate and reasonable, in order to fulfil its obligations under the Convention and the Charter when those rights are engaged. In the present case, where the defendant concedes that “the claimant is plainly at risk of suffering treatment which, if she were subjected to it in a Contracting State, would constitute a serious violation of her Convention that rights” (see the defendant’s Detailed Grounds at paragraph 20), it is both proportionate and reasonable to expect the defendant to provide £2500 to ensure adequate legal representation.[49]I hope that I do not do any injustice to Mr. O’Neill submissions, by stating that the claimant’s case under this head can be briefly summarised as follows: i) EU law can apply extra-territorially; ii) the claimant is an EU citizen and therefore within the personal scope of EU law (or, as the CJEU sometimes puts it, she is within scope ratione personae); iii) because the offences with which the claimant has been charged (drug trafficking offences) are the subject of Framework Decision 2004/757/JHA (“the Framework Decision”), which has extra-territorial effect, the claimant’s situation is within the material scope of EU law; iv) the defendant is implementing (or derogating from ) EU law in not seeking the claimant’s extradition for such offences; therefore the Charter applies and it requires the FCO to fund a lawyer for the claimant in this case; v) further or alternatively the claimant’s situation is within the material scope of EU law because the effect of Articles 21, 24(3) and 35 TEU is to create an obligation on the diplomatic and consular missions of Member States to implement decisions defining EU positions made under the Common Foreign and Security Policy (“CFSP”).[50]In my judgment, none of these arguments establish that the Charter applies or that the claimant’s situation is within the material scope of EU law. The reasons for my conclusion can be summarised as follows.[51]It was common ground that EU law can apply extra-territorially. For example, Article 20(2)(c) imposes obligations on Member States to extend whatever consular protection they afford to their own nationals without discrimination to the national of any other Member State which is not represented in the relevant jurisdiction. But in order for the Charter to be engaged, the claimant has to show that she falls within the scope of EU law both ratione personae (i.e. that she has a sufficient personal connection with EU law to be entitled to rely on its provisions) and ratione materiae (i.e. that the Member State is implementing, or derogating from, EU law). This dual requirement was clearly demonstrated in R (Zagorski) v Secretary of State for Business, Innovation and Skills [2011] HRLR 6. That was a case where the claimants, citizens of the United States of America, facing execution respectively in Tennessee and Kentucky by lethal injection, challenged the decisions of the Secretary of State for Business refusing to impose a control pursuant to the Export Control Act 2002 on the export of the anaesthetic Sodium Thiopental from the United Kingdom to the United States. Sodium Thiopental was one ingredient of the lethal injection which was apparently not available in the United States. In that case the issue arose as to whether, in taking a decision not to legislate, the defendant Secretary of State was acting within the material scope of EU law. Lloyd Jones J held at paragraphs 67 and 70 that: “the imposition of prohibitions on exports is an area subject to close and detailed regulation by the European Union. The power of Member States to act is closely circumscribed by EU rules” and that, accordingly, in deciding whether or not to exercise the power of derogation, the Secretary of State was implementing EU law in the sense of applying it or giving effect to it; therefore he was acting within the material scope of EU law and was bound to do so in accordance with the fundamental principles and rights which formed part of EU law. But that was not enough. The claimants also had to show that they fell within scope ratione personae: see at paragraphs 73-74. Because they were US nationals in prison in the US, they were not.[52]Here, as Mr. Chamberlain submitted, the situation is very different. The claimant is not out of scope ratione personae. She is an EU citizen, so, in principle, she is someone who could invoke the protections of EU law, but only if her situation falls within scope ratione materiae: in other words, only if the Member State is implementing or derogating from 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.[54]The second, and more controversial, reason why the claimant is unable to establish that her situation is within the material scope of EU law is that, so far as authority within the United Kingdom is concerned, framework decisions are not part of the corpus of EU law. The Framework Decision is a “third pillar” measure agreed under Title VI of the Treaty on European Union prior to its amendment by the Treaty of Lisbon. It is therefore in the same category as the measure considered by the Supreme Court in Assange v Swedish Prosecution Authority (Nos I and 2) [2012] 2 AC 471, per Lord Mance at paragraphs 209-214. In that case, the Supreme Court held that such measures are not part of United Kingdom law under the European Communities Act 1972. The consequence of this is that the measures themselves and the jurisprudence of the CJEU in relation to them are not part of the domestic law of the United Kingdom, and thus not binding. They have the same status as an unincorporated Treaty. So even if the claimant’s situation were within the material scope of the Framework Decision, it is not within the material scope of EU law, as understood and applied by the UK Courts. Mr. O’Neill submitted that the statement of Lord Mance was merely obiter. But, in my judgment, that is not a correct characterisation; the headnote of the decision and the concurring opinions of the other Supreme Court Justices do not support this characterisation.[55]Nor, in my judgment, does Mr. O’Neill’s submission that the claimant’s situation is within the material scope of EU law, because the effect of Articles 21, 24(3) and 35 TEU is to create an obligation on the diplomatic and consular missions of Member States to implement decisions defining EU positions made under the Common Foreign and Security Policy (“CFSP”), have any greater validity.[56]First, section 1(2)(k) of the European Communities Act 1972 excludes from the definition of “the Treaties” Title V TEU, which makes provision for the CFSP. Moreover section 1(2)(s), which brings within the definition most of the Treaty of Lisbon, expressly excludes “any provision that relates to, or in so far as it relates to or could be applied in relation to, the Common Foreign and Security Policy”. As Mr. Chamberlain submitted, the effect of this is that the Charter (which is binding only by virtue of the Lisbon Treaty) has no effect in domestic law insofar as it relates to or could be applied in relation to the CFSP. Nor do Articles 21, 24(3) and 35 form part of EU law, as recognised by the domestic Courts.[57]Moreover, even if they were not part of the CFSP (and therefore were, from the perspective of the UK Courts, part of EU law), at most, the Council Conclusions relied upon by Mr. O’Neill would merely impose an obligation on UK missions to cooperate with EU delegations in pressing for third states to abolish the death penalty. The relevant articles say nothing about what Member States must do for their nationals facing the death penalty in third countries.[58]Finally, even if the Charter were to apply, the issue arises as to what it would have required the United Kingdom to do in the circumstances of the present case. There was no dispute between the parties that the imposition and implementation of the death penalty would breach Article 2(2) and Article 49(3) of the Charter, if the death penalty were imposed or implemented by an EU Member State: the death penalty is prohibited by EU law and, in any event, would constitute a disproportionate punishment for drug trafficking. Likewise it is clear that the imposition or implementation by an EU Member State of the death penalty would also contravene Articles 1 (human dignity) and 3 (physical and mental integrity). But that is not the question which we have to decide. The question is whether the UK has a positive obligation to protect its nationals from risks to which they are exposed by a third country not subject to the laws of the European Union. Nothing in the case law referred to by Mr. O’Neill suggests that the UK, or indeed any other Member State, has any such obligation.[59]Likewise, whilst Article 47(3) of the Charter imposes an obligation on EU Member States to provide legal aid to those who lack sufficient resources “insofar as such aid is necessary to ensure effective access to justice”, that right, like the other fair trial rights protected by Article 47, is intended to apply only to proceedings before the Courts of the EU or its Member States. That is clear from Article 47(1) and (2), which make no sense unless applied to disputes within the EU.[60]For these reasons, I conclude that the claimant has not established any breach by the defendant of her rights under the Charter. ii). Unjustified departure from the Strategy: iii). Unlawful fettering of discretion by adopting the blanket policy as set out in the Strategy[61]These two heads of relief were dealt with together both in the written and in the oral submissions.

The claimant’s submissions

[62]The thrust of the claimant’s argument under the first head was that the defendant must follow his published policy (or act consistently with its purpose) unless he gives a good and clear reason for not doing so. The defendant’s policy and guidance on the death penalty was set out in the Strategy. It committed the defendant to work to ensure that EU Minimum Standards, which includes the right to adequate legal assistance, were met in countries which retain the death penalty. The ways in which the defendant would do so included raising individual cases. The policy also committed the defendant to use all appropriate influence to prevent the execution of any British national. In failing to make arrangements for an adequate lawyer to represent the claimant’s interests, the defendant was acting unlawfully in unjustifiably departing from Government policy as set out in the Strategy without giving a good reason for doing so.[63]Reference was made by Mr. O’Neill to the following provisions of the Strategy: “Our Goals are: … ii) further restrictions on the use of the death penalty in retentionist countries and reductions in the numbers of executions; and iii) to ensure EU minimum standards are met in countries which retain the death penalty … We will work to achieve these objectives through three main channels- bilateral initiatives, the EU, and the UN. Bilaterally, we continue to work hard to lobby governments to establish moratoriums or abolish the death penalty, raise individual cases of British Nationals, use political dialogue and fund projects to further our objectives.” (page 3) “Promoting human rights and democracy overseas is a priority for HMG. It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle… where the death penalty is retained, we will continue to lobby for it to be used within the EU’s Minimum Standards, the UN Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty, and other internationally recognised standards on restricting the death penalty… cases of British nationals facing the death penalty … clearly … remain an extremely high priority. Therefore our overarching goals are:…Reduction in the numbers of executions and further restrictions on the use of the death penalty in retentionist countries”. (pages 4-5) “HMG policy is to use all appropriate influence to prevent the execution of any British national.” (page 6). [Emphasis added][64]Mr. O’Neill referred to the fact that the EU Minimum Standards include:
“v) Capital punishment must only be carried out pursuant to a final judgment rendered by an independent and impartial competent Court after legal proceedings, including those before special tribunals or jurisdictions, which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, 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 …” [Emphasis added]
[65]Mr. O’Neill also referred to the fact that ways in which the defendant can work to achieve the EU Minimum Standards extend to providing funding (‘fund projects’ see above) and that defendant’s policy was also explained in his 2011 report “Human Rights and Democracy” published April 2012. This notes:
“Our past interventions have included submitting amicus curiae briefs… We work in partnership with the NGO Reprieve and the detainees’ local lawyers to seek to prevent British nationals receiving a death sentence; or where such sentences have been imposed, to seek their review or commutation.”
In circumstances where the defendant was prepared to expend funds on amicus briefs, he submitted that it was incomprehensible that the defendant was not prepared to spend a relatively small sum on funding the claimant’s appeal.[66]So far as the evidence relating to the adoption of a blanket policy was concerned, Mr. O’Neill submitted that it was clear from the defendant’s evidence that he had decided not to fund Mr. Agus’ fees solely because the defendant has a rule not to provide legal representation for British nationals abroad (“the blanket rule”); but there was no reason why the defendant could not pay for a local lawyer given that the Crown has power at common law to make extra-statutory payments to individuals: seeRegina (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29 [2005] 1 WLR 1681 at paragraph 46. He submitted that it would appear from the evidence now produced that the defendant decided to adopt the blanket rule to avoid what were considered to be the inevitable practical difficulties of providing any exception, in particular: i) the fact that exception could not be limited to death penalty cases as consistency would require it to be extended to other British nationals facing serious criminal sanctions abroad; ii) the money required for a lawyer may not be small; iii) the Government may not know if the local lawyer is adequate; iv) it may be difficult to assess whether the individual and her family have low enough means to deserve public funding; v) the lawyer may not fix his fees in advance.[67]He submitted that none of those practical difficulties applied in the claimant’s case since: i) She has been sentenced to death. ii) The money for Mr. Agus is small. iii) The defendant thinks Mr. Agus is adequate: Mr. Agus is the British Ambassador’s Honorary Legal Advisor. The defendant confirms he has experience in death penalty cases. iv) It is clear that Lindsay and her family have low enough means to justify public funding, because the Legal Services Commission have decided she satisfies the means test. v) Mr. Agus has fixed his fees in advance.[68]So far as legal considerations were concerned, Mr. O’Neill submitted as follows: i) The defendant must follow his published policy unless he gives a good and clear reason for not doing so: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paragraph 26. On the other hand, a policy should not be a blanket policy that prevents the decision maker from taking into account considerations that may be relevant: paragraphs 20 and 21. The presumption against the lawfulness of a blanket policy also applies within the context of Convention rights: see for example R(T) v Chief Constable of Great Manchester [2013] EWCA Civ 25 and Hirst v United Kingdom (No.2)(2006) 42 EHRR 41 at paragraph 82. ii) In R(Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 the claimant British national, who was detained in Guantanamo Bay, argued that the defendant ought to have made representations to the United States Government in support of his case. The defendant’s policy at the time was to “consider making representations … where fundamental violations of the British national’s human rights had demonstrably altered the course of justice”: paragraphs 90-92. The Court of Appeal decided that judicial review would lie if the defendant were to depart from the policy and to refuse to consider making representations: paragraph 80, paragraphs 99 and 104. This meant properly forming a judgment as to the nature and gravity of the breach: paragraph 100. Whether to make representations, however, was a matter for the Secretary of State. iii) The defendant’s current policy on executions is broader than the policy on detention at issue in Abbasi. For example, the current policy commits the defendant to work to ensure the EU Minimum Standards are met. Further, Abbasi concerned detention. Lindsay’s case involves an even more serious matter: her life. That makes it even more important that the defendant follows his policy properly, or puts forward a good reason for not doing so. iv) The case of R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 could be distinguished from the instant case. Elias considered whether an ex gratia scheme to compensate people for internment by the Japanese should be extended to cover those born abroad. The question was whether the defendant was obliged to extend the power to compensate so that it may be exercised in those additional cases; that is “the extent to which the power is to be exercised” (paragraph 191). There was no existing common law discretion that extended to such cases, and so:
“The Secretary of State has not unlawfully fettered an existing relevant ordinary common law power”: paragraph 193. v) By contrast, as Lord Phillips said in Abbasi, there is an existing common law power under which the defendant may decide to provide funding to those facing the death penalty. That is, “the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens”
Abbasi paragraph 106(iii). That means, unlike in Elias, if the defendant adopts a blanket policy which prevents him from taking into account considerations that may be determinative, that will be an unlawful fetter to the existing common law power (as in Lumba).[69]Accordingly Mr. O’Neill submitted that the defendant has acted unlawfully in the claimant’s case for the following reasons: i) The defendant’s policy, set out in HMG Strategy for Abolition of the Death Penalty 2010-2015, commits the defendant to work to ensure that a British national facing the death penalty has adequate legal assistance. It commits him to use all appropriate influence to prevent a British national from being executed. The purpose behind the policy is to reduce the number of executions of British nationals. ii) The defendant has not provided £2,500 to cover the operational costs of the Indonesia lawyer Mr. Agus. Granting £2,500 is the only means by which the EU Minimum Standards will be met. The claimant is currently unrepresented, and there is no guarantee that representation will be found by other means. There is no alternative adequate option the defendant can choose which will satisfy his policy, which will ensure Lindsay has adequate legal assistance, or which will satisfy the purpose of reducing the number of executions of British nationals. iii) The result is that the defendant’s decision not to provide £2,500 has frustrated the purposes behind the policy that are described above. By applying the blanket policy, the defendant has excluded potentially decisive considerations that the context and stated purpose of the policy indicates are relevant. For the reasons in R (Limbu) v Secretary of State for the Home Department [2008] HRLR 1219 at paragraphs 56, 65 and 69,in which the application of express criteria frustrated the purpose behind the policy, that is unlawful. The defendant has not said there is any reason, apart from the need to maintain a blanket policy, for not providing the £2,500 funding to Mr. Agus. Indeed, he has simply not considered the specific circumstances of the claimant’s case. iv) None of the specific circumstances of the claimant’s case provide a rational basis for the defendant’s decision. None of the practical concerns raised by the defendant apply in the specific circumstances of the claimant’s case. All of the relevant factors weigh in favour of covering Mr. Agus’ operational costs. In particular:(a) there is no alternative means of providing representation and of satisfying the policy’s purpose;(b) the £2,500 is very small and is fixed in advance;(c) the lawyer is adequate; and(d) the Legal Services Commission has determined that the claimant’s means are low enough to justify public funding in the present judicial review proceedings. v) The defendant’s reason for this result, namely that changing the blanket policy will have practical problems, was neither a good reason nor a lawful one. vi) The defendant’ s decision to adopt the blanket policy was unlawful, for one or more of the following reasons: a) The first was that it was a blanket approach that admits of no exceptions and prevents the defendant from taking into account considerations that may be determinative (Lumba). It would prevent the defendant from providing funding in exceptional cases where that is the only means of ensuring the EU Minimum Standards are met, where the cost is small and where there are no practical difficulties in doing so. That is an unlawful fetter on the defendant’s common law discretion to provide protection (Abbasi). b) Second, the decision to adopt the policy was founded on the view that if the defendant were to make an exception in the claimant’s case, the public law principle of consistency would require him to fund many other cases where British nationals face serious criminal sanctions abroad. But the spectre of floodgates can be set at rest by the defendant providing funding only in very exceptional cases which satisfy strict, clear criteria. c) The defendant will have a broad discretion as to whether to fund an individual case. The public law principle of consistency will not require him to fund cases other than the very exceptional ones he defines, providing he sets out sensible criteria for distinguishing them. The requirement of consistency is a legal matter that this Court is well placed to assess. It follows that the defendant took into account an irrelevant consideration: the defendant wrongly thought consistency would require him to fund many criminal proceedings for British nationals. d) Public authorities normally have to provide exceptions to their policies – there is nothing unusual about doing so in this case. It is important for the Court carefully to review the defendant’s policy because of the fundamental importance of the issue at stake: namely the claimant’s life. The defendant’s decision to provide no exception to the policy is an illogical or irrational one, for the reasons set out above.[70]In my judgment, none of the arguments put forward by Mr. O’Neill under these two heads justify the grant of the relief sought. In my view they should be rejected.[71]My reasons, which for the main part adopt the arguments put forward by Mr. Chamberlain on behalf of the defendant, may be summarised as follows.[72]The defendant has not departed from the United Kingdom’s Government policy as set out in the Strategy and the Guide, by refusing to fund the claimant’s legal representation in this case. Nor has he failed to give any adequate reason for refusing to do so.[73]As a matter of logic and as matter of law, the fact that a Government adopts a policy of opposing X and of using all appropriate influence to prevent X does not mean that the Government has to do everything that it could in principle do to lower the risk of X. Nor does it mean that the Government is under an obligation to justify a decision not to take a particular action which would or might lower the risk of X.[74]The Strategy and the Guide make abundantly plain that the Government promotes the goals set out in the Strategy (including using all appropriate influence to prevent the execution of British nationals) by: i) making diplomatic (i.e. State to State) representations where it considers it appropriate to do so; ii) filing amicus curiae briefs where it considers it appropriate to do so (the legal equivalent of a State to State representation); iii) funding NGOs both to lobby on individual cases and to work on individual cases; providing information to British nationals about English speaking lawyers and interpreters; but iv) not by providing funding for legal fees or expenses.[75]The Secretary of State’s policy of not funding legal representatives is indeed a “blanket policy”. Where a statute confers a discretion, it is, as Mr. Chamberlain accepted, unlawful to apply a blanket policy without considering on the facts of each particular case whether to make an exception from it. This is because the blanket policy amounts to a fetter on the discretion conferred by Parliament. But in the present case there is no statutory discretion. The defendant accepts that he could lawfully pay for legal representation for British nationals abroad under common law powers. The power to make payments of this kind is a common law power. In such circumstances, the principles are different. There is no prohibition on rigid policies, provided that they are rational.[76]Where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule which requires a decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in that 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 either that there are to be no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be”; see R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at [191]. In this case, as in Elias, it is ‘‘necessary to formulate ... ‘bright line’ criteria for determining who is entitled to receive payments from public funds”: ibid at paragraph 192. The “bright line” in this case is the rule that the Government does not pay legal expenses of British nationals involved in criminal proceedings abroad. There is no requirement as a matter of law to consider whether an exception should be made to the policy in the circumstances of an individual case.[77]Contrary to Mr. O’Neill’s submissions, R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 is not distinguishable from the present case. In Elias, the Government’s policy did not permit payments to be made to persons such as Mrs. Elias. There was no duty to consider whether to make an exception for her. In my judgment the same position applies in the present case.[78]In fact, the evidence demonstrated that the Secretary of State’s officials have indeed considered the circumstances of this case and have examined the existing policy in the light of those circumstances. But the question they have asked is not whether to make an exception in this case, but rather whether they should change the policy of not providing funding to cover the legal costs of British nationals subject to criminal proceedings abroad, either in death penalty cases or more widely. They have decided that they should not do so. Thus the only question for the Court is whether that decision is a rational one. In my judgment there is no basis for concluding that such a decision is irrational.[79]Whilst the claimant understandably invites the Court to focus its attention on her own position (and in particular the small amount of money required to secure legal representation for the next stage of her appeal), the government has necessarily to consider the need to treat all British nationals fairly and consistently. I accept that it is against that background that the rationality of the policy has to be considered. Whilst the defendant could lawfully pay for legal representation for certain British nationals under common law powers as an exception to his policy, consistency would inevitably require him to set up at least some sort of a scheme, even if he were to consider only limited payments of small amounts to British nationals in extremity. That would inevitably require complex policy choices of the kind referred to in the evidence. These are the type of decision normally left to legislation. In the absence of legislation, I do not consider that it is irrational for the Secretary of State to decline to establish such a scheme under common law powers or to make an exception from his current policy for particular cases.[80]Despite Mr. O’Neill’s submission that some of the concerns which justify the decision not to pay legal expenses generally do not apply on the facts of this case, I consider that fact, even if true, is irrelevant. As Mr. Chamberlain submitted the defendant does not have the luxury of saying “I will fund this case and no others”. That would be contrary to the requirement to treat like cases alike. The Secretary of State might in principle be able to set up a very limited scheme along the lines suggested by Mr. O’Neill in argument, which was limited to small amounts in extreme hardship cases. But it cannot in my view be irrational for him not to do so. He is entitled to ask(a) how he could be sure that there was no alternative means of paying,(b) how he would determine whether the sums involved were “small” (i.e. what would be the amount of any cap on the amount),(c) how he would determine whether the lawyer was adequate,(d) why he should apply the LSC financial threshold in every jurisdiction, and(e) why he should stop at death penalty cases (rather than go on to fund other cases where punishments that would breach fundamental rights are imposed).[81]The evidence demonstrated that any policy of paying legal expenses in individual cases would encounter serious practical difficulties of the sort described in Ms Proudlove’s witness statement. Whilst it might be the case that a Government could find a workable answer to some or all of these questions, and might be prepared to commit the very considerable resources that would be necessary to fund a legal aid scheme for foreign cases, those are the type of decisions that are inherently policy decisions for government, and not matters for the Court. That is particularly so given that the real likelihood is that legislation would be necessary to establish such a scheme, if the government were to depart from its existing policy. In those circumstances, and in the absence of any legislation, the question is simply whether it is irrational for the government to adhere to its current policy. In my judgment, in the light of the difficulties which any exception to its policy gives rise, the clear answer to that question is “no”. In my judgment all the above practical difficulties clearly illustrate that any departure from the current policy is clearly a matter for the executive and not for the Court.

Conclusion

[82]For all the above reasons, whilst, as the Court indicated on 31 January 2013, I consider that permission to bring judicial review proceedings should be granted, I decline to grant the relief sought, and dismiss the claim.[83]The Court understands the deep concerns which the claimant and her family must have about the claimant’s current predicament in Indonesia. But we must apply the law as it stands to the facts of the case.[84]Finally I should express the Court’s gratitude to counsel and solicitors for the detailed oral and written arguments, which clearly had been produced under considerable pressure of time. I should also express the Court’s appreciation of the assistance given by Reprieve in the presentation of the evidence on the claimant’s behalf.[85]For the reasons given in the judgment of Gloster J, I agree that permission to apply for judicial review should be granted but refuse the relief sought in the claimant’s application.

Cited in 2 later judgments