R (Sandiford) v Foreign Secretary [2014] UKSC 44

Key point
  • Judicial review for illegality due to fettering of discretion does not apply to prerogative powers
  • Thus, blanket policies enacted under prerogative powers do not necessarily have to include exceptions to be lawful
Facts
  • S had been sentenced to death in Indonesia, after a conviction for drug trafficking
  • In pursuing options to avoid the death penalty, S needed legal representation, and while the UK advised her substantially, it declined to give her financial aid, relying on its blanket policy in relation to British nationals facing criminal proceedings abroad
  • S challenged this policy, relying on Art.6 of the European Convention for Human Rights 1950 and the common law (the right to a fair trial)
Issues
  1. Was S within the jurisdiction of the UK for the purposes of Art.1 of the European Convention for Human Rights 1950 (So that Art. 6 could apply)?
  2. Was the blanket policy an unlawful fetter on discretion or irrational?
Held (Supreme Court)
  • The appeal was dismissed, as S was not within the jurisdiction of the UK for the purposes of Article 1 ECHR
  • The policy was also neither unlawful nor irrational
Lord Mance

Jurisdiction under Article 1 ECHR

  • ’If one asks, by reference to any common-sense formulation, under whose authority or control she [S] is, the answer is: that of the Indonesian authorities. It is they who ought to be ensuring her fair trial. If they were party to the Convention, it would be their duty to do so, and to provide appropriate legal assistance in a case of impecuniosity, under article 6.’: [32]

Fettering of discretion

  • ‘The issue which divides the parties is, in short, whether there exists in relation to prerogative powers any principle paralleling that which, in relation to statutory powers, precludes the holder of the statutory power from deciding that he will only ever exercise the power in one sense.’: [60]
  • ‘The basis of the statutory principle is that the legislature in conferring the power, rather than imposing an obligation to exercise it in one sense, must have contemplated that it might be appropriate to exercise it in different senses in different circumstances. But prerogative powers do not stem from any legislative source … They are intrinsic to the Crown and it is for the Crown to determine whether and how to exercise them in its discretion.’: [61]
  • Therefore, ’[t]here is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power.’: [62]

Irrationality

  • ’The department… [was] able to put the appellant in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis… It was hardly irrational to think that it was a sum which the family should be able to raise for themselves, as indeed turned out to be the case.’: [72]
  • ’In the event the problem at the appeal was not the lack of competent legal representation, but the apparent unwillingness of the court to take any notice of it… This cannot be laid at the door of the Secretary of State.’: [72]
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