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Supreme Court upholds Government policy on the provision of legal support to UK citizens facing capital punishment abroad


The Supreme Court has today upheld the decisions of the Court of Appeal and Divisional Court upholding the lawfulness of the Secretary of State for Foreign and Commonwealth Affairs' policy on the provision of legal support to UK citizens facing capital punishment abroad.

The written judgments of Lord Carnwath and Lord Mance (with which Lord Clarke and Lord Toulson agree) and Lord Sumption provide clarification as to the extraterritorial effect of the European Convention on Human Rights in respect of acts by consular officials. Jurisdiction under article 1 of the Convention is primarily territorial, but there are certain recognised exceptions. One exception is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction when the agents exert authority and control over others. However, the Court found that a refusal to instruct or fund lawyers did not constitute an exercise of authority or control over a British national who had been apprehended, convicted and tried for drug smuggling in a foreign state, and is under the authority and control of that state’s authorities.

The Supreme Court has also provided clarification as to the permissibility of so-called ‘blanket’ policies or ‘bright line’ rules in a non-statutory context. Under domestic law, the Secretary of State has power to provide assistance, including legal funding, for British citizens facing capital charges abroad. This power is not derived from statute. The Court held that prerogative powers have to be approached on a different basis from statutory powers. There is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power.

The appeal was brought by a British national facing the death penalty in Indonesia. While not a ground of appeal, the Court called upon the Secretary of State to review the position in the light of new information (not available to the lower courts) as to the course of the proceedings in Indonesia and the steps now available to the Appellant there.

The judgment is here.

The Supreme Court YouTube summary is here.

Supreme Court YouTube summary

Martin Chamberlain QC and Malcolm Birdling acted for the Secretary of State, instructed by the Treasury Solicitor.