International legal aid: private conscience and public duty

Lindsay Sandiford, the British woman sentenced to death for smuggling just under five kilos of cocaine into Bali, has obtained sufficient funds to appeal, writes Roger Smith.

  • The picture is from the Lindsay Sandiford appeal site.

The money was raised by private donors – many giving small sums anonymously. Mrs Sandiford, thus, benefited indirectly from the publicity surrounding her judicial review of the Foreign Office’s refusal to assist her even though she lost the case in the High Court.

The UK government has escaped any liability to establish an international legal aid scheme in cases like hers. Even more to the point, so has Indonesia, a country that insists on maintaining the potential sentence of death by firing squad for drug importation.

No representation
Mrs Sandiford’s case has attracted considerable publicity, not least because she is being assisted by Reprieve, a highly effective campaigning group. It is clear from the High Court judgement that she has also received help short of financial from the Foreign Office. It is engaged both because she is a UK citizen but also because of the UK’s longstanding opposition to the death penalty.

The local embassy worked with Reprieve to find Mrs Sandiford a lawyer prepared to act for her. In the end, it came up with Mr Fadilluh Agus, the Honorary Legal Adviser to the British Ambassador. Mr Agus was prepared to do the case for free but wanted £2,500 for expenses. Mrs Sandiford, and her family had no such resources. It looked, for a moment, as if she would be deprived of representation in consequence.

Reprieve argued in support of Mrs Sandiford’s that the UK should have a form of international legal aid, at least in cases where UK citizens faced the death penalty and would otherwise be unrepresented. Reprieve argued that duties under the European Convention on Human Rights and the European Charter of Fundamental Freedoms applied to the UK even in relation to actions in countries outside the European Union or the Council of Europe.

The court, rather unusually composed of two women judges, was unpersuaded.

The judges confirmed that duties could exceptionally apply extra-territorially but held that, in this case, they did not. Mrs Sandiford could not be said to be within ‘the authority and control’ of the UK. Furthermore, the Foreign Office successfully argued that any finding that it was under a duty to assist in cases like Mrs Sandiford would mean that it had, in effect, to organise an international legal aid scheme. This would have to cover all the attendant details of any scheme such as of the scope, remuneration, means testing, quality assurance and consistency. Such arrangements would amount to the creation of a significant scheme for which there was no statutory authority.

A visceral dislike
Mrs Sandiford’s appeal was, however, saved by by a private individual that she had never met, Mr James Cartwright. The Teesider was taken by her plight. In a very short space of time, he raised the £2,500 from 71 donors on a ‘SaveLindsay’ page on the JustGiving website. Another organiser, Aral Balkan, raised a similar sum though slightly more slowly: he refunded this once Mr Cartwright’s success was evident. The comments of donors make clear, in a rather heartening way, the visceral dislike of the death penalty held by many people who have no brief for drugs and, in a number of cases, no particular problem with long prison sentences.  A typical contribution was an anonymous donation for £20 accompanied by the comment: ‘Simply do not believe this woman should be shot for her crime.’

Indonesia acceded to the UN’s International Convention on Civil and Political Rights in 2006. Article 14 requires a right of appeal and a right to legal aid for trial. The prime responsibility in this case surely lay on Indonesia to ensure adequate representation. Even the US, however, has difficulties in ensuring that this happens in every case – an issue which galvanised the early career of Reprieve’s founder, Clive Stafford Smith.

The European Union is in the process of seeking to identify common standards for criminal legal aid in EU countries. These would not, however, apply to Indonesia: they are manifestly needed on  world basis.

Mrs Sandiford’s case underlines the desirability of the UN seeking ways of enforcing the guidelines and principles for criminal legal aid which it passed last December. Guideline 6 requires that states ‘ensure that prisoners have access to legal aid for the purpose of submitting appeals and … requests for pardon, in particular for those prisoners facing the death penalty.’ Pressure should be maintained on Indonesia that it does so.




About Roger Smith

Roger is an expert in domestic and international aspects of legal aid, human rights and access to justice. Roger is a visiting professor of law at London South Bank University and an honorary professor at the University of Kent. He is a solicitor and has been director of the Legal Action Group, JUSTICE and West Hampstead Community Law Centre as well as director of policy and legal education at the Law Society, London, and solicitor to the Child Poverty Action Group. Roger was awarded an OBE in 2009 and received a lifetime achievement award from the Law Society in October 2012

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