Baldauf v Secretary of State for the Home Department [2010] EWHC 151 (Admin)

Case No CO/1695/2008[2010] EWHC 151 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 19 January 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
MR JUSTICE LLOYD JONES
Between
BALDAUFClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR P RULE (instructed by LEWIS NEDAS AND CO) appeared for ClaimantMR J HALL (instructed by THE TREASURY SOLICITOR) appeared for Defendant
J U D G M E N T

LORD JUSTICE SULLIVAN:

[1]In this application for judicial review, the claimant challenges two aspects of the defendant's decision to release him from custody on licence on 24 December 2007. First, it is said that the claimant should have been released on licence unconditionally and should not have been released on conditional licence. This aspect of the claim was conceded by the defendant in a letter dated 18 March 2008, and an 'at risk' notice to the probation officer was substituted for the conditional licence which was cancelled. The second challenge is to the defendant's calculation of the sentence expiry date (the SED) as 23 September 2010. It is submitted on behalf of the claimant that in calculating the sentence expiry date, the defendant should have permitted time spent by the claimant in custody in France to count towards a sentence he had been recalled to serve.[2]The recall took place in the following circumstances. The claimant, who was born on 24 January 1960, was remanded in custody in the United Kingdom on 6 September 1997. On 15 December 1997, the French authorities issued a European Arrest Warrant for his arrest. On 28 August 1998, the claimant was convicted in the United Kingdom of the importation of cannabis between April 1997 and September 1997, and on 11 December 1998, at Isleworth Crown Court, he was sentenced to 11 years' imprisonment. The previous month, on 2 November 1998, the claimant had been sentenced, in his absence, in France to 6 years custody for assisting in the importation or transportation of cannabis on 13 October 1996. That sentence of 6 years was reduced to 4 years on 9 June 2005. On 29 January 1999, the claimant was sentenced to another 7 years' imprisonment by a United Kingdom court for attempting to smuggle cannabis; that sentence to run concurrently with his earlier 11 year sentence.[3]The claimant was released on licence on 7 March 2003. One of the conditions of the licence was that he was not to travel outside of the United Kingdom without the permission of his supervising officer. On 30 November 2004, the claimant attempted to travel to Germany to visit his mother who was ill. He did not have the permission of his supervising officer. His attempt failed because he was arrested at Waterloo International Station by French Police on 30 November 2004 and was taken to France. Having been notified of these events, the defendant revoked the claimant's licence on 8 December 2004.[4]The claimant remained in custody in France until he was returned to custody in the United Kingdom on 27 December 2006. His representations to the Parole Board against his recall to custody were, in due course, rejected. The claimant asked the defendant to credit the period of just over 2 years that he had spent in custody in France against the outstanding period of his sentence in the United Kingdom. The defendant replied to the claimant on 18 July 2007:
"You were released on parole on 7 March 2003 and your licence was revoked on 8 December 2004. You were arrested by the police at Waterloo International Station on 30 November 2004, and returned to France where you had been sentenced in your absence to serve 6 years for drug related offences. If the UAL time were to be counted, you would be seen to have benefited from circumstances of your own making. You were required to serve a period of release under licence for your British sentence, you were also liable to serve a prison sentence for your French conviction. By allowing your UAL time to count, you will have met these obligations concurrently, reducing the punitive and deterrent effects of your sentences. As such, I do not see any exceptional circumstances in your application. It was noticed you have a period of 748 UAL taken into account on your current sentence. Therefore, your EDP remains and your 24.12.2007 and your estimated SED 23.09.2010"
[5]The defendant was asked by the claimant's solicitors, in a letter dated 12 November 2007, to clarify those matters. In the defendant's letter in reply, dated 17 December 2007, the defendant, in essence, maintained the position that had been set out in the earlier letter of 18 July 2007. It is the decision dated 17 December 2007 which is the decision which is under challenge in these proceedings.[6]The first question is whether the defendant was right to treat the claimant as "unlawfully at large" while he was in custody in France. Section 49(2) of the Prison Act 1952 provides that: "Where any person sentenced to imprisonment ... is unlawfully at large at any time during a period for which he is liable to be detained in pursuance of the sentence ... then, unless the Secretary of State otherwise directs, no account should be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the place in which he is required, in accordance with the law, to be detained".[7]Section 39(6) of the Criminal Justice Act 1991 (which continues to apply to the claimant's sentence of imprisonment) provides that: "(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence, and if at large, shall be deemed to be unlawfully at large".[8]These provisions are reflected in chapter 7 of PSO 6650, "Sentence Calculation":
"7.1.1 - When a sentenced prisoner ... has been unlawfully at large (UAL) from prison and is then returned to custody, the period of absence will not be treated as part of the sentence served unless the Justice Secretary directs that it should. In exceptional circumstances, it may be appropriate to allow a period spent UAL to count towards completion of the sentence. Each case will be considered on its individual merits, having regard to the following factors ..."
A number of factors are then set out.[9]Paragraph 7.2.4 is in these terms: "A prisoner who has had a licence revoked whilst not in custody will be deemed to be unlawfully at large. For sentence calculation purposes the first day of UAL time will be the day following the revocation of licence. The last day of UAL will be the day before arrest".[10]In my judgment, the claimant's contention that he was not unlawfully at large, because while he was in custody in France he was not "at large" and was unable to return to custody in the United Kingdom, is not well founded. The authorities to which Mr Rule, on behalf of the claimant, referred us, in my judgment establish the proposition that a prisoner is "unlawfully at large" if, for whatever reason, he is "absent from the place in which he is required, in accordance with the law, to be detained", see the R(S) v the Secretary of State for the Home Department [2003] EWCA 426, per Simon Brown LJ, as he then was, at paragraphs 21 to 23; and R(Lunn) v Governor of HMP Moorland [2006] EWCA Civ 7000, per Moore-Bick LJ giving the judgment of the court at paragraph 24.[11]Although Mr Rule sought to persuade us that these, and other authorities to like effect, could be distinguished, I am not persuaded that the factual distinctions between the cases affect the underlying principle. Once the claimant's licence had been revoked, he was absent from the place in which he was required to be detained in the United Kingdom following that revocation. It matters not that he was absent because he was detained by the French authorities.[12]PSO 6650 makes it clear that the defendant has a discretion to direct that a period spent unlawfully at large should be treated as part of the sentence served. Understandably perhaps, the PSO makes it clear that this discretion will be exercised only in exceptional circumstances (see paragraph 7.1.1 above).[13]Although it was submitted that the Secretary of State's decision, as reiterated on 17 December 2007, was unreasonable, there was, in principle, nothing unreasonable in the defendant's approach as set out in that letter. The claimant's conduct had been such that he was liable to serve two different prison sentences; one in France and one in the United Kingdom. There was no reason why serving one of those sentences should effectively reduce the length of time that he served in respect of the other sentence. I should emphasise that the claimant makes it clear, in the skeleton argument submitted on his behalf, that he does not rely on an overlap between the offending for which he was sentenced in the United Kingdom, and the offending for which he was sentenced in France. Had such an overlap been satisfactorily established by evidence, then it might have been an exceptional circumstance justifying the exercise of the defendant's discretion under paragraph 7.1 of the PSO. But, on the face of it, the offence in France for which the claimant was sentenced in his absence on 2 November 1998, pre-dated by some 5 months the importation of cannabis into the United Kingdom between April and September 1997.[14]That brings me to the principal ground on which it was submitted that the defendant should have exercised his discretion in the claimant's favour. The claimant relies by analogy on section 265 of the Criminal Justice Act 2003, and its predecessor, section 84 the Powers of the Criminal Court Sentencing Act 2000. Section 265 prevents a court, when sentencing a prisoner who has been released on licence to a further sentence of imprisonment, from ordering that the further sentence should commence on the expiry of the licence. The claimant's attempt to pray in aid the provisions of section 265 is not, in my judgment, well founded, either as a matter of law or as a matter of fact. Looking at the facts first of all, although the custodial sentence passed on the claimant in absentia was confirmed by the French courts on 9 June 2005, and reduced from 6 years to 4 years custody, after the claimant had been released on licence, both the French offence and the French custodial sentence for that offence had pre-dated the claimant's release on licence. Had the claimant succeeded in his attempt to leave the United Kingdom on 13 November 2004, and had he, after his release on licence, committed an offence in France for which he had then been sentenced by a French court to a term of imprisonment which he had then served before being returned to the United Kingdom, then there might have been some force in the claimant's submission. I emphasise the word might, because, as Mr Hall pointed out in his skeleton argument on behalf of the defendant, section 265 is a restriction on the powers of the court when passing a second sentence of imprisonment, it is not a restriction on the powers of the defendant when calculating the SED in respect of the first sentence of imprisonment from which a prisoner has been released on licence. Thus, both as a matter of law and on the particular facts of this case, section 265 is of no avail to the claimant.[15]There is a further consideration. The submissions based on section 265 and section 84 were advanced to us by Mr Rule, but those arguments were not raised in the letter dated 12 November 2007 from the claimant's solicitors, to which the defendant responded on 17 December 2007. I readily accept that the defendant is expected to know the law and, in so far as there was a statutory provision which was in the claimant's favour, the defendant would be expected to be aware of it and to act on it, even if the provision had not been referred to by the claimant's solicitors. But this challenge is concerned with the exercise of a discretion, and if a claimant does not suggest that a discretion should be exercised upon a particular basis, then he can hardly complain, many months, if not years after the event, that the decision maker failed to exercise his discretion upon that particular basis. Mr Rule submitted that the defendant's decision was unfair and arbitrary. Again, if it was self-evident that the decision was unfair or arbitrary as a result of the omission of an obvious factor which should be taken into account in the exercise of the discretion, then it might be said that, notwithstanding the failure to refer the Secretary of State to that matter, it should nevertheless have been taken into account, but that is a very long way from the submission which has been made in this case as to the analogy which should have been drawn with the statutory provisions in sections 265 and section 84. The short answer to this complaint is that the point was never raised with the Secretary of State and so the Secretary of State cannot be criticised for not taking these matters into account in the exercise of his discretion.[16]Finally, it was submitted that the defendant ought to have applied to the French authorities for the transfer of the claimant to the United Kingdom in accordance with the Repatriation of Prisoners Act 1984, to enable the claimant to complete his United Kingdom sentence. The claimant is a German national, although he is married to a British citizen and domiciled in the United Kingdom. The short answer to this complaint is that, whether or not any request was made to the French authorities, and the evidence about that is less than satisfactory, there is certainly no evidence that the claimant or anyone on his behalf ever asked the defendant to request the French authorities to agree to a transfer. The proposition that Article 8 imposed a positive obligation on the defendant to make such a request is simply unarguable. There was no material before the Secretary of State which might have imposed such an obligation. Moreover, since the claimant was returned to the United Kingdom on 27 December 2006, any complaint that the defendant had failed to request his return during the two years that he was in custody in France would be well out of time. The claim form, which did not make this complaint, was not issued until 19 February 2008. This particular complaint was not made until the amended grounds were served on 14 September 2009, some 2 years and 9 months after the claimant had been returned to the United Kingdom.[17]For these reasons, there is no substance in the second challenge to the defendant's decision that the claimant's SED is 23 September 2010.[18]Although Mr Rule submitted that the claimant should be awarded damages for the fact that he had wrongly been subjected to licence conditions between December 2007 and 18 March 2008, the claimant was not deprived of his liberty during that period, and the only practical impact on his family or private life is said to have been his inability during that period to visit his frail mother in Germany. While I sympathize, as anyone would, with the claimant that he was prevented from visiting his mother for 3 months or so, his inability to visit his mother for that period could not conceivably justify an award of damages. The defendant's prompt acceptance on 18 March 2008, within a month after the claim form was filed on 19 February 2008, that the licence conditions were unlawful, is sufficient relief and affords just satisfaction in the circumstances of the present case.[19]For my part, therefore, I would dismiss this claim for judicial review.

MR JUSTICE LLOYD JONES: I agree.

LORD JUSTICE SULLIVAN: Any further applications to be made, Mr Hall?

[22]MR HALL: My Lords, yes. I ask for an order for the defendant's costs to be assessed if not agreed, in respect of the amended grounds only. I accept that the original claim had merit in the sense that it was partially conceded, but in respect of the amended grounds, those have been unsuccessful. I make this application because the defendant has been recently economically active in the sense that, I understand, I was told today, he has recently been sentenced, since his release in 2007, for a further drugs dealing offence. If there is no confiscation order, or if there is a residue left after the confiscation order is satisfied, then there will be assets available. In principle, I submit that it is appropriate for a costs order to be made to cover the public cost of defending this matter.

LORD JUSTICE SULLIVAN: The claimant is not in receipt of public funding?

[24]MR HALL: I do not know. I am acting entirely on the basis of what I have been told, so if factually I am wrong about him recently having been sentenced to imprisonment, then I will be corrected.[25]MR RULE: My Lord, I think he is awaiting to be dealt with. He has pleaded guilty to another matter and is remanded in custody. He is not in receipt of funding, I am afraid he was at liberty when I was first instructed and I am not aware that any application has been made. I appreciate of course that often costs follow the event, but I do query whether or not, in light of the fact that there is partial success in light of the claim that he originally brought, and the fact that of course this is a point of law upon which I could certainly find no authority to advise him that the Secretary of State was correct in the decisions he had taken.

LORD JUSTICE SULLIVAN: Mr Rule, can you just tell me, you say he has pleaded guilty to another offence connected with drugs, is that right?

[27]MR RULE: Yes.

LORD JUSTICE SULLIVAN: And he is in custody awaiting sentence?

[29]MR RULE: Yes.

LORD JUSTICE SULLIVAN: I do not think we necessarily need to know the details, is it the sort of -- without prejudicing anything that might be said in the criminal proceedings -- is it simply the sort of matter that is likely to, or may well result in a lengthy custodial sentence?

[31]MR RULE: I am not instructed, can I just turn for a moment, but I believe the answer will be yes. Yes.

LORD JUSTICE SULLIVAN: I am asking you that because I cannot quite understand, what was the point in pursuing this today then, because the only practical effect was his sentence expiry date would be September this year.

[33]MR RULE: Yes.

LORD JUSTICE SULLIVAN: Now, I could quite understand that, for a person who was at liberty, there might be all sorts of irritating thoughts that you might be recalled back to prison and so on and so forth, so fair enough I did not ask you why we were pursuing this, because he is free and walking about in the community but he should not have a SED hanging over his head unless it is necessary. But, I mean, if he is actually, as of today, in custody and expecting a substantial prison sentence which I assume is going to go on beyond the SED, what on earth have we been doing this for?

[35]MR RULE: My Lord, it does have a practical consequence.

LORD JUSTICE SULLIVAN: What is it?

[37]MR RULE: Potentially at sentencing. It was that there were, without prejudice, discussions and this was not an issue that we were able to resolve and --

LORD JUSTICE SULLIVAN: -- well, there we are. It is a quarter to five, probably it is not the time to conduct some great inquisition of it. I merely say that judicial review is not an opportunity to run interesting, but thoroughly academic points of law, and I am bound to say, having received this information now that we are actually dealing with somebody who is in custody and expected to remain in custody for some considerable time, I do rather wonder what on earth my Lord and I have been doing for the last couple of hours or so, but there we are.

[39]MR RULE: My Lord, I could give a full answer but I am in difficulty doing so --

LORD JUSTICE SULLIVAN: -- then I shall not press you to do so. Very well.

[41]Anyway, so far as costs are concerned, that is your response. Otherwise, if he is not a legally aided litigant and he makes a claim for judicial review and does not succeed, unless there is a pretty good reason, he ought to pay the Secretary of State's costs it seems to me.[42]MR RULE: My Lord, I am not sure what the costs are, I have not seen a schedule. I cannot make any submissions on quantity, but on the principle of course what I do say is that he succeeded in part of the claim, so that is certainly a factor that at least might mean that it would be part rather than all.

LORD JUSTICE SULLIVAN: Well it is costs after the 18th. Mr Hall has confined himself to the costs of the amended grounds, when he might have said, in fact, anything after 18 March or whenever it was 2009 when the Secretary of State put his hands up on the licence conditions. The amended grounds come a long time after that, September.

[44]MR RULE: My Lord, I am helpfully reminded that one of the main grounds upon which we proceeded and upon which advice was given as to the prospects of success, was ground 3. We were served with documentation of that on 14 January. It has not been possible for anyone to visit Mr Baldauf and take his instructions on that new material. I have conceded, I hope properly, that that demonstrates to me that on the facts the material would suggest the (inaudible) was involved.

LORD JUSTICE SULLIVAN: It does seem to me you would have certain problems on delay on that point as well, would you not, raising that in September 2009?

[46]MR RULE: My Lord, of course there is substantial delay after legal advisers become involved while we investigated matters in France, but the point would have been, it would have been an effective recall. Had it been an unlawful and ineffective recall, nothing that would have followed would have made any sense and we would have been looking at a claim for damages for unlawful imprisonment for a large amount of time. The fact that that documentation came on Thursday in answer to our query about it, meant that we could of course avoid dealing with that ground at all today, but is also relevant to whether or not we would have taken, or there would have been opportunity for another view to be taken, because I know those certainly that those close to Mr Baldauf were able to convey the prospects of success, as they were advised, in relation to various grounds. It is a matter that is unfortunate in terms of the timing of it.

LORD JUSTICE SULLIVAN: Yes. We do not need to trouble you further Mr Hall, we think that the Secretary of State should have his costs as from the date of the amended grounds. Those costs to go for detailed assessment if not otherwise agreed.

[48]MR HALL: I am grateful.

LORD JUSTICE SULLIVAN: Thank you both.