Edwards, R (on the application of) v Governor of HMP Hatfield [2012] EWHC 3700 (Admin)

Case No CO/8776/2012[2012] EWHC 3700 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT LEEDS
The Courthouse
1 Oxford Row
Venue Leeds West YorkshireDate Thursday, 15th November 2012
England
LS1 3BG
B e f o r e:
HIS HONOUR JUDGE SHAUN SPENCER QC
(Sitting as a High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF EDWARDSClaimantv
Between
GOVERNOR OF HMP HATFIELDDefendant
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Mr R MacKenzie appeared for ClaimantMr William Hayes appeared for Defendant
Judgment
[1]HIS HONOUR JUDGE SHAUN SPENCER QC: This is a renewed application by Steven Geoffrey Edwards to seek judicial review against the governor of Her Majesty's Prison Hatfield and the Secretary of State for Justice.[2]The claimant has been, by the agreement of the court and the advocate for the defendants, represented as lay advocate by Mr Mackenzie and the defendants have been represented by Mr William Hayes.[3]The position is that the applicant seeks permission to challenge the decision of the governor of HMP Hatfield, the effect of which decision, given on 24th April 2012 was to calculate the release date for the claimant as 30th April 2013.[4]It is the case for the claimant that his release date should have been 19th October 2012. So his case would be that since 19th October 2012 he has been detained beyond the power of the defendants to detain him.[5]It is important that I should say a few words about the chronology in order that the submissions of the parties be clear. On 23rd February 2007 the claimant, Mr Edwards, was sentenced to a total of 12 years' imprisonment in respect of three counts. There was a count effectively of smuggling and evading the prohibition on importation - I think the prohibition related to cocaine. There were also two counts in the indictment which related at varying stages in the history to what would be known now as money laundering.[6]The 12 years' imprisonment which he received was made up of 9 years for the smuggling matter, 3 years concurrent for some aspects of money laundering and 3 years consecutive for a further offence of money laundering.[7]I state those facts as a result of gleaning various pieces of material from the order of the Court of Appeal (Criminal Division) and from the matters which the advocates have been able to supply me with on instructions. I have not seen an indictment. I have not seen a memorandum of conviction. I have not seen the transcripts of the decision from the Court of Appeal. But I will have a few words more to say about the decision of the Court of Appeal.[8]Thus far then we have a state of affairs where 12 years' imprisonment is imposed on 23rd February 2007. A direction was given that 190 days spent on remand count towards the sentence. Given the nature of the offending, confiscation proceedings took place. The confiscation proceedings were concluded on 12th June 2008. The papers do not include the confiscation order but the effect of it was, I am told, that £713,548.23 was to be paid. That, from my knowledge of confiscation proceedings, will have resulted from a finding of benefit in some figure which has not been disclosed to me and the £713,000-odd will have represented what the court found to be the recoverable amount. In these circumstances, terms in default are imposed and the term fixed by the judge making the confiscation order was one of 4 years.[9]The next event to happen was a committal order that was imposed by the Leeds Magistrates' Court on 17th August 2011. The committal order read as follows:
"On 12th June 2008 the Crown Court sitting at Hull made the defendant the subject of a confiscation order under the following Act: Drug Traffic Act 1994. Having already convicted the defendant of the following offences, being knowingly concerned in the fraudulent evasion on prohibition of importation of controlled drug."
It was recited that the defendant was ordered to pay the £700,000-odd already referred to. It is stated that the current outstanding sum, (and this is obviously the figure for principal) was £569,213.15 and that the current outstanding sum including accrued interest amounted to £676,203.67.[10]The decision was as follows:
"The court has today found that the defendant has failed to pay the above mentioned sum and any accrued interest and in default of payment the court orders you to be committed to prison for a period of 1384 days. This term of imprisonment is to be served consecutive to any sentence the defendants may by currently serving."
I understand that that figure of 1384 days was later reduced to 1245 days following a payment made against the balance of the confiscation order.[11]If I pause there, it would seem to follow that the term ordered to be served by the committal order, namely 1384 days would have commenced on the expiration of the 12-year sentence, that being the sentence which he was serving.[12]The reason for this application arises out of the fact that on 3rd April 2012 Mr Edwards - I say made an appearance, he was not present in fact - his appeal was heard at the Court of Appeal (Criminal Division). The appeal was allowed and the 3 year consecutive sentence on count 2, which was imposed in the court below was altered by being made a concurrent sentence. So the total sentence was 9 years' imprisonment, with an order under section 27 of the Misuse of Drugs Act 1971. So by 3rd April 2012 the figure of 12 years' imprisonment is 9 years' imprisonment.[13]The argument for the applicant is simplicity itself: Mr Mackenzie submits to me that the commital in respect of the unpaid amount of the confiscation order was expressed to be consecutive to the sentence which he was serving. When the warrant of committal was made it was consecutive to 12 years. After the order of the Court of Appeal it must have been consecutive to 9 years.[14]It is argued against him that that amounts to backdating the order. His submission is that that is not so. The order itself is not backdated. It may be that its effect is brought back to a different point in time.[15]The argument for the defendants is that obviously the date of the committal order of 17th August 2012 cannot be one which is consecutive to 12 years because the 12 years has gone. The submission further is that it cannot be backdated so it must run from 17th August 2012.[16]As I understand it, I have not been presented with a precise figure but there are about 6 months effective custody, as represented by the difference between the two positions.[17]This is an interesting point. If the defendants are right, then Mr Edwards, as already stated, loses some of the benefit of his appeal being allowed on 3rd April 2012. I am invited to say by the defendants that the application is unarguable. I do not think it is. I make no conclusion myself on the point; that will be for whomever it is that hears the case. But I take the view that there is an argument of an interesting kind to be presented and that the claimant should have the opportunity to present it.[18]Given his current circumstances, I will make an order for expedition. Are there any further directions?[19]MR HAYES: No thank you, my Lord.[20]MR MACKENZIE: Thank you, my Lord.

HIS HONOUR JUDGE SHAUN SPENCER QC: There is no order for costs of today?

[22]MR MACKENZIE: No my Lord.