James, R (On the Application Of) v HMP Birmingham [2013] EWHC 4657 (Admin)

[2013] EWHC 4657 (Admin)Case No CO/12013/2013-CO/350/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Priory Courts
33 Bull Street
Venue BirminghamDate Wednesday, 23rd October 2013
West Midlands
B4 6DS
B e f o r e:
MR JUSTICE LEWIS
Between
THE QUEEN ON THE APPLICATION OF JAMESClaimantv
Between
GOVERNOR OF HMP BIRMINGHAMDefendant
Tape Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr De Mello & Mr Muman appeared for ClaimantMr Najib appeared for Defendant
J U D G M E N T
[1]MR JUSTICE LEWIS: These two cases involve applications for permission to apply for judicial review. Both cases involve an individual, Mr James, who on two separate occasions was committed for contempt of a breach of an order of the court.[2]The issue arises out of the fact that in both cases Mr James spent a period of time in police detention prior to being dealt with by the court. The issue that arises is whether or not there has been any illegality in relation to the crediting of time spent in police detention and whether or not there is an arguable case that there has been unlawful discrimination contrary to Article 14 of the ECHR as between people sentenced to imprisonment for a criminal offence and the position of people who are sentenced for civil contempt, that is breach of a court order.[3]I have considerable sympathy with Mr James and with the judges who dealt with this case because of the complexity of the legal provisions in issue. The starting point is that the order of the County Court in these two cases both provided that a power of arrest was to be attached to the order. Section 43 of the Policing and Crime Act 2009 provided that where a power of arrest was attached to an order, then a Constable could arrest a person whom he had reasonable cause to suspect to be in breach of that provision. Then he would bring the person before the court.[4]In this case Mr James was made the subject of a final injunction in order to prevent gang related violence under the Policing and Crime Act 2009. That order was imposed on 19th October 2012. He broke that injunction and entered into an area where he should not have gone on 29th November 2012. He was arrested. The claimant spent I think 7 days or so in police detention. Eventually, on 5th November he was brought before His Honour Judge McKenna and Judge McKenna sentenced the claimant to a period of 3 months' imprisonment. His Honour Judge McKenna subsequently amended that order by hand and he said 3 months with credit for time spent on remand.[5]As it happened by the time that the order was made 3 days of that 7 days had already passed and the first issue in relation to the first case is whether or not it is arguable that detention for that first period of 3 days was unlawful or whether it was authorised under the initial order of Judge McKenna. In any event he continued to be detained even after the order of His Honour Judge McKenna and the Secretary of State accepts that the period of detention after the amendment of the order is unlawful. So for the first case we are looking at a period of 3 days when the order of His Honour Judge McKenna had sentenced Mr James to 3 months' imprisonment and prior to the amendment.[6]On the second occasion the claimant again broke the anti gang injunction, as it is called, and he spent a period of 7 days in police detention. He was produced at the County Court again and on the 15th July 2013 and again His Honour Judge Worcester sentenced him to 3 months' imprisonment for contempt of court by reason of the breach of the order.[7]On that occasion the order does not to refer to any credit being given for the 3-day period in police custody. The acknowledgement of service from the Secretary of State accepts that it was suggested orally at the hearing that the judge contemplated that credit would be given.[8]So in the first case we are dealing with a period of 3 days pursuant to an order of the court prior to it being amended to exclude a period of time spent in police detention. In the second case we are dealing with a period of number of days where the order provided for 3 months' imprisonment and there was no amendment to the order but a suggestion orally that time spent in police detention might count.[9]Critical to Mr De Mello's case on behalf of Mr James is this. He says that the detention during those days in question is unlawful because he says, firstly, that time spent in police detention pursuant to an arrest by a Constable under an order made by the court is time which counts towards remand.[10]The position in relation to these matters is complex. Initially under the Criminal Justice Act 1967 there was provision expressly for periods spent in police detention to be counted towards a sentence for imprisonment for a criminal offence although there was no provision for time in police detention to count towards a sentence in cases of civil contempt. However, the law was amended with effect from 4th April 2005. From that date the position in relation to periods of time in custody is regulated by section 240 of the Criminal Justice Act 2003. That provided for crediting of periods of remand in custody, and it applied where a court sentenced an offender to imprisonment for a term in respect of an offence and the offender has been remanded in custody. One then goes to the definition of when has a person been remanded in custody. Section 242 of the 2003 Act provides that includes a person who is remanded in or committed to custody by order of a court. There is no provision for time spent in police custody to count towards a period of imprisonment for civil contempt.[11]Mr De Mello submitted that it is arguable that a person who is detained in police custody pursuant to a court order attaching a power of arrest, where that order has as its sole purpose enabling the person to be brought before the court to be dealt with, in effect amounts to being remanded in custody by order of a court. In my judgment it is not arguable that a period of time spent in police detention is a period of time where the person has been remanded in custody by order of the court. Firstly, it is detention pursuant to a power of arrest and the arrest is permitted by section 43 of the Police and Crime Act 2009. Secondly, he has not been remanded in custody by order of the court. He has been arrested pursuant to an order of the court and kept in police detention by a police officer who has the power to detain him. Thirdly it is clear from the provision of section 43 of the Policing and Crime Act 2009, that the act drew a distinction between detention pursuant to a power of arrest and remanding in prison because section 43(5) expressly refers to the judge remanding the person in prison and that strongly points, indeed in my judgment conclusively points, to remanding by a court being different from arresting pursuant to a power of arrest. Fourthly, the legislative history that I referred to whereby police detention is expressly dealt with and then that was removed supports the conclusion.[12]The consequence is therefore that a court could not have credited Mr James with time spent in police detention. It would not matter whether he was a civil contemnor or somebody convicted of a criminal offence. In neither case would the period in police detention have counted towards the period of time for which he was sentenced.[13]In terms of the grounds of challenge, that matter concludes the second ground of challenge, the claim that there is unlawful discrimination contrary to Article 14 ECHR when you compare the position of people who are sentenced for a criminal offence with people who are sentenced for civil contempt.[14]There is in fact no difference in treatment. In neither case will a period of time in police detention be counted towards the period in custody under the sentence. Given that there is no differential treatment there cannot by definition be any unlawful discrimination contrary to Article 14.[15]The second point that Mr De Mello raises is that the detention was still contrary to Article 5(1) of the ECHR for this reason.

(a) and (b) of ECHR provides:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a. the lawful detention of a person after conviction by a competent court; b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law..."
Mr De Mello very attractively and very persuasively contends that His Honour Judge McKenna did not intend the claimant to spend the whole of the 3 months in prison. He intended him to spend 2 months and 3 weeks. He says that the oral indications from His Honour Judge Worcester in July 2013 was to like effect. He says therefore, it was a breach of Article 5 for those oral indications not to be given effect to and for the claimant to be detained for periods when neither the judge was intending them to be detained for.[16]The short answer to that is the legal instrument pursuant to which detention in prison is authorised is the order of the County Court. In the first case the original order of His Honour Judge McKenna was imprisonment for a period of 3 months. Detention under that order until it was amended was lawful under Article 5 ECHR. Similarly, in relation to His Honour Judge Worcester's order in July 2013, he ordered imprisonment for a period of 3 months. That is the order of the court which authorises the detention and detention pursuant to a lawful order of the court is compatible with Article 5 of the ECHR.[17]In so far as oral indications were made. Firstly, until the order is amended they are oral indications by the judge as to what he would like his order to achieve. But the question of what his order achieves is to be determined by looking at the order itself. Secondly, the likelihood is and undoubtedly in my judgment, that what His Honour Judge McKenna and what His Honour Judge Worcester was seeking to do was to make sure that Mr James did not spend longer in prison than any person convicted of a criminal offence would spend and they appear to have assumed that the person convicted of a criminal offence would get the time in custody counted.[18]However, that was a misapprehension. Time spent on remand in prison would count but we are dealing with time spent in police detention pursuant to a power of arrest. In fact there would be no difference in treatment if Mr James and a hypothetical criminal were convicted and both had periods of 3 months' imprisonment ordered. Neither of them would have time shortened to take account of periods spent in police detention. So the likelihood is that the oral observations of His Honour Judge Worcester and the observations of His Honour Judge McKenna and indeed the wording that the latter judge used when he amended the order was based on a false premise that time in police detention would count for a person convicted of a criminal offence but not for a civil contemnor. In fact that is not the case. However, the first ground of challenge in relation to lawfulness of the detention is unarguable simply on one basis, the order of the court, in the first case, provided until it was amended on 14th July for detention for 3 months, as did the second order. The detention in accordance with those orders was lawful and compatible with Article 5.[19]For those reasons this application for permission in both the first case and the second case is refused.