Shields-MckInley, R (On the Application Of) v The Secretary of State for Justice the Lord Chancellor [2017] EWHC 658 (Admin)

[2017] EWHC 658 (Admin)Case No CO/4059/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/04/2017
Before
MR JUSTICE HOLROYDE
Between
THE QUEEN on the Application ofClaimantDESMOND SHIELDS-McKINLEYClaimantTHE SECRETARY OF STATE FOR JUSTICEDefendantTHE LORD CHANCELLORDefendantTHE CROWN COURT AT DERBYInterested Party
Mr Philip Rule & Mr Ian Brownhill (instructed by Duncan Lewis Solicitors) for ClaimantMr Myles Grandison (instructed by Government Legal Department) for Defendant for The Interested Party was not representedHearing Hearing date: 9 th February 2017
Judgment Approved
[1]In September 2012 Mr Shields-McKinley (“the Claimant”) was extradited from Germany to face trial in this country on a number of serious charges. He was subsequently convicted at his trial and was sentenced to an extended sentence of imprisonment. In calculating his date of release, Her Majesty’s Prison Service (“HMPS”) took into account, and gave credit for, the whole of the period of time when he was remanded in custody in this country; but the Claimant received no credit for a period of 50 days when he was detained in Germany awaiting his extradition. In these proceedings the Claimant seeks judicial review of the following decisions by the Secretary of State for

Justice and Lord Chancellor (“the Defendant”):

“(i) Ongoing failure to credit time spent on remand abroad; (ii) Ongoing flawed calculation and unlawful imprisonment; and (iii) Failure to release the Claimant by exercise of prerogative or other powers.”
[2]On 26 August 2016 Holgate J granted the Claimant’s application for a writ of habeas corpus and ordered a rolled-up hearing of the application for permission and, if permission be granted, the application for judicial review.[3]The Defendant is sued on the basis that as Secretary of State for Justice she is responsible for any unlawful acts or omissions on the part of HMPS in calculating a prisoner’s release date, and that as Lord Chancellor she is responsible for any unlawful acts or omissions on the part of Her Majesty’s Courts and Tribunals Service (“HMCTS”).[4]I am grateful for the written and oral submissions of Mr Rule and Mr Brownhill on behalf of the Claimant, and of Mr Grandison on behalf of the Defendant. The Interested Party took no part in the proceedings, save to assist the court by providing some information to which I refer below.[5]The legislative framework: The Criminal Justice Act 2003 (hereafter, “CJA 2003”) contains provisions which govern the crediting of periods of remand in custody towards an eventual sentence of imprisonment. Until its repeal by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”), section 240 of the CJA 2003 (hereafter, “s240”) stated in material part – “(3) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence. (4) Subsection (3) does not apply if and to the extent that –(a) rules made by the Secretary of State so provide …(b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. (5) Where the court gives a direction under subsection (3), it shall state in open court – (a) the number of days for which the offender was remanded in custody, and (b) the number of days in relation to which the direction was given. (6) Where the court does not give a direction under subsection (3), or gives such a direction in relation to a number of days less than that for which the offender was remanded in custody, it shall state in open court – (a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or (b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.” (b) it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. (a) the number of days for which the offender was remanded in custody, and (b) the number of days in relation to which the direction was given. (a) that its decision is in accordance with rules made under paragraph (a) of subsection (4), or (b) that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.”[6]The practical application of that section gave rise to a number of problems. The information provided to a sentencing court in respect of the period of time spent on remand in custody was sometimes mistaken, and the mistake was sometimes not appreciated until after the expiration of the time within which an error could be corrected. In R v Gordon [2007] 1 WLR 2117 the Court of Appeal, Criminal Division (“CACD”) approved the use of a formula which would avoid such problems:
“We see no reason why the judge cannot use language making clear that he is directing that the defendant should receive credit for the full period of the time spent in custody on remand (or any particular part of that period), that on the basis of the information currently before him the relevant period is X days, but if this period proved to be based on an administrative error, on being informed, the court would order an amendment of the record for the correct period to be recorded. Approaching the problem in this way, the number of days to be credited may properly be regarded as a temporary rather than a final order, and therefore open to correction if and when any error emerges.”
[7]Such a formula was used by the sentencing judge in R v Leacock [2014] 2 Cr App R(S) 12, a case on which the Claimant relies. The judge had said - “It is my intention that all defendants should receive credit for time served and such periods as have already been calculated and stated in this court or whatever period subsequently appears to be the right calculation of the period served on remand prior to sentence.” In Leacock’s case, the judge had stated that the period of remand to be taken into account was 184 days. For some of that period, however, Leacock had been serving another sentence, and was therefore not entitled to credit. When that error was appreciated, the order was amended by a clerk at the Crown Court, without a hearing, to show the correct period of 115 days. Leacock’s appeal (on the ground that the clerk of the court had no power to make such an amendment) was dismissed, the CACD concluding – “… there was power to correct the error in the order made under s240(3) as the formulation used by the judge was that which followed the suggestions of this court and the order drawn by the clerk was also an order under s240(3) as that was the only subsection under which an order could be made.”[8]With effect from 3rd December 2012 (more than a year before the Claimant was sentenced), LASPO repealed the former section 240 and replaced it with CJA 2003 section 240ZA (“s240ZA”), which is headed “Time remanded in custody to count as time served: terms of imprisonment and detention”. So far as is material for present purposes, s240ZA states: “(1) This section applies where –(a) an offender is serving a term of imprisonment in respect of an offence, and(b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence. (2) … (3) The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence.” (a) an offender is serving a term of imprisonment in respect of an offence, and (b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence.[9]The effect of that amendment is that, so far as remand in custody in England and Wales is concerned, an offender who is sentenced to a term of imprisonment will automatically receive credit for each day of his remand. It is no longer necessary for the court to make any pronouncement in that regard; and the court has no discretion to refuse or limit such credit.[10]Section 240A of the CJA 2003 (“s240A”), as amended with effect from 3rd December 2012, makes separate provision for offenders who prior to being sentenced have been remanded on bail, but subject to a qualifying curfew condition and an electronic monitoring condition. Subsection (2) of that section provides that where an offender has been on bail subject to such conditions, the court must direct that “the credit period” is to count as time served by the offender as part of the sentence. The section goes on to specify the series of steps by which the court must calculate the “credit period” (which, in essence, is one half of the number of days for which the offender was subject to the qualifying curfew). Subsection (8) then requires:
“(8) Where the court gives a direction under subsection (2) it shall state in open court - (a) the number of days on which the offender was subject to the relevant conditions, and (b) the number of days (if any) which it deducted under steps 2 and 3.” (a) the number of days on which the offender was subject to the relevant conditions, and (b) the number of days (if any) which it deducted under steps 2 and 3.”
[11]Section 242 of the CJA 2003 (“s242”) is headed “Interpretation of sections 240ZA and 240A”. Subsection (2) states – “(2) References in sections 240ZA and 240A to an offender’s being remanded in custody are references to his being (a) remanded in or committed to custody by order of a court, (b)remanded to youth detention accommodation under section 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or (c) remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the Mental Health Act 1983.” (b)remanded to youth detention accommodation under section 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or (c) remanded, admitted or removed to hospital under section 35, 36, 38 or 48 of the Mental Health Act 1983.”[12]Separate provision is also made, by section 243 of the CJA 2003 (“s243”), for offenders who have been extradited from abroad after spending some time in detention in the country from which they were extradited. Before considering that section, it is necessary to refer to provisions of European law on which Mr Rule relies.[13]So far as is material for present purposes, Article 34(2) of the 1992 Treaty on European Union provides – “The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may –(a) …(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.”[14]One such framework decision, which the United Kingdom has adopted, is the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). For convenience, I shall refer to this as “the Framework Decision”.[15]Article 1 of the Framework Decision, headed “General Principles”, is in the following terms:
“Article 1 Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty of the European Union.”

Definition of the European arrest warrant and obligation to execute it

[16]Article 26 states – “Article 26 Deduction of the period of detention served in the executing Member State 1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed. 2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender.”

Deduction of the period of detention served in the executing Member State

[17]Article 26 has been incorporated into the law of England and Wales by CJA 2003 s243.[18]The proper interpretation of s243, as amended, lies at the heart of this claim. It is headed “Persons extradited to the United Kingdom” and provides as follows: “(1) A fixed-term prisoner is an extradited prisoner for the purposes of this section if –(a) he was tried for the offence in respect of which his sentence was imposed or he received that sentence - (i) after having been extradited to the United Kingdom, and (ii) without having first been restored or had an opportunity of leaving the United Kingdom, and(b) he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in para (a). (2) In the case of an extradited prisoner, the court must specify in open court the number of days for which the prisoner was kept in custody while awaiting extradition. (2A) Section 240ZA applies to the days specified under subsection (2) as if they were days for which the prisoner was remanded in custody in connection with the offence or a related offence.” (a) he was tried for the offence in respect of which his sentence was imposed or he received that sentence - (i) after having been extradited to the United Kingdom, and (ii) without having first been restored or had an opportunity of leaving the United Kingdom, and (b) he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in para (a).[19]It should be noted that s243 as originally enacted did not include the requirement in subsection (2): it merely provided that in the case of an extradited prisoner, s240 had effect as if the days for which he was kept in custody whilst awaiting extradition were days for which he was remanded in custody in respect of the offence, or any other offence the charge for which was founded on the same facts and evidence. The requirement that the court must specify the number of days in open court was introduced by one of the amendments made by LASPO. Thus Parliament by LASPO removed the requirement under the former s240(3) for the court to make a direction in respect of time spent remanded in custody in this country, but at the same time introduced the requirements in the present s240A(8) and s243(2) for the court to state in open court the number of days on which the offender was subject to relevant bail conditions, etc, or to specify in open court the number of days spent in detention abroad whilst awaiting extradition.[20]The facts: The relevant events can be summarised briefly. In about December 2011 the Claimant committed a number of serious offences. On 4th January 2012 he left this country and went to live and work in Germany. On 20th April 2012 a warrant for his arrest was issued by a magistrates’ court in Derbyshire. On 11th May 2012 a European Arrest Warrant was issued by a magistrates’ court in Leicester. On 18th July 2012 the Claimant was arrested in Germany and was kept in detention for a period of 50 days until on 6th September 2012 he was extradited to the United Kingdom to stand his trial. Upon his arrival in this country, he was remanded in custody pending his trial. The period of remand was substantially prolonged by the Claimant’s decision to sack his legal representatives very shortly before his trial, and to make a successful application for an adjournment in order to obtain fresh representation.[21]On 2nd December 2013 the Claimant was convicted of seven offences. On 31st January 2014 the court imposed for the most serious of those offences an extended sentence of imprisonment, pursuant to section 226A of CJA 2003, comprising a custodial term of 4 years’ imprisonment and an extended licence period of 4 years. Shorter concurrent sentences were passed on other counts, and appropriate ancillary orders were made.[22]By the time that sentence was imposed, the Claimant, in addition to the period of 50 days during which he was detained in Germany (hereafter referred to, for convenience, as “the Germany days”), had been remanded in custody in this country for no fewer than 511 days.[23]The learned Recorder who passed sentence upon the Claimant (having presided over his trial) did not refer in his sentencing remarks to either of those periods, and said nothing about the extent to which they would count towards the Claimant’s total sentence. As has been seen, it was unnecessary for him to say anything about the period of remand in custody in this country; but he should have made specific reference to the period of detention in Germany, and should have specified 50 days pursuant to s243(2).[24]In fairness to the Recorder, it should be noted that in its Acknowledgment of Service the Interested Party indicated that the Recorder had been asked for his comments: he had responded to the effect that if anyone on the Claimant’s side had drawn his attention to the point, and presented him with appropriate evidence, he is sure he would have made an order giving the Claimant credit for the time spent on remand in Germany. So far as the material now available shows, however, it does not appear that either prosecution or defence counsel made any submission to the Recorder in that regard. It is difficult to understand why that was so. The relevant statutory amendments had by that stage been in force for about a year. Both prosecuting and defence counsel owed professional obligations to assist the Recorder with all relevant sentencing provisions. Both parties must have been aware, and the available material confirms that they were aware, that the Claimant had been extradited from Germany: it is far from clear that any of the lawyers knew for sure whether he been detained in custody there, and if so for how long, but one would have expected the mere fact of extradition to raise an enquiry on both sides as to whether there had been any period of detention in custody. The Claimant himself of course knew that he had been in custody in Germany, and one would have expected him to mention that fact to his legal representatives even if he did not know either the precise dates of his detention or the legal effect of time in detention abroad. The pre-sentence report, which defence counsel and the Recorder would have read before sentence was passed, said that the Claimant has been “remanded in custody following his arrest in Germany and his subsequent arrival in the UK in July 2012”, which may have given the erroneous impression that any period of detention in Germany must have been extremely brief.[25]Sadly, counsel who represented the Claimant before the Crown Court has subsequently died. Although enquiries have been made, it does not appear to have been possible to obtain any information from either prosecution counsel or the former defence solicitors.[26]In addition to their professional duty to assist the court with relevant statutory provisions at the time of sentencing, the Claimant’s former counsel was under a professional duty to advise him as to the merits of an appeal against sentence. Given that no application was made at the time for leave to appeal against sentence, it must be inferred that either any such advice was in negative terms, or the Claimant specifically indicated that he did not wish to appeal. The important point, for present purposes, is that the giving of advice as to whether there were any grounds to appeal provided another opportunity for those representing the Claimant in the Crown Court proceedings to identify, and to take steps to remedy, the omission to specify the Germany days as part of the sentencing procedure.[27]Be all that as it may, and wherever the explanation may lie, the simple fact is that the Recorder should have specified the appropriate number of days of detention abroad (i.e. the 50 days, as could easily have been ascertained had an enquiry been made), but failed to do so.[28]The practical consequence for the Claimant of the Recorder’s failure to specify the Germany days can be stated briefly. HMPS credited the Claimant with 511 days as days spent on remand in custody (in this country) which counted towards his sentence. No issues arise in that regard. HMPS did not, however, give any credit for any of the days spent in detention in Germany. When belatedly asked to do so by the Claimant’s advisers in connection with these proceedings, HMPS declined, on the basis that they had no power to do so as no such days had been specified, and accordingly no such days could be treated as if they were days on remand.[29]What could and should have been done about the omission to specify the Germany days in open court? If anyone had appreciated the omission at the time, a simple remedy was available. By section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, a sentence may be varied by the Crown Court within the period of 56 days beginning with the day on which the sentence was imposed. It is unnecessary to set out the detailed provisions of that section: in the circumstances of this case, it is perfectly clear that if the Claimant’s solicitors had made an application to the court within 56 days, the error would have been corrected and the appropriate number of days would have been specified in open court as section 243(2) of the 2003 Act requires. That was not done. Again, it is difficult to understand why not.[30]Once the period of 56 days had expired, the Crown Court had no power to rectify an error or omission (see, eg, R v Hoggard [2014] 1 Cr App R(S) 42 at para 9). The Recorder had not said anything in the form of the direction recommended in Gordon, enabling any necessary correction to be made administratively at a later stage. The Crown Court was therefore functus officio. It would however have been open to the Claimant to make an application to the CACD for leave to appeal against his sentence.[31]Such an application should be made within 28 days after sentence is imposed, and accordingly the Claimant would also have had to apply for an extension of time. Whether such an extension would have been granted would depend on the length of the delay and the explanation for it: in R v Irving [2010] 2 Cr App R (S) 75 (a case specifically concerned with an error in the application of s240A) the Vice-President of the CACD said (at paragraph 13) – “This Court should, we think, scrutinise with some particularity applications for long extensions of time when the sole complaint is an error of calculation relating either to s240 or s240A. We have it in mind that prisoners are usually provided with their earliest date of release, that is to say when they are eligible for release on licence, early and often very early in their sentence. Most prisoners, but not all, have a pretty good idea of when it ought to be. If a major error has been made they are likely to spot it. If the error is a matter of a very few days that might not be spotted but the consequences are much less serious. It ought not to be expected that this Court will routinely grant long extensions of time to correct such errors when no one has applied his mind to the issue until long after the event. As always, if a defendant wishes to appeal he must get his application lodged promptly.” Subject, however, to the Claimant satisfying the court that he had not been dilatory, or that he should not be prejudiced by any error on the part of his legal representatives, he would in principle have been able to seek leave to appeal against his sentence and invite the CACD to vary the pronouncement of sentence so as to give him credit for the Germany days.[32]The Claimant did not, however, do so: no such application has ever been made to the CACD. Surprisingly, it was not done in March 2015 when the Claimant was engaged in correspondence in which he pursued a complaint relating to an issue as to whether the Recorder had recommended that he be deported at the conclusion of his sentence. Even more surprisingly, it was not done in April 2016, when the Claimant’s present solicitors first raised the issue of credit for the Germany days. No satisfactory explanation has been given of why that obvious course was not taken.[33]The present proceedings: HMPS calculated the Claimant’s release date as being 6th September 2016. Subject to the issue as to credit for the Germany days, there is no challenge to the correctness of that calculation. The Claimant continued to serve his sentence towards that release date. It appears that in or about April 2016 his present solicitors, who had been instructed in relation to a different issue, identified the issue of credit for the 50 days. They wrote a pre-action protocol letter on 4th April 2016. Headed “Urgent”, and requiring a response within 14 days, the letter notified a proposed claim in respect of the Defendant’s “failure to take into account time spent on remand in Germany and thereby incorrectly calculating his sentence”, and in respect of “the Defendant’s potentially unlawfully detaining the Claimant from July 2016 onwards”. The letter contained an incorrect assertion as to the length of the detention in Germany which had not been taken into account: that period was wrongly said to have been from 11th July to 7th September 2012, and was referred to as “around 2 months”.[34]In a reply dated 12th April 2016, the Ministry of Justice’s Sentence Calculation Policy Lead agreed that under s243, time spent in custody abroad should be counted towards the sentence, but explained that HMPS “cannot credit the time unless it has been directed to count by the sentencing court”. She advised the Claimant’s solicitors to “approach the courts and request that they send an amended Order of Imprisonment to the Prison Service that details how many days they are directed to count under section 243”. Such a direction, she said, would be honoured by HMPS.[35]The problem with that alluringly simple approach is that, as I have indicated above, the Crown Court had no power to “send an amended Order of Imprisonment” after the expiration of the 56-day period during which the slip rule can operate. The order of imprisonment which had been issued when the Claimant was sentenced was in compliance with the sentence pronounced by the Recorder, and the time within which the Crown Court could correct any error had ended in late March 2014.[36]The Claimant’s solicitors wrote to the Crown Court at Derby on 13th April 2016, asking for “an urgent amended order of imprisonment directing how many days our client has spent in custody abroad”. This letter, however, contained a different incorrect assertion as to period of detention in Germany:
“We are aware that he spent 3 months in Germany pending extradition to the UK. As stated, without a direction in respect of the time, the Prison Service will not be able to credit any time and therefore his release date will be delayed by 3 months. We are instructed he spent from July 2014 to September 2014 imprisoned in Germany.”
No explanation has been given as to why the period stated in the second letter differs from that stated in the first.[37]Mr Rule tells me, and I accept from him, that there was no reply to the letter of 13th April. That is regrettable.[38]With the assistance of the National Crime Agency (“NCA”), HMPS made further enquiries in the light of the pre-action letter, but there was delay in doing so. That, too, is regrettable.[39]The initial response of the German authorities, communicated to the NCA on 15th August 2016, was – “There are no data in our files concerning a detainment of the subject in Germany.” It was not until 23rd August 2016 that the NCA received from the German authorities the information that the Claimant had been “provisionally detained pending extradition” from 18th July to 6th September 2012. Mr Rule points out that once the enquiries of the German authorities began in earnest, the necessary information was obtained in less than two weeks. Mr Grandison responds that the defendant was under no obligation to obtain the information any earlier. It is not clear to me why this issue arises at all, because as I have indicated above, Article 26(2) of the Framework Directive required the German authorities to provide “all information concerning the duration of the detention” at the time of the extradition. There is no information before me as to whether that was done or, if not, why not.[40]The Claimant issued this claim for judicial review, together with a claim for habeas corpus, on 11th August 2016, and sought an urgent hearing. Directions were given to that effect, and the matter came before Holgate J on 26th August 2016. It is not clear to me why the Claimant had waited until the vacation before commencing proceedings, despite knowing that the time when he contended he should be released expired in July. The consequence of that delay was that the application for habeas corpus came before Holgate J when he was sitting as vacation judge and when only limited time was available for the hearing.[41]Holgate J made an order that the Claimant be released immediately. He helpfully provided a note of his summary reasons for making that order, from which it is apparent that the court had been placed in a difficult position: prior to the hearing, it had appeared that the Defendant would not be opposing the grant of habeas corpus, and no skeleton argument had been filed in respect of that issue; but at the hearing (which had been listed for only one and a half hours) it transpired that such an order was opposed. Thus the issue of the court’s jurisdiction to order immediate release was only raised at the hearing, without adequate consideration of the principles and authorities and without relevant information which could have had a bearing on the issues. Holgate J stated – “The primary reasons for my decision to order immediate release were that it was common ground that by Article 26 of the Framework decision the Claimant was entitled to have his time spent on remand in Germany count against his sentence and it had not been shown that the domestic legislation enacted to provide machinery for that purpose, or any other legal principle, had had the effect of ousting the High Court’s jurisdiction to order immediate release in these unusual circumstances.”[42]In a further note on which Mr Rule understandably relies, Holgate J added this:
“If it had been necessary to go further, I would have been prepared to construe the Criminal Justice Act 2003 so as to give effect to the Claimant’s eligibility for release under Article 26, if necessary by reading in words (not inconsistent with the express language of the 2003 statute) in order to do so (see eg Pupino [2006] QB 83). During argument I also asked Mr Grandison whether Article 26 had a direct effect upon which the Claimant was entitled to rely in the High Court. I understood him to doubt whether that was so, but it was not a point to which he had been able at that stage to give any considered thought. After the hearing Mr Grandison helpfully drew my attention to Cretu v Local Court of Suceava [2016] EWHC 353 (Admin), which could be taken to indicate that there is a direct effect, but this is a matter upon which the Defendants have not reached a considered, final view and I was unable to reach a conclusion on it at this stage.”
[43]The principal submissions: For the Claimant, counsel advance three grounds for judicial review: i) Even though the Recorder did not specify the Germany days in open court, the Defendant was nonetheless obliged to calculate the sentence in accordance with s240ZA (which, on its proper construction, clearly requires the Germany days to be credited towards the Claimant’s sentence) or in accordance with the Framework Decision. ii) Once the Defendant became aware that the Claimant had not been credited with the 50 days, she was duty bound to secure his release by the exercise of her prerogative power. iii) As a result of the Defendant’s failure to release the Claimant, he was unlawfully detained from 17th July 2016 (the date when his sentence would have expired if credit had been given for the Germany days) until 26th August 2016 (when he was released by order of Holgate J) and his Article 5 right to liberty was thereby breached.[44]On behalf of the Defendant, Mr Grandison submits: i) This claim raises a matter relating to trial on indictment and so there is no jurisdiction to grant judicial review: see section 29(3) of the Senior Courts Act 1981. ii) Alternatively, even if there would be jurisdiction to grant judicial review, it should be refused because a suitable alternative remedy was available. iii) The Defendant was obliged to detain the Claimant, and he was at all material times lawfully detained, pursuant to a sentence of the Crown Court. iv) It would not have been appropriate for the Defendant to exercise her prerogative powers to release the Claimant at any time before the order for habeas corpus made on 26th August 2016.[45]Those submissions have been amplified in considerable detail in the oral argument, and I have been referred to many cases. It is not necessary for me to mention all of them in this judgment, or to comment on every point which was made; but I have had them all in mind in reaching my decision.[46]The submissions in more detail:[47]Article 5 of the European Convention on Human Rights 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; … 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” a) The lawful detention of a person after conviction by a competent court;[48]It is of course admitted by the Defendant that the Claimant was detained until 26th August 2016. Mr Rule submits that there was no lawful justification for the detention of the Claimant after 17th July 2016. The burden is on the Defendant to justify that period of detention. Mr Grandison argues that the release date of 6th September 2016 was correctly calculated, in accordance with the terms of the sentence pronounced in the Crown Court, and that accordingly the detention was lawful up to the date when the Claimant was released pursuant to the order of Holgate J. Mr Rule advances the following arguments to the effect that the sentence imposed by the Crown Court did not justify detention after 17th July 2016.[49]First, he says that CJA 2003 s240ZA entitles the Claimant to credit for the time when he was “remanded in custody”; and s242(2)(a) defines that phrase as meaning “remanded in or committed to custody by order of a court”. He sought to argue that the reference in s242(2)(a) to the order of “a court” is not expressly limited to a court in England and Wales, and therefore extends to any court in any jurisdiction. Mr Rule cited no authority in support of that submission, and I am unable to accept it. If Parliament had intended a court in this country to take into account periods of remand in custody in any jurisdiction it would in my view have used much clearer language to that effect. Moreover, it seems to me that if Mr Rule’s submission were correct, then section 243 of CJA 2003 would serve no purpose. Mr Rule also argued that the reference to a court order in s242 is satisfied by the order made fo the EAW by the Magistrates’ Court in Leicester on 11th May 2012. Reliance was placed on the free movement of judicial decisions in the Framework Decision so that this domestic court order engages s242. Again I am unable to accept that submission.[50]Next, and more forcefully, Mr Rule submits that the terms in which the sentence had been pronounced in the Crown Court do not assist the Defendant because she was required to make (through the prison governor) a correct calculation of the release date, regardless of what the Recorder had said, and failed to do so because she did not give credit for the Germany days. He argued that a lawful sentence requires both a lawful order for imprisonment and a correct calculation of the date when the prisoner is to be released. He submitted that the prison governor should not have calculated the release date solely in accordance with the sentence pronounced in the Crown Court but should also have taken account of “the truth as he knows it”.[51]In support of these submissions, Mr Rule took me to a number of cases, though I do not find it necessary to refer to all of them.[52]The former provisions of the Criminal Justice Act 1967 provided for an automatic discount from the length of a sentence imposed by a court in respect of the relevant period (as defined in the Act) of time spent in custody awaiting trial or sentence for the offence. Under the legislation, the computation of the relevant period was a matter for the prison governor rather than for the court. In R v Governor of Brockhill Prison, Ex parte Evans (No. 2)[2001] 2 AC 19 a prison governor had calculated the applicant’s release date on the basis of guidance issued by the Home Office. A court subsequently held that the guidance was wrong, and that as a result of its application the Applicant had been detained in custody for 59 days longer than she should have been. The House of Lords held that, although the prison governor had been blameless, the Applicant had been unlawfully detained for those 59 days. Lord Slynn of Hadley said, at page 26 - “…Despite sympathy for the governor’s position it seems to me that the result is clear. She never was lawfully detained after 17 September 1996. She was merely thought to be lawfully detained. That is not a sufficient justification for the tort of false imprisonment even if based on rulings of the court. Although in form it is the governor, it is in reality the State which must compensate her for her unlawful detention.”[53]Lord Hope of Craighead emphasised that the provisions of the 1967 Act required the prison governor, rather than the sentencing judge, to calculate the length of the period of discount. He went on to say at page 35 A-C – “…In practice he will no doubt rely on the relevant Home Office guidelines, and such guidance as is available from decisions of the courts in similar cases will no doubt be taken into account in the course of their preparation by the Home Office. But relying upon guidance of that kind is not the same thing as complying with the terms of a court order. It is no answer to a claim based on a tort of strict liability to say that the governor took reasonable care or that he acted in good faith when he made the calculation. Nor can he say, as in the case of constables who were seeking to enforce the byelaws in the reasonable belief that a byelaw offence was being committed, that he had a lawful justification for doing what he did. His position would have been different if he had been able to show that he was acting throughout within the four corners of an order which had been made by the court for the applicant’s detention. The justification for the continued detention would then have been that he was doing what the court had ordered him to do. As it is, the court order when construed in the light of the provisions of the statute left it to the governor to calculate the release date according to the statute laid down. The justification had to be found in terms of the statute.”[54]Mr Rule relied on that decision, and submitted that detention under a sentence of imprisonment can only be lawful if there is both a lawful warrant of detention and a correct calculation of the length of sentence. Mr Grandison replied, however, that the submission begs the question: he argued that in the circumstances of this case, the prison governor was acting “within the four corners of an order which had been made by the court” throughout the whole period of the detention of the Claimant.[55]Mr Rule next relied on an observation of Irwin J in The Queen on the Application of Raymond Woolley v Ministry of Justice [2012] EWHC 295 (Admin). At para 12 Irwin J said – “…a prisoner arrested and detained by operation of a European Arrest Warrant [EAW] is credited against his sentence in respect of time spent in custody pending extradition.” It must however be noted that that observation was made in the course of a consideration of the ambit of section 49 (2) of the Prison Act 1952 relating to persons who had been unlawfully at large. It was not a case which related to an EAW at all. Reference was made to section 243 of CJA 2003 as an illustration of one of the ways in which subsequent legislation had reduced the ambit of that provision in the 1952 Act. It was not, therefore, a detailed analysis of the full effect of section 243 of CJA 2003.[56]In McCreaner v Ministry of Justice [2015] 1 WLR 354 a prisoner had become eligible for early release on home detention curfew (as a result of the decision of the Supreme Court in an unrelated case), but was not released until about 8 weeks after he became so eligible. He claimed damages for false imprisonment during that 8 week period, and for negligent failure to take reasonable care in the administration of his sentence and in decisions concerning his release from prison. It is convenient to quote part of the head note which summaries the decision of Cranston J:
“…public law error in calculating a prisoner’s release date, including not acting in accordance with a proper understanding of the law and the wrongful exercise of a discretion, could mean that his continuing imprisonment could not be justified so that the tort of false imprisonment was established; but that, since a prisoner serving a determinate sentence was required by law to serve the requisite custodial period subject to the Secretary of State’s discretion to allow earlier release, a breach of a public law duty in the exercise of that discretion did not affect the continuing validity of the sentence or the length of the requisite custodial period; that, in any event, delay in implementing a lawful policy did not constitute public law error unless it flowed from something such as acting for an improper purpose or was irrational in a public law sense; and that, accordingly, since the claimant had following the Supreme Court’s decision remained in prison not under an unlawful policy but pursuant to the court’s sentence until his lawful release date could be calculated and had at no time been detained when he had a legal right to be released, as distinct from a right to be considered for the HDC, he had not been falsely imprisoned.”
The claim however succeeded in part, because Cranston J found that the defendant had breached its duty of care to the applicant by failing to expedite his case once they knew he was eligible for release on a home detention curfew.[57]Mr Rule also relied on Leacock (see paragraph 7 above) as showing that the failure to specify a relevant period in open court is not a bar to a correct calculation of the release date which takes into account that unmentioned period. He argues that it shows that the court office can amend a sentence on the basis of information supplied from a third party without the need for any judicial decision. I cannot accept that argument: the point about cases such as Gordon and Leacock is that a pronouncement had been made by the judge in open court which stated what then appeared to be the appropriate period to be taken into account, but which explicitly provided for a possible administrative correction if further information came to light. There was no comparable judicial pronouncement in this case.[58]Pursuing his argument that the prison governor was bound to calculate the Claimant’s release date on a basis which gave credit for the Germany days, even though the Crown Court had not specified any number of days in that regard, Mr Rule submitted that the failure by the Recorder to specify the Germany days as he should have done did not excuse the prison governor in “failing to provide the mandatory credit”. He referred to the requirement in s243(2) as “an administrative issue” or “mere procedural technicality”. Relying on R (Kaiyam) v Secretary of State for Justice [2015] AC 1344, he argued that in circumstances such as these, lawful detention requires amongst other things a sufficient causal connection between the sentence and the continuing detention. He submitted that after 17th July 2016, the Claimant was detained not because of the sentence of the court (which should have given credit for the Germany days) but by the Defendant’s failure properly to calculate the release date. Mr Rule also relied on Wright v Lord Chancellor [2015] EWHC 1477 (QB), and submitted that there was here a “gross and obvious error” in the sentencing process.[59]Mr Grandison’s response to these submissions was that the prison governor, in calculating the date of release, acted throughout within the terms of the sentence lawfully pronounced by the Crown Court, and could not have done otherwise. He submitted that the Claimant’s remedy had lain in an appeal against sentence to the CACD. He invited the court’s attention to R v Hyde and Others [2016] EWCA Crim 1031. In that case, the CACD was primarily concerned with the issue of whether a single judge considering an application for leave to appeal against sentence could grant leave which was limited to specific grounds only. A distinct point arose, however, in Mr Hyde’s case, which Davis LJ, giving the judgment of the court, identified as follows at paragraph 36:
“… a wholly new point, namely the failure of the sentencing judge to specify in open court the number of days for which the appellant was kept in custody in Holland whilst he was awaiting extradition. That failure has resulted in a refusal by the Prison Service to apply those days as remand time. Had this been identified within 56 days of the sentence being imposed, this is the type of slip which could have been dealt with under the provisions of section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. Since it was not, the route by which the position can be rectified is by an appeal to this court.”
[60]At paragraph 44 of the judgment, Davis LJ indicated that the appellant, having fled the jurisdiction, had spent 35 days in custody abroad whilst awaiting his extradition:
“He fell within the definition of "an extradited prisoner" for the purposes of Section 243 of the Criminal Justice Act 2003. Section 243(2) requires a judge sentencing an extradited prisoner to specify in open court the number of days for which the prisoner was in custody while awaiting extradition. If that is not done, the Prison Service has no authority to apply those days to the sentence imposed by the Crown Court. In this case no-one reminded the sentencing judge of the requirement. He did not specify the number of days. We now do so. The sentence imposed in the Crown Court will be adjusted to specify 35 days spent in extradition custody.”
[61]Whilst drafting this judgment I received from Mr Rule a “Post-Hearing Note” in which he drew to the court’s attention two further cases relevant to his submissions about the interpretation and application of the relevant provisions of CJA 2003: Collier [2013] EWCA Crim 1132, and R (Archer) v HMP Low Newton [2014] EWHC 2407. He submitted that those two decisions were the foundation of a National Offender Management Service policy document which states – “the Court of Appeal made it clear that under section 240ZA the Prison Service must automatically credit any relevant remand even where it had previously been directed not to count by the court.” He relied on that statement of policy, and on the underlying case law, as demonstrating that the Defendant is under a duty to credit time under s240ZA even where to do so would be contrary to a court order or to the expressed intention of a judge.[62]In a commendably swift written response to that Note, Mr Grandison questioned whether the court had jurisdiction to receive further submissions at this stage, and submitted that in any event the cases put forward by Mr Rule relate to s240ZA rather than to s243, and do not assist the Claimant’s case.[63]The court is not obliged to receive further submissions, for which it has not asked, during the period between the hearing and the giving of a reserved judgment, and often will not do so. It is easy to see why in the cases mentioned by Mr Grandison (Konuksever v Government of Turkey [2012] EWHC 2166 (Admin) and Prendi v Government of the Republic of Albania [2015] EWHC 1809 (Admin)) the court declined to do so. But here, it seems to me that Mr Rule was doing no more than bringing to the court’s attention two cases which are relevant and of which the court ought to be aware when giving judgment. I therefore think it right to consider the effect of those decisions.[64]In Collier the appellant had spent 180 days remanded in custody on charges for which he received a suspended sentence of imprisonment. He then committed further offences, in breach of the suspended sentence. The judge when sentencing him to a term of imprisonment for the latest offences, and activating the whole of the suspended sentence consecutively, declined to take into account the 180 days, taking the view that the court must already have had that period of remand in custody in mind when it decided to suspend the earlier sentence. The Court of Appeal held that he was in error, because s240ZA(7) has the effect that a period of remand in custody before a suspended sentence is imposed must automatically be credited in his favour if and when the suspended sentence is later activated. It was not for the Court of Appeal to reduce his sentence:
“It is simply for the Prison Service to calculate his release date by counting the 180 days he spent in custody on remand towards his sentence, not because the court orders that, but because that is what the law requires.”
[65]A similar point arose in an application for habeas corpus in Archer. A judge who had imposed a suspended sentence had expressly stated that in deciding to suspend the sentence he had taken into account the fact that the offender had spent several months on remand in custody. He had purported to direct that any future court which activated the suspended sentence should not take the period of remand in custody into account. He had no power to do so. The offender later committed further offences, and the suspended sentence was activated. An issue arose as to whether the Prison Service should credit the applicant with the days spent on remand in custody. A Divisional Court held that it should. At paragraph 10 of his judgment, Treacy LJ said that the statutory amendments which introduced s240ZA – “… have made automatic what were otherwise calculations and decisions for the sentencing court. The position now is that there should be a clear cut, straightforward administrative calculation, not admitting of elements of discretion or judgment to be exercised by the Prison Service.”[66]Mr Rule submits that those decisions show that a sentence calculation must be correctly performed by the Defendant whatever the sentencing court states, and even if it is contrary to that court’s[67]In response, Mr Grandison draws an analogy between s243 in relation to time in detention abroad whilst awaiting extradition, and s240A in relation to time on bail subject to a qualifying curfew. Mr Grandison points out that both s243(2) and 240A(8) require the judge to specify, or state, in open court the number of days which the Prison Service will be required to take into account under s240ZA. He submits that the further cases relied on by the Claimant relate to s240ZA alone, and cannot be transposed into other provisions of the Act which require a judicial specification or statement of the number of days which will be relevant to the s240ZA calculation.[68]I agree with Mr Grandison that the additional cases provided by Mr Rule do not advance the Claimant’s case. They are examples of the duty of HMPS when it is applying s240ZA. That duty is the same even if the court has made an error in pronouncing sentence. But the duty only arises in relation to days which are to be treated for the purposes of s240ZA as time remanded in custody. The two decisions do not shed any fresh light on the point which lies at the heart of this application: namely whether, under s243, it is only the days specified in open court which must be taken into account in the s240ZA calculation.[69]On that central issue, it does not seem to me that any of the cases relied on by Mr Rule lead to the conclusion he asks me to draw. In my judgment, as a matter of interpretation of domestic legislation, the meaning and effect of CJA 2003 s243(2) and (2A) are entirely clear. Section 240ZA only applies to days in detention abroad which have been specified under s243(2). If no such days are specified in open court, in accordance with s243(2), then no such days can be taken into account under s240ZA(3). Here, the omission to specify the Germany days did not render the sentence imposed on the Claimant unlawful. The Claimant was lawfully detained in accordance with that sentence. His release date was correctly calculated in accordance with the sentence as pronounced in court.[70]It is then necessary to consider Mr Rule’s submissions as to the impact of European law on the interpretation of the relevant provisions of CJA 2003. He submits that Art 26.1 of the Framework Decision imposes an absolute obligation to give credit for time spent in detention awaiting extradition. Either the court must interpret the provisions of the CJA 2003 to achieve that aim, or the Framework Decision must be given direct effect. Mr Rule again took me to a number of cases, but I need not refer to all of them.[71]In Criminal proceedings against Pupino [2006] QB 83 the Court of Justice (Grand Chamber) ruled (at paragraph 43) that the principle of interpretation of domestic legislation in conformity with Community law is binding in relation to Framework Decisions:
“When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.”
At paragraph 47, however, the Grand Chamber qualified that obligation:
“The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as a basis for an interpretation of national law contra legem.”
[72]In Assange v Swedish Prosecution Authority (Nos 1 & 2) [2012] UKSC 22, the Supreme Court held that the Framework Decision, the decision in Pupino and the European principle of conforming interpretation were not part of domestic law, because the Framework Decision did not fall within the scope of the European Communities Act 1972, but that there was a common law presumption that domestic legislation in the Extradition Act 2003 was intended to be read consistently with the UK’s obligations under the Framework Decision. That presumption was, however, “subject always to the will of Parliament as expressed in the language of the Act read in the light of such other interpretative canons and material as may be relevant and admissible” (see per Lord Mance JSC at para 217).[73]After that case, in December 2014, the UK opted back into a number of European measures, including the Framework Decision 2002/584/JHA. In Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344, a Divisional Court had to consider the effect of that development on Framework Decision 2002/584/JHA as amended by a later Framework Decision, 2009/299/JHA. Burnett LJ explained at paragraph 17 that – “because of the changes which came about on 1 December 2014, the Framework Decisions now fall within the scope of the European Communities Act 1972. That is because of the change of their status effected by the Lisbon Treaty and because the United Kingdom has opted back into both Framework Decisions. The domestic courts are obliged to interpret domestic law consistently with European Union law which applies to the United Kingdom, including by applying the principle of conforming interpretation.”[74]In the light of Cretu, I accept the submission that I am obliged by the Pupino principle of conforming interpretation to give effect to the Framework Decision when interpreting the relevant provisions of the CJA 2003, to the extent that it is possible to do so without contradicting the clear intent of the legislation.[75]Mr Rule’s submissions went rather further. He argued that, if the court were to conclude that the application of the principle of conforming legislation did not assist him in the circumstances of this case, the Framework Decision should be treated as having direct effect. Mr Grandison however pointed to the recent decision of the European Court (Grand Chamber) in Ognyanov (Case C-544/14). That case concerned a different Framework Decision, but - like FD 2002/584/JHA – it was a Third Pillar instrument to which similar principles applied. The Grand Chamber at paragraphs 58 and 59, and 66, stated – “58. It is also settled case-law that although framework decisions may not entail direct effect, as laid down in Article 34(2)(b) EU, their binding character nonetheless places on national authorities, and in particular on national courts, an obligation to interpret national law in conformity with EU law … 59. When national courts apply domestic law they are therefore bound to interpret it, so far as possible, in the light of the wording and the purpose of the framework decision concerned in order to achieve the result sought by it. … 66. The obligation to interpret national law in conformity with EU law ceases, moreover, when the former cannot be applied in a way that would lead to a result compatible with that envisaged by that framework decision. In other words, that principle cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that the national court consider, where necessary, the whole body of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”[76]Mr Rule’s submissions do not persuade me that the Framework Decision under consideration here, 2002/584/JHA, has direct effect in the law of England and Wales. He was unable to identify any clear authority to that effect, and I do not find that the decision in Cretu assists him. In my judgment, the approach I must take is to apply the Pupino principle of conforming interpretation and interpret the relevant provisions of the CJA 2003 so far as possible consistently with the wording and purpose of the Framework decision.[77]As to the application of the principle of conforming interpretation, Mr Rule submits that the clear purpose of Art 26(2) of the Framework Decision is that a person who has been extradited from one member State to another should be given credit against his eventual sentence for the whole of any period during which he was detained awaiting extradition. He submits that it is possible to interpret the domestic legislation consistently with that aim. He relies, understandably, on Holgate J’s expression of willingness to adopt such an interpretation had he found it necessary to do so in order to grant habeas corpus. Mr Grandison, in contrast, submits that the s243 requirement of a statement in open court serves an obvious and important purpose, and is not inconsistent with Art 26.[78]I naturally accord great respect to what was said by Holgate J, and I do not seek to go behind his decision to order the Claimant’s release. I bear in mind however that he did not have the opportunity to hear full submissions, whereas I have had the advantage of having heard much fuller argument on this issue from both parties. Having reflected upon those submissions, I conclude that Mr Grandison’s argument is correct. I am not persuaded that s243(2) is inconsistent with the aim of Art 26.1 of the Framework Decision, which states the requirement to give credit for time in custody awaiting extradition but says nothing about the procedure by which the relevant period is to be identified. In relation to time spent on remand in custody in this country, HMPS has its own records and can therefore calculate a prisoner’s release date without needing to seek information from other sources. But the position is very different in relation to time spent in detention in another country whilst awaiting extradition. There is indeed, therefore, an obvious and important reason for the statutory requirement in s243(2) to state in open court the number of days for which an extraditee was detained abroad: without such a statement, the prison governor when calculating the release date has no definitive statement of the number of days for which credit must be given, and there is scope for uncertainty and disagreement.[79]But even if s243(2) were inconsistent with the aim of Art 26.1, I cannot see how the plain words of s243(2) could be read in the way which Mr Rule suggests. The effect of Mr Rule’s submission would be that the court would simply ignore the requirement stated in that subsection. There are in my judgment two reasons why that cannot be correct. First, it would be contrary to the clear intent of Parliament, and would require the court to take Art 26 into account in such a way as to interpret s243 contra legem. Secondly, it would raise obvious practical problems: how is the correct number of days to be identified? By whom? At what stage? Who is to resolve any dispute on the point, and by what procedure? These considerations lead me to conclude that it is not possible to interpret s243 in the way for which Mr Rule contends, and I accordingly reject the submission that the principle of conforming interpretation requires me to do so.[80]My conclusion on these issues is therefore as follows. On ordinary principles of interpretation, s243(2) means what it says, and only days which have been specified in open court can count towards sentence. The European principle of conforming interpretation cannot be applied so as to lead to any different conclusion, for to do so would be to interpret contra legem. It follows that the omission in this case to specify in open court the number of days of detention in Germany has the consequence that the Claimant was not entitled to credit for the Germany days. In calculating the release date without reference to the Germany days, the prison governor was therefore acting entirely in accordance with the lawful order of the court and, contrary to Mr Rule’s repeated submission, there was no error of calculation. That submission confuses an alleged calculation error by the prison governor with a failure by the Crown Court to specify the Germany days when pronouncing sentence in open court. That failure by the Crown Court was regrettable, but it was not a “gross and obvious” error in the sentencing process because it does not appear that any submission had been made inviting the Recorder to specify the Germany days, and it appears that he therefore sentenced in ignorance of the fact that the Claimant was entitled to credit for the period during which he had been detained pending his extradition.[81]Given that no days had been specified under s243(2), there was in my judgment no error of law on the part of the prison governor, such as there had been in ex parte Evans (no 2). On the contrary, there was no lawful basis on which the prison governor could have gone behind the order of the Crown Court and acted as if the Germany days had been specified in open court when they had not been. The Claimant was lawfully detained pursuant to a sentence which remained valid and subsisting unless and until it was set aside. It would have been constitutionally improper for either the prison governor or a member of the Crown Court office staff to re-write the sentence which had been pronounced, however clear it may have seemed to be that the Recorder had fallen into error. The suggestion that such a course should have been taken, informally by an administrative act, is in my view an attempt to circumvent the proper system of appeal against a sentence.[82]In coming to that conclusion, I have had well in mind Mr Rule’s overriding submission that there would be an injustice to the Claimant if he were deprived, through an error in the Crown Court which was not of his making, and/or through the suggested failures on the part of the Defendant, of credit for the Germany days to which he was entitled. I accept of course that the Crown Court should have been informed that the Claimant had been detained in Germany and was entitled to have that period of detention taken into account in calculating his release date, and I accept that if the Court had been so informed the Recorder would have been required to specify the Germany days in open court pursuant to s243(2). Section 243 does not make that announcement a matter of discretion: the purpose of specifying the number of days in open court is not to announce a discretionary decision made by the sentencer, but rather – as I have indicated in paragraph 78 above - to make a public announcement, for the assistance of the prison service and all other interested parties, of the length of a period of detention which would not otherwise be known to the prison service. But it does not follow that this court must grant relief by way of judicial review. It is important to emphasise that the omission made in the Crown Court was one for which the Claimant had a remedy by way of the slip rule or by way of an application to the CACD for an extension of time to make an application for leave to appeal against sentence. Even at a late stage, he could have applied for a very long extension of time if he had good grounds for doing so. Even taking into account the delay in obtaining precise dates as to the period in custody in Germany, that appeal process could have been initiated in good time before the date on which the Claimant contends he should have been released. On an appeal to the CACD, the focus would have been on the omission of the court (contributed to by all the lawyers in the case) to specify the relevant number of days in accordance with s243. No explanation has been given of the Claimant’s failure to follow that route. Instead the Claimant commenced these proceedings, after the date when he would have been released if the Germany days were taken into account, in which he has sought to direct the focus onto the Defendant and to argue that she is liable because either the court staff or the prison governor should have gone behind the order of the court. For the reasons I have given above, I do not accept that it would have been lawful for either the court staff or the prison governor to act as the Claimant contends they should have done.[83]Mr Rule advanced alternative submissions. If, contrary to his primary submissions, the Germany days were properly left out of account when calculating the release date pursuant to the statutory provisions discussed above, he argues that the Claimant’s detention after 17th July 2016 was nonetheless unlawful because the Defendant should have directed his release under either section 248 of CJA 2003 or under her prerogative power to release a prisoner.[84]CJA 2003 s248 provides – “(1) The Secretary of State may at any time release a fixed-term prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.”[85]The Defendant’s prerogative power to release a prisoner is set out, under the heading “Special Remission”, in Chapter 13 of instructions issued by the National Offender Management Service in relation to the calculation of determinate prison sentences. Chapter 13 of the instructions, which were reissued in December 2015, relates to “errors in calculation”. The chapter begins as follows:
“13.1 Errors in Calculation 13.1.1 If a mistake in a calculation is found which changes a prisoner’s release date, immediate action must be taken to rectify the mistake. If there is any doubt, the sentence calculation helplines must be consulted before the release dates are changed.”
The instructions specifically consider what should be done if correction of an error in calculation results in a release date being deferred. Paragraph 13.1.4 provides:
“Where a prisoner has been given to understand for several months that he or she will be released on a date before the correct release date, consideration must be given to whether the sentence imposed should be served up to the correct release date or whether the period in question should be cancelled out by the exercise of the Royal Prerogative of Mercy (sometimes referred to as ‘special remission’). The decision whether to seek the exercise of the Royal Prerogative in such cases must take account of the relevant circumstances, balancing the expectations or distress of the prisoner and his or her family against the obligations on the Prison Service to ensure that the sentence of the court is implemented. The Royal Prerogative cannot be exercised lightly: each case must be carefully considered on its individual merits.”
[86]The Royal prerogative of mercy was considered by a Divisional Court in R v Secretary of State for the Home department, Ex parte Bentley [1994] QB 349. The court held that decisions taken under the Royal prerogative may be susceptible to judicial review. At page 365C-D Watkins LJ, giving the judgment of the court, said – “…it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. We would adopt the language used by the Court of Appeal in New Zealand in Burt v Governor-General [1992] 3 N.Z.L.R 672, 681:
“the prerogative of mercy [can no longer be regarded as] no more than an arbitrary monarchical right of grace and favour.”
It is now a constitutional safeguard against mistakes. It follows, therefore, that, in our view, there is no objection in principle to the grant of a posthumous conditional pardon where a death sentence has already been carried out. The grant of such a pardon is in recognition by the state that a mistake was made and that a reprieve should have been granted.”[87]As to the first of those discretionary powers, I take the view that the circumstances of this case cannot possibly be said to come within the ambit of a power of release on “compassionate” grounds. To my mind, compassionate grounds would be those relating to a prisoner’s bereavement, ill health, family crisis or the like: not to an issue as to whether the court and/or the prison governor had made an error affecting the calculation of a prisoner’s release date.[88]As to the power to order release under the Royal prerogative, I agree with Mr Rule that it is in principle engaged by the circumstances of this case. The prerogative power is not the same as, or coterminous with, the statutory power to order early release from a sentence on compassionate grounds. The exercise of this prerogative power would not go behind, or undermine, the sentence imposed by the Crown Court: it would be a discretionary remission from a sentence which was lawfully passed.[89]Initially, I felt that the Claimant’s arguments on this issue were compelling. But Mr Grandison pointed to two reasons why the Defendant cannot be criticised for failing to exercise her prerogative power. First, as a matter of principle, it would have been wrong for her to do so because she would thereby have circumvented the appeal process which was available to the Claimant, but in which he would have been required to explain the reasons for the long delay in raising the issue. Secondly, as an important practical consideration, the German authorities only gave definitive information as to the period of detention in Germany on 24th August 2016, which was only a very short time before the Claimant was in any event released pursuant to the order of Holgate J. Mr Rule countered those points by submitting that there was a negligent failure on the part of the Defendant to pursue the enquiries of the German authorities or the Derbyshire police and National Crime Agency more promptly and effectively.[90]I accept both of Mr Grandison’s submissions on this point. The argument of principle which he raises does in my view provide a good reason why it would have been inappropriate for the Defendant to order release. It is a potent factor in a case in which, even now, there has been an absence of any satisfactory explanation for the failure to follow the obvious appeal route.[91]As to the practical considerations, it has to be borne in mind that the Claimant did not raise this issue until years after sentence was passed, and it is therefore unsurprising that the defendant had to spend some time making enquiries. The first response of the German authorities was to the effect that they had no record of the Claimant’s detention in that country, and further enquiries were then necessary. If Holgate J had not ordered release when he did, my conclusion might have been different; but in all the circumstances of this case, I do not accept Mr Rule’s submission that there was culpable delay on the part of the Defendant.[92]I therefore reject the submission that the Claimant’s continuing detention became unlawful when the Defendant became aware of the failure to specify the Germany days, but nonetheless did not exercise either of her powers to order his release.[93]Having thus concluded that all three of the Claimant’s grounds must fail, and that the Claimant was not at any point unlawfully detained or deprived of his Article 5 right to liberty, I can deal very briefly with the remaining points of defence advanced by Mr Grandison. In my judgment, the issues raised by Mr Rule are not “matters relating to trial on indictment”, and judicial review is therefore not barred by section 29(3) of the Senior Courts Act 1981. Although (as I have indicated above) the Claimant had an obvious avenue of an application for leave to appeal against his sentence, the particular points advanced in these proceedings relate not to the sentence passed in the Crown Court but to the calculation of his release date. In R (Hicks) v Crown Court at Snaresbrook [2012] EWHC 3348 (Admin), [2012] EWCA Crim 2515 Moses LJ at paragraphs 30-31 stated in clear terms that an issue under CJA 2003 s240 should have been litigated in the CACD, but I do not read that judgment as excluding judicial review altogether in circumstances such as arise in the present case.[94]As to the failure of the Claimant to pursue a criminal appeal rather than an application for judicial review, Mr Grandison accepted that the availability of an alternative remedy would not oust the jurisdiction of the High Court. Notwithstanding the failure of the Claimant to provide any explanation for declining to pursue the avenue of a criminal appeal, I would not have felt it right to refuse judicial review solely on the grounds that that alternative remedy was available.[95]In those circumstances, I grant permission to apply, because I am satisfied that the points so thoroughly advanced by Mr Rule were arguable; but for the reasons I have given, the claim for judicial review fails and is dismissed.[96]The parties, having received a copy of this judgment in draft, have made written submissions as to how I should exercise my discretion in relation to costs. I agree with the submission which both parties make that the application for habeas corpus and the application for judicial review are interlinked, with a number of features in common. To make an order which would require separate assessment of the costs attributable to the two applications would in my view give rise to disproportionate expense. I therefore think it right to make an order in relation to the overall costs of the proceedings as a whole. The Claimant succeeded in his claim for habeas corpus, and obtained an order for his immediate release; but the Defendant succeeded on the claim for judicial review. In principle, therefore, each party is entitled to receive a proportion of his or her costs, but each is also liable to pay a proportion of the costs of the other party. Having considered the competing submissions, I have concluded that overall, the Defendant has succeeded to a greater extent than the Claimant. It is in my view just that the Claimant should pay, or bear, a greater proportion of the overall costs than the Defendant. To achieve that end, the Claimant should pay one-third of the Defendant’s costs (and, of course, bear his own costs). The Claimant acts with the benefit of legal aid, and so my order will provide for the appropriate determination of the sum payable.

order

he argues that “any error in the court sentencing process (including section 243) cannot affect the Defendant’s duties under sections 240ZA and 242”.

Cited in 2 later judgments