McShane, R (on the application of) v Secretary of State for Justice (Rev 1) [2018] EWHC 494 (Admin)

[2018] EWHC 494 (Admin)

Case No CO/198/2018

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 12/03/2018

Before

MR JUSTICE WALKER

Between

THE QUEEN ON BEHALF OFClaimant

MR GERALD McSHANEClaimant

SECRETARY OF STATE FOR JUSTICEDefendant

The claimant appeared in person by video link from HMP Ford for in person

Mr Eric Metcalfe (instructed by the Government Legal Department) for defendant

Hearing Hearing date: 8 March 2018

Judgment Approved

[1]This is a most unusual case. The claimant, Mr McShane, is currently held in custody here for a crime he committed in Portugal. The Portuguese court sentenced Mr McShane to a term of 8 years imprisonment. The hearing before me proceeded on the basis that under Portuguese law Mr McShane was entitled to be released on licence after he had served one half of that sentence. As he had been in custody continuously since 18 September 2012, his expected date for release on licence would have been 18 September 2016.

[2]Mr McShane has filed, for the purposes of the hearing before me, a document which was said to have been prepared by the British embassy in Lisbon in June 2013. The top of the document states: ANNEX 9: Guidance notes on local procedures for prison transfer APPLICATION FOR PRISON TRANSFER UNDER THE COUNCIL OF EUROPE CONVENTION ON THE TRANSFER OF SENTENCED PERSONS STEP-BY-STEP GUIDE TO PROCEDURES IN PORTUGAL ANNEX 9: Guidance notes on local procedures for prison transfer

STEP-BY-STEP GUIDE TO PROCEDURES IN PORTUGAL

[3]I shall refer to this document as “the 2013 embassy guide” or “Annex 9”. The 2013 embassy guide made it clear that transfer would only take place after both of two things had happened:(1) the first essential thing (“the sentence information requirement”) was, so far as material, that he had received from the UK government, via the embassy, material concerning the amount of time he would have to serve on arrival in the UK, along with a consent form; and

(2) the second essential thing (“the informed consent requirement”) was, so far as material, that he had signed the consent form and returned it to the embassy.

[4]On 30 January 2015 Mr McShane made a request to the Portuguese authorities to be transferred to the United Kingdom. The request made by Mr McShane appears to be consistent with procedures described in the 2013 embassy guide. It is apparent, however, that the 2013 embassy guide at some stage was incorporated as annex 9 to a larger document. At present the court has no information as to what that document was.

[5]On 19 May 2016 the Portuguese authorities forwarded to the defendant, the Secretary of State for Justice, documents which included Mr McShane’s request for a transfer. On 22 September 2016 the British embassy in Lisbon, when sending Mr McShane material concerning the time he would have to serve in the UK and a consent form, stated expressly that his written consent to the proposed transfer was needed. Mr McShane replied on 29 September 2016 asking for clarification as to the time he would serve in the UK. On 18 October 2016 the embassy wrote back to Mr McShane with material stating that upon transfer to the UK he would not be eligible for automatic release until he had served one half of the balance of his sentence remaining at the date of transfer. It would not take more than a rough and ready calculation to see that the upshot of transfer would be nearly 2 further years in prison before release on licence. Unsurprisingly, having been told this, Mr McShane declined to give his consent to transfer.

[6]The defendant nevertheless proceeded with the transfer. It took plac on 26 January 2017 when Mr McShane was brought back to the United Kingdom and put into the custody of the Governor of HMP Wandsworth.

[7]The case came before me on 8 March 2018 for what was scheduled to be a trial of proceedings by way of judicial review. Mr McShane appeared as a litigant in person by video link. The defendant was represented by Mr Eric Metcalfe of counsel.

[8]At an early stage in the hearing I indicated that I was minded to adjourn the case in order to enable Mr McShane urgently to seek legal aid or pro bono representation. I then heard extensive submissions by Mr Metcalfe urging that this would not be an appropriate course. I was not persuaded by those submissions and accordingly made an order adjourning the matter. My order included directions designed to ensure that the hearing would be restored after giving Mr McShane time in which he could urgently seek legal aid or pro bono representation.

[9]I now give my reasons for taking that course. I acknowledge that such a course is unusual. However, it reflects unusual features of this case. They include:(1) Mr McShane was transferred to the UK pursuant to a warrant signed on behalf of the defendant dated 13 January 2017 (“the January 2017 warrant”). It contained a recital (“the consent recital”) that Mr McShane had consented to being transferred into the United Kingdom.

(2) Mr McShane points out, and the defendant concedes, that the consent recital was wrong: as noted above, while the defendant had asked Mr McShane to consent to transfer he had declined to give that consent.

(3) Under United Kingdom law the relevant national legislation is the Repatriation of Prisoners Act 1984. That Act concerns international arrangements for the transfer to the United Kingdom of certain categories of prisoner held in countries abroad. In relation to prisoners in Portugal, the 2013 embassy guide summarised international arrangements in the Council of Europe Convention on Sentenced Persons.

(4) However, prior to preparation of the 2013 embassy guide, the Council of the European Union on 27 November 2008 made Council Framework Decision 2008/909/JHA. It provided for there to be significant changes from the previous arrangements. Among those changes it removed, for certain cases, a requirement that transfer could only take place with the consent of the sentenced person. It has already been held in these proceedings that Mr McShane falls into the category of those whose consent is not required, because he is a national of the United Kingdom.

(5) Portugal, for the purposes of its own law, gave effect to the Framework Decision by Portuguese legislation which was brought into effect on 15 December 2015. In that regard it is not clear whether Portugal, as a matter of EU law, was able to use such legislation to delay the coming into force in Portugal of the Framework Decision. Under article

28.1 requests for transfer received after 5 December 2011 “shall be governed by the rules adopted by Member States pursuant to this Framework Decision”. Article

28.2 permitted Member States to continue to apply pre-existing legal instruments in certain circumstances where the final judgment had been issued before a specified date. However that date was required to be not later than 5 December 2011. There is no evidence before the court as to what, if any, consideration was given when preparing the 2013 embassy guide to the possibility that under EU law Portugal was to be treated as if it had already adopted such rules as were required pursuant to the Framework Decision.

(6) From early 2016 onwards Portugal appears to have considered that procedures for informal consent by Mr McShane were not required. In that respect it seems that Portugal’s actions were consistent with the Framework Decision. It is not, however, apparent that Portugal’s other actions accorded with the Framework Decision. Nor is it apparent that the UK government’s actions accorded with the Framework Decision. Among other things, in correspondence with Mr McShane both the defendant and the embassy, until shortly before 26 January 2017, referred to Mr McShane as a sentenced person whose consent to transfer was needed.

(7) Whether or not Portugal and the UK fully complied with the Framework Decision, the position in a nutshell appears to be that: (a) when Mr McShane requested transfer on 30 January 2015, the view taken by the UK government in the 2013 embassy guide was that before physical transfer could take place the sentenced person’s consent would be needed; (b) similarly the UK government in the embassy’s letter of 22 September 2016 (see paragraph 5 above) expressly described a need for such consent; (c) similarly also the January 2017 warrant contained the consent recital, and might thus be thought to indicate a belief on the part of the official signing the warrant not only that there had been consent but also that the giving of consent was relevant to the decision to issue the January 2017 warrant; (d) however, having learnt that transfer would lengthen his custodial term, Mr McShane had declined to consent; (e) the embassy knew that Mr McShane had declined to consent; (f) there is currently no evidence before the court, other than the consent recital itself, as to what was known in this regard by the official signing the January 2017 warrant; (g) whatever the position may have been as to the knowledge of relevant officials, the UK government’s conduct in transferring Mr McShane without his consent seems manifestly inconsistent with what was said in the 2013 embassy guide.

[10]I stress that it is no part of my role to give advice to either side on matters of law or fact. I must not, and do not, “enter the arena”. My concern is that the unusual facts highlighted above are such as to cry out for expert legal advice. It has on occasion been said that a judge cannot suggest legal arguments that might be advanced. Certainly a judge cannot recommend legal arguments. However in cases where both sides are represented, as well as in cases involving litigants in person, a judge may well ask whether a particular legal argument has been considered. It is well established that counsel have a duty to inform the court of any relevant legal decision or legal provision. Conversely, as it seems to me, if the judge is aware of a relevant legal decision or legal provision the judge will, unless there is some good reason to the contrary, draw attention to it.

B. The Framework Decision & history of events

[11]The 2013 embassy guide and Mr McShane’s application for transfer, made to the Portuguese authorities on 30 January 2015, are dealt with in paragraphs 2 to 4 above. On 22 January 2016 the embassy wrote to Mr McShane: YOUR APPLICATION FOR TRANSFER TO A PRISON IN THE UK I am writing to inform you that we now have confirmation from the [Portuguese] Attorney-General’s Office that your application for prison transfer will be dealt with under the new agreement which came into force in Portugal on 17 December 2015. The Attorney-General’s Office has therefore forwarded your application to the court in Sintra from where it will be sent, in accordance with the new law, to the National Offender Management Service, Cross Border Transfer Section, Clive House, 70 Petty France, London SW1H 9HD, for consideration.

YOUR APPLICATION FOR TRANSFER TO A PRISON IN THE UK

[12]Consistently with the embassy’s letter of 22 January 2016, the documents sent by the Portuguese authorities on 19 May 2016 (see paragraph 5 above) made reference to procedures laid down by the Framework Decision.

[13]Chapter I of the Framework Decision deals with general provisions. Applying article 1 Portugal, as the Member State in which the relevant judgment was delivered, is described as the “issuing State”. The United Kingdom, being the Member State to which the judgment is forwarded for the purposes of its recognition and enforcement, is described as the “executing State”.

[14]Article 3, so far as material, states: 3.1 The purpose of this Framework Decision is to establish the rules under which a Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment and enforce the sentence. … 3.4 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 on European Union.

[15]Chapter II of the Framework Decision is entitled “Recognition of judgments and enforcement of sentences”. It comprises articles 4 to 25.

[16]A key step under the Framework Decision is the forwarding by the issuing State of what article 5.1 describes as the “judgment… together with the certificate…”. The “judgment” is defined in article 1 to mean a final decision or order of a court of the issuing State imposing a sentence on a natural person. The certificate is dealt with in Annex 1 to the Framework Decision.

(g) of the certificate includes a statement that:

“ … the issuing authority is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person …”

[17]Article 4 deals with the criteria for forwarding a judgment and certificate to another Member State. Consultation between the issuing State and the executing State is dealt with in paragraphs 4.2 to 4.4: 4.2. The forwarding of the judgment and the certificate may take place where the competent authority of the issuing State, where appropriate after consultations between the competent authorities of the issuing and the executing States, is satisfied that the enforcement of the sentence by the executing State would serve the purpose of facilitating the social rehabilitation of the sentenced person. 4.3. Before forwarding the judgment and the certificate, the competent authority of the issuing State may consult, by any appropriate means, the competent authority of the executing State. Consultation shall be obligatory in the cases referred to in paragraph 1(c). In such cases the competent authority of the executing State shall promptly inform the issuing State of its decision whether or not to consent to the forwarding of the judgment. 4.4. During such consultation, the competent authority of the executing State may present the competent authority of the issuing State with a reasoned opinion, that enforcement of the sentence in the executing State would not serve the purpose of facilitating the social rehabilitation and successful reintegration of the sentenced person into society. Where there has been no consultation, such an opinion may be presented without delay after the transmission of the judgment and the certificate. The competent authority of the issuing State shall consider such opinion and decide whether to withdraw the certificate or not.

[18]Article 4.5 enables each of the executing State and the sentenced person to request forwarding of the judgment together with the certificate.

[19]Article 6 is entitled, “Opinion and notification of the sentenced person”. It deals in paragraphs 1 and 2 with the consent of the sentenced person: 6.1. Without prejudice to paragraph 2, a judgment together with a certificate may be forwarded to the executing State for the purpose of its recognition and enforcement of the sentence only with the consent of the sentenced person in accordance with the law of the issuing State. 6.2. The consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded:(a) to the Member State of nationality in which the sentenced person lives;

(b) to the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure consequential to the judgment;

(c) to the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing State.

[20]The opinion of the sentenced person is dealt with in paragraph 6.3: 6.3. In all cases where the sentenced person is still in the issuing State, he or she shall be given an opportunity to state his or her opinion orally or in writing. Where the issuing State considers it necessary in view of the sentenced person’s age or his or her physical or mental condition, that opportunity shall be given to his or her legal representative. The opinion of the sentenced person shall be taken into account when deciding the issue of forwarding the judgement together with the certificate. Where the person has availed him or her self of the opportunity provided in this paragraph, the opinion of the sentenced person shall be forwarded to the executing State, in particular with a view to Article 4(4). If the sentenced person stated his or her opinion orally, the issuing State shall ensure that the written record of such statement is available to executing State.

[21]There is nothing in the evidence currently before the court to indicate that Portugal expressly gave Mr McShane the opportunity to state his opinion. It may be that Portugal considered that Mr McShane’s transfer request was enough to comply with paragraph 6.3. Nor does that evidence indicate that any consideration was given by the UK government to paragraph 4.4, and the importance of ascertaining:(1) whether Mr McShane had been given the opportunity to state an opinion under paragraph 6.3; and if he had taken that opportunity

(2) what opinion had been stated by Mr McShane.

[22]On 22 July 2016 the defendant sent to the Portuguese authority a declaration dated 20 July 2016. The declaration stated as follows: DECLARATION I am authorised by the Secretary of State to declare that the Government of the United Kingdom consents to the transfer from Portugal to the United Kingdom of Gerald McShane and formally requests that he be transferred under the terms of the Framework Council Decision 2008/JHA/909. Date: 20 July 2016 … (Head of Section) DECLARATION Date: 20 July 2016 … (Head of Section)

DECLARATION

[23]It is not clear to me that the material at the hearing before me included a full copy of the covering letter dated 22 July 2016. However, the relevant part of the covering letter appears to have stated: Prisoner Transfer under the Framework Council Declaration 2008/JHA/909 (EU Prisoner Transfer Agreement) Re. Gerald McShane I refer to your letter of 19 May 2016 with which you forwarded information relating to Gerald McShane who has requested transfer to the United Kingdom. Her Majesty’s Government is willing to agree to the transfer of Gerald McShane and I enclose the Declaration formally requesting his transfer under the terms of the Prisoner Transfer under the Framework Council Decision 2008/JHA/909. I confirm that Mr McShane is a British National for the purposes of the Convention. I confirm that in accordance with Article 9(1)(a) of the Convention, the United Kingdom will continue to enforce the sentence of 2,920 days imposed. … Prisoner Transfer under the Framework Council Declaration 2008/JHA/909 (EU Prisoner Transfer Agreement)

Re. Gerald McShane

[24]It seems to me arguable that this letter and declaration did not conform with the procedures set out in the Framework Decision. While the heading and the second main paragraph of the letter referred to the Framework Decision, the third and fourth paragraphs made reference to the Council of Europe Convention on the Transfer of Sentenced Persons, which the Framework Decision superseded. The declaration at one and the same time is said to constitute consent to transfer to the United Kingdom of Mr McShane and a formal request that he be transferred. The Framework Decision, by contrast, appears to contemplate in article 4.5 that any request on the part of the executing State would be made prior to the forwarding of the judgment and certificate, which in the present case had already occurred on 19 May 2016. As to “consent” on the part of the UK government, if inter-State consultation has taken place or is required, then under article 4.3 of the Framework Decision the executing State must inform the issuing State promptly of its decision whether or not to consent to the forwarding of the judgment. Again, this appears to be something which would happen before rather than after the forwarding of the judgment and the certificate.

[25]The remaining events up to and including transfer are dealt with in section A above:(1) the coming into effect on 15 December 2015 of Portuguese legislation giving effect to the Framework Decision: see paragraph 9(5) above;

(2) the letters of 22 and 29 September, and 18 October 2016: see paragraph 5 above, and compare the sentence information requirement and informed consent requirement identified in paragraph 3 above;

(3) the refusal by Mr McShane to give his consent; see paragraph 5 above;

(4) the January 2017 warrant, including the consent recital: see paragraph 9(1) above;

(5) the physical transfer on 26 January 2017: see paragraph 6 above.

C. These Proceedings

[26]On 15 January 2018 Mr McShane issued a Part 8 claim form which was treated as an application for a writ of habeas corpus. It named the defendant as “Repatriation Dept”.

[27]The details of claim set out by Mr McShane, with additional numbering for ease of reference, included: [1] Repatriated from Portugal … I did not give my consent and now believe I am being held illegally. [2] … I would be grateful if a judge could look at the following facts. [2.1] I did not give my consent as requested in documentation I received … . Whilst in prison in Portugal, I received said document on the 24th September 2016. I did however respond in my letter dated 29th September 2016 setting out my reasons for not signing. [2.2] ... [2.3] I have been trying to obtain a copy of the warrant giving … the authority to hold, but as yet this has been refused. However, early last week I was allowed to see the warrant but unable to get a copy. I did notice that the warrant states I gave my consent to the repatriation, which I did not. Therefore I strongly believe that my continued incarceration is illegal. [3] I have received no documentation since my return from Portugal. I did refuse to sign anything prior to leaving Portugal and made it clear to the officers whom collected me that I was going back under duress. … [2.1] I did not give my consent as requested in documentation I received … . Whilst in prison in Portugal, I received said document on the 24th September 2016. I did however respond in my letter dated 29th September 2016 setting out my reasons for not signing. [2.2] ... [2.3] I have been trying to obtain a copy of the warrant giving … the authority to hold, but as yet this has been refused. However, early last week I was allowed to see the warrant but unable to get a copy. I did notice that the warrant states I gave my consent to the repatriation, which I did not. Therefore I strongly believe that my continued incarceration is illegal.

[28]In accordance with CPR 87.3 the matter was put before Mr Justice Supperstone for consideration on the papers. In an order dated 16 January 2018, he directed that the present defendant be joined as a respondent to the application and should, if so advised, file and serve a response to the application. The order included observations:

“The applicant contends that he never consented to be repatriated from Portugal. … It is not clear from the documentation presently before the court whether he did consent to be repatriated or not.”

[29]The Secretary of State’s response was duly filed and served on 23 January 2018. After dealing with the history of events and the legal framework, paragraphs 29 to 32 set out the defendant’s grounds for resisting the application. Paragraph 29 identified two complaints on the part of Mr McShane: [Mr McShane] complains that his detention in the United Kingdom is unlawful on the basis that:(i) he did not consent to his transfer form Portugal to the UK;

(ii) but for that transfer he would have been eligible for early release as a matter of Portuguese law. …

[30]As to this, the response proceeded on the footing that the only question which arose under complaint (i) was whether there was power to transfer Mr McShane without his consent. On that, the defendant drew attention to article 6.2 of the Framework Decision. The defendant noted that there had been advice to Mr McShane that “his consent was required in order to effect the transfer”, and that the January 2017 warrant included the consent recital. As to those matters, the defendant accepted that Mr McShane had not consented and expressed regret at the errors. It was submitted, however, that nothing material followed from those errors, in that Mr McShane’s transfer was “plainly valid as a matter of UK and EU law”.

[31]Turning to the second ground for complaint identified by the defendant, the response noted that Mr McShane had said in his details of claim that he would have been eligible for release in Portugal by 16 January 2018. The response said that under Portuguese law Mr McShane would have been entitled to conditional release halfway through his sentence, that is by 18 September 2016. Paragraphs 31 and 32 of the response made submissions in support of the approach identified in the materials sent to Mr McShane on 18 October 2016: see section A above.

[32]On 24 January 2018 the matter came before Mr Justice Garnham for consideration. Unfortunately the papers placed before him did not include the defendant’s response. In those circumstances he gave directions for a hearing.

[33]When it was realised that the defendant’s response had not been included in the papers put before Mr Justice Garnham, the matter was then put before Mr Justice Lavender with a full set of papers. In an order dated 25 January 2018 he dismissed Mr McShane’s application for a writ of habeas corpus. He also discharged the order made by Mr Justice Garnham the previous day. In reasons for his decision Mr Justice Lavender accepted what had been submitted in the defendant’s response.

[34]Under CPR 87.4(2) Mr McShane requested that the dismissal of his application be reconsidered at a hearing. That hearing took place before Mr Justice Dingemans on 14 February 2018. Mr McShane appeared in person by video link. Mr Metcalfe appeared on behalf of the defendant. In his order made on 14 February 2018 Mr Justice Dingemans directed that Mr McShane’s application for a writ of habeas corpus should continue as an application for permission to apply for judicial review. He granted permission as regards the defendant’s decision concerning Mr McShane’s release date. However, in paragraph 32 of his order he refused:

“The application for permission to apply for judicial review on the basis that he did not consent to his transfer from Portugal…”

[35]The remainder of the order included provision for a speedy hearing of the application for judicial review.

[36]Mr Justice Dingemans dealt with two other matters at the hearing on 14 February 2018. The first concerned an issue which Mr McShane had raised at the hearing. This concerned Mr McShane’s eligibility for early release on home detention curfew (“HDC”). The second matter was raised by Mr Justice Dingemans and concerned whether Mr McShane was eligible for legal aid. Mr Metcalfe submitted that that was a matter for the Legal Aid Agency. Mr Justice Dingemans nevertheless indicated that it would be helpful if both sides were legally represented at the forthcoming hearing and asked if the Government Legal Department could at least make inquiries concerning this if possible.

[37]A further warrant (“the February 2018 warrant”) was issued on behalf of the defendant on 22 February 2018. It revoked the January 2017 warrant. A covering letter sent to Mr McShane explained that there were two principal differences between the February 2018 and January 2017 warrants. First, the January 2017 warrant had incorrectly specified that the term which Mr McShane was to serve was to be 2920 days of imprisonment. The February 2018 warrant corrected this to read 1330 days of imprisonment from 26 January 2017. The second change was that the February 2018 warrant did not contain the consent recital.

[38]On 27 February 2018 Mr Metcalfe settled a skeleton argument on behalf of the defendant. After setting out the factual background and legal framework, the skeleton argument turned to the issue on which Mr Justice Dingemans had given permission to proceed. Cases were cited concerning the application of the 1984 Act in conjunction with the Council of Europe convention. It was submitted that there was nothing in the Framework Decision nor the terms of the Criminal Justice Act 2003 which altered the position considered in those cases. The skeleton argument added that article 17 of the Framework Decision made abundantly clear that the “authorities of the executing State alone” are competent to determine the grounds for early or conditional release. It was submitted that accordingly Mr McShane was not eligible for release until he had served one half of the remainder of his sentence in the United Kingdom, which would be on 21 November 2018.

[39]The defendant’s skeleton argument also dealt with the question of release under HDC. In that regard it was said that Mr McShane would be eligible to be considered for HDC release from 10 July 2018 onwards, being 135 days prior to the date on which he would have served one half his sentence in the United Kingdom. It was added that the defendant had yet to consider any application for HDC release in relation to Mr McShane.

[40]On 6 March 2018 I received the hearing bundle. The following morning I arranged for the defendant’s legal team to be sent a note. Relevant for present purposes are paragraphs 3 and 4: 3. I have a query which arises from my reading of the hearing bundle: given what is said on the face of the January 2017 warrant, might that warrant, or such final steps as were necessary to bring about the physical transfer of Mr McShane, have been unlawful because they were put in place by the defendant in the mistaken belief that Mr McShane consented to transfer? 4. I ask that the defendant's legal team prepare a witness statement by 4pm today which:(1) exhibits a note of the hearing before Mr Justice Dingemans on 14 February 2018;

(2) draws attention to such issues as to the date of release ("the arguable release issues") as were identified in Mr Justice Dingemans's judgment, or in the course of argument, as not being capable of summary determination and instead calling for full argument;

(3) explains … the extent to which the February 2018 warrant was issued so as to remedy the complaints identified in the arguable release issues; and

(4) deals with my query set out in paragraph 3 above. (1) exhibits a note of the hearing before Mr Justice Dingemans on 14 February 2018; (2) draws attention to such issues as to the date of release ("the arguable release issues") as were identified in Mr Justice Dingemans's judgment, or in the course of argument, as not being capable of summary determination and instead calling for full argument; (3) explains … the extent to which the February 2018 warrant was issued so as to remedy the complaints identified in the arguable release issues; and (4) deals with my query set out in paragraph 3 above.

[41]With commendable speed a witness statement made by Mr Metcalfe was provided on behalf of the defendant that afternoon. Unfortunately, however, there was a misunderstanding: the statement treated my query as going only to the question whether there was power to transfer without consent.

[42]A second note from me to the defendant’s legal team was sent late in the afternoon of 7 March 2018. So far as material, it stated: 1. I have now received Mr Metcalfe's witness statement. I fear there may have been a misunderstanding in relation to the part of the statement dealing with the query in paragraph 3 of my first Note today. 2. In that paragraph I asked whether certain actions of the defendant might have been unlawful because they were put in place by the defendant in the mistaken belief that Mr McShane consented to transfer. This raises a different question from that identified by Mr Justice Supperstone on16 January and dealt with in the defendant’s response of 23 January. 3. My query arises on the footing that Mr Justice Dingemans has refused permission to argue that the claimant’s consent was required. On that footing, the question which in fact arose for consideration by the defendant was whether or not to proceed in the absence of consent. On the face of the January warrant the defendant did not consider that question. I do not understand this aspect of the matter to have been raised at the hearing before Mr Justice Dingemans. 4. Moreover relevant circumstances included that(1) proceeding would cause the defendant to be held in custody for longer than would otherwise be the case, and

(2) the claimant, after being informed of this, declined to consent. In such circumstances there would have to be some good reason to justify penalising the claimant despite his refusal of consent. 5. The purpose of this note is not to require a written response to the points made above. It is simply to alert the defendant's legal team to my concern, so that it can be addressed at the hearing tomorrow. D. Proposed adjournment: submissions and analysis D1 The defendant’s submissions of procedural law

D. Proposed adjournment: submissions and analysis

[43]In oral argument Mr Metcalfe advanced a number of submissions in support of a contention that it would be inappropriate to grant the adjournment which I had in mind. He began with submissions which were procedural in nature. In that regard his first procedural submission was that my concerns had been dealt with by Mr Justice Dingemans at the hearing on 14 February 2018. Mr Metcalfe acknowledged, however, that the note of that hearing exhibited to Metcalfe 1 made no mention of the potential points identified in my first and second notes of 7 March 2018. On further reflection, Mr Metcalfe accepted that those points, in the particular way that I had framed them, had not been raised and had not been addressed on 14 February 2018.

[44]Mr Metcalfe nevertheless noted that on 14 February 2018 Mr McShane had pointed to the fact that the January 2017 warrant wrongly referred to him having given consent. As to that, it seems to me arguable that Mr McShane’s complaint in his claim form was phrased broadly enough not only to give rise to a jurisdictional question as to whether the defendant had power to transfer without Mr McShane’s consent but also to potential points which might arise even if his consent was not required. His basic complaint might be thought to be that the UK government had proceeded on the footing that he had consented, that this was a mistaken basis on which to proceed, and something ought to be done about it. I can well understand that the hearing on 14 February 2018 focused on the short jurisdictional point as to legal powers: it was the only point on this aspect which the defendant’s response had addressed. But for the reasons identified above it is at least arguable that there was more to Mr McShane’s complaint than a short point as to legal powers.

[45]Moreover, even if the potential points were not within the scope of the 14 February hearing, or even if they had arisen and had been decided adversely to Mr McShane, I cannot rule out the possibility that Mr McShane might succeed on an application or renewed application by him to rely on these potential points for seeking relief. In this regard Mr Metcalfe submitted that the court should not deal with any such application. There had been no appeal by Mr McShane from the 14 February 2018 order. As regards relying on new points, there had been no application to do so. Mr Metcalfe observed that Mr McShane had been in prison her for more than a year, and asserted that Mr McShane had known the basis of the defendant’s calculation since mid-2017. There had, submitted Mr Metcalfe, been months in which Mr McShane could have sought legal advice, and could have sought legal aid. Moreover in response to Mr Justice Dingeman’s request, the Government Legal Department had given Mr McShane the internet address for the Legal Aid Agency’s website.

[46]At this stage Mr McShane intervened, asserting that the prison authorities had denied him access to the internet. Whether that is right or wrong, I note that Mr Metcalfe’s contentions of inexcusable delay would apply not only to delay in making an amendment application after issuing the claim form, but also to delay in issuing the claim form itself. However the defendant’s skeleton argument did not seek to contend that there had been inexcusable delay in relation to the substantive judicial review claim scheduled for trial on 8 March 2018. In any event if the question whether there has been undue delay arises, then the answer is likely to be fact-sensitive. At the hearing before me, however, the court did not have the necessary factual material before it.

[47]In a further development of his submissions on this aspect Mr Metcalfe contended that there would have to be real justification for raising a new point now. As it seems to me, even if Mr McShane would be raising a new point, I cannot at the present stage determine whether there is real justification for it. My concern is that there may well be real justification, but Mr McShane needs expert legal advice in that regard.

D2 The defendant’s submissions of substantive law

[48]Mr Metcalfe then turned to substantive law. Here his overarching contention was that as a matter of substantive law neither the Framework Decision nor the 1984 Act imposed any obligation to have regard to whether Mr McShane had consented to transfer. In support of that contention Mr Metcalfe submitted that potential points of the kind I had identified would re-introduce a requirement for consent by the back door, in circumstances where specific steps were taken in the Framework Decision to remove that requirement.

[49]By contrast, the expenditure of money and other resources by the defendant in transferring Mr McShane was, submitted Mr Metcalfe, justified by a desire to advance the aims of the Framework Decision. In particular, transfer would ensure that Mr McShane had the benefit of rehabilitation work here pursuant to the Criminal Justice Act 2003. In that regard Mr Metcalfe referred to what he described as an “obvious danger” if Mr McShane, having been released on licence in Portugal, were to come to the UK without having done appropriate rehabilitation work.

[50]Mr Metcalfe turned to the question which, prior to my concerns about the desirability of an adjournment, the hearing before me had been scheduled to resolve. The defendant’s skeleton argument set out why the court should hold that the defendant was right in asserting that Mr McShane would have to serve additional time here: there is a clear distinction between the position before and after transfer. But the answer to that question was, submitted Mr Metcalfe, neither here nor there so far as deciding on an adjournment was concerned. He submitted that Mr McShane could have minimised any additional time in custody by making his request for transfer promptly.

[51]Returning to the objectives of the Framework Decision, Mr Metcalfe submitted that it contemplated that there might be transfers without a request from the sentenced person. Thus in Mr McShane’s case it would have been open to the defendant to make a transfer request without waiting for Mr McShane to do so. I asked whether in those circumstances the defendant might be expected, before making a request, to inform the sentenced person of what was proposed. Mr Metcalfe submitted that this would run counter to the Framework Decision, which envisaged that it would be Portugal as issuing State, and not the UK as executing State, which would seek the opinion of the sentenced person. On this, Mr Metcalfe made particular reference to the fifth, ninth and tenth recitals to the Framework Decision: (5) Procedural rights in criminal proceedings are a crucial element for ensuring mutual confidence among the Member States in judicial cooperation. Relations between the Member States, which are characterised by special mutual confidence in other Member States’ legal systems, enable recognition by the executing State of decisions taken by the issuing State’s authorities. Therefore, a further development of the cooperation provided for in the Council of Europe instruments concerning the enforcement of criminal judgments should be envisaged, in particular where citizens of the Union were the subject of a criminal judgment and were sentenced to a custodial sentence or a measure involving deprivation of liberty in another Member State. Notwithstanding the need to provide the sentenced person with adequate safeguards, his or her involvement in the proceedings should no longer be dominant by requiring in all cases his or her consent to the forwarding of a judgment to another Member State for the purpose of its recognition and enforcement of the sentence imposed. … (9) Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing State, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing State. (10) The opinion of the sentenced person referred to in Article 6(3) may be useful mainly in applying Article 4(4). The words ‘in particular’ are intended to cover also cases where the opinion of the sentenced person would include information which might be of relevance in relation to the grounds for non-recognition and non-enforcement. Provisions of Articles 4(4) and 6(3) do not constitute a ground for refusal on social rehabilitation.

[52]Mr Metcalfe acknowledged that the fifth recital recognised a need to provide the sentenced person with adequate safeguards. That, he submitted, was achieved by the procedures in the Framework Decision, and there was no obligation to supplement those procedures by requiring the executing State to give the sentenced person advance warning and a right to make representations.

[53]The ninth recital, added Mr Metcalfe, puts the responsibility on Portugal as issuing state to consider whether transfer would be conducive to rehabilitation.

[54]In relation to the tenth recital, I noted that the opinion of sentenced person is said to be something which “may be useful mainly in applying Article 4(4)”. Mr Metcalfe submitted that this wording was intended to make it clear that the opinion of the sentenced person was not determinative. He accepted that this recital contemplates other respects in which the opinion of the sentenced person may be useful, but submitted that the recital was no more than an aid to interpretation.

[55]Mr Metcalfe also drew attention to the fourth recital, recording that a previous proposal to allow transfer without the sentenced person’s consent had not been ratified by all the Member States, and to the thirteenth recital, recording that the Framework Decision respected fundamental rights and observed the principles recognised by Article 6 of the Treaty on European Union and reflected by the Charter of Fundamental Rights of the European Union.

[56]Turning to articles 4 to 6, Mr Metcalfe explained that at the 14 February hearing he took instructions, and was told that the Portuguese authorities considered that the letter of 30 January 2015 constituted the opinion of the sentenced person. If there were a dispute as to whether that letter did indeed constitute Mr McShane’s opinion then such a dispute, submitted Mr Metcalfe, would be a matter for Portugal. It would not be a matter for the UK to go into. Mr Metcalfe nevertheless accepted that if the opinion of the sentenced person was opposed to transfer, then the UK could take this into account.

[57]Mr Metcalfe submitted that in the present case the UK was provided by Portugal only with the letter of 30 January 2015. He nevertheless accepted that the British embassy knew that Mr McShane had declined consent. As to that, Mr Metcalfe said that the failure to give consent had arisen in the context of a mistaken belief that Mr McShane’s consent was required. In any event, added Mr Metcalfe, even if Mr McShane said expressly that he did not want to be transferred, this would be entirely beside the point: at most the UK had to have regard to such opinion as was forwarded by Portugal.

[58]Mr Metcalfe added that obvious difficulties could arise at a practical level. Communication between the UK and a sentenced person, and consideration by the UK of what was said by the sentenced person, would require considerable time. In the present case it would have added to the period of just over 2 years that was needed.

[59]At this stage Mr Metcalfe stressed that there is nothing in the Framework Decision that requires the UK to have regard to lack of consent.

[60]Mr Metcalfe then took me through articles 8 and 9 of the Framework Decision: Article 8 Recognition of the judgment and enforcement of the sentence 8.1. The competent authority of the executing State shall recognise a judgment which has been forwarded in accordance with Article 4 and following the procedure under Article 5, and shall forthwith take all the necessary measures for the enforcement of the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided for in Article 9. 8.2. Where the sentence is incompatible with the law of the executing State in terms of its duration, the competent authority of the executing State may decide to adapt the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law. The adapted sentence shall not be less than the maximum penalty provided for similar offences under the law of the executing State. 8.3. Where the sentence is incompatible with the law of the executing State in terms of its nature, the competent authority of the executing State may adapt it to the punishment or measure provided for under its own law for similar offences. Such a punishment or measure shall correspond as closely as possible to the sentence imposed in the issuing State and therefore the sentence shall not be converted into a pecuniary punishment. 8.4. The adapted sentence shall not aggravate the sentence passed in the issuing State in terms of its nature or duration. Article 9 Grounds for non-recognition and non-enforcement 9.1. The competent authority of the executing State may refuse to recognise the judgment and enforce the sentence, if:(a) the certificate referred to in Article 4 is incomplete or manifestly does not correspond to the judgment and has not been completed or corrected within a reasonable deadline set by the competent authority of the executing State;

(b) the criteria set forth in Article 4(1) are not met;

(d) in a case referred to in Article 7(3) and, where the executing State has made a declaration under Article 7(4), in a case referred to in Article 7(1), the judgment relates to acts which would not constitute an offence under the law of the executing State. However, in relation to taxes or duties, customs and exchange, execution of a judgment may not be refused on the ground that the law of the executing State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing State;

(e) the enforcement of the sentence is statute-barred according to the law of the executing State;

(f) there is immunity under the law of the executing State, which makes it impossible to enforce the sentence;

(g) the sentence has been imposed on a person who, under the law of the executing State, owing to his or her age, could not have been held criminally liable for the acts in respect of which the judgment was issued;

(h) at the time the judgment was received by the competent authority of the executing State, less than six months of the sentence remain to be served;

(i) the judgment was rendered in absentia, unless the certificate states that the person was summoned personally or informed via a representative competent according to the national law of the issuing State of the time and place of the proceedings which resulted in the judgment being rendered in absentia, or that the person has indicated to a competent authority that he or she does not contest the case;

(j) the executing State, before a decision is taken in accordance with Article 12(1), makes a request, in accordance with Article 18(3), and the issuing State does not consent, in accordance with Article 18(2)(g), to the person concerned being prosecuted, sentenced or otherwise deprived of his or her liberty in the executing State for an offence committed prior to the transfer other than that for which the person was transferred;

(k) the sentence imposed includes a measure of psychiatric or health care or another measure involving deprivation of liberty, which, notwithstanding Article 8(3), cannot be executed by the executing State in accordance with its legal or health care system;

(l) the judgment relates to criminal offences which under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory. 9.2. Any decision under paragraph 1(l) in relation to offences committed partly within the territory of the executing State, or in a place equivalent to its territory, shall be taken by the competent authority of the executing State in exceptional circumstances and on a case-by-case basis, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct in question has taken place in the issuing State. 9.3. In the cases referred to in paragraph 1(a), (b), (c), (i), (k) and (l), before deciding not to recognise the judgment and enforce the sentence, the competent authority of the executing State shall consult the competent authority of the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary additional information without delay. Article 8 Recognition of the judgment and enforcement of the sentence Article 9

Grounds for non-recognition and non-enforcement

[61]Mr Metcalfe submitted that the defendant’s letter of 22 July 2016 constituted recognition by the UK under art 8, which would bind both the UK and Portugal unless Portugal decided to withdraw its certificate - see article 13: Article 13 Withdrawal of the certificate As long as the enforcement of the sentence in the executing State has not begun, the issuing State may withdraw the certificate from that State, giving reasons for doing so. Upon withdrawal of the certificate, the executing State shall no longer enforce the sentence. Article 13

Withdrawal of the certificate

[62]Mr Metcalfe observed that there was no corresponding provision for the executing State. He submitted that, for the executing State, articles 8 and 9 showed that recognition was the end of the matter. However, in response to a question from me, Mr Metcalfe accepted that in principle if the defendant considered that circumstances had changed then the defendant would have discretion to write to Portugal, explain the changed circumstances, and request that Portugal exercise its power of withdrawal.

[63]As to the 1984 Act, Mr Metcalfe submitted that it imposed a statutory duty to act in accordance with relevant international arrangements.

[64]In concluding his submissions on the substantive law, Mr Metcalfe referred to the well established proposition that only those errors which are material will vitiate an exercise of public power: see the observations of Lord Dyson at paragraph 68 of his judgment in R (Lumba) v Secretary of State for the Home Department

[2011] UKSC 12

. The error in the January 2017 warrant, submitted Mr Metcalfe, was not material: once recognition had occurred then the warrant followed as night follows day, and a mistaken belief about Mr McShane’s consent could not affect the position. None of the provisions in the Framework Decision or the 1984 Act could, submitted Mr Metcalfe, enable the UK not to proceed.

[65]My assessment of these submissions was similar to my assessment of the defendant’s procedural submissions: they could prove to be right, but I could not rule out the possibility that, with the benefit of expert legal advice, Mr McShane might succeed. That might be, if Mr McShane establishes this, because he was misled by advice in, or similar to that provided by, the 2013 embassy guidance. In that regard I had a strong concern that it seemed at least possible that Mr McShane may have proceeded, to his prejudice, on a false basis as a result of guidance given to him by the UK government. It might also be that opportunities to guard against that prejudice were lost. Thus, for example, the embassy letter of 22 January 2016 did not advise that under the “new agreement” Mr McShane would lose his entitlement to insist upon informed consent. For these or other reasons this court might conclude that principles of public law required the defendant to remedy that prejudice by, for example, the immediate release of Mr McShane on licence. Such a conclusion might well constitute enforcement of “the law of the executing State” for the purposes of article 17 of the Framework Decision. I note, although it did not feature in argument, that article 17 itself identifies additional circumstances in which the issuing State may withdraw.

E. The way forward

[66]As indicated in section A above, I have given directions which I hope and believe should enable Mr McShane to obtain urgent expert legal advice. In the meantime it will be important for the defendant to prepare witness evidence as to the course of events. This should minimise the time needed for completion of witness statements in the event that they are called for in response to such arguments as Mr McShane may seek to adduce. In conjunction with that process the defendant must consider, having regard to well known principles, whether there is any material which calls for prompt disclosure. The defendant may also wish to reassess the merits of the stance taken thus far.

Cited in 1 later judgment

McShane, R. (On the Application of) v Secretary Of State For Justice 2018