Aidan Richard Sherry v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lady Hale |
| Judgment Date | 04 March 2013 |
| Neutral Citation | [2013] UKPC 7 |
| Date | 04 March 2013 |
| Docket Number | Appeal No 0004 of 2012 |
| Court | Privy Council |
[2013] UKPC 7
Lord Neuberger
Lady Hale
Lord Kerr
Lord Wilson
Lord Sumption
Appeal No 0004 of 2012
Privy Council
Appellant
Christopher Jeyes
(Instructed by Bird and Co)
Respondent
Clair Dobbin
(Instructed by Alan Taylor & Co)
Heard on 24 January 2013
The principal events with which we are concerned happened a long time ago. On 29 February 1980, the appellant was convicted of assault by an Acting Magistrate in the Magistrate's Court in Guernsey and sentenced to three months' imprisonment. No credit was given for the ten days during which he had been remanded in custody awaiting trial. On 5 March 1980, he gave notice of appeal against his conviction but remained in custody until he was granted an open remand on 11 April. At that stage there were only 18 days of his sentence left to serve, taking account of the normal grant of one third remission. On 20 May 1980, his appeal was listed before the Royal Court but he failed to appear. His appeal was dismissed for want of prosecution and the Court ordered that when apprehended he should "serve the sentence of three months' imprisonment imposed upon him in the Magistrate's Court on 29 February 1980 less the period of 5 days already served". The appellant learned of this the following day, left the Island and has not returned since then.
It might be thought that the time for appealing against either of these orders has long gone by. But the appellant has a burning sense of injustice. The Acting Magistrate thought that the right term of imprisonment was three months, which with remission would have amounted to 61 days (Prison Administration (Guernsey) Ordinance 1959, section 31). Had account been taken of the ten days on remand before his trial, this would have come down to 51 days. Had account been taken of the further 33 days served before he was granted an open remand, this would have come down to 18 days. He does now accept that if he returns to the Island he is liable to serve that time. But the effect of the Royal Court's order is that he will have to serve a further 56 days, on top of the 43 already served, thus coming close to double the original punishment which the Acting Magistrate thought right. The effect is to prevent him from returning to the Island which, for personal reasons, he would like to do.
The appellant did not immediately appeal to this Board against the order of the Royal Court. In 1983, he issued a Requête Civile, petitioning the Royal Court to reopen the appeal on the ground that he was not given adequate notice of the hearing. On 19 June 1984, the Deputy Bailiff dismissed his petition. He held that notice of the hearing had been properly served upon the appellant at the address which he had nominated for service and the appellant had only himself to blame if he had not in fact received it. The appellant appealed to the Board against both the original order of the Royal Court of 20 May 1980 and the refusal to re-open it of 19 June 1984. The only ground advanced was that he had not in fact received notice of the hearing and service at the address which he had nominated was not valid. The Board dismissed his appeal on 20 February 1989 (Privy Council Appeal No 3 of 1987) [1989] 1 WLR 341. The detailed legal argument is irrelevant to this appeal.
In 2011, the appellant tried again, explaining that in 2007 he learned that he has a grown up child living on the Island and so he is anxious to return to the Island in order to trace her. He applied (i) for leave to appeal against the sentence imposed by the Magistrate's Court on 29 February 1980, because it failed to take into account the ten days served before conviction; (ii) for a declaration that the Royal Court on 20 May 1980 had made an obvious error in recording that he had served only five days of his sentence, whereas he had served 43 days as a convicted person or 53 days since his arrest; and (iii) for relief under section 7 of the Human Rights (Bailiwick of Guernsey) Law, 2000.
On 10 November, Judge Finch dismissed all three applications. As to (i), the Crown conceded that the 1980 appeal had probably been against conviction only, so that an appeal against sentence remained possible. But Judge Finch held that the delay was "inordinate and largely unexplained. Nothing of any cogency has emerged that justifies the effluxion of 31 years and it would be wrong in the circumstances to take the exceptional step of granting leave to appeal out of time" (para 8). As to (ii), given that the period of five days accorded with the "clear and literal meaning" of section 5 of the Loi Par Rapport aux Appels des Sentences rendues en Police Correctionelle of 1939 (see para 10 below), it would appear that there was no obvious or glaring error by the Royal Court. As to (iii), it had not been shown that his rights under article 5 had been violated by the proceedings in 1980, and 2000 Law does not apply to violations taking place before it came into force: citing In re McKerr [2004] UKHL 12, [2004] 1 WLR 807.
On 17 October 2012, Her Majesty in Council granted the appellant permission to appeal from the judgment of 10 November 2011. It is important to note that he does not have permission to appeal out of time against the order of the 20 May 1980. There is no formal application for such permission before the Board, but the Board is content to discuss the case on the basis that there is. Thus the issues before the Board are: (i) should the appellant be granted permission to appeal out of time against (a) the sentence imposed by the Magistrate's Court on 29 February 1980, and/or (b) the order made by the Royal Court on 20 May 1980 when dismissing his appeal; (ii) should the Royal Court on 10 November 2011 have exercised its inherent jurisdiction to correct the order of 20 May 1980; and (iii) would it now be a breach of the appellant's rights under the Human Rights (Bailiwick of Guernsey) Law, 2000 to imprison him for the period defined in that order?
In the course of his very full and able submissions, both oral and in writing, on behalf of the appellant, Mr Christopher Jeyes devotes very little space to the crucial question of whether the appellant should be permitted to appeal so long out of time against the outcome of the proceedings in 1980. He argues that Judge Finch was in error in concentrating upon the reasons for the delay. In R (Birmingham City Council) v Crown Court at Birmingham [2009] EWHC 3329 (Admin), [2010] 1 WLR 1287, paras 25 and 52, for example, the Divisional Court held that the relevant criteria for extending time were the merits of the appeal, the reasons for the delay and any prejudice to the respondent. The respondent does not suggest that there is any prejudice to the Crown in allowing the proposed appeals to be argued on the merits. The appellant therefore argues that the merits of the proposed appeals are so strong, and the injustice to the appellant so great, that this consideration should outweigh the consideration of the very long delay.
Mr Jeyes also devotes very little space to the merits of an appeal against the Acting Magistrate's sentence. He argues that the time spent on remand between arrest and trial should have been taken into account, even without a statutory provision to that effect, as this is now the general principle applied in other comparable jurisdictions: see Callanchand v The State [2008] UKPC 49, [2009] 4 LRC 777 (the Privy Council on appeal from Mauritius); Romeo de Costa Hall v The Queen [2011] CCJ 6 (AJ) (the Caribbean Court of Justice on appeal from Barbados); and R v Gordon and others [2007] EWCA Crim 165, [2007] 2 Cr App R (S) 400. As Sir Igor Judge P, there explained, "the imperative is that no prisoner should be detained for a day longer than the period justified by the sentence of the court" (para 31).
But his real complaint is against the failure of the Royal Court to take into account the totality of the time which the appellant had already spent in prison, thus making an order which results in his having to serve a further 56 days, making a total of 109 days in prison for a crime which was deemed to merit only 61 (assuming remission). The time spent in prison after conviction and pending appeal was at the relevant time governed by the Loi Par Rapport aux Appels des Sentences rendues en Police Correctionelle of 1939, otherwise known as the Police Court Appeals Law, 1939. As to this, Mr Jeyes wishes to put forward two arguments, one based upon section 5 and one based on section 9(10) of that Law.
Section 5 provided as follows:
"Upon notice of appeal being given or being deemed to have been given by a convicted person and upon compliance by that person with the conditions contained in section 4 of this Law, the sentence pronounced upon that person shall be suspended until the disposal of the appeal and, if that sentence be a sentence of imprisonment with or...
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