Desmond Shields-McKinley v The Secretary of State for Justice the Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lady Justice Thirlwall |
| Judgment Date | 14 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1954 |
| Docket Number | Case No: C1/2017/1357 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 November 2019 |
[2019] EWCA Civ 1954
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Holroyde
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Lord Justice Simon
and
Lady Justice Thirlwall
Case No: C1/2017/1357
and
Mr Philip Rule & Mr Ian Brownhill (instructed by Duncan Lewis Solicitors) for the Appellant
Mr Myles Grandison (instructed by Government Legal Department) for the Respondent
Hearing dates: 30 th and 31 st October 2018
Approved Judgment
PRESIDENT OF THE QUEEN'S BENCH DIVISION:
The appellant, Desmond Shields-McKinley, appeals against the dismissal of his application for judicial review by Mr Justice Holroyde (as he then was) on 5 April 2017.
The complaint in these proceedings arises out of the failure to credit the appellant with the time he had spent on remand in custody in Germany whilst awaiting his extradition to the United Kingdom, for the purpose of calculating his release date in respect of his sentence imposed post-extradition and conviction, in this jurisdiction.
For the reasons that follow, I would dismiss this appeal.
The legal framework
The relevant provisions of domestic law engaged by the claim are contained in the Criminal Justice Act 2003 (the 2003 Act) as amended by certain provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ( LASPO): those provisions came into force on 3 December 2012. Specifically we are concerned with sections 240ZA, 242 and 243 of the 2003 Act as amended, and the relationship of those provisions with the European Arrest Warrant Framework Decision (2002/584/JHA) (the Framework Decision) adopted on 13 June 2002.
Article 34(2) of the Treaty of the European Union provides so far as is material:
“The Council shall take measures and promote co-operation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of objectives of the Union. To that end, acting unanimously on the initiative of any member state or of the commission, the Council may-…(b) adopt Framework Decisions for the purpose of the 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.”
Article 1 of the Framework Decision, headed “General Principles” provides that:
“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.”
Article 26 of the Framework Decision headed “Deduction of the period of detention served in the executing Member State” provides that:
“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.”
Prior to its repeal by LASPO, section 240 of the 2003 Act provided (in summary) that days spent in custody prior to sentence in relation to a particular offence, could count as time served as part of the sentence, provided a court gave a direction to that effect and stated in open court the number of days in relation to which the direction was given.
Parliament decided in LASPO that, in general, the amount of time spent on remand in custody was to count as time served as part of the sentence and the calculation of this should be carried out administratively. This was achieved by repealing section 240 and inserting section 240ZA 1 into the 2003 Act. Section 240ZA of the 2003 Act provides in part that:
“(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…
(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…”
Further, section 242 (headed Interpretation of sections 240ZA, 240A and 241) now provides that:
(1) For the purposes of sections 240ZA, 240A and 241, the definition of “sentence of imprisonment” in section 305 applies as if for the words from the beginning of the definition to the end of paragraph (a) there were substituted—
““sentence of imprisonment” does not include a committal—
(a) in default of payment of any sum of money, other than one adjudged to be paid on a conviction,”;
and references in those sections to sentencing an offender to imprisonment, and to an offender's sentence, are to be read accordingly.
(2) References in sections 240ZA and 241 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 (c. 20).”
The amendments to the regime for crediting time spent on remand were made for the reasons explained by Lord Thomas CJ in R v Leacock [2013] EWCA Crim. 1994:
“2. …Until the coming into force of [LASPO] on 3 December 2012, as is well-known, a number of problems arose in relation to the provisions of section 240 of the Criminal Justice Act 2003 under which the court had to specify the amount of time spent on remand that was to count as time served as part of the sentence. Insufficient dialogue had occurred prior to its enactment as to the practicality of the provision. It soon became clear that, at the time of sentence, mistakes were often made as to the period of time which had been spent on remand and the error was not discovered until after the 28/56 day period within which the sentencing court could correct the error under s.155 of the Powers of Criminal Courts (Sentencing) Act 2000, often referred to as the slip rule.
3. As the correction of errors by an appeal process was a disproportionate use of the scarce resources available to the judiciary, this court devised a way of dealing with the problem. In R v Gordon [2007] EWCA Crim 165, this court in a judgment of the Court delivered by the President of the Queen's Bench Division, Sir Igor Judge, made clear that a sentencing court, when it passed sentence and intended that the full period on remand should count, should use words to enable an error to be corrected by the clerk at the Crown Court; … A suggested formulation was put forward. In Nnail and Johnson [2009] EWCA Crim 468 this court further refined that formulation: see also R v Boutell [2010] EWCA Crim 2054…
5. It has always been the duty of defence advocates to ensure that proper information about their client relevant to sentence was before the sentencing court. This included information about the period of time spent on remand or under a qualifying curfew. If it was concluded that an error had been made by the sentencing court, it was the duty of defence advocates to apply to this court within the strict time limits applicable. It was against this background that in R v Irving and Squires [2010] EWCA Crim 169, the then Vice-President (Hughes LJ) made clear at paragraph 13 that steps should be taken to deal with the ever increasing number of cases where errors had been made. Solicitors and counsel must specifically ask the defendant whether he had been the subject of tagging. Furthermore:
“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 section 240 or section 240A. 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 seek to appeal he must get his application lodged promptly. We sympathise with the position of counsel and solicitors but it will not be enough to obtain long...
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