R Desmond Shields-McKinley (Claimant) The Secretary of State for Justice The Lord Chancellor (Defendant) The Crown Court at Derby (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Holroyde
Judgment Date05 April 2017
Neutral Citation[2017] EWHC 658 (Admin)
Date05 April 2017
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4059/2016

[2017] EWHC 658 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Holroyde

Case No: CO/4059/2016

Between:
The Queen on the Application of Desmond Shields-McKinley
Claimant
and
The Secretary of State for Justice The Lord Chancellor
Defendant
and
The Crown Court at Derby
Interested Party

Mr Philip Rule & Mr Ian Brownhill (instructed by Duncan Lewis Solicitors) for the Claimant

Mr Myles Grandison (instructed by Government Legal Department) for the Defendant

The Interested Party was not represented

Hearing date: 9 th February 2017

Approved Judgment

Mr Justice Holroyde
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."

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 (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 3 rd 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."

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 3 rd 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."

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."

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...

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