R Gavin James (Claimant/Appellant) v HM Prison Birmingham and Others Birmingham City Council and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lady Justice Gloster,Lady Justice Arden |
| Judgment Date | 09 February 2015 |
| Neutral Citation | [2015] EWCA Civ 58 |
| Docket Number | Case No: C1/2013/3498 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2015 |
[2015] EWCA Civ 58
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Lewis
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Beatson
Lady Justice Gloster
Case No: C1/2013/3498
and
Ramby de Mello (instructed by Bhatia Best Solicitors) for the Claimant/Appellant
Scott Matthewson and Patrick Maxwell (instructed by BLM Law) for the First and Second Defendants/Respondents and the Second Interested Party
Stephen Whale (instructed by The Treasury Solicitor) for the Third Defendant/Respondent
The First Interested Party did not appear and was not represented
Hearing date: 13 January 2015
I. Introduction
This is an application for judicial review brought with permission granted by Laws LJ on 17 June 2014, who retained the case in the Court of Appeal. At an oral permission hearing on 23 October 2013, Lewis J had refused permission. The issue concerns the treatment of time on remand by those who have been arrested under section 43 of the Policing and Crime Act 2009 ("the 2009 Act") (set out at [17] below) for breach of a final gang injunction order under sections 34 to 36 of the 2009 Act, and subsequently imprisoned for contempt of court pursuant to section 14 of the Contempt of Court Act 1981 and section 120 of the County Courts Act 1984.
The claimant, Gavin James, was arrested on 29 November 2012 for breach of an injunction under the 2009 Act prohibiting him from entering a prescribed area of Birmingham, produced at the Birmingham County Court, and remanded in custody. On 5 December 2012 he was committed to HM Prison Birmingham for a period of three months. The defendants are HM Prison Birmingham, which is managed by G4S Care and Justice Services UK Ltd ("G4S"), the Governor of the prison, who, because the prison is operated by G4S, is known as "the Director", and the Secretary of State for Justice, who is the counterparty to the contract under which G4S operates the prison. Birmingham City Council, which applied for the injunction, and G4S are Interested Parties.
In broad terms, the claimant's challenge is to decisions by the first two defendants, supported by the third defendant, that civil contemnors committed to prison are not entitled to have time spent on remand deducted from their sentence by the prison. It is submitted on his behalf that this is unlawful under purely domestic law, and that the judge committing a person to prison for civil contempt is obliged to make such a deduction under domestic law ("the domestic law challenge"). In this case the judge intended to do so, although the terms of the order made on 5 December did not reflect that intention. It is also submitted that credit for time spent on remand by such a person is required in the light of the Human Rights Act 1998 and the consequent applicability of the rights under the European Convention on Human Rights ("ECHR"). With regard to the challenge based on the ECHR, it is submitted that the period on remand for which a deduction is not made is an unlawful deprivation of liberty within Article 5(1)(b) of the ECHR and unlawful discrimination contrary to Article 14 of the ECHR when compared to the position of those sentenced to a term of imprisonment for a criminal offence.
In the next two sections I summarise the factual background and the legislative framework. I then summarise the case advanced on behalf of the claimant. In the final section of this judgment I have concluded, for the reasons I give at [26] – [34] (domestic law) and [36] – [45] (ECHR), that this application for judicial review is misconceived and should be refused. The judge who committed the claimant may not have had the assistance he should have had from counsel. It appears that none of the previous cases raising this point, which are all in the White Book or the leading text on contempt of court, was drawn to his attention by either party. If so, that was unfortunate. It is even more regrettable that none of the parties to the judicial review proceedings drew them to our attention in their written or oral submissions.
II. The factual background
On 19 October 2012, on the application of Birmingham City Council, HHJ Worster made an injunction under the 2009 Act prohibiting the claimant from entering a prescribed area of Birmingham save for certain limited purposes and from associating or gathering with 19 named persons in any public place in the city. It also required him to maintain engagement with the Centre for Conflict Transformation. A power of arrest was attached to the order. The particular needs of the City of Birmingham in the light of the activities of two notorious urban street gangs, and Parliament's decision that specific legislation was needed to deal with the consequences of gang culture, are set out in the judgment of Moore-Bick LJ in Birmingham City Council v James [2013] EWCA Civ 552.
On 29 November 2012, the claimant was produced at the Birmingham County Court on the day he was found in the prohibited area and arrested. He was remanded in custody by a judge pursuant to section 43(5) of the 2009 Act. Seven days later, on 5 December 2012, he came before HHJ McKenna, who found that he had breached the injunction and committed him to imprisonment for a period of three months. During the hearing, the judge indicated that he wished the time the claimant spent on remand to be credited as time served, but this was not reflected in the committal order and warrant of committal drawn up. The committal order stated that the claimant "be committed to HMP Birmingham for a period of 3 months or until lawfully discharged if sooner." The warrant of committal stated that he should be "committed to prison…for a period of 3 months".
If account is taken of or credit is given for the period in custody between 29 November and 5 December, the claimant's release date would have been 11 January 2013. If that period is not taken into account, his release date would have been 18 January 2013. In early January 2013, the claimant's solicitors contacted the prison to confirm that the claimant's release date would be 11 January. They provided the prison with a copy of a letter from the court dated 9 January 2013, in which HHJ McKenna's clerk stated that the judge had expressly said at the hearing on 5 December that credit should be given for time spent on remand.
On 10 and 11 January, the prison and the Ministry of Justice's Sentence Calculation Policy Unit respectively responded to the solicitors in a letter and an email. They refused to release the claimant. The prison's letter stated that, after 3 December, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") courts did not have the authority to direct that remand time was to count. The letter stated that, as the claimant was committed on 5 December, "this new Act" applied. It also stated that, under "this new Act", the prison has the authority to deduct remand time, but "we cannot do this in this case as section 242 and section 305 of the CJA 2003 states (sic) that we cannot". This was because section 305 provides that serving a term for contempt is not a "sentence of imprisonment". As the provisions concerning remands in the 2003 Act apply only to "sentences of imprisonment", they do not apply to contempt of court. The email from the Ministry of Justice was to the same effect.
On 14 January 2013 there were four developments. The first was that HHJ McKenna amended the committal order and warrant of committal by adding, in the committal order after "three months", "with credit for time spent on remand (of seven days)", and on the warrant by adding "with seven days credit in respect of time served on remand to be given". Secondly, these proceedings (CO/350/2013), challenging the prison's refusal to release the claimant, were filed. The third and fourth developments were that HHJ David Cooke ordered the claimant's immediate release, and the claimant was released.
The claimant was found in the prohibited area again on 12 July 2013. He was arrested, and taken to the Central Police Station, where his detention was authorised pending the next available County Court hearing. On 15 July he was produced at Birmingham County Court, where HHJ Worster sentenced him to 3 months imprisonment for contempt of court. Again, the order did not refer to giving credit for the three day period in police custody, but the judge had contemplated and suggested this during the hearing. Again, the prison authorities advised the claimant's solicitors that his release date would not be calculated by giving credit for the three days on remand. A further application for judicial review (CO/12013/2013) was filed on 28 August 2013. The same day, HHJ Oliver-Jones QC ordered that the claimant be released forthwith, and he was.
III. The decision refusing permission
The two applications for permission to apply for judicial review came before HHJ McKenna. On 30 September 2013, he ordered that they be linked and listed in court after 11 October 2013. They came before Lewis J who, as I have stated, refused permission. Although, at one stage, it appeared that the days on remand in July for which credit was not given were...
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