R James v Governor of HMP Birmingham
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 23 October 2013 |
| Neutral Citation | [2013] EWHC 4657 (Admin) |
| Docket Number | CO/12013/2013-CO/350/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 October 2013 |
[2013] EWHC 4657 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
Mr Justice Lewis
CO/12013/2013-CO/350/2013
Mr De Mello & Mr Muman appeared on behalf of the Claimant
Mr Najib appeared on behalf of the Defendant
These two cases involve applications for permission to apply for judicial review. Both cases involve an individual, Mr James, who on two separate occasions was committed for contempt of a breach of an order of the court.
The issue arises out of the fact that in both cases Mr James spent a period of time in police detention prior to being dealt with by the court. The issue that arises is whether or not there has been any illegality in relation to the crediting of time spent in police detention and whether or not there is an arguable case that there has been unlawful discrimination contrary to Article 14 of the ECHR as between people sentenced to imprisonment for a criminal offence and the position of people who are sentenced for civil contempt, that is breach of a court order.
I have considerable sympathy with Mr James and with the judges who dealt with this case because of the complexity of the legal provisions in issue. The starting point is that the order of the County Court in these two cases both provided that a power of arrest was to be attached to the order. Section 43 of the Policing and Crime Act 2009 provided that where a power of arrest was attached to an order, then a Constable could arrest a person whom he had reasonable cause to suspect to be in breach of that provision. Then he would bring the person before the court.
In this case Mr James was made the subject of a final injunction in order to prevent gang related violence under the Policing and Crime Act 2009. That order was imposed on 19th October 2012. He broke that injunction and entered into an area where he should not have gone on 29th November 2012. He was arrested. The claimant spent I think 7 days or so in police detention. Eventually, on 5th November he was brought before His Honour Judge McKenna and Judge McKenna sentenced the claimant to a period of 3 months' imprisonment. His Honour Judge McKenna subsequently amended that order by hand and he said 3 months with credit for time spent on remand.
As it happened by the time that the order was made 3 days of that 7 days had already passed and the first issue in relation to the first case is whether or not it is arguable that detention for that first period of 3 days was unlawful or whether it was authorised under the initial order of Judge McKenna. In any event he continued to be detained even after the order of His Honour Judge McKenna and the Secretary of State accepts that the period of detention after the amendment of the order is unlawful. So for the first case we are looking at a period of 3 days when the order of His Honour Judge McKenna had sentenced Mr James to 3 months' imprisonment and prior to the amendment.
On the second occasion the claimant again broke the anti gang injunction, as it is called, and he spent a period of 7 days in police detention. He was produced at the County Court again and on the 15th July 2013 and again His Honour Judge Worcester sentenced him to 3 months' imprisonment for contempt of court by reason of the breach of the order.
On that occasion the order does not to refer to any credit being given for the 3-day period in police custody. The acknowledgement of service from the Secretary of State accepts that it was suggested orally at the hearing that the judge contemplated that credit would be given.
So in the first case we are dealing with a period of 3 days pursuant to an order of the court prior to it being amended to exclude a period of time spent in police detention. In the second case we are dealing with a period of number of days where the order provided for 3 months' imprisonment and there was no amendment to the order but a suggestion orally that time spent in police detention might count.
Critical to Mr De Mello's case on behalf of Mr James is this. He says that the detention during those days in question is unlawful because he says, firstly, that time spent in police detention pursuant to an arrest by a Constable under an order made by the court is time which counts towards remand.
The position in relation to these matters is complex. Initially under the Criminal Justice Act...
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R Gavin James (Claimant/Appellant) v HM Prison Birmingham and Others Birmingham City Council and Another (Interested Parties)
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