R Mr Gerald McShane v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMr Justice Walker
Judgment Date31 July 2018
Neutral Citation[2018] EWHC 2049 (Admin)
Docket NumberCase No: CO/198/2018
CourtQueen's Bench Division (Administrative Court)
Date31 July 2018

[2018] EWHC 2049 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Walker

Case No: CO/198/2018

No.2

Between:
The Queen on the application of Mr Gerald McShane
Claimant
and
Secretary of State for Justice
Defendant

Mr Jude Bunting (instructed by SL5 Legal) appeared for the claimant

Mr Eric Metcalfe (instructed by Government Legal Department) for the defendant

Hearing date: 7 June 2018

Judgment Approved

Mr Justice Walker

Table of Contents

A. Introduction

2

B. Relevant legal instruments and principles

4

B1 The Repatriation Act

4

B2 The 1983 convention

7

B3 The Framework Decision

7

B4 The Criminal Justice Act 2003

15

B5 Public law principles concerning legitimate expectation

16

C. History of events

16

C1 From Sep 2012 to Feb 2014: Arrest to Conviction

16

C2 From Feb to Dec 2014: Conviction to Sentence

18

C3 Jan 2015: Mr McShane's application for transfer

19

C4 From Feb to June 2015: translation & Dr Saruga

21

C5 From July to December 2015: Law 158/2015 takes effect

21

C6 From Jan to June 2016: the Framework Decision is applied

24

C7 From July to Dec 2016: consent sought & refused

25

C8 January 2017: the January 2017 warrant and transfer

27

C9 From February 2017 onwards

28

D. Legitimate expectation: argument and analysis

28

D1 Legitimate expectation: introduction

28

D2 The assurances that Mr McShane relies on

29

D3 Was there a misuse of power?

30

D4 Legitimate expectation: conclusion

33

E. Article 5 of the European Convention on Human Rights

34

F. Conclusion

34

A. Introduction

1

This is my second judgment in this case. It follows a “rolled up” hearing in an application for judicial review. Under CPR 52.4 such an application can only proceed with the court's permission. The hearing was “rolled up” in the sense that the argument before me was directed both to the procedural question whether I should give permission to proceed and to the substantive question whether, if permission were granted, the application should succeed.

2

The claimant, Mr McShane, was formerly in prison in Portugal pursuant to an 8 year sentence imposed on him by the court in Portugal for a crime he committed there. He is currently held in custody in this country following his transfer here on 26 January 2017 from prison in Portugal. The defendant is the Secretary of State for Justice. I shall refer to the defendant as “the Justice Secretary” in order to distinguish the Justice Secretary from the Secretary of State for Foreign and Commonwealth Affairs (“the Foreign Secretary”).

3

Important parts of the Justice Secretary's functions in the present case were performed by an agency now known as Her Majesty's Prison and Probation Service (“HMPPS”). HMPPS is an executive agency, sponsored by the Ministry of Justice. HMPPS was previously called the National Offender Management Service (“NOMS”).

4

Mr McShane's main assertion is that public law principles of “legitimate expectation” apply to the circumstances of the present case. Those principles, he submits, should lead the court to hold that his transfer to this country was unlawful and, among other things, to direct his release. The Justice Secretary responds that Mr McShane was lawfully transferred here under two legal instruments. The first is the Repatriation of Prisoners Act 1984 (“the Repatriation Act”). The second is a legal instrument made by the Council of the European Union on 27 November 2008: Council Framework Decision 2008/909/JHA (“the Framework Decision”). The Justice Secretary submits that in consequence Mr McShane, under section 244(3)(a) of the Criminal Justice Act 2003, is not eligible for release until 21 November 2018.

5

The trial of these proceedings had been scheduled to take place in March this year. However, on 8 March this year I adjourned the trial so that Mr McShane could seek legal representation. My reasons for doing so were set out in my first judgment dated 12 March 2018: R (McShane) v Secretary of State for Justice [2018] EWHC 494 (Admin).

6

The procedural history up to 8 March 2018 is set out in section C of my first judgment. Following the adjournment Mr McShane was granted legal aid. He was represented at trial by Mr Jude Bunting of counsel, instructed by SL5 Legal. The Justice Secretary was represented at trial by Mr Eric Metcalfe of counsel, who had appeared for the Justice Secretary on 8 March 2018, instructed by the Government Legal Department.

7

Revised grounds for bringing the claim (“Mr McShane's revised grounds”), settled by Mr Bunting on 10 May 2018, have now taken the place of Mr McShane's previous statements of case. Mr McShane's revised grounds are supported by a witness statement (“McShane 1”) made by Mr McShane on 20 April 2018.

8

Revised summary grounds of defence (“the revised defence grounds”) were settled by Mr Metcalfe on 11 May 2018. They were followed by a witness statement (“Wilkinson 1”) made by Mr Graham Wilkinson on 15 May 2018. Mr Wilkinson is a member of the civil service who has been employed in parts of the justice system dealing with prison and probation for more than 20 years. In 2009 he was appointed as head of the Cross Border Transfer Section at NOMS, and he has continued to hold that post at HMPPS.

9

Additional evidence was filed on behalf of Mr McShane concerning Portuguese law as to early release of prisoners. This evidence is set out in a witness statement made on 21 May 2018 by Assistant Professor Pedro Caerio of the faculty of law at the University of Coimbra in Portugal. Professor Caerio is a member of the European Commission's Expert Group on Criminal Policy. He has, since 2015, been a member of the European Criminal Policy Initiative.

10

On 31 May 2018 the Government Legal Department sent SL5 Legal redacted material disclosed “pursuant to … duty of candour obligations”. A witness statement made by Mr McShane on 4 June 2018 (“McShane 2”) made observations on this material.

11

In section B below I discuss relevant legal instruments along with relevant public law principles. Section B1 deals with the Repatriation Act. Section B2 deals with the Council of European Convention on the Transfer of Sentenced Persons (European Treaty Series, no 112) signed in Strasbourg on 21 March 1983 (“the 1983 convention”). Section B3 deals with the Framework Decision. Section B4 deals with the Criminal Justice Act 2003. Section B5 discusses relevant principles of “legitimate expectation”.

12

Section C below gives an account of the history of events. It supersedes the account in Section B of my first judgment.

13

In section D below, I analyse the arguments on each side in relation to legitimate expectation. Section E below makes observations on an alternative argument for Mr McShane which relied on article 5 of the European Convention on Human Rights. My conclusions are summarised in Section F below.

B. Relevant legal instruments and principles

B1 The Repatriation Act

14

Section 1 of the Repatriation Act provides materially:

(1) Subject to the following provisions of this section, where—

(a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Islands of persons to whom subsection (7) below applies, and

(b) the [relevant Minister] and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as “the prisoner”), and

[(c) in a case in which the terms of those arrangements provide for the prisoner to be transferred only with his consent, the prisoner's consent has been given,]

the [relevant Minister] shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom.

(2) …

(3) The [relevant Minister] shall not issue a [warrant under this section] providing for the transfer of any person into the United Kingdom unless—

(a) that person is a British citizen; or

(b) the transfer appears to the [relevant Minister] to be appropriate having regard to any close ties which that person has with the United Kingdom; or

(c) it appears to the [relevant Minister] that the transfer is such a transfer for the purpose of the temporary return of the prisoner to the United Kingdom as may be provided for by virtue of section 4(1)(b) below.

(4) The [relevant Minister] shall not issue a [warrant under this section], other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to inform the prisoner in writing in his own language—

(a) of the substance, so far as relevant to the prisoner's case, of the international arrangements in accordance with which it is proposed to transfer him,

(b) of the effect in relation to the prisoner of the warrant which it is proposed to issue in respect of him …,

(c) in the case of a transfer into the United Kingdom, of the effect in relation to the prisoner of the law relating to his detention under that warrant (including the effect of any enactment or instrument under which he may be released earlier than provided for by the terms of the warrant),

(d) …

(e) of the powers of the [relevant Minister] under section 6 of this Act;

and, the [relevant Minister] shall not issue a warrant superseding an earlier [warrant under this section] unless the requirements of this subsection were fulfilled in relation to the earlier warrant.

(5) [In such a case as is referred to in subsection (1)(c) above, the relevant Minister shall not issue a [warrant under this section] unless he is satisfied that the prisoner's consent was given] in a manner authorised by the international arrangements in accordance with...

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