R (Shields) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division: |
| Judgment Date | 17 December 2008 |
| Neutral Citation | [2008] EWHC 3102 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2008 |
| Docket Number | Case No: CO/8024/2008 |
[2008] EWHC 3102 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President Of The Queen's Bench Division
Mr Justice Maddison
Case No: CO/8024/2008
PETE WEATHERBY and LAURA CAWSEY (instructed by RMNJ) for the CLAIMANT
JONATHAN SWIFT (instructed by THE TREASURY SOLICITORS) for the DEFENDANT
Hearing dates: 4 th December 2008
Approved Judgment
This is the judgment of the Court
Facts
At about 5.30 a.m. on 30 th May 2005, English football fans were involved in an incident at the Big Ben diner at Varna in Bulgaria. A barman, Martin Georgiev, was assaulted and sustained serious head injuries. There was a large number of football fans in the resort at the time, on holiday after the European Champions League final in Istanbul. At about 8 a.m. that morning, Bradley Thompson and Graham Sankey were arrested at a nearby hotel in connection with the assault. About 3 hours later, the claimant, Michael Shields, was arrested. Later still a man called Anthony Wilson was arrested.
Michael Shields was subsequently charged, tried and convicted in Bulgaria of the attempted murder of Martin Georgiev. He was sentenced to 15 years imprisonment and ordered to pay the equivalent of about £90,000 in compensation. The prison sentence was later reduced to 10 years. Thompson and Wilson were convicted of lesser public order offences. Graham Sankey was released without charge.
Michael Shields, who was 18 at the time, vehemently denied any involvement in the incident. He had never been in trouble with the police before. He gave alibi evidence to the trial court, but this was rejected. He also denied being associated in any way with the other three men who were arrested. He was convicted on the basis of identification evidence, whose quality would have been carefully scrutinised in this jurisdiction.
Graham Sankey returned to England. He later went to his own solicitor and eventually made a signed confession indicating that he, not Michael Shields, had been the assailant. This confession had not been available at Michael Shields' trial. It was, however, available to and considered by the Varna Appeal Court, and subsequently by the Supreme Court of Cassation. It appears to have been rejected on grounds, analogous with one or more of those in section 23 of the Criminal Appeal Act 1968, that it would not have afforded grounds for allowing an appeal. In addition to Sankey's signed confession which the Bulgarian Appeal Courts did have and consider, we are told that there is a significant amount of additional circumstantial evidence which may support Michael Shields' case that he is innocent of the offence of which he was convicted in Bulgaria. Some of this material has not been judicially considered in Bulgaria, a further application for review of the conviction to the prosecutor's office, that is to the executive, having been refused.
After his unsuccessful appeals against conviction in the Bulgarian courts, Michael Shields was repatriated to this country to serve the balance of his 10 year sentence. The compensation had been raised by public collection. We are told that, in December 2007, Michael Shields with the agreement of the Ministry of Justice, underwent a lie detector test while he was in prison. The results, we are told, supported his contention that he was not at the scene of the attack, let alone part of it.
There has been a public campaign of support for what is perceived as a miscarriage of justice. There have been concerted attempts to persuade the Bulgarian authorities to reconsider the matter; but without success. The quality of the identification procedures have been the subject of an unsuccessful application to the European Court of Human Rights. There has been a petition in the European Parliament seeking to require the Bulgarian authorities to deal with the matter. In the course of explaining to the Petitions Committee why the Bulgarian authorities were unwilling to reopen or reinvestigate the case, Mr Tsoni Tsonev, a member of the Bulgarian Supreme Judicial Council, said that the new pieces of evidence did not really prove anything substantial. They merely introduced a doubt.
The Secretary of State has written to the Bulgarian Minister of Justice, and he and Bridget Prentice MP have held meetings with her. Both the Foreign Secretary and the United Kingdom Ambassador to Bulgaria have made representations. Both the Bulgarian prosecuting authorities and the executive have declined to intervene, but on a number of occasions have indicated in writing their view that the United Kingdom authorities have power to pardon Michael Shields under Article 12 of the Convention on the Transfer of Sentenced Persons 1983, to which we shall refer later in this judgment.
It is evident that the Bulgarian judicial process is at an end. Michael Shields is serving in this country a sentence of imprisonment imposed upon him in Bulgaria upon his due conviction there.
When the Bulgarian judicial and executive position had become clear, Michael Shields' representatives asked the Secretary of State to exercise for him the Royal Prerogative of Pardon. The Secretary of State, upon taking legal advice, declined to do so, giving his reasons in a letter dated 17 th July 2008. The Secretary of State maintained that the Repatriation of Prisoners Act 1984 and the Convention on the Transfer of Sentenced Persons 1983 preclude the granting of a pardon in transfer cases where the exercise would relate to an alleged miscarriage of justice, because that would be contrary to Article 13 of the Convention. It is of this decision that Michael Shields seeks judicial review.
It should be emphasised that the Secretary of State has not expressed any view as to the merits of granting a pardon. He has only decided on advice that he has no power to grant a free pardon. The issue before this court is therefore a pure question of law, that is whether the Secretary of State is correctly advised that Article 13 of the 1983 Convention prevents him from granting a free pardon, if he were otherwise minded to do so.
The 1984 Act and the 1983 Convention
Michael Shields is detained in the United Kingdom under the Repatriation of Prisoners Act 1984. Section 1(1) of the 1984 Act provides:
“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) the prisoner has consented to being transferred in accordance with those arrangements,
The relevant Minister shall issue a warrant providing for the transfer of the prisoner in or out of the United Kingdom.”
Section 3(1) of the 1984 Act provides:
“The effect of a warrant providing for the transfer of the prisoner into the United Kingdom shall be to authorise –
(c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being provisions appearing to the relevant Minister to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred.”
Michael Shields' detention thus depends on the provisions of the warrant made under section 1 of the 1984 Act which gives effect to the international arrangements made between the United Kingdom and Bulgaria. The relevant international arrangements are those in the 1983 Convention.
Article 9 of the 1983 Convention provides that the State to which the sentenced prisoner is transferred must either continue the enforcement of the sentence under the conditions set out in Article 10, or convert the sentence under the conditions set out in Article 11. In this case, the United Kingdom authorities are continuing to enforce the Bulgarian sentence of 10 years imprisonment. Article 9.3 provides that the enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. The terms of Article 11 state that in effecting a conversion of the sentence, the administering State shall be bound by the findings of fact in so far as they appear explicitly or implicitly from the judgment imposed by the sentencing State.
Article 12 of the Convention is headed “Pardon, amnesty, commutation”. It provides:
“Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws.”
Article 13 of the Convention is headed “Review of judgment”. It provides:
“The sentencing State alone shall have the right to decide on any application for review of the judgment.”
“Sentence” and “judgment” are both defined in Article 1, indicating an explicit difference. “Judgment” is defined as “a decision or order of a court imposing a sentence”.
There are passages in a lengthy Explanatory Report published by the Council of Europe explaining a humanitarian object of the Convention to enforce sentences in the home country of the person concerned. The Report indicates that, where the administering state continues to enforce the sentence, it is bound by the legal nature as well as the duration of the sentence determined by the sentencing state; that it is bound by the findings of fact as they appear, explicitly or implicitly, from the judgment pronounced in the sentencing...
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