Desmond Shields-McKinley v The Secretary of State for Justice [2019] EWCA Civ 1954

The appellant appealed against the dismissal of his application for judicial review. The complaint was the failure to credit him with the time he had spent on remand in Germany while awaiting extradition to the UK.

When “Parliament removed the obligation for the court to make a direction specifying in open court the number of days spent on remand in custody in this jurisdiction to count towards the sentence to be served, it inserted a positive requirement for such a direction to be made for prisoners who had been extradited to this jurisdiction, in respect of the days they had spent in custody abroad while awaiting extradition.”

In this case, there was a brief mention in the pre-sentence report that the appellant had been in detention in Germany. Counsel did not tell the Recorder that the appellant had spent time on remand and he, therefore, said nothing in his sentencing remarks. When he was asked about the matter in respect of the appeal proceedings, he said that if his attention had been drawn to it, and evidence provided, he would have given the appropriate credit.

No application was made under the slip rule, and the appellant did not apply for leave to appeal against sentence.

The issue of missing days was only raised 2 years after the sentence was imposed when his solicitor asked for an updated release date. In response to a letter before action, the prison noted that it could not credit the time unless it had been directed by the court. The prison advised the appellant to approach the court for an amended Order of Imprisonment.

By this stage, however, 56 days had passed, and there was no power under the slip rule to vary the sentence.

After some correspondence with the sentencing court, proceedings for judicial review were commenced.  The essence of the claim was that the appellant should have already been released and had wrongly been detained thereafter due to a failure to apply a mandatory statutory provision. The claim was rejected as the court held the Prison Service could not administratively correct the Order made by the court that passed sentence. The court also rejected the argument that the Secretary of State was under a duty to perform the sentencing calculation correctly, regardless of what the sentencing court had said. The appellant had also contended that his detention infringed his Article 5 rights. The judge did not accept there had been a ‘gross and obvious’ error on the part of the Crown Court as there had been no submissions made in relation to the remand days.

The grounds of appeal submitted that the judge was in error dismissing the claim for judicial review. First, applying the principle of conforming interpretation, it was possible to ensure the state deducted the detention period.

Secondly, the lack of a direction did not preclude the crediting of time. Thirdly, the Secretary of State was bound to credit the days by application of the Royal Prerogative of mercy. Fourthly, the failure to credit the days resulted in detention in violation of Article 5. Finally, the judge’s conclusions were erroneous as he failed to take into consideration material facts.

The appeal was dismissed, the appellant had “at all material times a speedy means available” to correct the error but did not take these up. In rejecting the case the judge paid careful attention to the chronology and the evidence.

There was no basis for interfering with his decision to dismiss the claim.