Desmond Shields-McKinley v The Secretary of State for Justice [2019] EWCA Civ 1954
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Desmond Shields-McKinley v The Secretary of State for Justice [2019] EWCA Civ 1954 concerned an appeal against the dismissal of a judicial review claim relating to the failure to credit time spent on remand in Germany awaiting extradition when calculating the appellant’s release date. The Court of Appeal dismissed the appeal.
Mr Shields-McKinley was convicted in December 2013 at Derby Crown Court of serious sexual offences against a boy under 13. He was sentenced on 31 January 2014 to an extended determinate sentence of eight years, comprising a custodial term of four years with an extended licence period of four years. Before conviction he had spent 50 days in custody in Germany between 18 July 2012 and 6 September 2012 awaiting extradition under a European Arrest Warrant, and thereafter 511 days in custody in England and Wales. The sentencing recorder was not informed of the Germany days and accordingly made no specification in open court, with the consequence that the Prison Service calculated the appellant’s automatic release date as 6 September 2016. Had the Germany days been credited, the release date would have been approximately 17 July 2016.
In April 2016 the appellant’s solicitors raised the issue with the Prison Service, which responded that it could not credit time unless directed by the sentencing court. The Crown Court, being functus officio, could not vary the sentence under the slip rule. The appellant commenced judicial review proceedings in August 2016, after 17 July 2016 had passed. Holgate J granted an urgent application for a writ of habeas corpus on 26 August 2016. The rolled-up hearing was heard by Holroyde J in February 2017, who granted permission but dismissed the claim on its merits.
The statutory framework required careful analysis. Section 243 of the Criminal Justice Act 2003, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with effect from 3 December 2012, provides that in the case of an extradited prisoner the court must specify in open court the number of days the prisoner was kept in custody while awaiting extradition, and that section 240ZA applies to those days as if they were days remanded in custody in connection with the offence or a related offence. Section 240ZA provides that days remanded in custody are to count automatically as time served. Parliament had removed the obligation on courts to specify remand days for domestic custody, making that calculation administrative, but had simultaneously inserted a positive requirement for specification in respect of days in custody abroad awaiting extradition. Article 26.1 of the European Arrest Warrant Framework Decision (2002/584/JHA) requires the issuing member state to deduct all periods of detention arising from the execution of a European arrest warrant from the total period to be served.
The appellant advanced several grounds. First, he argued that applying the principle of conforming interpretation, sections 240ZA, 242 and 243 must be construed to ensure that the state deducts all periods of detention arising from execution of a European arrest warrant, as required by Article 26.1 of the Framework Decision. Secondly, he contended that the lack of a direction under section 243 did not preclude crediting time under section 240ZA, and that section 242(2)(a) defined remand by court order broadly enough to include the German court’s order. Thirdly, in the alternative, he submitted the Secretary of State was bound to credit the days by application of the Royal Prerogative of mercy. Fourthly, he argued that the failure constituted arbitrary detention in violation of Article 5 of the European Convention on Human Rights, or alternatively Article 6 of the Charter of Fundamental Rights of the European Union, because it resulted from a gross and obvious irregularity in the sentencing procedure. Finally, he contended the judge failed to take material facts into account, particularly the efforts made by his legal team to obtain evidence from state bodies before issuing proceedings.
The President of the Queen’s Bench Division, giving the leading judgment, rejected each ground. On the question of conforming interpretation, the court held that the clear intention of Parliament was that section 240ZA applies only to days specified under section 243(2), and in the absence of such specification those days cannot be taken into account. To interpret the statute otherwise would be contra legem and therefore impermissible. Article 34(2)(b) of the Treaty of the European Union leaves the choice of form and method to achieve the result pursued by a framework decision to member states. The Framework Decision says nothing about the domestic procedure by which the relevant days are to be identified. Section 243(2) serves a distinct and important purpose: without a pronouncement by the court, the prison governor has no definitive statement of the number of days for which credit must be given. Unlike the position where a defendant is remanded in custody domestically, the Prison Service has no access to records of days spent in custody abroad and cannot make the calculation itself. The requirement is not onerous or difficult to fulfil such that it frustrates the objective of the Framework Decision.
The court rejected the argument that credit could be given administratively notwithstanding the clear meaning of section 243(2). The line of authority commencing with R v Gordon [2007] EWCA Crim 165 undermined rather than supported the appellant’s case. The solution identified in Gordon when errors were made was not to ignore the statute and recast the decision as wholly administrative, but to find a form of words permitting later administrative correction where necessary. No such form of words had been used in this case. The judge was also correct to reject the submission that section 242(2)(a) extended to remand by a court in any jurisdiction. Parliament would have used much clearer language if it had intended such a result. Moreover, if that submission were correct, section 243 would serve no purpose.
The court agreed with the judge’s analysis of the Royal Prerogative of mercy. Whilst the prerogative is flexible and provides a constitutional safeguard against mistakes, it is not a simple substitute for conventional statutory routes available to correct errors in the sentencing process, nor is there a requirement that the prerogative must be exercised if those routes are not pursued without adequate explanation. Section 9 of the Criminal Appeal Act 1968 provides a statutory route of appeal against errors in sentencing, and section 18(3) confers a discretionary power to extend the 28-day time limit. The authorities, including R v Leacock [2013] EWCA Crim 1994, R v Thorsby [2015] EWCA Crim 1 and R v Hyde [2016] EWCA Crim 1031, make clear that the proper route for correction of an error such as occurred here is by appeal to the Court of Appeal, Criminal Division. A paradigm example of a case where an extension of time might be granted even after lengthy delay would be a failure to specify days in custody awaiting extradition. If an applicant bears no responsibility for the failure to make a timely application, an extension is likely to be granted, but not where the applicant fails to act with due diligence or fails to explain the delay. The imposition of a duty enforceable through judicial review in these circumstances would circumvent the statutory route of appeal and the principled approach to extensions of time. The judge was entitled to find that there had been no culpable failure by the respondents in ascertaining the period of detention in Germany, the German authorities having provided definitive information only on 24 August 2016, shortly before the hearing before Holgate J.
The court rejected the submission that the appellant’s detention was unlawful under Article 5 of the Convention or Article 6 of the Charter. The appellant was lawfully detained by the Prison Service in accordance with the order of the Crown Court, which accurately set out what that court had ordered. The prison governor acted throughout within the terms of the sentence pronounced and could not have done otherwise. R v Governor of HMP Brockhill ex parte Evans (No 2) [2001] 2 AC 19 did not assist the appellant. In that case the order committed to the governor the responsibility for calculating the release date, and the governor made an error of law in performing that calculation. Here, by contrast, the order made no specification of Germany days, and the prison governor had no lawful basis on which to go behind the order of the Crown Court. The recorder’s error could not be characterised as gross and obvious when none of the lawyers raised the issue with him and he sentenced in ignorance of the appellant’s entitlement to credit. It is well-established that defence advocates have a duty to ensure proper information relevant to sentence is before the court. The decision was not arbitrary. Strasbourg jurisprudence in Benham v United Kingdom (1996) 22 EHRR 293 and Mooren v Germany (2010) 50 EHRR 23 makes clear that a period of detention will in principle be lawful if carried out pursuant to a court order, and a subsequent finding that the court erred under domestic law will not necessarily retrospectively affect the validity of the intervening period. A sentence passed in good faith, even if in error, does not without more amount to a gross and obvious error. Article 6 of the Charter took the appellant’s case no further, as it provides no more extensive protection than Article 5 in this context.
The court found no error in the judge’s treatment of the factual matters. The judge had carefully considered the chronology and evidence, noting amongst other things that there had been no explanation for the appellant’s failure to pursue an appeal against sentence or even at this stage to apply for an extension of time, that the recorder had not been told about the Germany days by counsel for either side, and that the appellant could and should have applied to the Court of Appeal, Criminal Division, particularly when his solicitors were contemplating proceedings in June 2016, well before the release date he contended for.
In short, the clear statutory scheme required specification in open court of days spent in custody abroad, and in the absence of such specification those days could not be credited administratively; the proper remedy was an appeal to the Court of Appeal, Criminal Division, which the appellant inexplicably failed to pursue; the Royal Prerogative of mercy was not an alternative or substitute for that statutory route; and there was no violation of Convention or Charter rights.
Leacock and Others [2013] EWCA Crim 1994, [2014] 2 Cr App (S) 12
Gordon [2007] EWCA Crim 165, [2007] 2 All ER 768, [2007] 1 WLR 2117, [2007] 2 CrAppR S 66
Boutell [2010] EWCA Crim 2054
R v Irving and Squires [2010] EWCA Crim 169
Hoggard [2013] EWCA Crim 1024, [2014] 1 Cr App R (S) 42
Thorsby [2015] EWCA Crim 1
Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin), [2016] 1 WLR 3344
Poplawski [2017] 4 WLR 173
Goluchowki v District Court in Elblag [2016] 1 WLR 2665
Collier [2013] EWCA Crim 1132
Archer v Governor of HMP Low Newton [2014] EWHC 2407 (Admin)
Secretary of State for the Home department, Ex parte Bentley [1994] QB 349
Hyde and Others [2016] EWCA Crim 1031; [2016] 2 Cr. App. R. (S.) 39; [2016] Crim. L.R. 790
Olotu v The Home Office [1997] 1 WLR 328
R (Bayliss) v Parole Board [2014] EWCA Civ 1631
Governor of HM Prison Brockhill ex parte Evans [1999] QB 1043
HMP Brockhill ex parte Evans [2001] 2 AC 19
Criminal Proceedings against Pupino (Case C – 105/03) [2006] QB 83
Johnson [2009] EWCA Crim 468
R (on the application of Shields-McKinley) v The Secretary of State for Justice [2017] EWHC 658 (Admin)