Woolley, R (on the application of) v Ministry of Justice

Under section 49(2) of the Prison Act 1952, time spent by a sentenced prisoner unlawfully at large and detained abroad pending extradition does not automatically count towards the sentence. The detention is pursuant to the order of the foreign court, rather than the original sentence, save in a merely factual or “but for” sense. The Secretary of State retains a discretion to direct that the period be counted. European recommendations and the European Arrest Warrant regime do not require that discretion to be exercised in favour of credit in non-European Arrest Warrant cases. A difference between the treatment of different categories of extradited prisoners, or any perceived anomaly, is a matter for Parliament unless the statutory language requires a different result.

The claimant had been sentenced to imprisonment and later absconded from an open prison. He was arrested and detained in Switzerland for 266 days before being extradited to the United Kingdom. The Secretary of State refused to credit that period against the claimant’s sentence, relying on section 49(2) of the Prison Act 1952 and the applicable sentence-calculation guidance.

The claimant sought judicial review of the refusal. He relied on European extradition recommendations, the European Arrest Warrant Framework Decision and authorities concerning its interpretation. He also argued that the Divisional Court’s earlier construction of section 49(2) in R v Governor of Leeds Prison, ex parte Stafford was wrong. The central issues were whether the Swiss detention fell within the statutory proviso and whether European materials required the Secretary of State to credit it.

1. Application dismissed. The Secretary of State was entitled to refuse to credit the 266 days spent in Swiss custody. The court also declined to certify the challenge to R v Governor of Leeds Prison, ex parte Stafford as a point of general public importance.
2. Per Irwin J, section 49(2) provides that, unless the Secretary of State otherwise directs, no account is taken of time during which a prisoner unlawfully at large is absent from the place where he is legally required to be detained. The proviso does not automatically exclude the period of detention abroad pending extradition. Following R v Governor of Leeds Prison, ex parte Stafford, the relevant detention is detention pursuant to the order of the foreign court, not pursuant to the original sentence.
3. The European Arrest Warrant arrangements impose obligations within their own field. They do not require the same approach in non-European Arrest Warrant cases. Recommendation No R(86)13 had no compulsory legal force and could not reverse the statutory starting point from “no account shall be taken” to “account shall be taken”. The arguments based on Dabas v High Court of Justice, Madrid and Criminal Proceedings against Pupino were therefore rejected.
4. Irwin J regarded Stafford as long-established authority, supported by R (S) v Secretary of State for the Home Department and Murphy v Secretary of State for the Home Department. The claimant’s proposed broader construction was not sufficiently meritorious to justify certification.
5. Gross LJ agreed. He considered the reasoning in Stafford logically cogent, emphasised the absence of a sufficient causal connection between the original sentence and the foreign detention order, and regarded any anomaly arising from the statutory scheme as a matter for Parliament.

This was a first-instance judicial review in the Administrative Court. The judgment records an earlier decision concerning related confiscation enforcement proceedings, but that decision was not an appeal from the present claim.