James, R (On the Application Of) v HMP Birmingham

Time spent in police detention following arrest under a court order is not time spent remanded in custody by order of the court. It therefore does not count towards a later term of imprisonment imposed for civil contempt or for a criminal offence. The distinction between police detention pursuant to a power of arrest and remand in prison is reinforced by section 43 of the Policing and Crime Act 2009. There is no differential treatment, and therefore no discrimination under Article 14 of the ECHR, where neither category receives credit for police detention. Detention in accordance with an unamended court order for imprisonment is lawful under Article 5.

The claimant brought two applications for permission to apply for judicial review. On separate occasions he breached an anti-gang injunction, was arrested under a power of arrest attached to the injunction, and spent time in police detention before being brought before the County Court. On each occasion he was sentenced to three months’ imprisonment for civil contempt. The first order was later amended to refer to credit for time spent on remand; the second contained no such provision, although credit was said to have been contemplated orally.

The claimant argued that the police detention should count towards his sentence, that the absence of such credit discriminated against civil contemnors, and that continued detention breached Articles 5 and 14 of the ECHR.

1. Permission refused in both applications. The claims were unarguable.
2. Under section 240 of the Criminal Justice Act 2003, credit is available where a court sentences an offender to imprisonment for an offence and the offender has been remanded in custody. Section 242 includes a person remanded in or committed to custody by order of a court. Police detention following arrest under a court-attached power of arrest does not satisfy that description.
3. Section 43 of the Policing and Crime Act 2009 authorises arrest by a constable where there is reasonable cause to suspect breach of the relevant order. The statutory distinction between detention pursuant to a power of arrest and remand in prison is made particularly clear by section 43(5), which expressly refers to the judge remanding the person in prison.
4. The legislative history, including the earlier express provision for police detention in criminal cases and its subsequent removal, supported that construction. Consequently, police detention did not count towards imprisonment for either civil contempt or a criminal offence. There was therefore no difference in treatment capable of engaging Article 14 of the ECHR.
5. Article 5 was not breached. The legal instrument authorising imprisonment was the County Court order itself. Until amendment, the first order required three months’ imprisonment, and the second order did likewise. Detention in accordance with those lawful orders was compatible with Article 5. Oral indications could not alter the legal effect of the orders.

Not an appeal. The judgment determined two first-instance applications for permission to apply for judicial review.