Tague (aka Mark Lilley) v Governor of HM Prison, Full Sutton & Anor

Where executive misconduct is said to taint detention after conviction, the court must first determine whether the abuse-of-process jurisdiction extends to post-conviction enforcement. If it does, the jurisdiction is exceptional and must be exercised sparingly. The court must assess the whole course of conduct and balance the public interest in enforcing convictions against the public interest in maintaining the integrity and reputation of the criminal justice system.

Negligence, lack of care or imprecise liaison will not ordinarily suffice. Relevant considerations include the seriousness and character of the misconduct, bad faith, causation, available sanctions, the seriousness of the offence, comity between states, and the circumstances of the original trial. A conviction will not ordinarily be displaced where the defendant voluntarily absconded but had otherwise participated fully in the trial.

The applicant had been convicted in 2000, after participating in the trial until he absconded following the close of evidence, and sentenced to 23 years’ imprisonment. His appeal against conviction was dismissed: [2002] EWCA Crim 3115.

He was returned from Spain in 2013 under a European Arrest Warrant. The Spanish surrender order included a condition that he retain the right to request a retrial. That condition could not be enforced in the United Kingdom and was inconsistent with the decision in Melloni. UK authorities failed to identify or communicate the condition before surrender.

The applicant sought habeas corpus under CPR Part 87, arguing that the authorities’ conduct constituted an abuse of process and that enforcing the sentence would offend the integrity of the criminal justice system. The central issues were whether the jurisdiction could apply after conviction and, if so, whether the conduct crossed the applicable threshold.

1. Application dismissed. The court assumed, without deciding, that the second category of abuse of process could apply to post-conviction enforcement. The issue had not been fully argued and the extension of the jurisdiction was therefore left open.
2. The recognised jurisdiction protects the integrity of the criminal justice system where proceedings would offend the court’s sense of justice and propriety or undermine public confidence. It is not a disciplinary jurisdiction. A stay is an exceptional remedy, to be exercised carefully and sparingly and only for compelling reasons.
3. The court must consider the entirety of the conduct without rigid rules. Relevant factors include the seriousness of any rights violation, bad faith or improper motive, urgency or necessity, direct sanctions against those responsible, the seriousness of the offence, causation, and the public interest in enforcing convictions.
4. The authorities’ failures were negligent and highly regrettable, particularly given the importance of extradition and the need for careful liaison. They did not amount to deliberate deceit, wilful blindness or bad faith. It was also uncertain whether the Spanish court would have refused surrender had it known that the United Kingdom could not comply with the retrial condition.
5. The applicant had voluntarily absconded only after giving evidence and calling witnesses. His lawyers continued to act and the trial proceeded with appropriate directions to the jury. Requiring a retrial would therefore reward the absconding and would not be justified by the authorities’ negligence. The Spanish court’s order also arose in a context where Spanish law was inconsistent with EU law as explained in Melloni, making the case materially less serious than unlawful-abduction cases.
6. In the round, enforcement of the valid sentence would not affront justice or undermine public confidence. The applicant was not entitled to release by habeas corpus.

The judgment states that the applicant’s appeal against conviction was dismissed by the Court of Appeal (Criminal Division): [2002] EWCA Crim 3115. The present application was determined at first instance by the Administrative Court.