Hickman, R (on the application of) v Governor of HMP Wayland

A person subject to an activated term of imprisonment imposed in default of payment of a confiscation order may be unlawfully at large for the purposes of a Part 3 warrant under the Extradition Act 2003. The relevant question is whether, at the time of issue, there were reasonable grounds for believing that the person was unlawfully at large after conviction and whether a domestic warrant had been issued or the person could be arrested without one. Section 49 of the Prison Act 1952 treats a person detained in default of payment as if sentenced to imprisonment. The default term also forms part of the original sentence for these purposes. The European Arrest Warrant was therefore valid.

The claimant challenged his continuing detention after extradition from Spain to the United Kingdom. He had been made subject to a substantial confiscation order under the Proceeds of Crime Act 2002, followed by a ten-year term of imprisonment in default of payment. That term was activated in his absence, and a European Arrest Warrant was subsequently issued.

The claimant argued that the warrant had been issued without jurisdiction because he was not unlawfully at large within section 142(2A) of the Extradition Act 2003. The central issue was whether an activated default term relating to a confiscation order satisfied that statutory condition.

1. The judicial review claim was dismissed. The European Arrest Warrant complied with the statutory requirements, and the claimant’s detention following extradition was lawful.
2. Validity depended on section 142(2A) of the Extradition Act 2003. The court had to be satisfied that there were reasonable grounds for believing that the claimant was unlawfully at large after conviction of an extradition offence and that either a domestic warrant had been issued or he could be arrested without one.
3. The definitions of unlawfully at large in sections 68A and 140A of the Extradition Act 2003 applied expressly to Parts 1 and 2. Their limited wording did not prevent the ordinary statutory construction of the same expression in Part 3. Parts 1 and 2 concern extradition from the United Kingdom, whereas Part 3 concerns extradition into it.
4. Section 49 of the Prison Act 1952 materially informed the construction. Section 49(3) provides that the relevant provisions apply to a person detained in default of payment as if he were sentenced to imprisonment. On activation of the default sentence, the claimant therefore became unlawfully at large and liable to arrest without warrant. Both limbs of section 142(2A) were satisfied.
5. The court relied on R (on the application of) Director of Revenue and Customs Prosecutions v Birmingham Magistrates’ Court, [2010] EWHC 12 (Admin), where the default term was treated as part of the original sentence because it was integral to the confiscation order. Although that case had not decided extraditability, its general reasoning applied. The court also noted that the Strasbourg Court had found no reason to disagree with that assessment.
6. The earlier refusal of habeas corpus was not separately determined on this application. The court granted detailed assessment of the claimant’s publicly funded costs. Any application for a certificate of a point of law was to be dealt with on paper.

McGowan J granted permission for judicial review on 7 October 2015 and refused the claimant’s application for habeas corpus. The Divisional Court determined the judicial review claim and dismissed it.