Shields-MckInley, R (On the Application Of) v The Secretary of State for Justice the Lord Chancellor

Under Criminal Justice Act 2003 section 243, time spent detained abroad awaiting extradition counts towards a sentence only where the sentencing court has specified the relevant number of days in open court. The Prison Service cannot independently add those days or rewrite the sentence. The requirement is procedural and serves to provide a definitive record of information unavailable from domestic prison records.

The Framework Decision on the European arrest warrant requires conforming interpretation only so far as domestic legislation can bear it. It cannot justify an interpretation contra legem. Where the sentencing omission could have been corrected by the slip rule or by an appeal against sentence, continued detention under the unaltered sentence remains lawful. The Secretary of State’s prerogative power of remission may be engaged, but its non-exercise was justified on the facts.

The claimant was extradited from Germany after 50 days in detention and was later sentenced in England to an extended term of imprisonment. The sentencing judge failed to specify in open court the 50 days spent in Germany, as required by section 243(2) of the Criminal Justice Act 2003.

The Prison Service credited 511 days spent on remand in England but not the German detention. The claimant sought judicial review, arguing that the statutory scheme and the Framework Decision required the German days to be credited, and that his detention after the date on which credit would have produced release was unlawful. He also relied on statutory compassionate release and the prerogative power of remission.

1. The claim for judicial review was dismissed. Permission was granted because the grounds were arguable. The claimant’s earlier habeas corpus application had resulted in his release, but that did not determine the merits of the judicial review claim.
2. Sections 240ZA and 243 of the Criminal Justice Act 2003 had to be read together. Section 240ZA applied to detention abroad awaiting extradition only where the days had been specified in open court under section 243(2). The statutory requirement was clear. It provided the Prison Service with a definitive and publicly recorded period of foreign detention.
3. The Prison Service had no authority to go behind the Crown Court’s sentence and act as if the German days had been specified. The omission did not invalidate the sentence. The release date was correctly calculated according to the sentence as pronounced, and the claimant was lawfully detained. R v Governor of Brockhill Prison, Ex parte Evans (No 2) [2001] 2 AC 19 was distinguishable because the governing statutory scheme in that case required the governor to calculate the relevant period.
4. The Framework Decision required conforming interpretation of domestic law, but only so far as possible. The court applied the principle in Criminal proceedings against Pupino [2006] QB 83, as explained in Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344. The requirement in section 243(2) was not inconsistent with article 26, and could not in any event be ignored without interpreting the statute contra legem. The Framework Decision was not shown to have direct effect.
5. The claimant’s remedy for the sentencing omission lay through the slip rule or an application to the Court of Appeal, Criminal Division, including an application for an extension of time. The Crown Court office and the Prison Service could not administratively rewrite the sentence. The reasoning in R v Hyde and Others [2016] EWCA Crim 1031 supported that route.
6. Section 248 of the Criminal Justice Act 2003 concerned compassionate release and did not cover an alleged sentencing or release-date error. The prerogative power of remission was in principle engaged, but it was reasonable not to exercise it because doing so would have circumvented the available appeal process and definitive information from Germany was obtained only shortly before release.
7. The issues were not matters relating to trial on indictment for the purposes of section 29(3) of the Senior Courts Act 1981, so judicial review was not barred. Nor did the alternative appeal remedy oust the High Court’s jurisdiction. The claimant was ordered to pay one-third of the defendant’s costs, subject to legal-aid assessment.

First-instance judicial review decision. The judgment records that Holgate J had previously granted habeas corpus and ordered the claimant’s immediate release on 26 August 2016. The present court granted permission but dismissed the judicial review claim.