McShane, R. (On the Application of) v Secretary Of State For Justice

Public authorities may be held to a legitimate expectation arising from clear, unambiguous and unqualified representations about how a statutory or administrative process will operate. The claimant need not prove detrimental reliance. Once such an expectation is established, the court must decide whether frustrating it would be so unfair as to constitute a misuse of power. Administrative arrangements under an international instrument do not authorise the Government to act inconsistently with its own assurances where doing so would amount to an abuse of power. Departmental divisions and the availability of other legal routes do not, without more, justify frustration of the expectation.

The claimant was serving an eight-year sentence in Portugal when he applied, with assistance from British consular officials, to transfer to the United Kingdom. Guidance supplied to him stated that he would receive information about the sentence to be served in the United Kingdom and that transfer would proceed only if he consented.

After Portugal implemented Council Framework Decision 2008/909/JHA, the claimant’s application was processed under the new arrangements. He did not consent, but the Justice Secretary issued a warrant in January 2017 stating both that he had consented and that he was to serve an incorrect period of imprisonment. He was transferred to the United Kingdom. The central issue was whether issuing the warrant frustrated a legitimate expectation and constituted an abuse of power.

1. Claim allowed. The issue of the January 2017 warrant was unlawful. The later February 2018 warrant did not cure that unlawfulness.
2. The applicable legitimate-expectation analysis had two stages. First, the claimant had to establish a promise or representation which was clear, unambiguous and devoid of relevant qualification. Secondly, if that stage was satisfied, the court had to decide whether frustration of the expectation would be so unfair as to amount to a misuse of power. Detrimental reliance was not essential.
3. The March 2012 step-by-step guide was qualified by the general disclaimer in the accompanying leaflet and did not create the required expectation. The June 2013 step-by-step guide, sent in January 2015, was self-contained and unqualified. It represented that the claimant would receive the relevant sentence information and could decide whether to consent before transfer. The June 2013 Annex 9, supplied in August 2015, carried the same assurance. The July and September 2016 communications, and the October 2016 clarification, reinforced it.
4. The claimant’s letter of 29 September 2016 made clear that he had not consented and believed consent was required. In those circumstances, issuing a warrant which proceeded on the contrary basis, and which inaccurately recited that he had consented, was conspicuously unfair and an abuse of power.
5. The Framework Decision did not compel the United Kingdom to proceed where implementation of the transfer would itself amount to an abuse of power. The fact that Portugal had implemented the Framework Decision late, that the United Kingdom had received a transfer request, or that different Government departments had different responsibilities did not justify acting inconsistently with the assurances.
6. The alternative argument under article 5 of the European Convention on Human Rights was not determined because the legitimate-expectation claim succeeded.

This was a first-instance judicial review claim. The judgment followed an earlier procedural judgment, R (McShane) v Secretary of State for Justice [2018] EWHC 494 (Admin), which concerned the adjournment and representation of the claimant.