McShane, R (on the application of) v Secretary of State for Justice (Rev 1)

A court may adjourn a judicial review hearing involving a litigant in person where unusual facts disclose reasonably arguable legal issues requiring expert advice, particularly where the public authority may have acted on a mistaken or misleading basis. The court must not enter the arena or recommend arguments, but may draw attention to relevant legal provisions or decisions and ask whether they have been considered. Whether a procedural point is new, delayed or justified is generally fact-sensitive and should not be resolved summarily without the necessary material. The possible effect of misleading official guidance, lost safeguards and resulting prejudice may require substantive examination before the legality of a prisoner transfer or continued detention can be determined.

The claimant, a prisoner transferred from Portugal to the United Kingdom, challenged the lawfulness of his detention and the calculation of his release date. He had refused consent after being told that transfer would result in a substantial further period in custody, but the transfer warrant stated that he had consented. Earlier judicial review and habeas corpus proceedings had dealt with whether consent was legally required and with his release date. The hearing before Walker J was listed to determine the release-date issue. During the hearing, the judge identified further arguable issues concerning whether the defendant had proceeded on a mistaken belief about consent and whether official guidance had caused prejudice. The question was whether the hearing should be adjourned to enable the claimant to obtain legal representation.

1. Adjournment granted. The court adjourned the substantive hearing and gave directions intended to enable the claimant, who appeared in person from prison, to obtain urgent legal aid or pro bono representation.
2. The claimant’s complaint could arguably extend beyond the narrow question whether the Council Framework Decision 2008/909/JHA permitted transfer without consent. It could also concern whether the defendant had decided to proceed on the mistaken basis that the claimant had consented, and what legal consequences followed from that mistake.
3. The court could not determine summarily whether the points were new, barred by the earlier order, or subject to undue delay. Any question of undue delay was fact-sensitive, and the court lacked the factual material needed to resolve it.
4. The defendant’s substantive submissions might ultimately prove correct. However, the court could not exclude the possibility that the claimant, relying to his prejudice on government guidance stating that consent was required, had lost opportunities to protect his position when the later framework was used. The possible relevance of the claimant’s opinion, official knowledge of his refusal, and the mistaken consent recital required proper legal analysis.
5. A judge must not recommend or devise arguments for an unrepresented party. Nevertheless, where a judge is aware of a relevant legal decision or legal provision, the judge may, absent good reason, draw attention to it and ask whether it has been considered. That course did not amount to entering the arena.
6. The defendant was directed to prepare evidence concerning the events and to consider whether prompt disclosure or reassessment of its position was required. No final determination was made on the lawfulness of the transfer, the release date or continued detention.

The judgment records earlier procedural steps in the same proceedings. A habeas corpus application was dismissed on the papers by Lavender J; Dingemans J directed that it continue as an application for permission to apply for judicial review, granted permission on the release-date issue and refused permission on the consent issue. Walker J then adjourned the substantive hearing to enable the claimant to seek representation.