Shields-MckInley v The Secretary of State for Justice the Lord Chancellor & Anor

Where legislation requires a sentencing court to specify time spent in custody abroad awaiting extradition, that requirement is a substantive procedural condition. Time cannot be credited administratively where the court made no specification under section 243(2) of the Criminal Justice Act 2003.

The principle of conforming interpretation requires domestic legislation to be read, so far as possible, consistently with a framework decision. It cannot justify an interpretation contra legem. A prison governor must obey the subsisting sentencing order and cannot rewrite it. The proper remedy for an omission in sentencing is the statutory appeal route. The Royal Prerogative of mercy is not a substitute for that route where no adequate explanation is given for delay.

The appellant had been detained in Germany pending extradition to the United Kingdom and was later convicted and sentenced in England. The sentencing court credited his time on remand in the United Kingdom but was not told about the period in Germany and did not specify it in open court.

The Prison Service calculated his release date without the German detention. The appellant’s judicial review claim was dismissed by Holroyde J in the Administrative Court: [2017] EWHC 658 (Admin). He appealed, arguing that domestic legislation should be interpreted consistently with article 26 of the European Arrest Warrant Framework Decision, or that the omission could be corrected administratively or through the Royal Prerogative. The central issue was whether the absence of a direction under section 243(2) prevented credit for the German days.

1. Appeal dismissed. The sentencing court’s failure to specify the German detention was regrettable, but the Prison Service acted in accordance with the subsisting order of the Crown Court.
2. The conforming principle requires a national court, so far as possible, to interpret domestic law in light of the wording and purpose of a framework decision. The principle has limits and cannot support an interpretation contra legem. Article 26 of the Framework Decision leaves the Member States free to choose the domestic procedure by which detention periods are identified.
3. Sections 243(2) and 243(2A) of the Criminal Justice Act 2003 clearly require the sentencing court to specify in open court the number of days spent in custody abroad awaiting extradition. Only days so specified can be credited under section 240 ZA. The requirement is not a mere technicality. It gives the prison governor a definitive statement of the period to be credited and avoids uncertainty about foreign custody records.
4. The pre-LASPO authorities, including Gordon, dealt with errors under the former court-directed regime by treating the order as capable of later administrative correction. They did not authorise the court or prison service to ignore clear statutory language. Authorities concerning section 240 ZA, including Collier and Archer, did not assist with the distinct requirement in section 243.
5. The alternative argument based on section 242(2)(a) failed. The reference to custody by order of “a court” did not extend to foreign remand periods in a way that made section 243 redundant.
6. The appropriate remedy was an appeal to the Court of Appeal, Criminal Division, including an out-of-time application where justified. The length of delay is relevant, but the court will focus particularly on the explanation for it and the applicant’s diligence.
7. The Royal Prerogative of mercy was engaged in principle, but it was not a substitute for the statutory appeal route. Requiring its exercise in these circumstances would circumvent statutory time limits and the established approach to extensions of time. The evidence also showed no culpable delay by the respondents in obtaining confirmation from Germany.
8. Detention pursuant to a valid sentence remained lawful unless and until the sentence was varied or quashed. The omission was not a gross and obvious error, nor did it make the detention arbitrary under article 5 of the Convention. Article 6 of the Charter provided no wider basis for relief.

1. Court of Appeal (Civil Division): appeal dismissed on 14 November 2019.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Holroyde J granted permission for judicial review but dismissed the claim on 5 April 2017: [2017] EWHC 658 (Admin).