Julian Philip Myerscough v R

Credit for detention under Article 26 of Framework Decision 2002/584/JHA is limited to custody in the executing Member State from which the person was actually extradited. It does not extend to custody in another state where the anticipated extradition failed. A detailed statutory scheme implementing that rule cannot be rewritten by the courts through an exceptional sentence-reduction jurisdiction. However, a sentencing court must specify qualifying custody in the executing state under the Criminal Justice Act 2003. The court did not exclude exceptional relief in materially different circumstances, such as release followed by voluntary return.

The appellant had been convicted in 2015 after absconding before sentence and was sentenced in his absence by HHJ Peters in 2017. He spent about 21 months in custody in Ireland while resisting extradition, but was released when the extradition proceedings failed. He later fled to Romania, spent 17 days in custody there, and was extradited to the United Kingdom. After further convictions, HHJ Goodin sentenced him in 2019.

The appeals concerned whether the Irish and Romanian detention had to be credited against the sentences under the statutory scheme and Article 26 of Framework Decision 2002/584/JHA, and whether the court had an exceptional power to reduce the sentence. The appellant also renewed other challenges, following refusal of leave on conviction grounds in [2022] EWCA Crim 1412.

Disposition and principal reasoning

1. The appeal was allowed to the limited extent that the court specified 17 days spent in custody in Romania as qualifying detention under section 243(2) of the Criminal Justice Act 2003. Those days therefore counted towards the sentence. In all other respects the sentence appeal was dismissed, and permission to appeal on the remaining grounds was refused.

2. Section 243 did not apply to the 2017 sentence. The appellant had been sentenced in absentia and had not been tried or sentenced after extradition to the United Kingdom. HHJ Peters therefore had to sentence without credit for the Irish detention. Her view that a later hearing might determine the issue was erroneous, but it did not affect the basis of her sentence.

3. Section 243(2), read with section 243(1), required specification of detention awaiting the extradition which led to the relevant trial. That meant the 17 days in Romania, not the 21 months in Ireland awaiting an extradition which never occurred. Article 26(1), read with its heading and Article 26(2), had the same effect: the executing state could transmit information only about detention in that state. Sections 243 of the Criminal Justice Act 2003 and 49(3A) of the Prison Act 1952 together properly implemented the obligation. No compatible reading down was required.

4. Following R v Flynn [2022] EWCA Crim 1102, where Parliament and the EU legislator had made a clear policy choice about when credit was available, the courts could not negate or rewrite that distinction. Fairness and justice did not require an exceptional reduction of sentence here. The appellant had absconded first to Ireland and then to Romania. The court did not rule out exceptional relief in a different extradition case, including release by the first executing state followed by voluntary return.

5. The renewed sentencing grounds disclosed no arguable error. The judge could impose a sentence slightly above the range for the lead offences to reflect totality, could consider relevant material when assessing sentence and dangerousness, and did not double count by treating dangerousness separately from overall criminality. Specialty provisions restricted the offences for which the appellant could be tried or sentenced, but did not prevent consideration of otherwise relevant sentencing material.

1. Court of Appeal (Criminal Division): The appeal was allowed only to specify 17 days of Romanian custody under section 243(2) of the Criminal Justice Act 2003. The remaining sentence appeal was dismissed and permission to appeal on other grounds was refused.

2. Court of Appeal (Criminal Division): On 20 October 2022, the full court refused leave to appeal against conviction in [2022] EWCA Crim 1412.

3. Crown Court: HHJ Peters sentenced the appellant in his absence in 2017 following the 2015 convictions. HHJ Goodin sentenced him in 2019 following the later convictions.