The Court of Appeal has dismissed our client’s appeal in Shields-McKinley v SSJ, finding that the Secretary of State for Justice was not responsible for our client’s false imprisonment as a result of his sentence miscalculation. These proceedings arose out of the failure to credit our client with the time he had spent on remand in custody in Germany whilst awaiting his extradition to the United Kingdom. As a result, in this jurisdiction our client’s release date and sentence were miscalculated post-extradition and conviction.
The issues raised in this claim are relevant in cases where a prisoner has spent time on remand (in or outside the UK), and that time spent in remand has failed to be taken into consideration in their sentence calculation. The Court of Appeals’ findings indicate that in certain circumstances, the responsibility lies with the prisoner to raise a complaint through the statutory route of appeal to correct the errors in sentencing, regardless as to whether any application may be considered out of time.
The appellant committed a number of serious crimes in the UK and left the country. In July 2012 he was arrested on a European Arrest Warrant (EAW) in Germany. After spending 50 days on remand in Germany, from 18 July 2012 to 6 September 2012, he was extradited to the UK; in December 2013, he was convicted.
On 31 January 2014, he was sentenced to a total extended determinate sentence of eight years, pursuant to section 226A of the 2003 Act, comprising a custodial term of four years, with an extended licence period of four years. At the time of his sentence, our client had spent 511 days on remand in custody in this jurisdiction; that is, between 7 September 2012 and 30 January 2014.
Shortly after his sentencing, Her Majesty's Prison and Probation Service (the Prison Service) calculated his automatic release date. This was done by reference to the period of 511 days that our client had spent on remand in custody in the UK. On that basis, the date for automatic release was calculated as 6 September 2016.
Had the time that our client spent in custody in Germany been properly credited against the time to serve, his release date would have been calculated to be on or about 17 July 2016, rather than 6 September 2016.
On 4 April 2016, Duncan Lewis sent a letter before action to the Prison Service raising the issue of the Germany days and the effect this would have on the Appellant’s release date. The letter invited the Prison Service to withdraw the flawed sentence calculation sheet and to provide an ‘updated’ release date. This was refused on 12 April 2016, with advice that the Prison Service cannot credit the time unless it has been directed to count by the sentencing court. A request was then sent to the sentencing court, however with no action taken from the sentencing Court, judicial review proceedings were issued on 11 August 2016 with a writ of habeas corpus.
It was not until the 23 August 2016 that the National Crime Agency received information from German authorities that our client had been "provisionally detained pending extradition" in Germany from 18 July 2012 to 6 September 2012. The urgent application on behalf of the client for a writ of habeas corpus was then heard and granted on 26 August 2016, when only limited time was available for the hearing. The High Court Judge directed that the rolled up hearing of the claim for judicial review be adjourned.
The judicial review claim was heard on 9 February 2017, where Holroyde J granted permission to apply for judicial review but dismissed the claim: see  EWHC 658 (Admin).
The essence of the claim made to the judge was that our client should have been released from custody on or about 17 July 2016, and that he had been wrongly detained thereafter, due to a failure to apply a mandatory statutory provision and as such, was entitled to redress for wrongful detention.
The judge rejected the claim on all grounds.
Our client filed an application for permission to appeal to the Court of Appeal and was successful in a grant of permission. The Substantive appeal hearing was listed and heard at the Court of Appeal on 30 – 31 October 2018.
The principal legal submissions in regards to our client’s imprisonment were that the judge was in error for dismissing judicial review claim for the following reasons:
Firstly, even though the time spent in custody in Germany was not specified in open court, the defendant was obliged to calculate the sentence in accordance with sections 240ZA, 242 and/or 243 of the 2003 Criminal Justice Act, to ensure that the state "shall deduct all periods of detention arising from the execution of a European arrest warrant from a total period of detention to be served" as required and in accordance with Article 26.1 of the Framework Decision.
Secondly, once the defendant became aware that our client had not been credited the 50 days, she was obliged and duty bound to secure his release by exercising her prerogative power/application of the Royal Prerogative of mercy.
Thirdly, the failure to credit the days spent in Germany resulted in a period of additional and arbitrary detention in violation of the client’s ECHR Article 5’s right to liberty.
Finally, it was also submitted that the judge's conclusions were erroneous because he failed to take into consideration material facts.
The Panel were not persuaded that section 242(2)(a) of the 2003 Act defines "time remanded by court order" for the purposes of section 240ZA in such a broad manner so as to include remands in custody by English and German Courts. As such, they did not accept that parliament in the UK could compel courts in Germany to specify the number of days spent on remand in custody pursuant to an EAW. The President of the Queen’s Bench agreed with the findings of the High Court that “if parliament had intended a court in this country to take into account periods of remand in custody in any jurisdiction it would in my view have used much clearer language to that effect.”
In relation to ground two, the Panel determined that this case was not one of an error of calculation on the part of the Prison Service which could be corrected administratively. Flexible as the power to exercise it is, the prerogative of mercy is not a simple substitute for conventional routes provided by statute, available to correct errors in the sentencing process such as occurred in this case; nor is there a requirement that the prerogative must be exercised if those routes of appeal are not pursued in cases such as this one, without any explanation.
In relation to the claim the our client’s detention was an infringement of his Article 5 rights, the panel did not accept that there had been a ‘gross and obvious’ error by the Crown Court, nor did they accept an error of law on the part of the Prison Service. He further added that it would have been constitutionally improper for the Prison Service to amend or ignore the Court Order and permitting the Prison Service or a member of the Crown Court to override the order, would circumvent the proper appeal procedure.
The judge rejected the claim on all grounds, claiming Article 5 of the Convention has no bearing on the material facts of the case. It was also held that this was not a case where the court order could be the subject of administrative correction by the Prison Service.
In conclusion, despite the failure of the Secretary of State to take steps to correct the sentence based on our submissions, the Court of Appeal judges found that our client had an alternative remedy to correct the sentencing errors; namely through a statutory route of appeal to the Court of Appeal Criminal Division regardless of whether it may be an out of time application.
We are in the process of seeking permission to appeal this decision to the UK Supreme Court.
The client was represented by Immigration and Public Law solicitor Sangeetha Vairavamoorthy. Counsel instructed in the matter are Philip Rule and Ian Brownhill of No5 Barristers Chambers.