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

Factual and Procedural Background

The Appellant committed serious offences in this jurisdiction and subsequently left the country. In July 2012, he was arrested in a foreign country under a European Arrest Warrant and spent 50 days on remand in custody there before being extradited back to this jurisdiction. Upon extradition, he remained in custody pending trial. In December 2013, he was convicted of multiple serious sexual offences and sentenced in January 2014 to an extended determinate sentence totaling 8 years, comprising 4 years custodial and 4 years extended licence. At sentencing, the Appellant had spent 511 days on remand in custody domestically. The sentencing judge made no reference to the foreign remand period, which was no longer required to be specified in court for domestic remand periods under legislative changes.

The foreign remand period was briefly mentioned in a pre-sentence report but without detail, and neither defence nor prosecution counsel informed the sentencing judge of the exact duration. The Appellant’s former counsel, now deceased, had a professional duty to advise on appeals but no application to appeal the sentence was made within the statutory time limits. The Prison Service calculated the release date based on domestic remand days only, unaware of the foreign remand period. The Appellant’s solicitors raised the issue of the foreign remand days more than two years after sentencing, but the Crown Court did not amend the sentence to specify those days. Subsequent inquiries revealed initial uncertainty from foreign authorities about the detention period, which was only definitively confirmed shortly before the Appellant’s release.

The Appellant sought judicial review claiming unlawful detention due to failure to credit the foreign remand days, but the claim was dismissed by the High Court. The Appellant now appeals that dismissal.

Legal Issues Presented

1. Whether sections 240ZA, 242 and/or 243 of the Criminal Justice Act 2003 (as amended) can be interpreted conformingly with Article 26.1 of the European Arrest Warrant Framework Decision to require crediting all detention periods abroad even absent a court direction specifying those days.
2. Whether the absence of a sentencing court direction under section 243 precludes crediting of foreign remand days under section 240ZA.
3. Whether the Secretary of State is obliged to credit the foreign remand days by exercising the Royal Prerogative of mercy.
4. Whether the failure to credit the foreign remand days resulted in unlawful detention in breach of Article 5 of the European Convention on Human Rights.
5. Whether the judge erred in his conclusions by failing to consider material facts.

Arguments of the Parties

Appellant's Arguments

• A conforming interpretation of the relevant statutory provisions is possible and necessary to comply with international obligations under the Framework Decision, requiring credit for all detention periods arising from the execution of a European arrest warrant.
• The requirement for a court direction under section 243 should not preclude the administrative crediting of foreign remand days, and practical or technical obstacles should not impede this.
• The Secretary of State should exercise the Royal Prerogative of mercy to credit the foreign remand days, especially given the Appellant’s inability to know the law better than his legal representatives or the court.
• The failure to credit these days led to arbitrary and unlawful detention in breach of Article 5 of the Convention, and the State should be liable for this judicial error.
• The judge failed to consider material facts, including repeated efforts by the Appellant’s legal team to obtain confirmation of detention periods from state authorities before proceedings commenced.

Respondent's Arguments

• The statutory scheme requires a court direction specifying the number of foreign remand days to be credited; absent such a direction, the Prison Service cannot credit those days.
• The principle of conforming interpretation cannot be applied contra legem to override clear statutory language.
• The Royal Prerogative of mercy is a discretionary power that should not circumvent the statutory appeal processes and time limits, particularly where there was no culpable delay by the respondents in investigating the matter.
• The detention was lawful pursuant to a valid court order, and the Appellant had available statutory routes of appeal that were not pursued.
• The judge correctly found no gross or obvious error in sentencing and that the failure to specify the foreign remand days was regrettable but did not render detention unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the relevant statutory framework, including the amendments introduced by LASPO which shifted the crediting of remand time to an administrative process, except for extradited prisoners where the court must specify the number of days spent in custody abroad awaiting extradition pursuant to section 243(2) of the Criminal Justice Act 2003.

The court emphasised that this statutory requirement for a direction in open court is clear and unambiguous and serves an important administrative purpose: without such a direction, the Prison Service lacks definitive authority and information to credit foreign remand days. The court held that the principle of conforming interpretation obliges courts to interpret domestic law in light of EU Framework Decisions, but this principle does not permit interpretation contra legem. The statutory requirement could not be overridden by a purposive or conforming interpretation to credit foreign remand days absent the court’s direction.

The court rejected the appellant’s argument that the Secretary of State was obliged to credit the foreign remand days by exercising the Royal Prerogative of mercy, explaining that the prerogative is a discretionary constitutional safeguard and not a substitute for statutory appeal routes. The court found no culpable delay by the respondents in investigating the detention period abroad and noted that the appellant had available statutory appeal mechanisms that were not pursued.

Regarding the alleged violation of Article 5 of the European Convention on Human Rights, the court found no gross or obvious error in sentencing as the failure to specify the foreign remand days was not due to judicial error but to the absence of submissions at sentencing. The court held that detention pursuant to a valid court order is lawful, even if the order was made in error, absent quashing or variation by the appellate court.

The court also dismissed the appellant’s claim that the judge failed to consider material facts, finding that the judge had carefully considered the chronology and evidence and that no basis existed to interfere with his decision.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is that the appellant’s failure to obtain a court direction specifying the number of days spent in custody abroad precludes crediting those days towards his sentence. The appellant’s detention beyond the date he contended was lawful. The statutory appeal routes and time limits remain the proper mechanisms to correct such errors, and the Royal Prerogative of mercy is not an alternative remedy in this context. No new precedent was established beyond affirming the strict statutory interpretation and procedural requirements for crediting extradition remand days.