Case No: CO/8222/2010
Neutral Citation Number: [2012] EWHC 295 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/02/2012

Before:

THE RT HON LORD JUSTICE GROSS
THE HON MR JUSTICE IRWIN
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Between:

REGINA

	(On the application of RAYMOND WOOLLEY)
	Claimant	
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	MINISTRY OF JUSTICE	Defendant	

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Mark Summers (instructed by Garstangs Solicitors) for the Claimant
Clair Dobbin (instructed by Treasury Solicitors) for the Defendant

Hearing date: 7 February 2012
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Judgment
Mr Justice Irwin:
Background
1.	On 19 December 2002 the Claimant was sentenced to nine years’ imprisonment for conspiracy to cheat the public revenue.  The form of the offence was a Missing Trader Intra-Community VAT [MTIC] fraud or in common parlance a “Carousel” fraud.  After conviction by the jury, he pleaded guilty to 2 counts of money laundering.  On 23 February 2005 he was serving that sentence of imprisonment at HMP Sudbury, an open prison, when he absconded and fled to Switzerland.
2.	A short time after he fled, on 3 March 2005, Birmingham Crown Court issued a Confiscation Order against the Claimant in the sum of £9,497,784.02, to be paid by 3 April 2006.  In addition, the court imposed a consecutive prison sentence of four years to be served in default of payment.  This sentence is and was an intrinsic part of the sentence for the original offence.  The fact that the Claimant was not present at the time was self evidently and conspicuously his own fault.  
3.	The Claimant remained in Switzerland.  Her Majesty’s Government sought his extradition.  He was arrested on 19 June 2008 pursuant to a Request for his extradition issued on 6 February.  He was detained in Switzerland until he was extradited on 10 March 2009, a period in detention of 266 days.  From 10 March 2009 of course, he continued to serve his sentence in the United Kingdom.  This case is about whether those days of detention in Switzerland should be credited as time served against his sentence.  
4.	As a matter of history, other legal issues were addressed.  First, the extradition was sought in relation to the unexpired portion of the original nine years’ sentence, not in relation to the consecutive four year sentence in default of payment.  Although the extradition was also sought in respect of the offence against English law of escaping from lawful custody, no such offence exists in Swiss law, and for that reason the Swiss court declined to extradite the Claimant in respect of that offence.  As a result, in conformity with their obligations in international law, the British authorities never sought to institute prosecution against him for that offence. 
5.	Subsequent to his return, the Revenue and Customs Prosecution Office [RCPO] brought confiscation enforcement proceedings in the Birmingham Magistrates’ Court in respect of the Confiscation Order, the failure to satisfy that order, and the default term.  The Claimant attempted to stay those proceedings as an abuse of process. The DJ(MC) declined that application, stating that he would entertain the confiscation enforcement proceedings.  The parties sought determination of the abuse issue in the Divisional Court, before Laws LJ and Sir Thayne Forbes.  The Claimant lost, the decision and reasoning being reported at R (ex parte Director RCPO) –v- Birmingham Magistrates’Court [2010] EWHC Admin 12.  Central to the reasoning of the court was the conclusion, based on the submissions of RCPO, that the default term in the confiscation proceedings formed part of the sentence imposed for the offences of which he had been convicted: see paragraphs 29-32 of that judgment.
6.	In the meantime, on 20 April 2009 the Claimant had written to the Defendants seeking to have the time spent in custody in Switzerland deducted from his nine year sentence.  The Secretary of State replied definitively on 17 August 2009.  Having considered the question, and having regard to the provisions of section 49 of the Prison Act 1952, the Secretary of State was not prepared to treat the Claimant’s case as “exceptional” and therefore not prepared to exercise a discretion in favour of the Claimant.  I will return to the terms of section 49 later in this judgment.  
7.	The letter went on to point out the difference in the provisions affecting the Claimant’s case from those which would have applied, had his extradition been obtained by means of a European Arrest Warrant [EAW].  The relevant paragraph reads:
“Since this guidance was written, European Arrest Warrants (EAW) have come into force and there is a Framework Agreement between member states that where someone is held on a EAW the presumption would be that the time spent unlawfully at large should count.  However, Switzerland is not within the European Union (EU) so the Framework Agreement will not apply.”
8.	The Claimant did not seek to challenge that decision.  He finished serving the balance of the nine year sentence on 15 April 2010.  He remained in custody at the expiry of that period in order to serve the 4 year default term. 
9.	On 6 May 2010 the Claimant made a further application to the Secretary of State, to the effect that the days served in Switzerland should count towards the four year default term.  The Claimant sought in his application to distinguish the position from the previous application, by reference to what were described as the “pragmatic” reasons given by the Secretary of State in the letter of 17 August 2009, when refusing the earlier application.  It was said those reasons no longer applied.
10.	The Secretary of State responded definitively to this application on 9 June 2010. Material parts of the reply read as follows:
“I understand that you had previously made an application to [the Briefing and Casework Unit of the National Offender Management Service] in June 2009 for Mr Woolley’s sentence to be credited with the same period of time spent in custody in Switzerland.  Confirmation was provided on 17 August that following consideration of his application, as Switzerland was not within the European Union, the European Arrests Warrants (EAW) …this Framework Agreement would not apply in his case …….
Having considered your most recent application I note that you have again raised the EAW Framework in support of Mr Woolley’s application.  However, the position with the EAW remains unchanged and would not be applicable to Mr Woolley’s case.  For this reason his application can only be re-considered in exceptional circumstances under “Prison Service Order 6650 – Sentence Calculation”, which allows the Secretary of State the discretion as to whether to count towards a prisoner’s sentence any period spent [unlawfully at large], with each case being considered on its individual merits taking account of a number of factors.
Having considered the points highlighted in your letter, and having consulted with both the Regional Manager Custodial Services for the West Midlands, and the Sentencing Policy and Penalties Unit, it has been considered that Mr Woolley’s application does not meet the grounds for approval in exceptional circumstances.”
That is the decision under challenge.  The Claim was issued on 30 July 2010, Acknowledge of Service and Summary Grounds served on 23 August 2010 and permission granted on limited grounds by the single judge on 13 October 2010.
The Law 
11.	This case turns on the interpretation of Section 49(2) of the Prison Act 1952.  In its amended form applicable to this case, the relevant parts of that subsection read as follows:
“(2) Where any person sentenced to imprisonment ……is unlawfully at large at any time during the period for which he is liable to be detained in pursuance of the sentence ……then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the place in which he is required in accordance with law to be detained:
Provided that-
(a) this subsection shall not apply to any period during which any such person as aforesaid is detained in pursuance of the sentence ….or in pursuance of any other sentence of any court in the United Kingdom in a prison or remand centre ….”
12.	As I have indicated there have been a number of historic amendments to the language of that subsection since it was originally passed by Parliament, but none altering the sense of the section in any way relevant to this case.  However, the range of prisoners who fall within the applicability of the sub- section has been successfully cut down over the years since the Act was passed.  As the Secretary of State indicated in the decision letter, for reasons which I will address later in this judgment, a prisoner arrested and detained by operation of a European Arrest Warrant [EAW] is credited against his sentence in respect of time spent in custody pending extradition.  In its original form, section 243 of the Criminal Justice Act 2003 provided that section 240 of the Act:
“….has effect as if the days for which [an extradited prisoner] was kept in custody while awaiting extradition were days for which he was remanded in custody in connection with the offence.”
That was so from commencement of the Act in respect of prisoners who were “tried for the offence in respect of which …sentence was imposed…..after having been extradited to the United Kingdom.”  By an amendment inserted by the Police and Justice Act 2006, such credit was extended to prisoners who were sentenced after having been extradited to the United Kingdom.  It is agreed between these parties that the effect of these provisions, taken together, is that section 49(2) of the Prison Act 1952 has practical effect  only for prisoners who are extradited to the United Kingdom, other than by means of an EAW, and after the date of their sentence.  In practice, this means all those who abscond and are extradited to face trial, and all of those who abscond after conviction and are extradited to be sentenced, will receive automatic credit for time spent whilst detained before extradition.  
Interpretation of Section 49(2)
13.	The meaning of the proviso to section 49(2) was considered by the Divisional Court in R –v- Governor of Leeds Prison, ex parte Stafford [1964] 2 WLR 731.  In 1956 Stafford was sentenced to seven years’ imprisonment.  Later that year he escaped from prison and fled to Trinidad.  A warrant for his arrest was issued in London and sent to Trinidad and in April 1957 he was arrested and committed to prison.  He was returned to England in June.  In 1964, at a time when, if the days spent in detention in Trinidad were to be computed towards the service of his sentence that sentence would have been completed, Stafford applied for a writ of habeas corpus.
14.	Lord Parker CJ gave the leading judgment. He identified the first submission of the Applicant as meaning that the phrase “unlawfully at large” was “at liberty”.  The period which was not to count, namely the period absent from the prison, came under the “umbrella, as it were, of ‘unlawfully at large’”.  This reading of the proviso would mean in effect that the prisoner was entitled to credit in respect of any period of detention, wherever detained and however caused, whilst he was absent from the prison where he was supposed to be detained.
15.	Lord Parker CJ summarised the argument in reply for the Home Secretary as follows:
“…that being unlawfully at large at any period during the period for which he was liable to be detained is a condition precedent and that, once that is found, then no account shall be taken of any period during which he is absent from the prison.”
He went on to give his own view:
“For my part I think that proviso (a) is conclusive of the matter.  If I may read it again, it provides that: “this subsection shall not apply to any period during which any such person as aforesaid is detained in pursuance of the sentence or order [that is the original sentence or order] or in pursuance of any other sentence of any court in the United Kingdom in a prison, Borstal institution, remand home or detention centre.
I find it very difficult to understand why that proviso was necessary on [the Applicant’s] contention. On his contention, proviso (a) would be quite unnecessary because if a person did become detained, whether in pursuance of the original sentence or in pursuance of a sentence passed by another court in the United Kingdom, he would no longer be unlawfully at large.  On the other hand, as Mr Cumming-Bruce points out, Parliament has been very careful to single out the particular periods in custody which are not to count, namely, periods in custody in pursuance of the original sentence and also periods in custody pursuant to a sentence of another court in the United Kingdom.  It seems to me that that proviso is conclusive in favour of the contention put forward by Mr Cumming-Bruce.”
16.	The Applicant ran a secondary argument before the court: that he was detained in Trinidad “in pursuance of the original sentence”.  A warrant was issued by the Chief Magistrate at Bow Street by reason of the original sentence, and the consequential warrant from the Governor for the arrest of the Applicant in Trinidad followed as a consequence, and therefore was also “in pursuance of the original sentence”.  The Lord Chief Justice dismissed that argument in the following terms:
“For my part, I am quite satisfied that that argument cannot prevail.  When the Applicant was arrested and imprisoned in Trinidad, it was not in any proper sense in pursuance of the original sentence but in pursuance of the warrant issued by the Governor of Trinidad.”
17.	Miss Dobbin for the Secretary of State submits that Stafford is direct authority for the position taken by the Secretary of State in the instant case.  Mr Summers for the Claimant Woolley placed his primary emphasis in the case on the propositions he drew from European material elsewhere.  However, whilst recognising that this court was unlikely to depart from long established authority emanating from a divisional court over which Lord Chief Justice Parker presided, he did respectfully submit that Stafford was wrongly decided.  He disavowed any intention to revive the argument of Mr Butter for Stafford.  However, he did suggest that the interpretation of the court in Stafford gives no meaning to the phrase “detained in pursuance of the sentence or order”.  He suggests the proviso is in two parts.  The person detained in a prison as a result of “any other sentence of any court in the United Kingdom” clearly falls within the proviso.  What of the person who fulfils the “condition precedent” of being unlawfully at large, but who subsequently is in fact “detained in pursuance of the sentence or order” from which he absconded?  Mr Summers submits in effect that someone detained abroad in order to be extradited so as to complete the relevant sentence is “detained in pursuance of the sentence”.  If he is not detained “in pursuance of the sentence” why is he detained?
The European Dimension
18.	Mr Summers advances two complementary arguments based on European Recommendations.  By Recommendation No R(86)13, the Committee of Ministers of the Council of Europe, representing the countries who were party to the European Convention on Extradition, recommended in 1986 that the government of a Member State party to the Convention should be:
“Guided in its practical application by the following principles:
1.	Time spent in custody pending extradition should be deducted from the sentence in the same manner as time spent in custody pending trial.”
Mr Summers says that the Secretary of State was obliged to exercise the statutory discretion conferred on him by section 49(2) in conformity with the ECE as interpreted by the Council of Europe.  Accordingly, he says, the Defendant’s discretion fell to be exercised so that, unless there were exceptional reasons not to do so, time spent on remand waiting extradition should be credited to the Claimant’s sentence.
19.	Mr Summers also submits that construction of the discretion under section 49(2) is supported by the Council of the EU Framework Decision on the European Arrest Warrant and Surrender Procedures between member states of the European Union [2002/584/JHA] [“The Framework Decision”].  By Article 26 of the Framework Decision it is provided that:
“The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed…”
20.	Mr Summers supports this approach by reference to the House of Lords decision in Dabas-v- High Court of Justice, Madrid [2007] 2 AC 31, HL and the European Court of Justice decision in Criminal Proceedings against Pupino [2006] QB 83, the ECJ confirming that the Framework Decision requires that interpretation of section 49(2).
21.	I reject these propositions.  The specific arrangements reached and agreed by the UK Government as part of the scheme for mutual simplified extradition under the EAW between those participating states seems to me irrelevant to the exercise of discretion under the 1952 Act in respect of non-EAW cases.  European Arrest Warrant procedures simply represent an international agreement importing obligations where applicable, meaning that the prisoner is given credit for time served in custody awaiting extradition.  I see no requirement, moral or legal, that this approach should immediately be applied outside the ambit of EAW cases.
22.	Equally, although the Recommendation of 1986 is directly applicable to this case and others where the 1952 proviso arises, it has no compulsive legal force.  It is nothing more than a recommendation.  There is no treaty obligation to enforce it, much less any importation of the recommendation into domestic law.  It is in my judgment quite ineffective as a means of turning the statutory language on its head, converting: 
“Unless the Secretary of State otherwise directs, no account shall be taken……”
Into
“Unless the Secretary of State otherwise directs, account shall be taken ……”
I therefore have no hesitation in rejecting the arguments of Mr Summers based on the European materials to which the court has been directed.
Conclusions
23.	For those reasons I would decline to interfere with the decision of the Secretary of State.  
24.	I go on to consider the decision of the powerful Divisional Court who sat in Stafford.  I have touched on the argument advanced for the Claimant above.  To my mind the position can be put most attractively as follows. If the words in the proviso “detained in pursuance of the sentence or order” mean that such detention must also be “in a prison or remand centre etc” then by no interpretation could such a period fail to count towards the sentence or order in question.  By definition, a person detained in a UK prison or detention centre in pursuance of the sentence or order, is serving that sentence or order for detention.  He cannot in any view be “unlawfully at large”. He is not “absent from the place in which he is required in accordance with the law to be detained.” 
25.	Moreover, if that were the correct reading, the first part of the proviso would be redundant.  It is therefore said that “detained in pursuance of the sentence or order”, at least arguably, means detained elsewhere than in a prison or similar institution in the UK.  As a consequence, it is said it is hard to see why it is not arguable that detention in a foreign prison, whilst extradition proceedings take place, does not fall within the proviso.  
26.	I have considered these submissions very carefully.  However, in the end I reject them as being of sufficient merit to warrant certification of the point as of general public importance.  As Gross LJ has stated in his judgment, there are a number of obstacles in the way of the Claimant’s approach.  Stafford is very long-established authority, and we have not been referred to any authority in which it has been doubted, over the very nearly 50 years since it was decided.  Both Simon Brown LJ in R (S) v SSHD [2003] EWCA Civ 426 at paragraph 23, and Field J (sitting with Rose LJ, who was in agreement) in Murphy v SSHD [2005] EWHC 3116 (Admin) at paragraphs 12 to 14, treat Stafford as firm authority for the reading of the Act challenged by this Claimant, and no doubt many other courts have done so over the intervening years.  
27.	I further accept that there is a powerful policy argument discernible from the decision in Stafford.  This Claimant, as with others in his position, is the author of his own misfortune.  I accept also that the construction of sentencing legislation, perhaps beyond legislation in all but a few areas of law, has proved highly problematic.  It can also be said that the crucial phrase “in pursuance of” is as a matter of English easily capable of broader or narrower interpretation.
28.	For these reasons, I reject the application to certify the case as of general public importance.
Lord Justice Gross
29.	I respectfully agree with Irwin J, for the reasons he has given, that this application should be dismissed.  I add only a few words with regard to the argument reserved as to the correctness of the decision in Stafford (supra) and that we should certify accordingly.
30.	I should explain the circumstances in which, unusually, the Court is dealing with the question of certifying in the course of our judgments.  Mr. Summers accepted that he would not be entitled to succeed before this Court in submitting that Stafford was wrongly decided.  He indicated, however, the nature of the arguments that he would wish to pursue before the Supreme Court and invited this Court to certify accordingly. Ms Dobbin, for the Defendant responded to those submissions.  In the circumstances, it seemed wasteful to require a further hearing – and a separate ruling – to deal with the invitation to certify. 
31.	As appears from the judgment of Irwin J, Stafford has a more limited sphere of application than it once did. Insofar, however, as it is thought anomalous that the rule in Stafford applies only to those who abscond after being sentenced and only outside the EAW territories, then that is a matter for the legislature to correct, if so minded.  Such considerations do not impinge on the correctness of the decision in Stafford.
32.	For the reasons which follow, I confess I am not attracted to the Claimant’s contention that Stafford was wrongly decided:
i)	I regard it as improbable that s.49 of the Prison Act 1952 (“the Act”), even as amended, contemplated that time spent by an absconder, detained abroad, should count, save in the exercise of the Secretary of State’s discretion.  This is to look at s.49 through the prism of the EAW regime and other developments which post-date the Act.
ii)	The decision in Stafford that such time does not count has stood for a comparatively long time.   As Simon Brown LJ (as he then was) observed in R(S) v SSHD [2003] EWCA Civ 426, at [23]:
“ The proviso to s.49(2) no more applies to him than it applies to someone detained in a foreign jail awaiting extradition back to the UK, whose status as a person unlawfully at large has long been established – see …[Stafford]..”
While it is to be acknowledged both that Simon Brown LJ’s observations were directed at a prisoner sectioned during his release on licence, thus to facts somewhat removed from those of the present case and that he was not faced with the argument that Stafford was wrongly decided, these dicta underline the well-settled position Stafford occupies.
iii)	For my part, the decision in Stafford (at pp. 733-734) is, with respect, logically cogent:  namely, there is no or insufficient causal connection between the original sentence and an order of a foreign court providing for the detention of the absconder pending his extradition.   Here, the Claimant was detained in pursuance of the order of the Swiss Court, not, save in a “but for” sense, in pursuance of the original sentence.  See too, Murphy v SSHD [2005] EWHC 3116 (Admin), at [11] – [14]
iv)	There are sound reasons of policy for adopting a narrower rather than a wider approach to questions of causation in this area – at least save where the legislature has provided otherwise. As an absconder, the Claimant is the author of his own misfortune. 
v)	What remains is the argument that if the Claimant is wrong, then the first part of proviso (a) to s.49 (2) of the Act is redundant.  With respect, I am not persuaded that it is.  The proviso would still be apt to cover detention in the United Kingdom pending the absconder’s return to the place where he is required in law to be detained.  Moreover, given the vagaries of our sentencing legislation, I would be wary of according weight to an argument based on redundancy or superfluity.
33.	For my part, therefore, I would favour leaving Stafford undisturbed.  In agreement with Irwin J, I too would decline to certify.