CO/4475/2015 
Neutral Citation Number: [2016] EWHC 719 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 2 February 2016
 
B e f o r e:
 
LORD JUSTICE LAWS 

MR JUSTICE HAMBLEN 

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Between: 
 
THE QUEEN ON THE APPLICATION OF HICKMAN
Appellant

v 

GOVERNOR OF HMP WAYLAND
Respondent 
 
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Computer aided transcript of the stenograph notes of WordWave International Ltd 
trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400  Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

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Mr A Johnson (instructed by Brooklyn Solicitors) appeared on behalf of the Appellant

Mr B Keith (instructed by the NCA) appeared on behalf of the Respondent

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J U D G M E N T
LORD JUSTICE LAWS :
1.	This is a judicial review claim with permission granted by McGowan J on 7 October 2015 brought to challenge the claimant's detention in custody following his extradition from Spain on 13 August 2014.  Also before McGowan J was an application for a writ of habeas corpus which she refused.  In relation to the judicial review, she ordered that the Governor of HMP Wayland be substituted for the National Crime Agency as defendant and the National Crime Agency in its turn be substituted as an Interested Party, and also that the CPS be added as a further Interested Party.
2.	The claimant asserts by counsel (see paragraph 10 of counsel's skeleton) that McGowan J was wrong to dismiss the application for a writ of habeas corpus on the papers but at paragraph 11 the claimant is content to proceed with the judicial review subject to any issue later arising out of the court's jurisdiction to grant an appropriate remedy.  
3.	The short facts are as follows.  On 6 March 2009 the claimant was convicted on his plea of guilty at the Southwark Crown Court of five offences and of a sixth offence on 16 March 2009.  All the offences concerned the sale of unlicenced medicinal products.  On 8 June 2009, he was sentenced to a total term of 2 years' imprisonment.  He was released on home detention curfew on 25 January 2010.  But for that, his automatic conditional release date would have been 7 June 2010.  
4.	On 14 October 2010 he was recalled from licence for a 28 day fixed term recall but on 3 November 2010 he was remanded for further offences, and after 10 November 2010 was held on in custody on remand in relation to those.  
5.	On 11 March 2011 he was sentenced to 22 months' imprisonment for the further offences.  On 7 June 2011 the term of his original 2 year sentence expired, as did the licence period relating to it.  On 12 October 2011 he was released at the automatic conditional release date for the 22 month sentence.  On 12 September 2012 the 22 month term and associated licence period expired.
6.	Before that, on 27 April 2012, HHJ Taylor QC imposed a confiscation order under the Proceeds of Crime Act 2002 in the sum of £14,407,850.28 with 6 months to pay and a term of 10 years' imprisonment in default.  By 18 March 2014 only £467,000‑odd had been paid.  Some £15.49 million remained outstanding including accrued interest.  The claimant had left the jurisdiction.  
7.	On 18 March 2014, in his absence, the 10 year default sentence was imposed or activated at the Westminster Magistrates' Court.  The Crown Prosecution Service applied for a European Arrest Warrant.  On 24 March 2014 at the same court District Judge Nicholas Evans issued the warrant.  It was communicated by the National Crime Agency to the Spanish authorities.  
8.	On 30 June 2014 the claimant was arrested in Spain.  On about 3 July 2014 his extradition was ordered on 31 July 2014 and he was, as I have said, surrendered to the United Kingdom on 13 August 2014.  He has remained in custody since.  His case is that his detention is unlawful because the European Arrest Warrant issued by District Judge Evans on 24 March 2014 was issued without jurisdiction.
9.	Extradition into the United Kingdom from Category 1 countries, that is to say the Member States of European Union and British Overseas Territory of Gibraltar, is governed by Part 3 of the Extradition Act 2003:  

"142. Issue of Part 3 Warrant.
 
(1) The appropriate judge may issue a Part 3 warrant" [I interpolate that is to say a European Arrest Warrant] "in respect of a person if 

(a) a constable or an appropriate person applies to the judge for a Part 3 warrant, and 
 
(b) the condition in sub‑section 2 or the condition in sub‑section 2A is satisfied."
[...] 

(2A) The condition is that ‑

(a) there are reasonable grounds for believing that the person is unlawfully at large after conviction of an extradition offence by a court in the United Kingdom, and 
 
(b) either a domestic warrant has been issued in respect of the person or the person may (if unlawfully at large as mentioned in paragraph (a)) be arrested without a domestic warrant."
10.	A "domestic warrant" as referred to in section 142(2)(b) is defined in Section 142(8) and has no application in this case.  

11.	Then:  

"142(3) A part 3 warrant is an arrest warrant which contains ‑ 

(a) the statement referred to in sub‑section(4) or the statement referred to in sub‑section 5
[...]”
12.	Then lastly:

"(5) The statement is one that ‑

(a) the person in respect of whom the warrant is issued [has been convicted] of an extradition offence specified in the warrant by a court in the United Kingdom, and 

(b) the warrant is issued with a view to his arrest and extradition to the United Kingdom for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention posed in respect of the offence."
13.	It is, as understand it, common ground that the validity of the European Arrest Warrant (and therefore the legality of the claimant's detention following his extradition from Spain) depends on whether, at the time of the warrant issue, the claimant was "unlawfully at large" within the meaning of Section 142 (2A).
14.	The claimant, by Mr Johnson of counsel, draws attention to the fact that Parts 1 and 2 of the Extradition Act 2003 both contain a definition set out within Section 68(A) and 140(A) respectfully of "unlawfully at large" as follows: 

"68A.  Unlawfully at large

1) A person is alleged to be unlawfully at large after conviction of an offence if — 

(a)he is alleged to have been convicted of it, and. 

(b)his extradition is sought for the purpose of his being sentenced for the offence or of his serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
15.	It is submitted that, since this definition is specifically limited to parts 1 and 2 of the Act, it can be of no assistance in construing the term "unlawfully at large" in Part 3.  As regards this submission, it seems to me to be important to bear in mind that Parts 1 and 2 of the 2003 Act are concerned with extradition from the United Kingdom into Foreign States, whereas Part 3 is concerned of course with extradition from Foreign States into the United Kingdom.  
16.	In the former class of case, where the fugitive is wanted in relation to an offence or offences committed or allegedly committed in a foreign jurisdiction, it was no doubt thought necessary to incorporate a definition of "unlawfully at large" so as to relieve the courts here of the potential need to interpret and apply the law of the requesting State in order to decide the status of the fugitive arrested here.  By definition, no such difficulty arises in the case of an extraditee to the United Kingdom wanted in relation to an offence committed in this jurisdiction.
17.	Mr Johnson also had a submission, referred to briefly this morning but set out at paragraph 20 of his skeleton, to the effect that a person subject to a "domestic warrant" (section 142(2)(a) and (b) of the Extradition Act) or a "warrant of commitment" (see the Police and Criminal Evidence Act 1984 section 17) is not apparently treated by Parliament as "unlawfully at large".  But these provisions tell one nothing as to the status of a person subject to a European Arrest Warrant.  
18.	Mr Keith, for the Crown Prosecution Service, at paragraph 10 of his additional skeleton draws attention to the Prison Act 1952 in the form that was in force at the relevant time:

"49. ‑ Persons unlawfully at large.

(1) Any person who, having been sentenced to [imprisonment or custody for life or ordered to be detained in [youth detention accommodation or in a young offenders' institution], or having been committed to a prison or remand centre, is unlawfully at large, may be arrested by a constable without warrant and taken to the place in which he is required in accordance with law to be detained."
19.	Section 49(2) then deals with the question of how time spent at large by such a person should be dealt with for the purpose of calculating the period for which he is liable to be detained.  
20.	Then:

"49(3) The provisions of the last preceding subsection shall apply to a person who is detained in custody in default of payment of any sum of money as if he were sentenced to imprisonment."
21.	Mr Johnson submits that this provision helps him.  It seems to me the contrary is the case.  These references in section 49 effectively marry the section 142(2A) of the Extradition Act.  To my mind it is demonstrated that, on the activation of the default sentence on 18 March 2014, the claimant became unlawfully at large and liable to be arrested without a warrant.  Thus both limbs of section 142(2A) were fulfilled.  
22.	There is one other question raised by Mr Johnson to which I should briefly refer.  It concerns a decision of this court in R (on the application of) Director of Revenue and Customs Prosecutions v Birmingham Magistrates' Court & Anor [2010] EWHC 12 (Admin).  In that case, dealing with a default term attached to a confiscation order giving the judgment of the court, I said this:

"24. We are entirely satisfied that the default term (which the  court  is obliged to impose as a matter of law in such circumstances as part of the process of sentencing) forms part of the original sentence, since it is an integral part of the confiscation order which, it is common ground, is unarguably part of the original sentence." 
23.	It is right, as Mr Johnson contends at paragraph 22 of his skeleton, that the court in that case was not required to decide whether a person could be extradited in respect of a default term of imprisonment imposed in default of payment of a confiscation order.  But the dictum at paragraph 24, if I may say so, was in general terms and cannot sensibly be taken to apply in some circumstances and not in others. 
24.	As it happens, the case went to the Strasbourg Court (Woolley v The United Kingdom ‑ 56 EHRR [2012]) which saw no reason to disagree with this court's assessment at paragraph 83 of the judgment.
25.	For all these reasons, in my judgment the European Arrest Warrant in this case complied with the statutory requirements.  By way of footnote, I adopt these final observations from the additional skeleton argument prepared by Mr Keith for the CPS in relation to some subsidiary points taken by Mr Johnson.  

"11.  The Claimant submits that to allow confiscation to be part of an EAW would mean that default terms in lieu of fines would become extraditable and that offences that were not intended to be extraditable would become so.  This would apply only to cases where a default term had been imposed of over 4 months' custody.  This is a common phenomenon in EAW cases especially from Poland where suspended sentences are activated and extradition then requested.  Where this has been proportionate the court has ordered extradition.  For a recent example see Grzegorz Budzik v Regional Court of Tarnow, Poland (2015) EWHC 2856 (Admin).

12.  The alternative consequence is that confiscation orders can be evaded by leaving the jurisdiction.  

13. O'Brien.  The case of O'Brien [2014] UKSC."  
26.	This was a case referred to by Mr Johnson in his skeleton, which dealt with (as he put it):

"Whether a contempt of court was an extraditable offence as a separate offence, not as in this case where confiscation forms part of the original and sentence imposed."
27.	So far as those points remain alive, I agree with the observations made by counsel for the CPS in the circumstances and, for all these reasons, I for my part would dismiss this application for judicial review.
28.	MR JUSTICE HAMBLEN:  I agree.
29.	MR JOHNSON:  My Lord, may I firstly ask for detailed assessment of the claimant's publicly funded costs? 
30.	LORD JUSTICE LAWS:  You want the usual order.
31.	MR JOHNSON:  The usual Legal Aid ‑‑ yes.
32.	LORD JUSTICE LAWS:  Well, that is right, is it not, Mr Keith?  You probably do not have anything to say about his Legal Aid costs. 
33.	MR KEITH:  (Pause) My Lord, no, I was just checking whether I was meant to be making an application for costs, but I am not seeking those.
34.	LORD JUSTICE LAWS:  You are not making an application yourself?
35.	MR KEITH:  No.
36.	LORD JUSTICE LAWS:  Well, you can have your what used to be called "Legal Aid taxation", I think there is a special form of words, is there not? 
37.	MR JOHNSON:  I believe they are "detailed assessment of the claimant's publicly funded costs". 
38.	LORD JUSTICE LAWS:  Could you, very kindly, to assist the court, prepare a draft and let the associate have it?  
39.	MR JOHNSON:  I will, yes.
40.	LORD JUSTICE LAWS:  But in principle we grant the order.
41.	MR JOHNSON:  Secondly, I anticipate I will be instructed to seek a certificate of a point of law.  Might I do so within the 14 days provided for by the Administration of Justice Act? 
42.	LORD JUSTICE LAWS:  Well, you are not in a position to do it now?  You were typing ‑‑
43.	MR JOHNSON:  ‑‑ I will be grateful for the time to reflect on the terms of your Lordship's judgment.
44.	LORD JUSTICE LAWS:  All right.  Yes.
45.	MR JOHNSON:  I am very grateful.
46.	LORD JUSTICE LAWS:  I should make it clear that in the event of such an application being made, you are wholly entitled to make it, we will deal with it on paper rather than at a further hearing.
47.	MR JOHNSON:  Yes.  My Lord, yes, I anticipated that.
48.	LORD JUSTICE LAWS:  Maybe it goes without saying.  Very well, thank you.