Table of Contents
A. Introduction. 2
B.
Relevant legal instruments and principles. 4
B1
The Repatriation Act 4
B2
The 1983 convention. 7
B3
The Framework Decision. 7
B4
The Criminal Justice Act 2003. 15
B5
Public law principles concerning legitimate expectation. 16
C.
History of events. 16
C1
From Sep 2012 to Feb 2014: Arrest to Conviction. 16
C2
From Feb to Dec 2014: Conviction to Sentence. 18
C3
Jan 2015: Mr McShane’s application for transfer 19
C4
From Feb to June 2015: translation & Dr Saruga. 21
C5
From July to December 2015: Law 158/2015 takes effect 21
C6
From Jan to June 2016: the Framework Decision is applied. 24
C7
From July to Dec 2016: consent sought & refused. 25
C8
January 2017: the January 2017 warrant and transfer 27
C9
From February 2017 onwards. 28
D.
Legitimate expectation: argument and analysis. 28
D1
Legitimate expectation: introduction. 28
D2
The assurances that Mr McShane relies on. 29
D3
Was there a misuse of power?. 30
D4
Legitimate expectation: conclusion. 33
E.
Article 5 of the European Convention on Human Rights. 34
F.
Conclusion. 34
1.
This is my second judgment in this case. It follows a “rolled up”
hearing in an application for judicial review. Under CPR 52.4 such an
application can only proceed with the court’s permission. The hearing was
“rolled up” in the sense that the argument before me was directed both to the
procedural question whether I should give permission to proceed and to the substantive
question whether, if permission were granted, the application should succeed.
2.
The claimant, Mr McShane, was formerly in prison in Portugal
pursuant to an 8 year sentence imposed on him by the court in Portugal
for a crime he committed there. He is currently held in custody in this country
following his transfer here on 26 January 2017 from prison in Portugal. The defendant is the Secretary of State for Justice. I shall refer to the
defendant as “the Justice Secretary” in order to distinguish the Justice
Secretary from the Secretary of State for Foreign and Commonwealth Affairs
(“the Foreign Secretary”).
3.
Important parts of the Justice Secretary’s functions in the present case
were performed by an agency now known as Her Majesty’s Prison and Probation
Service (“HMPPS”). HMPPS is an executive agency, sponsored by the Ministry of Justice.
HMPPS was previously called the National Offender Management Service (“NOMS”).
4.
Mr McShane’s main assertion is that public law principles of “legitimate
expectation” apply to the circumstances of the present case. Those principles,
he submits, should lead the court to hold that his transfer to this country was
unlawful and, among other things, to direct his release. The Justice Secretary
responds that Mr McShane was lawfully transferred here under two legal
instruments. The first is the Repatriation of Prisoners Act 1984 (“the
Repatriation Act”). The second is a legal instrument made by the Council of the
European Union on 27 November 2008: Council Framework Decision 2008/909/JHA
(“the Framework Decision”). The Justice Secretary submits that in consequence Mr
McShane, under section 244(3)(a) of the Criminal Justice Act 2003, is not
eligible for release until 21 November 2018.
5.
The trial of these proceedings had been scheduled to take place in March
this year. However, on 8 March this year I adjourned the trial so that Mr
McShane could seek legal representation. My reasons for doing so were set out
in my first judgment dated 12 March 2018: R (McShane) v Secretary of State
for Justice [2018] EWHC 494 (Admin).
6.
The procedural history up to 8 March 2018 is set out in section C of my
first judgment. Following the adjournment Mr McShane was granted legal aid. He was
represented at trial by Mr Jude Bunting of counsel, instructed by SL5 Legal.
The Justice Secretary was represented at trial by Mr Eric Metcalfe of counsel,
who had appeared for the Justice Secretary on 8 March 2018, instructed by the
Government Legal Department.
7.
Revised grounds for bringing the claim (“Mr McShane’s revised grounds”),
settled by Mr Bunting on 10 May 2018, have now taken the place of Mr McShane’s
previous statements of case. Mr McShane’s revised grounds are supported by a
witness statement (“McShane 1”) made by Mr McShane on 20 April 2018.
8.
Revised summary grounds of defence (“the revised defence grounds”) were
settled by Mr Metcalfe on 11 May 2018. They were followed by a witness
statement (“Wilkinson 1”) made by Mr Graham Wilkinson on 15 May 2018. Mr
Wilkinson is a member of the civil service who has been employed in parts of
the justice system dealing with prison and probation for more than 20 years. In
2009 he was appointed as head of the Cross Border Transfer Section at NOMS, and
he has continued to hold that post at HMPPS.
9.
Additional evidence was filed on behalf of Mr McShane concerning
Portuguese law as to early release of prisoners. This evidence is set out in a
witness statement made on 21 May 2018 by Assistant Professor Pedro Caerio of
the faculty of law at the University of Coimbra in Portugal. Professor Caerio
is a member of the European Commission’s Expert Group on Criminal Policy. He
has, since 2015, been a member of the European Criminal Policy Initiative.
10.
On 31 May 2018 the Government Legal Department sent SL5 Legal redacted
material disclosed “pursuant to … duty of candour obligations”. A witness
statement made by Mr McShane on 4 June 2018 (“McShane 2”) made observations on
this material.
11.
In section B below I discuss relevant legal instruments along with
relevant public law principles. Section B1 deals with the Repatriation Act.
Section B2 deals with the Council of European Convention on the Transfer of Sentenced
Persons (European Treaty Series, no 112) signed in Strasbourg on 21 March 1983
(“the 1983 convention”). Section B3 deals with the Framework Decision. Section
B4 deals with the Criminal Justice Act 2003. Section B5 discusses relevant
principles of “legitimate expectation”.
12.
Section C below gives an account of the history of events. It supersedes
the account in Section B of my first judgment.
13.
In section D below, I analyse the arguments on each side in relation to
legitimate expectation. Section E below makes observations on an alternative
argument for Mr McShane which relied on article 5 of the European Convention on
Human Rights. My conclusions are summarised in Section F below.
14.
Section 1 of the Repatriation Act provides materially:
(1) Subject to the following provisions of this section,
where--
(a) the United Kingdom is a party to international
arrangements providing for the transfer between the United Kingdom and a
country or territory outside the British Islands of persons to whom subsection
(7) below applies, and
(b) the [relevant Minister] and the appropriate authority
of that country or territory have each agreed to the transfer under those
arrangements of a particular person (in this Act referred to as "the
prisoner"), and
[(c) in a case in which the terms of those arrangements provide
for the prisoner to be transferred only with his consent, the prisoner's
consent has been given,]
the [relevant Minister] shall issue a warrant providing for
the transfer of the prisoner into or out of the United Kingdom.
(2) …
(3) The [relevant Minister] shall not issue a [warrant
under this section] providing for the transfer of any person into the United Kingdom unless--
(a) that person is a British citizen; or
(b) the transfer appears to the [relevant Minister] to be
appropriate having regard to any close ties which that person has with the United Kingdom; or
(c) it appears to the [relevant Minister] that the
transfer is such a transfer for the purpose of the temporary return of the
prisoner to the United Kingdom as may be provided for by virtue of section
4(1)(b) below.
(4) The [relevant Minister] shall not issue a [warrant
under this section], other than one superseding an earlier warrant, unless he
is satisfied that all reasonable steps have been taken to inform
the prisoner in writing in his own language--
(a) of the substance, so far as relevant to the
prisoner's case, of the international arrangements in accordance with which it
is proposed to transfer him,
(b) of the effect in relation to the prisoner of the
warrant which it is proposed to issue in respect of him . . .,
(c) in the case of a transfer into the United Kingdom, of
the effect in relation to the prisoner of the law relating to his detention
under that warrant (including the effect of any enactment or instrument under
which he may be released earlier than provided for by the terms of the
warrant),
(d) …
(e) of the powers of the [relevant Minister] under section
6 of this Act;
and, the [relevant Minister] shall not issue a warrant
superseding an earlier [warrant under this section] unless the requirements of
this subsection were fulfilled in relation to the earlier warrant.
(5) [In such a case as is referred to in subsection
(1)(c) above, the relevant Minister shall not issue a [warrant under this
section] unless he is satisfied that the prisoner's consent was given] in a
manner authorised by the international arrangements in accordance with which
the prisoner is to be transferred and was so given either--
(a) by the prisoner himself; or
(b) in circumstances where it appears to the [relevant
Minister] inappropriate by reason of the physical or mental condition or the
youth of the prisoner for the prisoner to act for himself, by a person
appearing to the [relevant Minister] to be an appropriate person to have acted
on the prisoner's behalf.
(6) A consent given for the purposes of subsection (1)(c)
above shall not be capable of being withdrawn after a warrant [under this
section] has been issued in respect of the prisoner; and, accordingly, a
purported withdrawal of that consent after that time shall not affect the
validity of the warrant, or of any provision which by virtue of section 6 below
subsequently supersedes provisions of that warrant, or of any direction given
in relation to the prisoner under section 2(3) below.
(7) ....
15.
Section 3(1) further provides that the effect of a warrant under section
1 shall be to authorise—
(a) the bringing of the prisoner into the United
Kingdom from a place outside the United Kingdom;
(b) the taking of the prisoner to such place in any part of
the United Kingdom, being a place at which effect may be given to the provisions
contained in the warrant by virtue of paragraph (c) below, as may be specified
in the warrant; and
(c) the detention of the prisoner in any part of the United Kingdom in accordance with such provisions as may be contained in the warrant, being
provisions appearing to the relevant Minister to be appropriate for giving
effect to the international arrangements in accordance with which the prisoner
is transferred.
16.
Paragraphs 1 and 2 of Schedule 1 to the Act further provide materially
as follows:
1 Application of Part 1
This Part of this Schedule applies where a warrant is issued
under [section 1 of] this Act providing for the transfer of the prisoner into
the United Kingdom; and in [this Part of] this Schedule “the relevant
provisions” means the provisions contained in the warrant by virtue of section
3(1)(c) of this Act ….
2 Release on licence
(1) In determining for the purposes of any of the
enactments relating to release on licence whether the prisoner has at any time
served a particular proportion or part of his sentence specified in that
provision, the prisoner's sentence shall … be deemed to begin with the day on
which the relevant provisions take effect.
(2) ….
(3) …
(4) In this paragraph—
“the enactments relating to release on licence” means section
28(5) and (7) of the Crime (Sentences) Act 1997 and Chapter 6 of Part 12 of the
Criminal Justice Act 2003;
“sentence”, means the provision included in the warrant which
is equivalent to sentence.
17.
The 1983 convention is an international agreement among member
states of the Council of Europe (which include Portugal and the UK) providing for the transfer of sentenced persons. Article 3(1) states:
A sentenced person may be transferred under this Convention
only on the following conditions:
…
(d) if the transfer is consented to by the sentenced person
or, where in view of his age or his physical or mental condition one of the two
States considers it necessary, by the sentenced person’s legal representative.
18.
The Council of Europe introduced an Additional Protocol to the
Convention on the Transfer of Sentenced Persons on 18 December 1997. It was
signed by Portugal in 2000 and by the UK in 2009. Article 2(3) of the
Additional Protocol removes the need for consent in the case of prisoners who
have sought to avoid a sentence in one state party by fleeing to the territory
of another state party. Article 3(1) permits a transfer without consent where
the sentence in one state party includes an expulsion or deportation order.
19.
Recitals to the Framework Decision include:
(5) Procedural
rights in criminal proceedings are a crucial element for ensuring mutual
confidence among the Member States in judicial cooperation. Relations between
the Member States, which are characterised by special mutual confidence in
other Member States’ legal systems, enable recognition by the executing State
of decisions taken by the issuing State’s authorities. Therefore, a further
development of the cooperation provided for in the Council of Europe
instruments concerning the enforcement of criminal judgments should be
envisaged, in particular where citizens of the Union were the subject of a
criminal judgment and were sentenced to a custodial sentence or a measure involving
deprivation of liberty in another Member State. Notwithstanding the need to
provide the sentenced person with adequate safeguards, his or her involvement
in the proceedings should no longer be dominant by requiring in all cases his
or her consent to the forwarding of a judgment to another Member State
for the purpose of its recognition and enforcement of the sentence imposed.
(6) This
Framework Decision should be implemented and applied in a manner which allows
general principles of equality, fairness and reasonableness to be respected.
…
(9)
Enforcement of the sentence in the executing State should enhance the
possibility of social rehabilitation of the sentenced person. In the context of
satisfying itself that the enforcement of the sentence by the executing State
will serve the purpose of facilitating the social rehabilitation of the
sentenced person, the competent authority of the issuing State should take into
account such elements as, for example, the person’s attachment to the executing
State, whether he or she considers it the place of family, linguistic,
cultural, social or economic and other links to the executing State.
(10) The opinion
of the sentenced person referred to in Article 6(3) may be useful mainly in
applying Article 4(4). The words ‘in particular’ are intended to cover also
cases where the opinion of the sentenced person would include information which might be of relevance in relation to the grounds for non-recognition and
non-enforcement. Provisions of Articles 4(4) and 6(3) do not constitute a
ground for refusal on social rehabilitation.
…
(14) This
Framework Decision should not prevent any Member State from applying its
constitutional rules relating to due process …
20.
Chapter I of the Framework Decision, comprising articles 1, 2 and 3,
deals with general provisions. Applying article 1 for the purposes of the
present case, Portugal, as the Member State in which the relevant judgment was
delivered, is described below as the “issuing State”. The United
Kingdom, being the Member State to which the judgment is forwarded for the
purposes of its recognition and enforcement, is described below as the
“executing State”.
21.
Article 3, so far as material, states:
3.1 The purpose of this Framework Decision is to
establish the rules under which a Member State, with a view to facilitating the
social rehabilitation of the sentenced person, is to recognise a judgment and
enforce the sentence.
…
3.4 This Framework Decision shall not have the effect
of modifying the obligation to respect fundamental rights and fundamental legal
principles as enshrined in Article 6 of the Treaty on European Union.
22.
Chapter II of the Framework Decision is entitled “Recognition of
judgments and enforcement of sentences”. It comprises articles 4 to 25.
23.
A key step under the Framework Decision is the forwarding by the issuing
State of what article 5.1 describes as the “judgment… together with the
certificate…”. The “judgment” is defined in article 1 to mean a final decision
or order of a court of the issuing State imposing a sentence on a natural
person. The certificate is dealt with in Annex 1 to the Framework Decision.
Paragraph (g) of the certificate includes a statement that:
“ … the issuing authority is satisfied that the enforcement
of the sentence by the executing State would serve the purpose of facilitating
the social rehabilitation of the sentenced person …”
24.
Article 4 deals with the criteria for forwarding a judgment and
certificate to another Member State. Consultation between the issuing State
and the executing State is dealt with in paragraphs 4.2 to 4.4:
4.2. The forwarding of the judgment and the
certificate may take place where the competent authority of the issuing State,
where appropriate after consultations between the competent authorities of the
issuing and the executing States, is satisfied that the enforcement of the
sentence by the executing State would serve the purpose of facilitating the
social rehabilitation of the sentenced person.
4.3. Before forwarding the judgment and the
certificate, the competent authority of the issuing State may consult, by any
appropriate means, the competent authority of the executing State. Consultation
shall be obligatory in the cases referred to in paragraph 1(c). In such cases
the competent authority of the executing State shall promptly inform
the issuing State of its decision whether or not to consent to the forwarding
of the judgment.
4.4. During such consultation, the competent
authority of the executing State may present the competent authority of the
issuing State with a reasoned opinion, that enforcement of the sentence in the
executing State would not serve the purpose of facilitating the social
rehabilitation and successful reintegration of the sentenced person into
society.
Where there has been no consultation, such an opinion may be
presented without delay after the transmission of the judgment and the
certificate. The competent authority of the issuing State shall consider such
opinion and decide whether to withdraw the certificate or not.
25.
Article 4.5 enables each of the executing State and the sentenced person
to request forwarding of the judgment together with the certificate.
26.
Article 6 is entitled, “Opinion and notification of the sentenced
person”. It deals in paragraphs 1 and 2 with the consent of the sentenced
person:
6.1. Without prejudice to paragraph 2, a
judgment together with a certificate may be forwarded to the executing State
for the purpose of its recognition and enforcement of the sentence only with
the consent of the sentenced person in accordance with the law of the issuing
State.
6.2. The consent of the sentenced person
shall not be required where the judgment together with the certificate is
forwarded:
|
(a)
|
to the Member
State of nationality in which the sentenced person lives;
|
|
(b)
|
to the Member
State to which the sentenced person will be deported once he or she is
released from the enforcement of the sentence on the basis of an expulsion or
deportation order included in the judgment or in a judicial or administrative
decision or any other measure consequential to the judgment;
|
|
(c)
|
to the Member
State to which the sentenced person has fled or otherwise returned in view of
the criminal proceedings pending against him or her in the issuing State or
following the conviction in that issuing State.
|
27.
The opinion of the sentenced person is dealt with in paragraph 6.3:
6.3. In all cases where the sentenced person
is still in the issuing State, he or she shall be given an opportunity to state
his or her opinion orally or in writing. Where the issuing State considers it
necessary in view of the sentenced person’s age or his or her physical or
mental condition, that opportunity shall be given to his or her legal
representative.
The opinion of the sentenced person shall be taken into
account when deciding the issue of forwarding the judgement together with the
certificate. Where the person has availed him or her self of the opportunity
provided in this paragraph, the opinion of the sentenced person shall be
forwarded to the executing State, in particular with a view to Article 4(4). If
the sentenced person stated his or her opinion orally, the issuing State shall
ensure that the written record of such statement is available to executing
State.
28.
Articles 8 and 9 of the Framework Decision provide:
Article 8
Recognition of the judgment and enforcement of the sentence
8.1. The competent authority of the
executing State shall recognise a judgment which has been forwarded in
accordance with Article 4 and following the procedure under Article 5, and
shall forthwith take all the necessary measures for the enforcement of the
sentence, unless it decides to invoke one of the grounds for non-recognition
and non-enforcement provided for in Article 9.
8.2. Where the sentence is incompatible with
the law of the executing State in terms of its duration, the competent
authority of the executing State may decide to adapt the sentence only where
that sentence exceeds the maximum penalty provided for similar offences under
its national law. The adapted sentence shall not be less than the maximum
penalty provided for similar offences under the law of the executing State.
8.3. Where the sentence is incompatible with
the law of the executing State in terms of its nature, the competent authority
of the executing State may adapt it to the punishment or measure provided for
under its own law for similar offences. Such a punishment or measure shall
correspond as closely as possible to the sentence imposed in the issuing State
and therefore the sentence shall not be converted into a pecuniary punishment.
8.4. The adapted sentence shall not
aggravate the sentence passed in the issuing State in terms of its nature or
duration.
Article 9
Grounds for non-recognition and non-enforcement
9.1. The competent authority of the
executing State may refuse to recognise the judgment and enforce the sentence,
if:
|
(a)
|
the certificate
referred to in Article 4 is incomplete or manifestly does not correspond to
the judgment and has not been completed or corrected within a reasonable deadline
set by the competent authority of the executing State;
|
|
(b)
|
the criteria set
forth in Article 4(1) are not met;
|
|
(c)
|
enforcement of
the sentence would be contrary to the principle of ne bis in idem;
|
|
(d)
|
in a case
referred to in Article 7(3) and, where the executing State has made a
declaration under Article 7(4), in a case referred to in Article 7(1), the
judgment relates to acts which would not constitute an offence under the law
of the executing State. However, in relation to taxes or duties, customs and
exchange, execution of a judgment may not be refused on the ground that the
law of the executing State does not impose the same kind of tax or duty or
does not contain the same type of rules as regards taxes, duties and customs
and exchange regulations as the law of the issuing State;
|
|
(e)
|
the enforcement
of the sentence is statute-barred according to the law of the executing
State;
|
|
(f)
|
there is immunity
under the law of the executing State, which makes it impossible to enforce
the sentence;
|
|
(g)
|
the sentence has
been imposed on a person who, under the law of the executing State, owing to
his or her age, could not have been held criminally liable for the acts in
respect of which the judgment was issued;
|
|
(h)
|
at the time the
judgment was received by the competent authority of the executing State, less
than six months of the sentence remain to be served;
|
|
(i)
|
the judgment was
rendered in absentia, unless the certificate states that the person was
summoned personally or informed via a representative competent according to
the national law of the issuing State of the time and place of the
proceedings which resulted in the judgment being rendered in absentia, or
that the person has indicated to a competent authority that he or she does
not contest the case;
|
|
(j)
|
the executing
State, before a decision is taken in accordance with Article 12(1), makes a
request, in accordance with Article 18(3), and the issuing State does not
consent, in accordance with Article 18(2)(g), to the person concerned being
prosecuted, sentenced or otherwise deprived of his or her liberty in the
executing State for an offence committed prior to the transfer other than
that for which the person was transferred;
|
|
(k)
|
the sentence
imposed includes a measure of psychiatric or health care or another measure
involving deprivation of liberty, which, notwithstanding Article 8(3), cannot
be executed by the executing State in accordance with its legal or health
care system;
|
|
(l)
|
the judgment
relates to criminal offences which under the law of the executing State are
regarded as having been committed wholly or for a major or essential part
within its territory, or in a place equivalent to its territory.
|
9.2. Any decision under paragraph 1(l) in
relation to offences committed partly within the territory of the executing
State, or in a place equivalent to its territory, shall be taken by the
competent authority of the executing State in exceptional circumstances and on
a case-by-case basis, having regard to the specific circumstances of the case,
and in particular to whether a major or essential part of the conduct in
question has taken place in the issuing State.
9.3. In the cases referred to in paragraph
1(a), (b), (c), (i), (k) and (l), before deciding not to recognise the judgment
and enforce the sentence, the competent authority of the executing State shall
consult the competent authority of the issuing State, by any appropriate means,
and shall, where appropriate, ask it to supply any necessary additional information without delay.
29.
Withdrawal of a certificate by an issuing State is dealt with in article
13:
Article 13
Withdrawal of the certificate
As long as the enforcement of the sentence in the executing
State has not begun, the issuing State may withdraw the certificate from that
State, giving reasons for doing so. Upon withdrawal of the certificate, the
executing State shall no longer enforce the sentence.
30.
Section 244 of the Criminal Justice Act 2003 (‘the 2003 Act’) provides
materially:
(1) As soon as a fixed-term prisoner, other than a
prisoner to whom [immaterial sections of the Act apply], has served
the requisite custodial period for the purposes of this section, it is the duty
of the Secretary of State to release him on licence under this section.
…
(3) For the purposes of this section “the requisite
custodial period” means—
(a) in relation to a prisoner serving one sentence,
one-half of his sentence,
...
31.
Section 246 further provides the Secretary of State with a discretionary
power to release a prisoner on licence before being required to do so:
(1) Subject to subsections (2) to (4), the Secretary of
State may—
(a) release on licence under
this section a fixed-term prisoner. . . at any time during the period of 135
days ending with the day on which the prisoner will have served the requisite
custodial period, . . .
(b) . . ..
(2) Subsection (1)(a) does not apply in relation to a
prisoner unless—
(a) the length of the requisite
custodial period is at least 6 weeks, and
(b) he has served—
(i) at least 4 weeks of that
period, and
(ii) at least one-half of that
period.
(3) . . .
(4) Subsection (1) does not apply where—
(a) …
(aa) the sentence is for a term
of 4 years or more,
(5) …
(6) In this section—
“the requisite custodial period” in relation to a person
serving any sentence ... , has the meaning given by paragraph (a) or (b) of
section 243A(3) or (as the case may be) paragraph (a) ... or (d) of section
244(3);
32.
It is not in dispute that, if Mr McShane’s transfer to the UK
was lawful, then:
(1)
section 3(1)(c) and paragraph 2 of Schedule 1 to the Repatriation Act
apply, with the consequence that
(2)
Mr McShane’s eligibility for release on licence under section 244(3)(a)
of the Criminal Justice Act 2003 would run from the date he was detained in the
United Kingdom by virtue of the Secretary of State’s warrant.
33.
Both sides agree that the applicable legal principles involve two
stages. The first stage is the establishment as a matter of fact by the
claimant of the existence of a promise which is a clear and unambiguous
representation devoid of relevant qualifications: R v Inland Revenue Comrs,
Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, per Bingham LJ, as he
then was, at 1569; Paponette and Others v Attorney General of Trinidad and
Tobago [2012] 1 AC 1, at paragraph 37. It is not essential that the
claimant has relied on the promise to his detriment for it to be enforceable: R
(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2009] AC 453, at paragraph 60.
34.
The second stage, if stage one is made out, is whether the
defendant can justify the frustration of the expectation. It is for the court
to decide:
whether the consequent frustration of the applicant’s
expectation is so unfair as to be a misuse of the Defendant’s powers. [see R
v North East Devon Health Authority ex parte Coghlan [2001] QB 213, at
paragraph 82].
35.
On 17 September 2012 Portuguese police arrested Mr McShane on suspicion
of drugs offences. On 18 September 2012 he was remanded in custody by the Lisbon criminal court.
36.
It is common ground that consulate staff from the British Embassy in Lisbon visited Mr McShane in custody on 21 September 2012, and handed him a leaflet. Mr
Wilkinson describes the leaflet as a “prisoners pack”. It was entitled,
“Information for British nationals imprisoned in Portugal”. The leaflet was
printed in March 2012. I shall refer to it as the “March 2012 leaflet”. The
front cover of the March 2012 leaflet stated:
The information contained in this leaflet is intended for
your general guidance only. It is not a substitute for obtaining your own
Portuguese legal advice. The accuracy of this information cannot be guaranteed
and the applicable law and procedures may change. For these reasons, neither
Her Majesty’s Government nor any member of the British consular staff can
accept any liability for any loss, costs, damage or expense which you might
suffer as a result of relying on the notes.
37.
Pages 10 and 11 of the March 2012 leaflet explained that it was possible
for a sentenced person to be transferred to a prison in the United
Kingdom to serve the remainder of that person’s sentence under the 1983
convention. Annex E to the March 2012 leaflet set out a step-by-step guide. I
shall accordingly refer to Annex E to the March 2012 leaflet as “the March 2012
step-by-step guide”. It was in these terms:
ANNEX E
APPLICATION FOR PRISON
TRANSFER UNDER THE COUNCIL OF EUROPE CONVENTION ON THE TRANSFER OF SENTENCED
PERSONS
STEP-BY-STEP GUIDE TO
PROCEDURES IN PORTUGAL
1. You can make an application for prison transfer to the United Kingdom as soon as your sentence becomes final and absolute and there are no
outstanding appeals or court processes. …
…
3. … a copy of the judgment in your case and confirmation of
sentence … is … translated into English, together with the relevant section of
Portuguese law, and sent to the National Offender Management Service (NOMS) in London.
4. If NOMS agree you qualify for prison transfer, they will
calculate the amount of time you would have to serve on arrival in the UK
and write to the Attorney-General’s Office with these details. They will also
send this information to you, via the Embassy, together with a consent form and
a letter of undertaking to repay the cost of your air fare.
5. If you are happy with the terms of transfer, you should
sign the consent form in presence of a witness … and the undertaking to repay,
and return these forms to the Embassy for forwarding to NOMS.
6. If you do not wish to proceed, you should return the forms
under cover of a letter stating that you wish to withdraw your application.
…
8. The High Court [in Portugal responsible for the area in
which you are detained] may schedule a hearing to ensure you are in agreement
with the proposed terms of the transfer and wish to proceed.
…
British Embassy
Lisbon
March 2012
38.
In June 2013 a document which I shall call “the June 2013 step-by-step
guide” was prepared by the British embassy in Lisbon. It was in materially
identical terms to the March 2012 step-by-step guide, as set out above. The
only differences were that there was nothing saying that it comprised “Annex E”
or any other annex, that references to “NOMS” were replaced by references to
“the relevant UK authority”, and that the date at the foot of the document was
“June 2013”.
39.
As explained in section C3 below, the June 2013 step-by-step guide was
sent by the British embassy in Lisbon to Mr McShane on 7 January 2015. It is
common ground that neither the March 2012 leaflet (including the March 2012
step-by-step guide), nor the June 2013 step-by-step guide, in themselves made
any reference to the Framework Decision.
40.
On 27 February 2014 Mr McShane was convicted at the criminal court in
Sintra of trafficking in narcotics contrary to Article 21 of Decree-Law No
15/93 of 22 January 1993. At his trial, Mr McShane was represented by Dr Vitor
Saruga, a Portuguese lawyer.
41.
Among the documents produced by Mr Wilkinson was a leaflet intended for
prisoners abroad generally, not just in Portugal. It was entitled “Transfer
Home for Prisoners Abroad” and was printed in March 2014. I shall refer to it
as the “March 2014 general leaflet”.
42.
The inside of the cover page of the March 2014 general leaflet stated:
Transfers home for prisoners abroad
This leaflet outlines how British citizens sentenced to a
term of imprisonment abroad may be able to transfer home to serve the rest of
their sentence in a prison in the UK. It is intended to be a brief
introduction. It is not a statement of your legal rights.
43.
Pages 2 and 3 of the March 2014 general leaflet included:
Who has to agree the transfer?
The sentencing state and the British authorities have to
approve your transfer in all cases. In most cases, you will be required to
consent to your transfer. However, note that at this time EU Member States
under the Council Framework Decision 2008/909/JHA can seek the compulsory transfer
of prisoners from their territory to the state of the prisoner’s nationality or
permanent residence. In those cases the British authorities are obliged to
agree to your transfer even if you do not want to return to the UK.
44.
Mr Wilkinson does not expressly assert that the March 2014 general
leaflet was given to Mr McShane. However it is clear that by early April 2014
Mr McShane was aware that there was what he understood to be “new EU
legislation” regarding prison transfer. It is common ground that on 4 April
2014 Ms Ana Queiroz, in her capacity as Pro-Consul at the British Embassy in Lisbon, visited Mr McShane in custody. Her letter to him later that day enclosed a
document which she described as a summary of the Framework Decision. It is not
clear what that document was, but I think that what was described as a summary
of the Framework Decision was likely to have been the March 2014 general
leaflet: the evidence before me establishes that it was in existence at the
relevant time, it falls within the relevant description, and there is no reason
to think that it was not available to the embassy at the relevant time.
45.
In her letter of 4 April 2014 Ms Queiroz described the position as
regards prisoners in Portugal in this way:
During my visit, you also enquired about the implementation
in Portugal of new EU legislation regarding prison transfer. I told you that I
was not aware of such law but I’ve since made some enquiries about it and I thought
you might find it useful to have the enclosed summary of the framework
decision. However, Portugal has not yet transposed this legislation into its
own national law so it is not yet effective in Portugal. Once the law is
implemented in Portugal, it is likely that it will only be applied to
sentencing decisions taken after its entry into force.
[emphasis in the original]
46.
On 13 August 2014 Mr McShane was sentenced to 8 years’ imprisonment. The
694 days he had already spent in pre-trial detention counted as part of that 8
year period.
47.
Mr McShane lodged an appeal. It was dealt with on paper, and was
unsuccessful. In December 2014 the sentence became final and absolute. In
relation to sentencing, and to the appeal, Mr McShane continued to be
represented by Dr Saruga.
48.
On 6 January 2015 Mr McShane rang Ms Queiroz. He asked her for assistance
in applying for a prison transfer to the UK. On the following day, 7 January
2015, Ms Queiroz received a call from Sheila Jenkins. Ms Jenkins explained that
she was Mr McShane’s mother in law. She asked Ms Queiroz to let Mr McShane know
that she (Ms Jenkins) was willing to assist with the transfer.
49.
Also on 7 January 2015 Ms Queiroz sent a letter to Mr McShane, along
with three enclosures. The enclosures were:
(1)
a draft letter of application addressed to the Portuguese authorities
for Mr McShane to sign and return to Ms Queiroz so that she could submit it to
the Attorney-General’s office; this draft contained an oversight: rather than
referring to Mr McShane’s location in prison in Lisbon, it included wording
indicating that the place of signature was the Prison Establishment at
Monsanto;
(2)
a “leaflet on prison transfer”: it is not clear what this leaflet was,
but I think, for similar reasons to those set out in section C2 above, that it
was likely to have been the March 2014 general leaflet;
(3)
a “note on local procedures”: the material prepared for the hearing
before me indicates that this was the June 2013 step-by-step guide.
50.
Ms Queiroz added that if Mr McShane were able to pay for translation of
his court file, she would inform the Attorney-General’s office. That office
would then send Mr McShane’s court file to the consulate. Following receipt of
the file Ms Queiroz would contact Mr McShane so that he could choose a
translator and arrange for that translator to collect the documents from the
consulate.
51.
A letter dated 27 January 2015 was sent by Mr McShane to Ms Queiroz. It
stated that it enclosed his application for her to forward to the
Attorney-General’s office. It seems that the letter may not have been sent
until a few days later: at the hearing before me a copy of the signed
application was produced with a date of “30 dias de JANUARY de 2015”. I shall
refer to it as “the January 2015 application”. There was some scepticism on the
part of Mr McShane as to whether he had in fact signed the January 2015
application. I am satisfied that he did indeed sign it on 30 January 2015. His
scepticism may have arisen later when he saw that the document contained the
mistaken reference to it having been signed at Monsanto: see my comments above
on the first enclosure to Ms Queiroz’s letter of 7 January 2015.
52.
An informal translation of the January 2015 application reads:
Please note that Mr Gerald Paul McShane, born on 30th August
1962, in Horsney, UK, is serving 8 year imprisonment related to Process number
381/12.3JELSB of Tribunal Judicial de Sintra (Court of Law in Sintra),
incarcerated at Estabelecimento Prisional de Lisboa (Lisbon Prison), would like
to ask your authorisation to be transferred and serve the remaining time in UK,
as per Decreto-Lei 43/91 (Act) of 22nd Janurary 1991 and the other Acts in
force.
I would like to ask you the approval to be granted.
53.
Mr McShane’s letter of 27 January 2015 to Ms Queiroz said that he would
be appointing “my solicitor Vitor Saruga to arrange any translating services”.
There is no evidence, however, that Dr Saruga played any part in what occurred
in January 2015. There was no challenge by the Justice Secretary to what was
said in paragraph 4 of McShane 1:
4. I was
represented during the criminal prosecution by a local, Portuguese lawyer
called Vitor Saruga. My family paid his legal fees. He spoke a little English.
I did not have an interpreter at our meetings. I did not receive any
correspondence at all from him. He represented me in court. There was one
interpreter for four defendants. Mr Saruga represented me at the original trial
in court and up to the last appeal which was rejected in December 2014 when the
sentence became final. The appeals were paper appeals and did not involve a
hearing at which I was present. I do not know when he came ‘off the record’ but
the last thing I know he did for me in relation to the court case was to submit
a paper appeal. I did not receive any correspondence or a visit from him in
relation to the appeal. I did not have any advice from him in respect of the
matters set out below, which are the subject of this claim.
54.
On 11 May 2015 Ms Claudia Marques, an officer of the consular section of
the British Embassy in Lisbon, wrote to Mr McShane informing him that his court
files had been received from the Attorney-General’s office.
55.
Mr McShane’s letter in reply was dated “14/04/2015”. It is common ground
that this was an error, and that the letter was written on 14 May 2015. It
stated:
I can confirm that my solicitor Vitor Saruga, will be
arranging for the translating of said files and would be happy for you to
forward to him all documents and instructions on how he needs to proceed.
56.
The court files received from the Attorney-General’s office were
provided by the embassy to Dr Saruga on 19 May 2015.
57.
Law 158/2015, implementing the Framework Decision, was enacted by the
Portuguese parliament on 22 July 2015. It was signed by the president of Portugal
on 24 August 2015, and published on 17 November 2015. It entered into force
ninety days after the date of publication: see paragraph 66 below.
58.
On 11 August 2015 Mr McShane wrote to Ms Marques. Among other things, he
said that he was awaiting translation of the papers that Dr Saruga had
collected from the embassy. Mr McShane asked whether this time delay was
normal. He added that he already paid for the translation, and asked Ms Marques
to send him “a copy of the fact sheet outlining the process of the transfer.”
59.
On 20 August 2015 Ms Marques replied to Mr McShane. She said that she
had contacted Dr. Saruga, who was on leave, but had said that, as far as he
knew, the court file had been translated and was ready to be sent to the
Attorney General’s office. As to Mr McShane’s request for “the fact sheet
outlining the transfer process,” Ms Marques’s letter stated:
Please find enclosed an updated version of our Prisoner
Information pack which includes a guidance note on local procedures of prison
transfer as you kindly requested.
60.
Paragraph 6 of McShane 1 recorded that Mr McShane recalled reading a
guidance document he had been given by the British Embassy and which was dated
2013. Among other things, it had included an “Annex 9”, a “step-by-step
guide.” Paragraph 17 of McShane 1 stated that the “updated Prisoner
Information pack” accompanying Ms Marques’s letter of 20 August 2015 was, he
believed:
… the one dated 2013, which included the Annex 9 document
which … dealt with repatriation arrangements. The full pack dealt with rights,
translation services, early release provisions as well as repatriation. I did
not keep a full copy of this.
61.
As to what Mr McShane referred to as “the Annex 9 document”, I shall
refer to this as “the June 2013 Annex 9”. It was in identical terms to the June
2013 step-by-step guide, save only that the heading “Guidance Note on local
procedures for prison transfers” was preceded by “Annex 9:”. The June 2013
Annex 9 was the document produced by Mr McShane at the outset of these
proceedings and referred to by me in my first judgment.
62.
Paragraph 18 of McShane 1 recorded that he was moved to Alcoentere open
prison in around September or October 2015. Mr McShane had complained that his
previous prison “was terribly overcrowded and had diabolical conditions”.
Paragraph 18 describes Alcoentere “as a much better prison”.
63.
On 29 November 2015 Mr McShane wrote a further letter to Ms Marques.
Among other things, it stated:
“… The file was forwarded … to my solicitor here, Dr. Vitor
Saruga who was paid for the tasked of translating the said file which in turn
was to be forwarded to the Attorney General’s Office … as yet I have not
received any acknowledgement the file has been received … by the relevant
authorities.
… I was hoping that you may be able to contact the Attorney-
General’s Office in Portugal and ascertain if they are in receipt of the file
just to put my mind at rest. I understand you can in no way get involved in my
case but once I know that my file is in the hands of the correct authorities
then I can instruct my family to contact the sister agency back home in
England.
64.
Ms Marques replied on 2 December 2015. Among other things, her letter of
that date stated:
As per your instructions, giving us authority to share your
court file with your lawyer for him to organise the translation, we emailed an
electronic copy of the court file to your lawyer and posted to you the copies
received from the Attorney-General’s Office on 19 May 2015.
You must now follow this up with your lawyer directly, since
the file was sent to him and you have arranged for him to organise the
translation privately.
On this occasion, I contacted the Attorney-General’s Office,
who informed they are waiting to receive the court file translated so they can
process the transfer application. I then contacted your lawyer, Dr Vitor
Saruga, who said he could not confirm if the translation had been sent to the
Attorney- General’s and that he could only check on Monday 7 December, when he
was back in his office. I have forwarded him the email I sent him on 19 May
enclosing your file.
As you can see, the application process is beyond our
control, therefore, I would strongly recommend that you and your family chase
the progress with your lawyer, since you have given him authority to perform
the translation and you have a private arrangement with him.
Your sister Penny contacted us today and I also encouraged
her to keep in touch with your lawyer.
65.
Mr McShane sent a letter in reply on 15 December 2015. In that letter he
stated, among other things:
I now believe it has become completely apparent that Dr Vitor
Saruga has taken the funds provided by my family for the translating services
but is not going to provide us with the rendered services. It would now appear
he has been misleading us for some time ...
… It is my strong belief that my solicitor has taken the
monies but will not be providing the services …
66.
On 17 December 2015 Law 158/2015 came into force. An internal note made
by the British embassy that day records that Mr McShane’s sister, Penny, had
rung the embassy in relation to translation. There appears to have been a
suggestion that Mr McShane’s file be returned to the Attorney General’s Office,
asking them to undertake the translation. The author of the internal note
recorded:
I mentioned the new prison transfer agreement to Penny … I
emphasised that the Portuguese authorities have still not been able to clarify
whether the new agreement would affect existing applications or whether it be
only applied to applications made from today (17 December – implementation
date). I said we would write to all prisoners once we were clear about how all
the new arrangements were going to affect them …
67.
Mr McShane’s understanding of the position at this time was set out in
paragraph 19 of McShane 1. He had said earlier that it was clear to him from
guidance supplied by the embassy that there were a number of stages to go
through, that the terms of transfer would be made clear to him, and that his
consent would be needed before he could be repatriated. In paragraph 19 he
added, when commenting on the position of December 2015:
I had still not consented to a transfer and was still only
looking into the possibility. My position had not changed. I was not going to
agree to anything unless and until I had clear confirmation of how long I would
have to serve if I returned to the UK.
68.
On 22 January 2016 Ms Marques wrote to Mr McShane. Her letter stated:
I am writing to inform you that we have confirmation from the
Attorney-General’s Office that your application for prison transfer will be
dealt with under the new agreement which came into force in Portugal
on 17 December 2016.
The Attorney-General’s Office has therefore forwarded your
application to the court in Sintra from where it will be sent, in accordance
with the new law, to [NOMS] for consideration.
We are working with both the Portuguese and British
Authorities on the preparation of a step-by-step guide on the procedures
involved. As soon as this has been approved by all concerned, I will let you
have a copy.”
69.
This was followed by a letter dated 25 February 2016 from Ms Marques to
Mr McShane. It stated:
Further to my letter of 22 January, I am enclosing, as
promised, an information leaflet on the procedures for prison transfer under
the new legislation which came into force in Portugal on 17 December 2015.
Please note that this leaflet is for your information only; you do not need to take any action as your application has already been sent
to your sentencing court at Sintra by the Portuguese Attorney-General’s Office.
If there are any changes to these procedures, we will update the leaflet and
let you know.
70.
I shall call the leaflet referred to in the letter of 25 February 2016
“the February 2016 leaflet”. The material provided at the hearing before me
does not appear to include a full copy of the February 2016 leaflet. However it
does include a document which I shall refer to as “the February 2016 Annex 8”.
The February Annex 8 was presumably an Annex to the 2016 leaflet. It was
concerned with applications for prison transfer under the Framework Decision
and Portuguese law 158/2015. It made no reference to any requirement of consent
of the part of the prisoner to be transferred.
71.
Paragraph 20 of McShane 1 commented on the reference in Ms Marques’s
letter of 22 January 2016 to a “new agreement”. It said that Mr McShane had no
idea what the new agreement was. It seems that, in that regard, Mr McShane did
not have in mind what he had been told in the letter sent to him by Ms Querioz
on 4 April 2014: see section C2 above. In any event, it later became plain from
Ms Marques’s letter of 25 February 2016 that the “new agreement” comprised the
new arrangements in place following implementation of the framework decision in
Portugal.
72.
McShane 1 makes additional points in paragraph 20 that, at this stage:
(1)
the embassy did not recommend that Mr McShane seek legal advice about
the “new agreement”;
(2)
Mr McShane was still waiting for information to explain what would
happen with his sentence if he went back to England; and
(3)
Mr McShane still wanted to know that before he gave his consent going
forward.
73.
On 19 May 2016 the Portuguese authorities sent a letter (“the May 2016
letter”) to NOMS in relation to Mr McShane. The letter forwarded the Sintra
court decision, Mr McShane’s transfer request, and a certificate under Article
4 of the Framework Decision. It stated that these documents were sent “in order
to execute the established custodial sentence in your country”.
74.
I shall refer to the May 2016 letter and its enclosures as “the May 2016
documentation”. The certificate (“the May 2016 certificate”) was in a standard form
and included numerous tick boxes. When completing the certificate, however, the
Portuguese authorities identified wording that was relevant by formatting that
wording in bold, rather than ticking the box in question. In this way, the
Portuguese authorities indicated in Section (k) of the certificate that Mr
McShane was in Portugal and had requested the forwarding of the judgment and
the certificate, and that his opinion was attached. It seems that in this
regard the Portuguese authorities treated the January 2015 application as the
opinion of Mr McShane for the purposes of the Framework Decision.
75.
Further as to the May 2016 documentation:
(1)
it was not copied to Mr McShane, nor did the Portuguese authorities inform
him of it; and
(2)
Wilkinson 1 at paragraph 12 stated that NOMS only became of the request
for the transfer of Mr McShane on receipt of the May 2016 certificate.
76.
Consideration by NOMS of the 19 May documentation led to the preparation
of a number of documents. As to these:
(1)
they included a declaration by Mr Wilkinson dated 20 July 2016: this
declared that the government of the United Kingdom consented to the transfer
from Portugal to the United Kingdom of Mr McShane and formally requested that
he be transferred under the terms of the Framework Decision.
(2)
they included a letter (“the NOMS/McShane July 2016 letter”) from NOMS
addressed to Mr McShane, also dated 20 July 2016, recording that the UK had
agreed to proceed with his application for repatriation to the UK.
(3)
accompanying the NOMS/McShane July 2016 letter were:
(a)
a note on transfer to the UK;
(b)
a note on how Mr McShane’s sentence would be administered in the UK;
and
(c)
a note confirming that Mr McShane agreed to be returned to the UK.
(4)
the NOMS/McShane July 2016 letter said that Mr McShane would “need to
sign the last two…although you are signing these documents now, you’re only
giving your consent to the UK authorities to proceed. It may be several months
before the Portuguese authorities give their final decision to release you to UK custody.”
(5)
they included a letter (“the NOMS/Portugal July 2016 letter”) to the
Portuguese authorities dated 22 July 2016. The NOMS/Portugal July 2016 letter
referred to transfer under the Framework Decision, but gave various
confirmations applicable to the 1983 Convention. Among other things, the letter
noted that UK provisions for automatic release at the halfway point of a
sentence would, in the case of a prisoner repatriated to the UK, give rise to
automatic release once the prisoner has served one half of the balance of the
sentence remaining at the date of transfer, and that this may be later than the
halfway point of the whole sentence.
77.
It is common ground that on 17 September 2016 Mr McShane had served one
half of his sentence in Portugal, and under Portuguese law became eligible for,
but not automatically entitled to, early release.
78.
On 22 September 2016 Ms Marques wrote to Mr McShane, enclosing the
NOMS/McShane letter of 20 July 2016. Ms Marques noted that before any further
arrangements could be made, Mr McShane was required to give his written consent
to the terms of the proposed transfer. Her letter stated that if Mr McShane
decided to proceed with his application, then he should sign the administration
of sentence document and the consent form and return them to NOMS. Her letter
added:
If you do not wish to proceed with your application, please
return the documents to NOMS…, together with a letter explaining your wish to
withdraw from the process.
79.
As to the reference to a need for Mr McShane to sign a “consent to
transfer form”, paragraph 10 of Wilkinson 1 stated:
… It was a mistake by NOMS that the claimant was asked to
sign a consent to transfer form. The transfer requested was always treated by
the United Kingdom as being made under the … Framework Decision …
80.
No explanation is given by Mr Wilkinson of how the “mistake” came about.
Nor does Mr Wilkinson explain when, and in what circumstances, it was
appreciated that a mistake had been made.
81.
On 29 September 2016 Mr McShane wrote to NOMS, noting that it was only
on 28 September that he received their letter dated 20 July 2016. Mr McShane
explained that he was writing before signing the consent forms. He expressed
concern about the time he was likely to serve upon return to the UK.
In that regard he said he was confused because, if he had understood correctly,
his actual release date might be later than the halfway point of the whole
sentence.
82.
A further letter was sent to Mr McShane by Ms Marques on 18 October
2016. She said she was passing on clarification obtained from NOMS. The
clarification was that he would be credited with time spent “in pre-trial
detention prior to sentence”. This did not address the concerns raised by Mr
McShane on 29 September, and it is not clear to me that it was intended to do
so. What is clear is that there was no suggestion that there had been any
“mistake” when stating earlier that Mr McShane needed to give his consent to
transfer. Indeed the letter of 18 October 2016 was accompanied by the same
documents for signature as had been sent on 22 September 2016.
83.
McShane 2 describes being taken to the Sintra court regarding the
January 2015 application. It appears that this took place on 28 October 2016.
Mr McShane states that at the hearing he told the judge he would not give
consent until he had answers to his questions about what would happen if he
went back to England. He adds that at this point it was clear to him that that
he would have to give his consent before he could be repatriated.
84.
On 13 January 2017 Mr Wilkinson, in the name of the Justice Secretary,
signed a warrant (“the January 2017 warrant”) authorising, among other things,
Mr McShane to be taken into custody, to be brought to the UK
from Portugal, and to be delivered into the custody of the Governor of HM
Prison Wandsworth.
85.
It is accepted by the Justice Secretary that the January 2017 warrant
was inaccurate in two respects. The first was that it stated that Mr McShane
was to serve 2,920 days imprisonment. This figure was wrong: it made no
allowance for time served in Portugal.
86.
The second was that it contained a recital (“the consent recital”) that
Mr McShane had consented to being transferred into the United Kingdom. This was wrong: Mr McShane had not consented.
87.
Paragraph 11 of Wilkinson 1 said that Mr Wilkinson was not aware at this
time that Mr McShane had not consented to his transfer. It seems in this regard
that Mr Wilkinson was not aware in January 2017 of Mr McShane’s letter to NOMS
dated 29 September 2016: see section C7 above. Wilkinson 1 makes no mention of
that letter.
88.
Paragraph 11 of Wilkinson 1 also said that the consent recital was in
line with the May 2016 certificate, which indicated that Mr McShane consented
to the transfer. As to that, however, it seems to me that if Mr Wilkinson had
been aware of Mr McShane’s letter to NOMS dated 29 September 2016, then he
would have been aware that there was reason to doubt what had been said by the
Portuguese authorities in this regard.
89.
In purported reliance on the January 2017 warrant, Mr McShane was taken
by officers of NOMS from Portugal to HMP Wandsworth on 26 January 2017.
90.
It seems that an initial calculation of the position was made once Mr
McShane was at HMP Wandsworth. This initial calculation identified a custody
release date of 12 August 2018, with a licence expiry date of 12 August 2022.
This calculation would have been accurate if Mr McShane had been sentenced in
this country and had not spent time on remand in custody prior to sentence.
91.
At an unknown date thereafter, however, a further calculation was made. This
recognised that Mr McShane was entitled to credit for time on remand in custody
prior to sentence. It also recognised that he had been transferred on 26
January 2017, and took account of legislative provisions under which he was
entitled to release at the half way point of the balance of his sentence. On
this basis his custody release date was calculated to be 21 November 2018, and
his licence expiry date was calculated as 16 September 2020.
92.
On 22 February 2018 Mr Wilkinson revoked the January 2017 warrant. In
its place he signed a further warrant (“the February 2018 warrant”) superseding
the January 2017 warrant. The February 2018 warrant corrected the first
inaccuracy identified above by specifying that the time to be served by Mr
McShane was 1,330 days from Mr McShane’s arrival in the UK
on 26 January 2017. Accordingly his licence expiry date would be 16 September
2020.
93.
The February 2018 warrant made no reference to any consent by Mr McShane
to the transfer. To this extent, it corrected the second inaccuracy in the
January 2017 warrant.
94.
Wilkinson 1 asserted at paragraph 11 that, under the Framework Decision,
Mr McShane’s consent was not necessary in order for transfer to take place. He
also asserted that “the Portuguese transfer request” (by which I understand him
to mean the May 2016 documentation) did not engage any of the grounds set out
in article 9 of the Framework Decision which would have enabled “the request”
to be refused. Paragraph 11 of Wilkinson 1 then added that “in order to put the
position beyond doubt” Mr Wilkinson issued the February 2018 warrant.
95.
I have summarised relevant principles in section B5 above. Before
turning to the representations relied upon by Mr McShane, I make some
observations about an issue which was said by the Justice Secretary to arise. A
proposed list of issues submitted by the Justice Secretary began with an issue
1:
Is the Secretary of State, or HM Government in general,
responsible for providing legal advice to British prisoners serving prison
sentences in other EU Member States concerning the arrangements for their
transfer to the United Kingdom under [the Framework Decision]?
96.
In the circumstances of the present case, however, no such issue arises.
It was not suggested by Mr McShane that the government has or had a
responsibility for providing legal advice to prisoners. Mr McShane’s case was
founded on what he said were representations, constituting clear and
unambiguous assurances, devoid of relevant qualification, as to what the
government would or would not do.
97.
In oral argument Mr McShane relied upon paragraphs 5 and 6 of the March
2012 step-by-step guide. These paragraphs were said to make it clear that
without consent transfer would not proceed.
98.
However the March 2012 step-by-step guide was subject to an important
qualification. As noted by the Justice Secretary, it was an integral part of a
leaflet which stated on its front page that applicable procedures might change.
There is no basis for thinking that Mr McShane was given the March 2012
step-by-step guide separately from the March 2012 leaflet. In these
circumstances I cannot accept that by giving Mr McShane the March 2012
step-by-step guide the government made a clear and unambiguous representation
as to what would happen.
99.
The next representation relied upon by Mr McShane was found in the June
2013 step-by-step guide, sent by the embassy to Mr McShane on 7 January 2015:
see section C3 above. As noted in that section, the embassy’s letter dated 7
January 2015 enclosed the June 2013 step-by-step guide. It was in materially
identical terms to the March 2012 step-by-step guide. In particular, paragraphs
3 to 6, set out in section C1 above, described a procedure under which Mr
McShane would correspond with the UK authority, in this case NOMS. Under that
procedure, he would receive via the embassy a calculation of the amount he
would have to serve on arrival in the UK, along with forms including a consent
form. If he wished to proceed with transfer, then he was to sign the consent
form and return it to the embassy for forwarding to NOMS. On the other hand, if
he did not wish to proceed, then he was to return the forms under cover of a
letter stating that he wished to withdraw his application for transfer.
100.
I consider that the June 2013 step-by-step guide constituted a clear and
unambiguous representation, and was devoid of any relevant qualification. The
June 2013 step-by-step guide was a self-contained document. The Justice
Secretary submitted that consular staff were simply going back to the guidance
in the March 2012 leaflet, and accordingly that what was said in the June 2013
step-by step guide must be read as subject to the disclaimer in the March 2012
leaflet. I do not agree. In January 2015 more than two years had passed since
the embassy sent the March 2012 leaflet. No reference to it was made in the
letter of 7 January 2015. On a fair of reading of the June 2013 step-by-step
guide, as sent to Mr McShane on 7 January 2015, what would reasonably have been
understood by Mr McShane was that if he submitted the application enclosed with
the letter of 7 January 2015 he would be given information by NOMS about the
amount of time he would have to serve on arrival in the UK, at which point he
could consider whether he wished to consent to transfer. Only if he gave
consent would he be transferred.
101.
Mr McShane’s revised grounds specifically relied on what I have called
the June 2013 Annex 9. As set out in section C5 above, I consider that this
document formed part of an updated Prisoner Information pack sent to Mr McShane
with the embassy’s letter 20 August 2015. Mr McShane has explained that he did not
keep the full pack, which was concerned with other things as well as
repatriation. What he kept was the June 2013 Annex 9. There is no evidence that
the full pack included a disclaimer of the kind set out on the front page of
the March 2012 information leaflet. Even if it did, it had been sent to Mr
McShane specifically in response to his request for “a copy of the fact sheet
outlining the process of the transfer”. What he was told in response was that
what he wanted could be found in the updated Prisoner Information pack. Upon
receiving the letter 20 August 2015 Mr McShane could not, in my view,
reasonably have been expected to go beyond the “fact sheet” which he had
sought. He could have reasonably been expected to locate this in the June 2013
Annex 9. It was in materially identical terms to the June 2013 step-by-step
guide. It was apparently self-contained. It contained no relevant
qualification. In my view, it too, on a fair reading, would have been
reasonably understood by Mr McShane as assuring him that he would not be
transferred without his consent.
102.
The next assurances relied upon by Mr McShane are found in the
NOMS/McShane July 2016 letter, and in the embassy’s letter of 22 September 2016
sending him this document. Relevant passages in both these documents are set
out in section C7 above. Both contain unambiguous representations which, on a
fair reading, would have been reasonably understood by Mr McShane as assuring
him that he would not be transferred without his consent. The same is true of
the embassy’s letter dated 18 October 2016 to Mr McShane. This sent
clarification to Mr McShane of how he would be credited in the UK
with time spent “in pre-trial detention prior to sentence”. The obvious purpose
of giving him this information was to enable him to make an informed decision as to whether to consent to transfer or not. This is reinforced by the
enclosures to the letter of 18 October 2016: they were the forms which he had
been told previously that he would need to sign in order to demonstrate his
consent.
103.
Section C7 above describes Mr McShane’s letter to NOMS of 29 September
2016. It was plain from that letter that Mr McShane believed, in accordance
with the NOMS/McShane July 2016 letter, that he would not be transferred
without his consent. No further communication took place between NOMS and Mr
McShane prior to the signing by Mr Wilkinson of the January 2017 warrant. The
signature of that warrant, in circumstances where NOMS had told Mr McShane that
his consent would be required to transfer, and NOMS must have known that it had
not received any such consent, appears on the face of it to be an affront to
justice. The affront is made even greater by the presence of the consent
recital.
104.
In oral submissions, the Justice Secretary identified eleven reasons for
suggesting that it was “open” to the Justice Secretary “to correct the
representations” that had been made to Mr McShane.
105.
The first suggested reason was that it would be unfair to put on the
Foreign Secretary a burden of advising prisoners abroad. To my mind, however,
two departments of state, the Ministry of Justice and the Foreign Office, had
responsibility within government for the administration of international
arrangements for the transfer of prisoners. It was entirely appropriate for
those departments in fulfilment of that role to explain to prisoners what would
happen if a prisoner sought transfer.
106.
The second reason relied upon an assertion that Mr McShane had a
Portuguese lawyer who was helping him with his transfer application. On the
facts in the present case, however, I am satisfied that the only “help” sought
by Mr McShane from his Portuguese lawyer, in relation to the transfer
application, was a request to arrange translation. I recognise that it would
have been open to Mr McShane to ask his Portuguese lawyer for advice. However,
in the absence of any ambiguity in what was said by the UK authorities to Mr McShane, and in the absence of any specific recommendation to him that
he should seek advice from his Portuguese lawyer, it does not seem to me that
this second reason assists the Justice Secretary.
107.
The Justice Secretary’s third reason noted that Mr McShane’s letters
referred to “my Portuguese solicitor”, and invited the court to infer that
because the letters said this the Foreign Office believed that Mr McShane was
receiving advice on transfer from his Portuguese lawyer. If an assertion of
that kind were to be made, however, in my view it would need to be supported by
evidence. In the absence of such evidence, I have no reason to make the
inference suggested.
108.
The Justice Secretary’s fourth reason asserted that the application
procedure was governed by Portuguese law, and that this was not a matter for
which the Justice Secretary could be responsible. This seems to me to focus
upon the wrong question. The procedure which was described to Mr McShane by the
embassy was a procedure under which NOMS would have a crucial role. Under that
procedure, as described to Mr McShane, NOMS would not take the transfer forward
if Mr McShane did not consent.
109.
The Justice Secretary’s fifth reason was that, long before Mr McShane’s
trial and conviction, Portugal ought to have incorporated the Framework
Decision into its own law. I accept that if Portugal had done what it ought to
have done, then the present claim would not have arisen. I find it difficult,
however, to see how this assists the Justice Secretary. The position at the
relevant time was, as the government well knew, that Portugal had not
implemented the Framework Decision. That is part of the background to the
assurances given to Mr McShane. It has no particular bearing on the fairness,
or otherwise, of the UK government’s conduct in acting inconsistently with
those assurances.
110.
The Justice Secretary’s sixth reason asserted that the Justice
Secretary, as opposed to the Foreign Secretary, had no knowledge that Mr
McShane was refusing consent. This is an unattractive submission, for it seeks
to rely upon divisions of responsibility between government departments as justifying
what would otherwise be an unjust result. However, even on its own terms, what
is said in support of this reason is not correct. As noted earlier, prior to
signature of the January 2017 warrant, NOMS knew both that Mr McShane believed
that he could not be transferred without his consent, and that Mr McShane, for
his part, considered that at that stage he had not given his consent.
111.
The Justice Secretary’s seventh reason was that NOMS had received a
valid request from Portugal, and in the absence of ground for non-recognition
was bound to accept that request on behalf of the UK government. In this
regard, the Justice Secretary focussed upon the May 2016 documentation,
claiming that NOMS had no choice but to send to Portugal the NOMS/Portugal July
2016 letter. It is by no means clear to me that NOMS considered that it had no
choice but to take this course. As noted in section C7 above, the terms adopted
by the NOMS when writing the NOMS/Portugal July 2016 letter indicate that the
author of that letter regarded the 1983 convention as applicable. Even if,
however, NOMS had formed the view that it had no choice but to accept the
Portuguese request, this does not of itself appear to be a strong factor,
especially in circumstances where NOMS had not made any enquiries of the
embassy in Portugal concerning Mr McShane. Such inquiries would in my view have
established that Portugal had been wrong to treat the January 2015 application
as constituting Mr McShane’s “opinion”.
112.
The Justice Secretary’s eighth reason was that once the Portuguese
request had been accepted, nothing in the Framework Decision allowed the UK
to refuse to proceed. This contention echoed a suggestion in the Justice
Secretary’s list of issues that Mr McShane’s transfer to the UK
pursuant to the Framework Decision became final on 20 July 2016. The
submissions for Mr McShane disputed that suggestion. In particular, Mr McShane’s
submissions pointed to provisions in the recitals to the Framework Decision:
see section B3 above. Recital (6) stated that it should be implemented and
applied in a manner which allowed general principles of equality, fairness and
reasonableness to be respected. Recital (14) said that the Framework Decision
should not prevent any member of State from applying its constitutional rules
relating to due process. It was submitted on behalf of the Justice Secretary
that this could not alter the procedures set out in the substance of framework
decision. To my mind, however, nothing in the Framework Decision suggests that
the procedures identified in that decision must be implemented in circumstances
where under the law of the executing state the implementing of those procedures
would amount to an abuse of power. In these circumstances I cannot agree that
once the UK had accepted Portugal’s request, nothing in the Framework Decision
allowed the UK to refuse to proceed.
113.
The Justice Secretary’s ninth reason stressed that if Portugal had implemented the Framework Decision in time, the present claim would not have
arisen. For the reasons given when dealing with the fifth reason, this does not
seem to me as to assist the Justice Secretary’s position.
114.
The Justice Secretary’s tenth reason was that Portugal, once it had
implemented the Framework Decision, could have transferred Mr McShane without
his consent. The proposition that it would be open to Portugal
to seek to transfer Mr McShane without his consent can be treated for present
purposes as correct. But no evidence was advanced by the Justice Secretary for
concluding that Mr McShane would have been transferred if he had not followed
the procedures which the UK government assured him would enable him to get the
transfer process underway subject to a right on his part to refuse consent. In
those circumstances it does not appear to me that this suggested reason can
advance the position of the Justice Secretary.
115.
The Justice Secretary’s eleventh reason was that there was insufficient
evidence to show that Mr McShane would have been released in Portugal earlier than the custody release date which now applies. In that regard, the
Justice Secretary noted evidence by Professor Caerio that Mr McShane might have
been held in prison in Portugal until five sixths of his sentence had been
served. This ignores other evidence in Professor Caerio’s witness statement. In
particular, he explained that once two-thirds of the sentence has been served,
a prisoner is required to be released if there is a positive expectation
regarding the prisoner abstaining from crime in the future. He described the
“conditions to establish such positive prognosis” as conditions which “do not
seem too demanding.” He added that for those sentenced to five to eight years
imprisonment, his perception was that “it is rather uncommon” that prisoners
are held in prison beyond two-thirds of the sentence. He added that in the
great majority of cases, prisoners are released between one-half and two-thirds
of completion of their sentence. In the circumstances of the present case, I
conclude that Mr McShane would, on the balance of probabilities, have been
released in Portugal no later than the date when two-thirds of his sentence had
been served.
116.
The Justice Secretary also placed reliance upon information which had
been supplied to Mr McShane by the British embassy concerning the Framework
Decision. At its highest, as it seems to me, the Justice Secretary can point to
the embassy’s letter of 4 April 2014: see section C2 above. For reasons given
in that section, I think it likely that the letter was accompanied by the March
2014 general leaflet. The letter itself stressed (by placing the word “after”
in italics) that it was likely that once the Framework Decision was implemented
in Portugal, it would only be applied to sentencing decisions taken after its
entry into force. By inference, it can be said that Mr McShane was warned of a
risk that Portugal might implement the Framework Decision as to apply
sentencing decisions taken before its entry into force. This appears to me
however, to be beside the point. What happened in the event was that Portugal, mistakenly believing that Mr McShane definitively wished to be transferred, had
applied the Framework Decision in his case. Mr McShane had no warning, and
indeed no reason to think, that Portugal might make such a mistake.
117.
For the reasons given above, despite the strenuous submissions advanced
by the Justice Secretary in this regard, I am satisfied that the issue of the
January 2017 warrant was conspicuously unfair and amounted to an abuse of
power.
118.
For the reasons given above I conclude that the issue of the January
2017 warrant infringed principles of legitimate expectation and was unlawful.
It was not suggested by the Justice Secretary that the issue of the February
2018 warrant, or any other event following issue of the January 2017 warrant,
could affect this conclusion.
119.
Mr McShane relied on article 5 of the European Convention on Human
Rights as an alternative to his argument on legitimate expectation. As his
argument on legitimate expectation has succeeded, it is not necessary for me to
deal with the arguments on article 5. Those arguments are, in my view, best
examined in a case where they will affect the outcome. Accordingly I do not
consider them here.
120.
For the reasons given above, I conclude that Mr McShane’s claim based on
legitimate expectation succeeds.
