Weekly Digest: 13 August 2018
13 August 2018
This week’s Digest contains an opinion of an Advocate General of the Court of Justice of the European Union and two High Court judgments. In Advocate General Szpunar’s opinion, he considered whether the UK’s notification of its intention to withdraw from the EU constitutes a ground for refusing to execute an EAW. In the first High Court judgment, it considered whether a prisoner had a legitimate expectation that he would be repatriated to the UK to serve the remainder of his sentence only with his consent. In the second judgment, the High Court considered whether the process for appointing Parole Board members and their tenure once appointed are sufficiently independent of the executive.
Minister for Justice and Equality v RO – Case C-327/18 PPU
The opinion, which is available here, was delivered by Advocate General Szpunar on 7 August 2018.
In 2016 the UK issued two EAWs in respect of RO for the purpose of prosecuting him for murder, arson and rape. RO was arrested in Ireland and resisted surrender to the UK on the basis of, amongst other things, issues relating to the UK’s withdrawal from the EU. The High Court in Ireland ruled against RO on all of his points other than those relating to the UK’s withdrawal. The High Court asked the CJEU whether, in light of the UK having given notice of its intention to withdraw from the EU and the uncertainty as to the arrangements which will be put in place after its withdrawal, the court was required to decline to surrender a person to the UK whose surrender would otherwise be required. In his opinion, Advocate General Szpunar proposed that the CJEU find that the EAW system should continue to apply for as long as the UK is a Member State.
RO, whose extradition was sought by the UK, resisted extradition on the basis of the uncertainty of the arrangements that would be put in place following the UK’s withdrawal from the EU. In his opinion, Advocate General Szpunar stated that execution of the EAW is the rule and that refusal is an exception that should be interpreted strictly. He noted that none of the mandatory or optional grounds for non-execution were present in the instant case. The Irish court had concluded that, with the exception of the consequences of the UK’s withdrawal from the EU, there was no separate issue of potential inhuman or degrading treatment in respect of RO’s surrender to the UK. The Advocate General rejected the argument that the UK’s withdrawal notice constituted an exceptional circumstance that would require non-execution of an EAW. It was emphasised that for as long as a state is still a Member State of the EU, then EU law applies, including the provisions of the Framework Decision on the EAW and the duty to surrender. He stated that there are no tangible indications that the political circumstances preceding, giving rise to, or succeeding the withdrawal notification are such as to not respect the substantive content of the Framework Decision and the fundamental rights enshrined by the Charter of Fundamental Rights of the EU. The Advocate General agreed with the argument that the UK has decided to withdraw from the EU and not to abandon the rule of law or the protection of fundamental rights. There was therefore no basis to question the UK’s continued commitment to fundamental rights and it would remain subject to the relevant rules of both domestic and international law. Importantly, the Advocate General stated that: “at the moment of executing the EAW, the judicial authorities of the executing Member State can expect the issuing Member State, with respect to the person actually being surrendered, to abide by the substantive content of the Framework Decision, including for post surrender situations after the issuing Member State has left the EU. Such a presumption can be made if other international instruments will continue to apply to the Member State that has left the EU. Only if there is tangible evidence to the contrary can the judicial authorities of a Member State decide not to execute the arrest warrant”. The Advocate General examined the implications of the CJEU having no jurisdiction in interpreting the provisions of the Framework Decision when a state left the EU. He stated that the issue was straightforward and was best analysed not by looking at the future, but at the past. The fact that the CJEU will no longer have jurisdiction after 29 March 2019 was not an obstacle to RO being surrendered to the UK. He stated that the Framework Decision was adopted in 2002, but the Court of Justice only obtained full jurisdiction with regards to the interpretation of the Framework Decision on 1 December 2014, that is to say five years after the entry into force of the Treaty of Lisbon in 2009. Consequently it was neither possible, before that time, for a case such as this to have reached the Court, nor could a UK court have submitted a request for a preliminary ruling to the Court before that time, despite the fact that the EU was firmly anchored on the rule of law, including access to justice. Given these factors, the Advocate General proposed that the CJEU should find that the EAW system should continue to apply for as long as the UK is a Member State.
R (on the application of McShane) v Secretary of State for Justice  EWHC 2049 (Admin)
The judgment, which is available here, was delivered by Walker J on 31 July 2018.
The claimant was a British citizen serving a sentence for drugs offences in Portugal. He withdrew his consent to be transferred to a UK prison to serve the remainder of his sentence. The court agreed that in the circumstances of the case, the claimant had a legitimate expectation that he would not be repatriated to the UK without his consent, despite the fact that Decision 2008/909 of the Council of the EU meant that the prisoner’s consent was no longer required.
The claimant was a British citizen who was arrested and remanded into custody in Portugal in 2012 on suspicion of committing drugs offences. At this time, British embassy staff gave him a leaflet explaining that a prisoner could be transferred to a UK prison to serve the remainder of his sentence under the 1983 Convention on the Transfer of Sentenced Persons. The leaflet stated that he could apply for a transfer and that a copy of the sentencing judgment would be sent to NOMS who would calculate the amount of time he would serve upon his return to the UK. He could then choose to consent to the transfer, or he could withdraw his application. In 2014 the claimant was convicted in Portugal of drugs trafficking and sentenced to 8 years’ imprisonment. The following year, the British embassy sent him a leaflet on prisoner transfers that was similar to the one he had received in 2012. The claimant applied for a transfer in 2015. The same year, Portugal implemented Decision 2008/909, which mandated that a prisoner’s consent was no longer required to transfer him or her to the Member State of his or her nationality. The claimant continued with his application, which was eventually forwarded to NOMS. The UK consented to the claimant’s transfer and formally requested it. By 2016 the claimant had served half of the custodial element of his sentence in Portugal and became eligible for release. However, the UK’s rules for transferred prisoners mandated that a repatriated prisoner would only be eligible for release when he had served half the balance of the original sentence remaining at the date of transfer. This would be the case even if that was later than the halfway point of the entire sentence. In these circumstances, the claimant expressed concern about the time he would spend in custody should he be returned to the UK and sought to withdraw his consent to the transfer. In 2017 the Secretary of State nevertheless signed a warrant authorising the claimant’s repatriation. He was repatriated to a UK prison with a release date in late 2018. It was submitted on behalf of the claimant that he had a legitimate expectation, based upon the 2012 and 2013 leaflets provided by the British embassy, that his transfer would not occur without his consent. The court agreed with this submission and observed that, although the 2012 leaflet had contained a qualification that the applicable procedures might change, the 2013 leaflet contained no such qualification. In these circumstances, the court held that there was a clear and unambiguous representation sufficient to found a legitimate expectation. The court concluded that it would be an abuse of power to permit the Secretary of State to frustrate this expectation. The claimant’s correspondence with NOMS demonstrated that he assumed that his repatriation would only take place with his consent and nothing was done to correct his misunderstanding. The court rejected the argument that the UK was bound to repatriate the claimant once Portugal had implemented the Decision, since the recitals in the Decision explicitly stated that it should be applied in a fair and reasonable manner.
R (on the application of Wakenshaw) v Secretary of State for Justice  EWHC 2089 (Admin)
The judgment, which is available here, was delivered by Mostyn J on 7 August 2018.
The claimant applied for permission to seek a declaration that the period of appointment and tenure for Parole Board members failed the test of objective independence. He also sought an interim injunction that would halt the selection of a new Chair until the relevant issues were addressed. The court agreed that the precarious nature of the tenure of Parole Board members breached the principle of judicial independence. The court refused to grant the interim injunction sought on the basis that it would be too disruptive.
The claimant was a prisoner who in 2009 was sentenced to an IPP. By 2018, he had served the minimum term stipulated and his continued detention was therefore periodically reviewed by the Parole Board. The claimant sought a declaration that the Parole Board is not an objectively fair adjudicative body. He also sought an injunction halting the selection of a new Chair. The catalyst for his claim was the resignation of Professor Nick Hardwick on 27 March after a meeting between him and the Secretary of State for Justice. The court confirmed that the applicable principles were long-established and that a quasi-judicial body such as the Parole Board must not only be independent, but must also be seen to be independent. Furthermore, the applicable standard was one of objective independence. The court rejected the argument that the MOJ’s sponsorship of the Parole Board was incompatible with it being independent of the executive. The court also rejected the argument that the appointment process for Parole Board members lacked independence. In terms of the issue of tenure, which is for three or four years, the court recognised that Parole Board members’ appointments may be terminated if the Secretary of State were to be satisfied that he or she had violated the terms of his or her appointment. The court held that the relatively short period of appointment coupled with the power of the Secretary of State to remove a member if he is satisfied that he or she has failed without reasonable excuse to discharge the functions of his or her office for a continuous period of at least three months, or is unable to discharge the functions of the office, without recourse to any procedure or machinery to determine the merit, or otherwise, of a decision to remove him or her on one or other of these grounds, meant that in this regard the provisions for tenure failed the test of objective independence. The court concluded that the reasonable, albeit well-informed, observer could conclude that the short term of appointment, coupled with the precarious nature of the tenure, might wrongly influence a decision that had to be made. The court was influenced in reaching this conclusion by the fact that, by his own admission, the Secretary of State had effectively dismissed Professor Hardwick from his position. Mostyn J stated that, “In my judgment it is not acceptable for the Secretary of State to pressurise the Chair of the Parole Board to resign because he is dissatisfied with the latter’s conduct. This breaches the principle of judicial independence enshrined in the Act of Settlement 1701. If the Secretary of State considers that the Chair should be removed, then he should take formal steps to remove him pursuant to the terms of the Chair’s appointment”. In these circumstances the court granted the declaration sought by the claimant. The court declined to grant injunctive relief, however, on the basis that it would be too disruptive and would not be a proportionate response to the mischief identified.
English courts trial mental health referrals for vulnerable offenders
Offenders with mental health, alcohol and drug abuse problems are being referred to health services as part of community sentences in an effort to steer them away from jail time. Under a pilot scheme in five areas in England, psychologists and panels comprising justice and health officials have been providing information to judges or magistrates to determine whether offenders should be required to receive treatment. Engagement with health services is required under the terms of the sentence and failure to do so could represent a breach of that sentence.
The full piece can be read here.