James, R (On the Application Of) v HM Prison Birmingham & Ors

This is an application for judicial review brought with permission granted by Laws LJ on 17 June 2014, who retained the case in the Court of Appeal. At an oral permission hearing on 23 October 2013, Lewis J had refused permission. The issue concerns the treatment of time on remand by those who have been arrested under section 43 of the Policing and Crime Act 2009 (“the 2009 Act”) (set out at [17] below) for breach of a final gang injunction order under sections 34 to 36 of the 2009 Act, and subsequently imprisoned for contempt of court pursuant to section 14 of the Contempt of Court Act 1981 and section 120 of the County Courts Act 1984.

The claimant, Gavin James, was arrested on 29 November 2012 for breach of an injunction under the 2009 Act prohibiting him from entering a prescribed area of Birmingham, produced at the Birmingham County Court, and remanded in custody. On 5 December 2012 he was committed to HM Prison Birmingham for a period of three months. The defendants are HM Prison Birmingham, which is managed by G4S Care and Justice Services UK Ltd (“G4S”), the Governor of the prison, who, because the prison is operated by G4S, is known as “the Director”, and the Secretary of State for Justice, who is the counterparty to the contract under which G4S operates the prison. Birmingham City Council, which applied for the injunction, and G4S are Interested Parties.

In broad terms, the claimant’s challenge is to decisions by the first two defendants, supported by the third defendant, that civil contemnors committed to prison are not entitled to have time spent on remand deducted from their sentence by the prison. It is submitted on his behalf that this is unlawful under purely domestic law, and that the judge committing a person to prison for civil contempt is obliged to make such a deduction under domestic law (“the domestic law challenge”). In this case the judge intended to do so, although the terms of the order made on 5 December did not reflect that intention. It is also submitted that credit for time spent on remand by such a person is required in the light of the Human Rights Act 1998 and the consequent applicability of the rights under the European Convention on Human Rights (“ECHR”). With regard to the challenge based on the ECHR, it is submitted that the period on remand for which a deduction is not made is an unlawful deprivation of liberty within Article 5(1)(b) of the ECHR and unlawful discrimination contrary to Article 14 of the ECHR when compared to the position of those sentenced to a term of imprisonment for a criminal offence.

In the next two sections I summarise the factual background and the legislative framework. I then summarise the case advanced on behalf of the claimant. In the final section of this judgment I have concluded, for the reasons I give at [26] – [34] (domestic law) and [36] – [45] (ECHR), that this application for judicial review is misconceived and should be refused. The judge who committed the claimant may not have had the assistance he should have had from counsel. It appears that none of the previous cases raising this point, which are all in the White Book or the leading text on contempt of court, was drawn to his attention by either party. If so, that was unfortunate. It is even more regrettable that none of the parties to the judicial review proceedings drew them to our attention in their written or oral submissions.

On 19 October 2012, on the application of Birmingham City Council, HHJ Worster made an injunction under the 2009 Act prohibiting the claimant from entering a prescribed area of Birmingham save for certain limited purposes and from associating or gathering with 19 named persons in any public place in the city. It also required him to maintain engagement with the Centre for Conflict Transformation. A power of arrest was attached to the order. The particular needs of the City of Birmingham in the light of the activities of two notorious urban street gangs, and Parliament’s decision that specific legislation was needed to deal with the consequences of gang culture, are set out in the judgment of Moore-Bick LJ in Birmingham City Council v James [2013] EWCA Civ 552.

On 29 November 2012, the claimant was produced at the Birmingham County Court on the day he was found in the prohibited area and arrested. He was remanded in custody by a judge pursuant to section 43(5) of the 2009 Act. Seven days later, on 5 December 2012, he came before HHJ McKenna, who found that he had breached the injunction and committed him to imprisonment for a period of three months. During the hearing, the judge indicated that he wished the time the claimant spent on remand to be credited as time served, but this was not reflected in the committal order and warrant of committal drawn up. The committal order stated that the claimant “be committed to HMP Birmingham for a period of 3 months or until lawfully discharged if sooner.” The warrant of committal stated that he should be “committed to prison…for a period of 3 months”.

If account is taken of or credit is given for the period in custody between 29 November and 5 December, the claimant’s release date would have been 11 January 2013. If that period is not taken into account, his release date would have been 18 January 2013. In early January 2013, the claimant’s solicitors contacted the prison to confirm that the claimant’s release date would be 11 January. They provided the prison with a copy of a letter from the court dated 9 January 2013, in which HHJ McKenna’s clerk stated that the judge had expressly said at the hearing on 5 December that credit should be given for time spent on remand.

On 10 and 11 January, the prison and the Ministry of Justice’s Sentence Calculation Policy Unit respectively responded to the solicitors in a letter and an email. They refused to release the claimant. The prison’s letter stated that, after 3 December, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) courts did not have the authority to direct that remand time was to count. The letter stated that, as the claimant was committed on 5 December, “this new Act” applied. It also stated that, under “this new Act”, the prison has the authority to deduct remand time, but “we cannot do this in this case as section 242 and section 305 of the CJA 2003 states (sic) that we cannot”. This was because section 305 provides that serving a term for contempt is not a “sentence of imprisonment”. As the provisions concerning remands in the 2003 Act apply only to “sentences of imprisonment”, they do not apply to contempt of court. The email from the Ministry of Justice was to the same effect.

On 14 January 2013 there were four developments. The first was that HHJ McKenna amended the committal order and warrant of committal by adding, in the committal order after “three months”, “with credit for time spent on remand (of seven days)”, and on the warrant by adding “with seven days credit in respect of time served on remand to be given”. Secondly, these proceedings (CO/350/2013), challenging the prison’s refusal to release the claimant, were filed. The third and fourth developments were that HHJ David Cooke ordered the claimant’s immediate release, and the claimant was released.

The claimant was found in the prohibited area again on 12 July 2013. He was arrested, and taken to the Central Police Station, where his detention was authorised pending the next available County Court hearing. On 15 July he was produced at Birmingham County Court, where HHJ Worster sentenced him to 3 months imprisonment for contempt of court. Again, the order did not refer to giving credit for the three day period in police custody, but the judge had contemplated and suggested this during the hearing. Again, the prison authorities advised the claimant’s solicitors that his release date would not be calculated by giving credit for the three days on remand. A further application for judicial review (CO/12013/2013) was filed on 28 August 2013. The same day, HHJ Oliver-Jones QC ordered that the claimant be released forthwith, and he was.

The two applications for permission to apply for judicial review came before HHJ McKenna. On 30 September 2013, he ordered that they be linked and listed in court after 11 October 2013. They came before Lewis J who, as I have stated, refused permission. Although, at one stage, it appeared that the days on remand in July for which credit was not given were also the subject of this appeal, it is now clear that this court is only concerned with the events which gave rise to CO/350/2013.

Lewis J regarded (see [4]) the seven days in custody from 29 November as time “in police detention”. He gave four reasons for concluding (at [11]) that “it is not arguable that a period of time spent in police detention is a period of time where the person has been remanded in custody by order of the court”. The first was that the detention was pursuant to a power of arrest which was permitted by section 43 of the 2009 Act. The second was that the claimant was not remanded in custody by order of the court, but arrested pursuant to an order of the court and kept in police detention by a police officer with the power to so detain him. The third was that it was clear that section 43 of the 2009 Act drew a distinction between detention pursuant to a power of arrest and remanding in prison because section 43(5) expressly referred to the judge remanding the person in prison. That, in his judgment, conclusively pointed to “remanding by a court being different from arresting pursuant to a power of arrest”. The fourth reason was the legislative history.

As to the legislative history, the judge referred to the express provision in the Criminal Justice Act 1967 for periods spent in police detention to be counted towards a sentence of imprisonment for a criminal offence. This was a reference to section 67. He also stated that there was no provision for time in police detention to count towards a sentence in cases of civil contempt. This appears to be a reference to section 67(7) of the Act. The judge also rejected the submissions based on Articles 5(1) and 14 of the ECHR.

The language of the judgment did not distinguish the period of time spent in custody after the claimant’s arrest on 29 November from the custody pursuant to the order of a judge at the Birmingham Crown Court on 29 November pending the hearing before HHJ McKenna on 5 December 2012. The latter was a remand. These are two different kinds of custody, and both are to be distinguished from the custody pursuant to the committal order and warrant of committal made on 5 December. Lewis J may have elided the first two types of custody, perhaps because Mr de Mello did so, as he did in his submissions to us. For the reasons I give in this judgment, I do not consider that any elision affected the correctness of his conclusion.

As I have stated, permission was subsequently granted by Laws LJ. Before analysing the respective submissions, I set out or summarise the material provisions of the legislation.

By section 14(1) of the Contempt of Court Act 1981 (“the 1981 Act”):

“In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court, or one month in the case of committal by an inferior court.”

It is to be noted that the committal must be for “a fixed term” and it is “without prejudice to the power of the court to order [the] earlier discharge of the contemnor”.

The material provisions of section 43 of the 2009 Act provide:

“(1)

This section applies if a power of arrest is attached to a provision of an injunction under this Part.

(2)

A constable may arrest without warrant a person whom the constable has reasonable cause to suspect to be in breach of the provision.

(3)

If a constable arrests a person under subsection (2), the constable must inform the person who applied for the injunction.

(4)

A person arrested under subsection (2) must be brought before a relevant judge within the period of 24 hours beginning with the time of the arrest.

(5)

If the matter is not disposed of when the person is brought before the judge, the judge may remand the person.

…”

By paragraph 2 of Schedule 5 to the 2009 Act the court may remand a person aged 18 or over in custody, “that is, commit the person to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require” and by paragraph 2(3) may make a further remand where the person is brought before the court after a remand.

As a result of section 108 of LASPO, the Criminal Justice Act 2003 (“the 2003 Act”) provides:

“240ZA Time remanded in custody to count as time served: terms of imprisonment and detention

(1)

This section applies where—

(a)

an offender is serving a term of imprisonment in respect of an offence, and

(b)

the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence.

…

(3)

The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence.

But this is subject to subsections (4) to (6).

(4)

If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.

(5)

A day counts as time served—

(a)

in relation to only one sentence, and

(b)

only once in relation to that sentence.

(6)

A day is not to count as time served as part of any period of 28 days served by the offender before automatic release (see section 255B(1)).

…

(10)

The reference in subsection (4) to detention in connection with any other matter does not include remand in custody in connection with another offence but includes—

(a)

detention pursuant to any custodial sentence;

(b)

committal in default of payment of any sum of money;

(c)

committal for want of sufficient distress to satisfy any sum of money;

(d)

committal for failure to do or abstain from doing anything required to be done or left undone.

…”

The interpretation section for Part 12 of the 2003 Act is section 305. The material part of this provides:

“‘Sentence of imprisonment’ does not include a committal–

(a)

in default of payment of any sum of money,

(b)

for want of sufficient distress to satisfy any sum of money, or

(c)

for failure to do or abstain from doing anything required to be done or left undone,

and references to sentencing an offender to imprisonment are to be read accordingly…”

The only other material provision of the 2003 Act for present purposes is section 258, which deals with early release of fine defaulters and contemnors. Section 258(2) and (4) provide that a person committed to prison for contempt of court must be released by the Secretary of State once he or she has served half of the term for which he or she was committed, and may be released earlier if the Secretary of State is satisfied that exceptional circumstances exist justifying release on compassionate grounds.

There were two limbs to Mr de Mello’s submissions on behalf of the claimant. The first was that, under domestic law, a judge committing to prison for a civil contempt had power to give credit for time spent on remand and was, indeed, under a duty to do so. Accordingly, it was not lawful for him to be detained beyond 11 January. The second limb of his submissions relied on Article 5 and Article 14 of the ECHR and section 3 of the Human Rights Act 1998.

The submissions based on domestic law rested on the construction of section 43 of the 2009 Act, and the fact that the provision for early release of fine defaulters and contemnors by the Secretary of State contained in section 258 of the 2003 Act produced symmetry in that respect between the position of such persons and those sentenced to a term of imprisonment for an offence. Mr de Mello relied on the fact that there is no limit on the period of remand under section 43(5) of the 2009 Act. He submitted that, given this, it would be surprising if the sentencing judge was not permitted to take into account the period of remand when deciding the sentence. He argued that it could not have been the position that a remand under section 43(5), which in total might be for a lengthy period, could not be taken into account. He also argued that if, as was submitted on behalf of the prison and the Secretary of State, it was possible for a judge when committing a person to prison for civil contempt to give a shorter sentence because of time spent on remand, there is no reason why that judge cannot give credit for the period spent on remand. Mr de Mello argued that enabling the judge to do so would provide certainty because it would be easy for the prison authorities to work out what the period of remand was and to deduct it.

Mr de Mello also submitted that a judge contemplating the period of imprisonment on a committal for civil contempt is required, as a result of section 43(5) of the 2009 Act, to give credit for the period on remand. He argued that, otherwise the sentencing judge would be sentencing for a longer period than he or she believes is appropriate. Parliament must, he maintained, have intended the judge in such circumstances to take account of the period of remand. The giving of credit, he argued, is part of the sentencing exercise and it was for the prison governor (or in the case of a prison such as HM Prison Birmingham, the “director”) to implement that credit. He relied on the fact that, although LASPO removed the function of calculating credit from sentencing judges in the case of specified criminal cases, it had not done so in the case of committal for contempt.

In effect, Mr de Mello invited the court to rule that the position in relation to credit for time on remand before imprisonment for civil contempt is the same as that for imprisonment for criminal offences, albeit still to be a judicial rather than an administrative function, because Parliament could not have intended to leave civil contemnors in limbo. If so, the prison should have released him on 11 January because of the unlawfulness of the detention thereafter. He maintained that, if this was not the position as a result of the proper construction of section 14 of the 1981 Act and section 43 of the 2009 Act, the law of England and Wales did not comply with Article 5(1)(b) of the ECHR, or alternatively Article 14 of the ECHR. I summarise his submissions on Articles 5 and 14 at [36] – [37] and [41] below. Assuming that he is correct, the next stage of his argument was that the powerful interpretative obligation in section 3 of the Human Rights Act 1998 requires the court to “read and give effect” to the legislation in a way which is compatible with the Convention rights. He, however, recognised that, in the light of the terms of the legislation, in particular section 305 of the 2003 Act, the limits of the interpretative power identified, for example, in Ghaidan v Godin Mendoza [2004] UKHL 30, reported at [2004] 2 AC 557, made this submission a difficult one. In the light of my rejection below of his submissions on Articles 5 and 14 later in this judgment, it is not, however, necessary for me to deal with section 3.

I first give my reasons for rejecting the part of the claimant’s challenge that is based purely on domestic law. First, until 14 January, the only order made by the court was one which did not make provision for time spent on remand to count. I do not consider that what the judge stated he intended when making the committal affects that conclusion. Any other conclusion would leave the prison authorities in an impossible position. They were entitled to know the period of the committal and where they stood from the terms of the order. It was only on 14 January that the order stated that time was to count. Accordingly, (see CPR Part 40.7(1)), it could only be from that date that the committal could be said to be for three months less seven days. This is because a correction to an order cannot have retrospective effect where, as in this case, it would prejudice those, such as the prison authorities, who relied on the order as it was originally drawn up and did not release the claimant on 11 January.

Secondly, it is utterly unarguable that, when on 29 November the claimant was remanded by a judge for seven days pursuant to the power in section 43(5), that was not lawful under domestic law.

Thirdly, Mr de Mello’s submissions based on section 14 of the 1981 Act and section 43 of the 2009 Act, and his starting point that Parliament must have intended that periods on remand be taken into account, are inconsistent with decisions of the Court of Appeal which bind this court. They are also inconsistent with what is stated in the White Book, 2014 ed. vol. 2, 3C-87 at p.1560 and in the leading text on contempt, Arlidge, Eady and Smith on Contempt 4^th ed., 2011 at §14-38.

In Delaney v Delaney [1996] QB 387 this court considered a period of remand in custody after a finding of contempt but before sentence. It concluded (at 399C – D) that the position was “that a period spent in custody before sentence will not go to reduce the sentence of a contemnor”. That case concerned family proceedings and is not precisely on all fours with the present case. The injunction restrained a husband from assaulting, molesting or harassing his wife, to which a power of arrest was attached. In that context there was, at that time, no power, similar to that in section 43(5) of the 2009 Act, to remand in custody before a finding of contempt was made. But the argument of Mr Munby QC (as he then was), which was accepted by Sir Thomas Bingham MR (as he then was), also relied on the absence of power to detain in custody after a finding of contempt was made, but before sentence. Sir Thomas stated that that position was the result of the combined effect of sections 67(7) and 104 of the Criminal Justice Act 1967 (“the 1967 Act”). Section 67(7) provides that a person is in police detention for the purposes of that section only when he was in police detention for the purposes of the Police and Criminal Evidence Act 1984. Section 104 of the 1967 Act is in a sense the predecessor of section 305 of the 2003 Act. Under it, “imprisonment” for the purpose of section 67 did not include “committal…for failure to do or abstain from doing anything required to be done or left undone”.

Arlidge, Eady and Smith, op cit, cite other cases, in particular McKnight v Norman [2001] EWCA Civ 2028, R (Zahide S Mustafa) v S (Korel) [2003] EWCA Civ 1570, and K v P [2008] EWCA Civ 600, reported at [2008] 2 FLR 2137. Those cases emphasise that, in view of the legislation, any reduction to the sentence thought appropriate should be made at the time of committal and remembering that time spent on remand cannot otherwise be taken into account. The exclusion of committals from the legislation concerned with time on remand when a person is sentenced for a criminal offence was maintained in section 305(1)(c) of the 2003 Act, which is why section 240ZA is inapplicable. It is thus clear that Parliament decided some time ago that no credit is to be given to remands pending committal for civil contempt and has maintained that position in the 2003 Act, as amended by LASPO.

Fourthly, Mr de Mello’s submission that it is only by requiring judges to give credit for the period on remand that certainty is achieved is simply wrong. This is because it ignores the uncertainty and errors which in fact arose when that was the position for sentencing for criminal offences. Before the 2003 Act, the time to be credited for time on remand by those sentenced for criminal offences was calculated by the prison authorities and credited. The 2003 Act required the sentencing judge to make the calculation and to direct the number of days for which credit should be given for time spent on remand. But the unanticipated consequence was that, often as a result of erroneous information provided to the court, there were often errors. Archbold Criminal Pleading, Evidence and Practice, 2015 ed. §5-639 stated that “it is notorious that, in practice, section 240 gave rise to a host of difficulties”.

The scenario in this case may possibly have arisen because the hearing on 5 December was two days after the major reform to the material provisions of the 2003 Act by section 108 of LASPO and the introduction of section 240ZA into the 2003 Act came into force. Broadly speaking, the reform in LASPO effectively passed responsibility for the calculation of the release date from the judiciary back to the prison administration so that the calculation of the release date is now an administrative, not a judicial, function: see Archer v Governor of HMP Low Newton [2014] EWHC 3407 (Admin) at [8] and [10] per Treacy LJ. In Kerrigan & Walker [2014] EWCA Crim 2348, the Court of Appeal Criminal Division, in a judgment handed down by the Vice-President, stated (at [50]) “much to their relief, judges are…no longer responsible for calculating and announcing how many days spent on remand should count towards sentence”. It may be that it was assumed that that reform also passed responsibility to the prison authorities in committals for civil contempts. If so, that simply overlooked section 305 of the 2003 Act.

It is, as it has been for many years, open to those sentencing for civil contempt to reflect a period spent on remand by the length of the period for which the individual is committed by appropriate words. It is unfortunate that, in the case of this claimant, those representing him before the judge below did not point out how, in the light of Delaney v Delaney and the other cases to which I have referred, this should be done or that there is no power in the prison to make the deduction in a case such as this. I have (at [26] above) explained why the oral indication by the judge which was not in the order did not suffice. It may appear to be over-technical to say that the judge could have committed the claimant for two months and 23 days (assuming the months were of 30 days length), but could not do so for three months but with credit for the time spent on remand. But an order which, on the face of it, stated “three months less time spent on remand” without a figure would not comply with the requirement in section 14 of the 1981 Act that the committal be for a “fixed term”.

Moreover, the experience of the inaccuracies in the criminal process, together with the fact that the prison authorities do not have power to make the adjustment in cases of civil contempt, show that there is a real practical importance in sentencing judges acting in accordance with the advice of this court in Delaney v Delaney and the other cases to which I have referred. Doing so will also result in certainty on the face of the order, a document which third parties such as the prison need to be able to rely on without further enquiry.

In this case, the committal order as amended on 14 January stated the claimant was “to be committed to HMP Birmingham for a period of three months with credit for time served on remand (of 7 days) or until lawfully discharged if sooner”. During the hearing, the question whether this satisfied the requirement in the 1981 Act that the committal be for “a fixed term” was canvassed. I have concluded that, although expressed as a calculation with two components, it did satisfy the “fixed term” requirement because both components were fixed. In Re C (A Minor) (Wardship: Contempt) [1986] 1 FLR 578, a committal was suspended for a fixed number of days but was held not to be for a fixed term because the committal was for an indefinite period. But, where the period of committal and the period of suspension are both for a fixed period the requirement in section 14 is satisfied. In view of the authorities which I have considered (at [29] – [30] above) it may, however, be advisable to avoid referring to “credit” in the order but to state that the committal to prison is for, in this case, “three months less seven days”.

I turn to my reasons for rejecting the claimant’s submissions based on Articles 5 and 14 of the ECHR. As to Article 5, Article 5(1) provides that “[n]o-one shall be deprived of his liberty save in the following cases in accordance with a procedure prescribed by law:...(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court”. Mr de Mello submitted that a person taken into custody in circumstances such as those of the claimant is within the scope of Article 5(1)(b) because the committal was “for non-compliance with the…order of a court” and, unless that order is lawful, the detention will not be lawful under that provision. This proposition might be thought not to require authority, but Mr de Mello pointed the court to the admissibility decision of the European Commission of Human Rights in Application 8916/80 Freda v Italy, 7 October 1980. That decision, however, concerned the initial detention by police, not a subsequent remand by a judge. Mr de Mello’s submissions elided those two stages of the process and the committal of the claimant seven days later.

Mr de Mello’s next submission was that, if the judge was required to credit time spent on remand when sentencing, committing a person without giving such credit is not lawful. This is, he maintained, because, if there is no obligation to give credit, the sentencing process is also not “in accordance with the law” because it is liable to be “arbitrary”: see R (Giles) v Parole Board [2003] UKHL 42, reported at [2004] 1 AC 1 at [40]. His submission involves two assumptions. The first is that the purpose of the relevant legislation and domestic law is to ensure that a civil contemnor gets credit for the time spent on remand as a person convicted for a criminal offence does. The second assumption is that there is nothing in either the Contempt of Court Act 1981 or the 2009 Act precluding a judge sentencing a contemnor from giving credit. The result, he contended, is that, if the judge does not do so, the requirements of Article 5(1)(b) are not met because the unstructured discretion means that the position is liable to be “arbitrary”.

I reject these submissions and accept those of Mr Whale. As to Mr de Mello’s first assumption, the absence of statutory provision for periods on remand to be taken into account in civil committals and the decision in Delaney v Delaney to which I have referred at [25] above, together with the more recent cases I have referred to, shows that this assumption is misconceived. Those cases show that, while it is open to a judge committing a person to prison for civil contempt to reflect a period on remand in the total period of the committal, it is not mandatory to do so. It follows that it cannot be said that the “purpose” of domestic law is to ensure that a civil contemnor gets credit for the time spent on remand. Where the judge decides to reflect the period the fixed term requirement in section 14 of the 1981 Act means that he or she cannot do so by simply stating that time spent on remand is to be allowed in the order.

An additional problem with this is that, while it is said that requiring a judge to do so would be to mirror the position in many criminal cases, not all those serving sentences of imprisonment for offences are in fact given credit for time on remand. R (Galiazia) v Secretary of State for Justice [2014] EWHC 3427 (Admin), in which the leading judgment was given by Elias LJ, illustrates this point. The case concerned recall while on licence, and the difference between “fixed term recall”, where a defendant is recalled but will be automatically released after 28 days detention, and “standard recall”. It is only for standard recall that section 240ZA(6) allows credit to be given for time on remand (if any is left): see Galiazia’s case at [9].

As to Mr de Mello’s second assumption, the authorities to which I have referred show the way a sentencing judge in a civil contempt case can reduce the sentence to reflect a period on remand which he or she wishes to take into account, but is not obliged to do so. The way this must be done is by reducing the period of the committal or some part of that period rather than by ordering that time spent on remand should be taken into account. Galiazia’s case is again instructive. The court rejected the submission that the distinction between fixed term and standard recalls breached Article 5 because it rendered the claimant’s recall “arbitrary”: see [38] and [40]. These reasons have led me to conclude that Mr de Mello’s two assumptions are erroneous, and that is fatal to his case based on Article 5.

Mr de Mello placed less emphasis on Article 14. But he did not abandon the submission that the failure of the prison authorities to take into account time remanded in custody in section 43(5) of the 2009 Act amounts to unjustified discrimination. He submitted the discrimination was based on the ground of the claimant’s status as a prisoner when compared with prisoners convicted and sentenced to a term of imprisonment: see R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, reported at [2007] 1 AC 484 at [18] – [19] and [24].

I reject the submissions based on Article 14. First, Article 14 is not a freestanding prohibition on discrimination. It depends on a connection with another Convention right. Absent any breach of Article 5(1)(b), there is no such connection in this case.

Secondly, Article 14 requires discriminatory treatment to have as its basis or reason a personal characteristic, by which persons or groups of persons are distinguishable from each other: see R (Clift) v Secretary of State for the Home Department. In this case, Mr de Mello relied on the “other status” category in Article 14, but the decision of the House of Lords in Clift’s case, by which this court is bound, notwithstanding the reservations of Lord Bingham (at [62]), is that a prisoner does not have an “other status”. Although the Strasbourg court later held otherwise in Clift v United Kingdom, 13 July 2010 at [61] – [63], as is clear from the decision of this court in R (Minter) v Chief Constable of Hampshire Constabulary [2013] EWCA Civ 697, reported at [2014] 1 WLR 179, in the light of the decision in Kay v Lambeth LBC [2006] 2 AC 465, this court is bound to follow the House of Lords.

I also accept Mr Whale’s submission that any Article 14 submission would fail because a person convicted of a criminal offence and sentenced to a term of imprisonment by a criminal court is not in an analogous or relevantly similar situation to a civil contemnor. This is because the functions of sentences for civil contempt differ from those of custodial sentences for criminal convictions. This is seen, for example, in JSC BTA Bank v Solodchenko (No. 2) [2011] EWCA Civ 1241, reported at [2012] 1 WLR 350 at [45] and [55], although allowance must be made for the difference of context, since the court in that case was dealing with non-compliance with the disclosure provisions of a freezing order. Of perhaps more relevance is the difference that those imprisoned by the criminal courts for criminal convictions do not carry the keys of their prison in their own pockets: see Director of the Serious Fraud Office v B [2012] EWCA Crim 67, reported at [2012] 1 WLR 3170, where the Criminal Division of this court, in a judgment handed down by Gross LJ, cited that memorable phrase from the US authorities. The reasoning in Galiazia’s case is also, in my judgment, inconsistent with the claimant’s submission based on Article 14.

Mr de Mello submitted that none of this is relevant to giving credit for time on remand. In my judgment, however, the coercive element in sentences for civil contempt, which is absent from custodial sentences by criminal courts for criminal convictions (save possibly for sentences imposed in the different circumstances of non-payment of a confiscation order) means that the claimant is not in a broadly analogous situation to that of such persons.

For these reasons, I would refuse this application.

I agree.

I also agree.