England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 October 2009

Miss Geraldine Andrews QC:

1. The issue in this case is whether a long-term prisoner serving concurrent sentences for offences committed both before and after 5^th April 2005, who has been released on licence after serving half his custodial sentence in the mistaken belief that the provisions of the Criminal Justice Act 2003 applied to all those sentences, was "unlawfully at large" for the purposes of s.49 of the Prison Act 1952 so as to preclude the time spent on licence from counting towards his custodial term.
2. The background is as follows. On 10^th February 2006, following guilty pleas, the Claimant, Steven James Ellerton, was convicted at Harrow Crown Court of two offences of robbery committed prior to 5^th April 2005 and one offence of attempted robbery committed after that date. On 24^th March 2006 he received concurrent sentences of 4 years and 130 days on each charge, with the direction that the time he had spent on remand (52 days) should be taken into account. An order for his imprisonment accurately reflecting the sentence passed by the Judge on all three counts was drawn up and signed by the relevant Court Officer on 24^th March 2006 and has remained in force at all material times thereafter.
3. The relevance of 5^th April 2005 is that offences committed after that date, such as the attempted robbery, would fall to be sentenced under the provisions of the Criminal Justice Act 2003 ("the CJA 2003"), whereas offences committed before that date, such as the two offences of robbery, would still be sentenced under the provisions of part 2 of the Criminal Justice Act 1991 ("the CJA 1991"). The Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 provides in Schedule 2 para 19 that the relevant provisions of the CJA 1991 shall continue to apply to a prisoner serving a sentence of imprisonment imposed in respect of an offence committed before 4^th April 2005.
4. Mr Ellerton is a long-term prisoner as defined in both Acts, because he was sentenced to imprisonment for a term of four years or more.
5. The licence provisions under the two Criminal Justice Acts are different. Under s.35 of the CJA 1991, a long-term prisoner becomes eligible for release on licence after he has served one half of his sentence ("the Parole Eligibility Date" or "PED"). The Defendant, the Secretary of State (in practice acting through the governor of the relevant prison), then has the discretion to release him on licence if, but only if, the Parole Board has made a recommendation to that effect. If he is not released on licence before he has served two-thirds of his sentence, s.33(2) of the CJA 1991 provides

"As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence."

The two-thirds date is known as the non-parole date or NPD. A prisoner who is released compulsorily on the NPD under s.33(2), or earlier under s.35, would remain on licence until expiry of three quarters of his sentence – the licence expiry date (LED).

6. In practical terms this means that a prisoner sentenced to 4 years' imprisonment for an offence to which the CJA 1991 regime applies would become eligible for release on licence after 2 years, and if not released sooner would have to be released on licence after 32 months. Provided his licence was not revoked, such a prisoner would complete his sentence after 36 months, of which at least 4 would be spent in the community on licence. Thus, unless he breached the terms of his licence and had it revoked, or was ordered by a court to serve the unexpired portion of his sentence because he committed further offences whilst on licence, instead of serving 4 years in prison he would serve less than 3 years, and his sentence would terminate in any event on the expiry of 3 years. There would be a whole year of his sentence during which he would neither be in prison nor subject to any licence conditions.
7. By contrast, for offences committed after 5^th April 2005, a prisoner must be released on licence after the expiry of half the prescribed term - s.44 CJA 2003. However by s.249 of the CJA 2003, where a prisoner is released on licence, the licence remains in force until the completion of the full sentence – the sentence expiry date ("SED"). So although a prisoner sentenced to 4 years' imprisonment will serve only 2 of them in prison, the whole of the remaining 2 years of his sentence will be subject to licence and licence conditions.
8. If, as in the case of Mr Ellerton, a prisoner is serving concurrent terms for offences which are subject to the two different licence regimes, there is an obvious conflict when the PED arrives. Under the 2003 Act the prisoner must be released on licence at the halfway point of his sentence, whereas under the CJA 1991 he can only be released on licence at that stage if the Parole Board has made a recommendation to that effect and the governor of the prison exercises the statutory discretion to release him. Parliament has resolved that conflict by enacting s.51(2B) of the CJA 1991 and s.263 of the CJA 2003 which provide that where a prisoner is serving concurrent terms of imprisonment, he cannot be released in respect of any of the terms unless and until he is entitled to release in respect of each of the others. This means that the automatic release on licence for the offence subject to the CJA 2003 regime must be postponed until the prisoner qualifies for release on licence under the CJA 1991 for the other offence or offences.
9. So far as Mr Ellerton was concerned, when the PED occurred on 5^th April 2008, he could not be released on licence under s.35 of the CJA 1991 in respect of the two robberies that were subject to that licence regime, because the Parole Board had not recommended his release. It followed that he could not be released on licence in respect of the attempted robbery that was subject to the CJA 2003 regime, because he was not yet entitled to release on licence in respect of the other offences. However, apparently because of an administrative error, all of Mr Ellerton's sentences were mistakenly calculated as if they were subject to the CJA 2003. This had two consequences: first, the relevant steps were not taken to put his case before the Parole Board, as they should have been, and secondly, he was erroneously released on licence on 4^th April 2008. Nothing turns on the fact that this was one day earlier than the PED, because the PED fell on a Saturday.
10. The mistake was discovered some time later. The Claimant's licence was revoked on 5^th November 2008, and he was returned to prison on 19^th November 2008. By that stage he had been on licence for 228 days.
11. The issue I have to determine on this claim for Judicial Review is whether the Secretary of State, who is to be treated as responsible for the mistake which led to his release on licence, was obliged to count those 228 days as time served as part of Mr Ellerton's sentence of imprisonment.
12. If the 228 days spent on licence between 4^th April 2008 and 19^th November 2008 are not counted towards his sentence, then Mr Ellerton's NPD in respect of the two earlier offences would be 14^th August 2009 and his LED 22^nd December 2009. For the sake of completeness I should add that 14^th August 2009 was treated by the Defendant as Mr Ellerton's NPD, and he was released on licence on that date. His licence was revoked shortly after that, this time for breaches of his licence conditions, and he was recalled to prison on 25^th August 2009 pursuant to s.254 of the Criminal Justice Act 2003. The Parole Board has since considered his case and decided not to recommend early release. Although at one stage the claim for Judicial Review was amended to include a challenge to the decision to recall him, on reflection Mr Field (correctly, in my judgment) decided not to pursue it. There was plainly power to recall Mr Ellerton for breach of his licence conditions in respect of the offence that was subject to the 2003 CJA regime regardless of whether his sentence for the other offences had expired, and that is what the Defendant did.
13. At this stage it is worth noting the practical effect of the mistake which led to Mr Ellerton's release on licence in April 2008. If the correct sentencing regime had been applied, and his case had gone before the Parole Board, Mr Ellerton may well have been released on licence for the two robberies at some point between 5^th April 2008 and 26^th December 2008. If that had happened, then the statutory inhibition on his release on licence for the later attempted robbery would have been lifted, and so he would have been released on licence for all three offences. In any event, he would have had to have been released on licence for the earlier offences at the latest on the NPD of 26^th December 2008, and at that point he would also have had to have been released on licence for the later offence which was subject to the CJA 2003 regime. Instead his NPD was treated as being 14^th August 2009.
14. Further, if the 1991 CJA regime had been correctly applied to him in April 2008, the LED for the two earlier offences would have been 8^th May 2009 instead of 22^nd December 2009. This is of less practical importance because regardless of the date on which his licence would have expired (and he would have been treated as having served his sentence) in respect of the two earlier offences, he would still have remained on licence for the attempted robbery until the original SED of 9^th June 2010 (the SED is now treated as being 23^rd January 2011).
15. Thus, despite the fact that (a) the administrative error was not his fault, (b) he was ignorant of the mistake, and (c) he was ostensibly released on licence pursuant to an official order signed by the relevant person, and made subject to stringent licence conditions, the effect of not counting the 228 days spent on licence towards his sentence is that Mr Ellerton had to spend an additional 7 months in prison. On the face of it, this seems unfair.
16. Section 49 of the Prison Act 1952 provides, so far as is material, as follows:

(1) Any person who, having been sentenced to [imprisonment]… is unlawfully at large, may be arrested by a constable without warrant and taken to the place in which he is required in accordance with law to be detained.

(2) Where an person sentenced to [imprisonment] … is unlawfully at large at any time during the period for which he is liable to be detained in pursuance of the sentence or order, then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the [place in which he is required in accordance with law to be detained]…"

17. It is common ground that the Secretary of State has made no direction under s.49 that the 228 days are not to be taken into account, and that consequently if Mr Ellerton was "unlawfully at large" no account could be taken of the 228 days and the decision to detain him in prison until 14^th August 2009 was lawful.
18. There is no definition in the statute itself of what is meant by "unlawfully at large". As a matter of first impression, that phrase appears more apt to describe someone who has absconded from prison, rather than someone who has been intentionally released on licence. However the real question is whether the person concerned is or is not lawfully somewhere other than in prison. It is possible to conceive of other cases in which a prisoner has been released on licence due to a different kind of administrative error – for example where there has been confusion between two similarly named prisoners in the same institution, or, as in a recently publicised case, where the wrong one of two brothers was released – where it is less difficult to regard the prisoner as being "unlawfully at large". The difficulty in the present case arises from the fact that it was undoubtedly intended by the person who signed the relevant documents that Mr Ellerton, and not someone else, should be released on licence.
19. The Court of Appeal has given some helpful consideration to the meaning of the phrase "unlawfully at large" in s.49 of the Prison Act in the case of R (on the application of Lunn) v The Governor of HMP Moorland [2006] EWCA Civ 700, an authority relied upon by both counsel.
20. Mr Field submitted that Mr Ellerton was not "unlawfully at large" for the purposes of the Prison Act 1952 for the 228 days between his release on licence and his return to prison, and that those 228 days should have been counted as part of his sentence. He suggested that an ordinary member of the public would regard as ridiculous the notion that a prisoner who has been released on licence pursuant to a document drawn up in the proper form and signed by the governor of the prison concerned is nevertheless "unlawfully at large". He submitted that it was perverse for the Secretary of State to describe someone as "unlawfully at large" when he had directed his release on licence. The provisions of the 1952 Act should be interpreted by the courts in such a way as to visit the consequences of a mistake of this nature on the person who has made it, rather than to produce unfairness to the prisoner.
21. Mr Field sought to draw an analogy between this case and the case of Lunn. In that case, a prisoner who committed a burglary whilst on licence for a different offence, had been ordered to return to prison to serve the unexpired portion of the earlier sentence, and was given a sentence of imprisonment for the burglary to run consecutively. The combination of the two sentences made him a long-term prisoner. However, due to an administrative error in the court, the order for imprisonment that was drawn up stated that the balance of the earlier sentence should be served concurrently with the later sentence. As a result of this error, the date on which Mr Lunn was entitled to be released on licence was calculated on the basis that he was a short-term prisoner (as he would have been if the sentences were concurrent) and he was released on licence earlier than he should have been. Someone then discovered the mistake, and an amended order was made which correctly reflected the sentence passed by the Judge. By that stage Mr Lunn had been at large for 62 days during which he had observed all the conditions of his licence. Three days later, his licence was revoked and he was returned to prison.
22. The Court of Appeal held that Mr Lunn was not "unlawfully at large" for 62 of the 65 days. It took the view that the original order made by the Court which mistakenly recorded the terms of the Judge's sentence was not a nullity, but was valid until it was set aside. Accordingly (as was conceded by counsel) the governor of the prison was bound by the terms of the court's order and was obliged to release the appellant on licence on the appropriate date calculated in accordance with the order and the relevant statutory provisions.
23. The Court of Appeal rejected the argument that the lawfulness of Mr Lunn's continued detention was to be determined by reference to the sentence pronounced by the Judge rather than the order which purported to give effect to that sentence. Moore-Bick LJ (who delivered the judgment of the court) said this, in paragraph 15:

"When considering this question we think it is important to bear in mind that the statutory provisions governing the early release of prisoners are concerned with the administration of criminal justice in general: it is the order of the court which provides authority for the detention and imprisonment of the person named in it, not the statutory provisions as such, although they are engaged once such an order has been made and dictate the manner in which the order is carried into effect".

24. An order of a court of competent jurisdiction made in the exercise of that jurisdiction, as it was in that case, was valid and binding until it was varied or set aside. The Court of Appeal went on to state, in paragraph 23, that s.49 of the Prison Act 1952 had to be understood in that context. The prison governor was under a duty to carry out the order of the court in accordance with its terms and the relevant statutory provisions:

"He is under a duty to detain the prisoner for the required period, neither more nor less, and must calculate the earliest date on which the prisoner can be considered for parole and the date on which he is entitled to be released on licence. Both of these have to be calculated by reference to the period of imprisonment specified in the court order. Once the date for early release is reached the governor has neither the right nor the duty to detain the prisoner any longer and would be acting unlawfully if he were to do so."

25. Consequently whilst the erroneous court order was still in force, the appellant was "lawfully at large" pursuant to its terms, and the period fell to be counted towards his sentence. However, and significantly for the present case, a different approach was taken in respect of the three days which elapsed after the court order was amended and before the licence was formally revoked. Counsel for Mr Lunn had submitted that he could not be treated as unlawfully at large until the licence was formally revoked, but the Court of Appeal rejected that argument, stating in paragraph 26 that

"as soon as the court made an order directing his imprisonment the appellant once again became a person "liable to be detained" and was therefore unlawfully at large within the meaning of section 49. In effect the order of the court superseded the licence and it made no difference that the appellant was unaware of the fact."

26. In the present case, Mr Singh submitted that the operative court order directing Mr Ellerton's imprisonment was the order properly drawn up on the date on which he was sentenced, 24^th March 2006. That remained in force at all material times and is still in force, and it was that court order that dictated what the governor of the prison was and was not entitled or obliged to do. There was no power to release Mr Ellerton on licence on 4^th April 2008 and the fact that a licence was issued in proper form is as irrelevant as the fact that such a licence subsisted in the three final days of Mr Lunn's release. In the Lunn case, once there was an order of the court in place that required him to be detained in prison at that time, it superseded the licence. The same principles applied in Mr Ellerton's case, where there was always an order of the court in place that required him to be detained in prison because the statutory conditions which would have enabled him to be released had not been fulfilled. It was the intention of Parliament and the sentencing judge manifested in the court order that Mr Ellerton should be in prison on and after 4^th April 2008. The order prevailed over the terms of the licence, which was ineffective to cloak his absence from prison with legitimacy, regardless of when it was revoked.
27. Mr Field submitted that a distinction could be drawn between the situation in the last three days in Lunn, and the situation in the current case. In Lunn the new court order accurately reflecting the sentence of imprisonment was issued after the licence, and that order directed that Mr Lunn be imprisoned and superseded the licence. A constable seeing both documents would be bound to implement the court order. In the present case, although a court order directing Mr Ellerton's imprisonment was in force at all material times, the order envisaged that Mr Ellerton might be released on parole at any stage after he had served half his sentence and that he had to be released when he had served two thirds of that sentence. The order left it to the prison governor to implement the statutory provisions regarding early release on licence. It did not supersede the licence, as the subsequent court order had done in Lunn. The licence purported to give effect to the court order that was already in force, but did so in an erroneous manner, and in these circumstances it was the licence that determined whether or not Mr Lunn's absence from prison was lawful. The licence, like the original court order in the Lunn case, was valid unless and until revoked.
28. Therefore, Mr Field submitted, a police constable would not and could not have arrested Mr Ellerton for being "unlawfully at large" if he was shown both the court order and his licence, which was not a nullity despite the mistake which led to it being issued. The direction in the court order that Mr Ellerton be imprisoned expired on the production of a valid licence issued within the power of the Secretary of State, and the error could only be remedied by the revocation of that licence. The licence had to be acted upon unless and until it was revoked. Thus unless and until that occurred, Mr Ellerton was to be treated as being lawfully at large. On a worst case scenario he would only be unlawfully at large for the short period between the direction revoking his licence and his actual return to prison.
29. However sympathetic to Mr Ellerton's predicament this Court may be in these circumstances, I feel unable to accept that argument, which in my judgment runs completely counter to the principles applied by the Court of Appeal in Lunn, particularly those set out in paragraphs 25 and 26 of the judgment. A licence issued at a time when the statutory preconditions for its issue had not been fulfilled cannot supersede the operative court order, and cannot be regarded as giving effect to the terms of that order. Nor is there a valid analogy to be drawn between a court order, which must be obeyed, and a licence issued by someone acting on behalf of the Secretary of State.
30. The question whether someone is or is not "lawfully at large" within the meaning of s.49 of the Prison Act cannot depend on the time at which a court order is made authorising his detention. As Lunn demonstrates, the form of the court order is what matters. What dictated the lawfulness or otherwise of the licence, and therefore the lawfulness or otherwise of Mr Ellerton's absence from the place where he was liable to be detained, was the original court order, which in this case, unlike Lunn, was drawn up in a form which accurately reflected the sentences passed by the Judge. The governor was obliged to obey that order. Had that order been properly complied with, in accordance with the provisions of the CJA 1991, Mr Ellerton would not have been released on licence when he was. He may well have been released shortly afterwards if the Parole Board had been minded to recommend his release; he would have had to have been released on licence on the NPD. However, those facts do not assist the Court in determining whether he was unlawfully at large during the 228 days.
31. At the time when Mr Ellerton was released in April 2008, the governor had no power to release him on licence. The express statutory preconditions for his release had not been fulfilled. The necessary concomitant of that was that the governor was under a duty to detain him in prison and by releasing Mr Ellerton on licence he was disobeying the operative court order, which had to prevail over the terms of the licence itself. I accept Mr Singh's submission that in those circumstances Mr Ellerton was liable to be detained and returned to prison at any time after his release, notwithstanding the existence of the licence. That means he was, through no fault of his own, "unlawfully at large" within the meaning of s.49 of the Prison Act and, like Mr Lunn in the last 3 days of his supposed licence, liable to arrest without warrant despite the fact that his licence had not yet been revoked.
32. I reach that conclusion without enthusiasm since, as the Court of Appeal pointed out in Lunn, the result is that no account whatever would be taken of the time spent on licence unless the Secretary of State were minded to exercise his discretion under s.49(2) to direct otherwise. The Court of Appeal expressed the view that it would be unfortunate if Mr Lunn were to be penalised for the court's mistake; in my view it is just as unfortunate, if not even more unfortunate, that Mr Ellerton should be penalised for the governor's or his staff's mistake.
33. There would be no question of Mr Ellerton getting an "undeserved windfall" if the time he spent on licence were to count (as was argued with perhaps more justification in the case of Lunn) because, as I have already explained, if he had not been released on licence when he was, he would have been released on licence much earlier than August 2009 even if he had to serve the full two-thirds of his sentences for the pre-2005 offences. Moreover, while he was at liberty under the terms of his licence, Mr Ellerton was to all intents and purposes still serving his sentence, albeit in the community, and no doubt believed that to be the case. To deprive him of the benefit of the whole of that time seems a harsh result, but it appears to me to follow inexorably from the application of the legal principles set out in Lunn. Consequently this application for judicial review must be dismissed.
34. However, I would add that on the basis of the information that was before the Court on this application this appears to have been a paradigm case for the exercise of the discretion to "direct otherwise" under s.49(2) of the Prison Act. It is regrettable that no consideration appears to have been given to the exercise of that discretion at the time when it might have made a real difference to Mr Ellerton. Mr Singh indicated that the Secretary of State was not asked to consider making such a direction, or that if he was, it was not pursued by Mr Ellerton either at all or in the correct form, but it is quite understandable why that should be the case, given that Mr Ellerton's position was that he was not "unlawfully at large". If Mr Ellerton had been right about that, the conditions for the exercise of the discretion to make a direction under s.49(2) would not have been made out. Asking for the exercise of a discretion that he denied was operative would have been inconsistent with his claim for judicial review.
35. On the other hand, the Secretary of State adopted the position (correctly, as it transpired) that Mr Ellerton was "unlawfully at large" for the whole of the 228 days, with the consequence that his release on licence was postponed until 14^th August 2009, when on any view it became mandatory to release him. I do not know whether the Parole Board considered his case before that date and if it did not, why it did not. Whatever the position regarding discretionary release on licence may have been, I do not understand why the exercise of the statutory discretion under s.49(2) of the Prison Act not to count some or all of the 228 days towards a prisoner's tariff in a case such as this should have to depend on whether the prisoner in question makes a formal application for such dispensation to the Secretary of State. Given that, at the heart of this matter, Mr Ellerton was complaining that it would be unfair to ignore those 228 days, one might reasonably have expected the Secretary of State not to wait to be asked before considering whether to "direct otherwise".
36. I would hope that any application made to the Secretary of State even at this late juncture would be viewed sympathetically, though unfortunately it may be that such a direction may no longer be of practical benefit to Mr Ellerton.
37. Mr Singh also submitted that the claim for judicial review was out of time, because the claim form was issued on 20^th August 2009, more than three months after the letter from Ms Pinnock of 26^th March 2009 which explained the administrative error and informed Mr Ellerton that he was "just serving your original sentence with UAL [unlawfully at large] adjustments". I would not have been minded to dismiss the claim on those grounds even if Mr Singh is right, though I do not consider that the claim was out of time. The challenge made in the claim form was to the continuing, and allegedly unlawful, detention of Mr Ellerton up to the date of his second release on licence on 14^th August 2009. In my judgment, the claim for judicial review was brought as soon as was reasonably practicable and well within the three months prescribed by the rules; but even if it was not, given the special circumstances of a case such as this (involving, as it did, a Claimant who was a serving prisoner at the time when Ms Pinnock's letter was written) I would extend time in the exercise of my discretion so as to allow the claim to proceed.
38. However, and for the reasons given above, albeit with regret, I dismiss this claim for judicial review on the merits.