R (Ellerton) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Richards,Lord Justice Golding |
| Judgment Date | 07 July 2010 |
| Neutral Citation | [2010] EWCA Civ 906 |
| Date | 07 July 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2009/2488 |
[2010] EWCA Civ 906
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(Geraldine Andrews QC)
Before: Lord Justice Sedley
Lord Justice Richards
and
Lord Justice Golding
Case No: C1/2009/2488
Mr Stephen Field and Ms Joanne Cecil (instructed by Messrs Mackesseys) appeared on behalf of the Appellant.
Mr Neil Sheldon (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Sedley:
Mr Ellerton was mistakenly released on licence in the course of concurrent sentences which he was serving under two successive parole regimes. He was at large, purportedly on stringent licence conditions, from 4 April to 19 November 2008, when he was returned to prison having been recalled two weeks earlier. He was thus at large for 228 days.
It is common ground that the National Offender Management Service (“NOMS”) had no power to release Mr Ellerton when they did. For reasons set out with clarity and care in the judgment of Geraldine Andrews QC, sitting as a deputy judge of the Administrative Court [2009] EWHC 2661 (Admin), the sentences imposed on Mr Ellerton for robberies committed before 5 April 2005 did not qualify for automatic release on licence and had been the subject of no recommendation by the Parole Board for early release, in part at least because the Home Office, not realising that the pre-2005 regime governed part of his total term, had failed to refer his case to the Parole Board.
Acting on the premise that Mr Ellerton had therefore been unlawfully at large for the 228 days of his mistaken release, NOMS recalculated his release date following his return to prison. The result was that he was not released until 14 August 2009. Within eleven days he had breached his licence conditions and been returned to prison, from which the Parole Board has since declined to direct his release. As the judge said at paragraph 15 of her judgment:
“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.”
I would qualify this in one respect only. In my view it was grossly unfair. The question, however, is what, if anything, a court of law can now do about it. The deputy judge concluded she could do nothing, but she was sufficiently concerned at being driven to this conclusion to give Mr Ellerton permission to appeal to this court.
So far I have deliberately set out only the bare bones of the case. There is no need to set out the statutory provisions for sentencing and release on licence which brought about the situation I have described. These, together with their impact on Mr Ellerton's sentences, are set out in the judgment below at paragraphs 2 to 10.
I can turn directly to the legal issue they raise. Did the 228 days count towards Mr Ellerton's sentence? If they did, the immediate effect would have been to require Mr Ellerton's discharge not from prison, from which he had been re-released on licence on 14 August 2009, six days before his solicitors issued his judicial review claim, but from the conditions now attached to his liberty. It might also have entitled him to damages (which were claimed without specifying their basis). The one thing no judgment could now do was give him back his 228 days of freedom.
For Mr Ellerton, Mr Stephen Field submits that the state, having released Mr Ellerton on a purportedly lawful licence and, moreover, having restricted his liberty by purporting to impose conditions on it, cannot now be heard to say that its own act was a nullity. The claimant had not escaped but had been released by his custodian on what the custodian and the prisoner took to be a valid licence, and had returned when recalled. The claimant should be regarded in law as having served 228 days of his sentence while he was at large by leave of his custodian.
Mr Field also relies on Article 5.1 of the European Convention on Human Rights which forbids deprivation of liberty save by lawful detention after conviction by a competent court, or by detention for non-compliance with the lawful order of a court. Neither provision does more than restate the common law of England and Wales, and the effect of both depends on exactly the same arguments as the question whether Mr Ellerton was lawfully or unlawfully at large during 2008.
Before turning to the Secretary of State's answer to the claim, it is appropriate to observe (as the judge below observed) that it was open to the Secretary of State to use her power under section 49(2) of the Prison Act 1952 to direct that the time spent unlawfully at large should nevertheless count towards Mr Ellerton's composite sentence. The statutory provision is arguably tailor-made for a case such as this:
“Where any person sentenced to imprisonment or ordered to be detained in secure accommodation or any young offenders institution 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 from which he is required in accordance with that law to be detained…”
However, following the delivery on 28 October 2009 of the judgment of the deputy judge, the National Offender Management Service, exercising the Secretary of State's powers under section 49, considered whether to let the 228 days count...
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