R (Lunn) v Governor of HMP Moorland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 25 May 2006 |
| Neutral Citation | [2006] EWCA Civ 700 |
| Docket Number | Case No: C1/2005/2561 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 May 2006 |
[2006] EWCA Civ 700
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Lord Justice Maurice Kay and Mr. Justice Penry-Davey)
Royal Courts of Justice
Strand, London, WICCA ALL
Lord Justice Latham
Lord Justice Neuberger and
Lord Justice Moore-Bick
Case No: C1/2005/2561
CO/81302005
Mr. Peter Weatherby(instructed by Gerard Casey) for the appellant
Mr. Philip Coppel (instructed by the Treasury Solicitor) for the respondent
This is the judgment of the court.
On 19 th May 2003 the appellant, Jonathan Lunn, pleaded guilty before the Barnsley Magistrates to an offence of domestic burglary and was committed to the Crown Court at Sheffield for sentence. He came before His Honour Judge Bentley on 7 th July 2003 when he applied to withdraw his plea and enter a plea of 'Not Guilty'. The judge heard his application and, having dismissed it, proceeded to pass sentence.
The offence in question had been committed on 27 th March 2003 at a time when the appellant was on licence under section 33(2) of the Criminal Justice Act 1991. He was serving a sentence of 8 years' imprisonment imposed by the Crown Court at Sheffield on 17 th July 1997 of which there remained (as the judge understood it) an unexpired period of 813 days. In those circumstances the judge ordered him to be returned to prison to serve the outstanding period of that sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and to serve a period of two and a half years' imprisonment in respect of the burglary consecutive to the balance of the previous sentence.
It later became apparent that the number of days for which the appellant could be returned to prison was 731 rather than 813 and the error was put right on appeal.
The order for imprisonment was drawn up by a member of the court staff at Sheffield later that day. In order properly to reflect the sentence passed by the judge it ought to have stated that the court had ordered that 813 days of the earlier be served before the period of imprisonment imposed in respect of the burglary. However, as a result of a simple mistake it stated that the balance of the earlier sentence should be served concurrently with that sentence.
The order as drawn up by the court was sent to the prison in the ordinary way and the date on which the appellant was entitled to be released on licence was calculated on the understanding that he had a total of two and a half years (912 days) to serve and was therefore a short-term prisoner. On that basis he was entitled to be released on licence on 24 th September 2004.
The appellant was duly released on licence on 24 th September 2004. Not long afterwards, however, someone discovered the mistake and on 26 th November 2004 an amended order was made which correctly reflected the sentence passed by Judge Bentley. The appellant was duly arrested on 29 th November 2004 and returned to prison. He had been at large for 65 days during which, it appears, he had observed all the conditions of his licence.
The effect of the amended order was that the appellant became a long-term prisoner within the meaning of section 33(5) of the Criminal Justice Act 1991 and that in turn made it necessary to recalculate the dates on which he would become eligible for parole and for release on licence. It was at this point that the question was raised as to how the 65 days he had spent in the community between 24 th September and 29 th November should be treated. The appellant said, not surprisingly, that it was not his fault that he had been released and that he had continued to serve his sentence, albeit in the community, during that period under the restrictions imposed by his licence. He maintained that the 65 days should not be ignored when calculating the time he was required to spend in custody. However, the prison governor took a different view. He said that since the appellant had been released only as a result of a mistake, and since his release was contrary to the relevant statutory provisions, the appellant was unlawfully at large during those 65 days which therefore had to be disregarded for the purposes of calculating his parole and early release dates in accordance with section 49(2) of the Prison Act 1952.
Section 49 of the Prison Act provides, so far as is material to the present case, 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 any 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….."
Being dissatisfied with the governor's decision the appellant brought proceedings for judicial review and in due course the case came before the Divisional Court. The appellant put forward two main arguments: he submitted that the governor had acted lawfully and in accordance with the court's order in releasing him on licence and that he could not therefore have been unlawfully at large; alternatively, he submitted that while he was on licence he was to be regarded as still serving his sentence, albeit in the community, and that the 65 days were therefore properly to count as part of his sentence.
The Divisional Court dismissed the claim. It rejected those arguments on the grounds that the appellant had been released as a result of a mistake in drawing up the order for his imprisonment and that his position was governed by the statutory provisions. He could not take advantage of that mistake to obtain what the court described as "an undeserved and undesirable windfall". Moreover, doubt was expressed as to whether the governor had any power to release the appellant at the time he did, having purported to act under the statutory provisions applicable to short-term prisoners when the appellant was in fact a long-term prisoner.
The appellant now appeals against that decision with the permission of this court. Before us the parties relied on broadly the same arguments as those they advanced below with some additions. In summary, the primary submission of Mr. Weatherby on behalf of the appellant, was that it is the order of the court which ultimately determines the lawfulness of a person's imprisonment and its permitted duration, not the statutory provisions concerning early release. Those provisions impose a limit on the maximum period for which the prisoner can be detained, but they are essentially administrative in nature and have to be applied in the context of and in discharge of the court's order. Accordingly, having regard to the order made by the Crown Court on 7 th July 2003, it would have been unlawful for the governor to detain the appellant beyond 24 th September 2004 and that he cannot therefore have been unlawfully at large during the period in which he was at liberty. He also submitted that it would be a violation of the appellant's rights under art. 8 of the European Convention on Human Rights in respect of the 65 days during which he was subject to the restrictions imposed by his licence if he were not given credit for that period against his sentence.
In his skeleton argument Mr. Coppel submitted that the appellant was in fact a long-term prisoner and that the prison governor had no authority to release him contrary to the statutory provisions relating to early release. In the course of his submissions, however, he accepted that the governor was bound by the terms of the court's order and therefore had to release the appellant on licence at the appropriate date calculated in accordance with the order and the relevant statutory provisions. However, he submitted that the appellant's release was nonetheless unlawful because it was contrary to the sentence passed by the judge and the statutory provisions relating to the release on licence of long-term prisoners. Accordingly, he submitted that the appellant was unlawfully at large within the meaning of section 49 of the Prison Act throughout the period during which he was at liberty.
Although the concept of being "unlawfully at large" has been considered in a number of previous cases in relation to a variety of different circumstances, none of the authorities to which we were referred concerned a situation such as the present in which the order as drawn up by the court for the imprisonment of the defendant failed properly to reflect the sentence passed by the judge. This case therefore raises, apparently for the first time, the question whether the lawfulness of a person's continued detention, and therefore his liability to be detained within the meaning of section 49 of the Prison Act 1952, is to be determined by reference to the terms of the order of the court directing his imprisonment or by the sentence pronounced by the judge, in either case taking into account the statutory provisions governing the early release of prisoners on licence.
When considering this question we think it is important to bear in mind that the statutory provisions governing the early release of prisoners are...
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