S, R (on the application of) v Secretary of State for the Home Department

A recalled prisoner is “at large” for sentence-calculation purposes whenever he is not detained in lawful custody pursuant to a sentence, even if he is compulsorily detained in hospital under section 3 of the Mental Health Act 1983. Knowledge of the licence revocation is unnecessary.

Absence under section 49(2) of the Prison Act 1952 is calculated in whole days. Any day partly spent in lawful custody counts towards the sentence. A revocation day on which the prisoner never enters lawful custody may be treated as a full day of absence, although the Secretary of State retains discretion to direct otherwise where fairness requires.

The Secretary of State appealed against conclusions reached by Maurice Kay J after the judge quashed the revocation of S’s prison licence. The challenge to the quashing order was abandoned, leaving three generally important questions about the calculation of S’s release date.

S had been automatically released on licence before being compulsorily detained in hospital under section 3 of the Mental Health Act 1983. The Secretary of State revoked his licence while he remained in hospital. S later absconded and was arrested without previously learning of the revocation.

The issues were whether S was “at large” while detained in hospital, whether knowledge of revocation was required, and how absence under section 49(2) of the Prison Act 1952 should be computed.

1. The appeal as such failed unanimously. Lord Justice Simon Brown, with whom Lord Justice Rix and Lord Justice Scott Baker agreed, ruled for the Secretary of State on all three calculation issues. The licence revocation nevertheless remained quashed because the Secretary of State had abandoned his challenge to that substantive order. No declaration was required.

2. A licensee compulsorily detained in hospital under section 3 of the Mental Health Act 1983 was “at large” after revocation. Section 39(6) of the Criminal Justice Act 1991 then deemed him unlawfully at large. Section 49(2) of the Prison Act 1952 treats a sentenced person as absent whenever he is not detained in lawful custody pursuant to the sentence, subject to its stated proviso. Compulsory hospital detention under section 3 was not such custody. The position was analogous to detention in a foreign prison considered in R v Governor of Brixton Prison, ex parte Stafford [1964] 2 QB 625.

3. Knowledge of the revocation was unnecessary. Nothing in section 39 made knowledge a condition of the statutory consequence. A contrary rule would encourage licensees who had breached their conditions to disappear before notification. Ordinarily there was no injustice because the licensee knew the conditions and consequences of breach and, after revocation, remained free when he should have returned to custody.

4. Absence under section 49(2) was computed in days rather than hours. Any day partly spent in lawful custody counted as a day of detention. Conversely, where a licence was revoked during a day and the prisoner did not enter lawful custody that day, the whole day could be counted as absence. The Secretary of State’s longstanding practice was lawful, although a more liberal approach to the revocation day was encouraged.

5. On the unusual facts, the Secretary of State should have exercised the section 49(2) discretion not to count 8 August, and probably 9 August, because S spent relevant periods compulsorily detained in hospital. This conclusion did not alter the operative order.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 426, the court unanimously decided all three release-date issues in the Secretary of State’s favour. The appeal nevertheless failed because the challenge to the order quashing the licence revocation had been abandoned.

2. High Court, Queen’s Bench Division: Maurice Kay J quashed the licence revocation for failure to consult the hospital doctors. He also held that section 49(2) of the Prison Act 1952 did not apply before S knew that his licence had been revoked. No neutral citation for that judgment was stated.