Lindo, R (On the Application Of) v Secretary of State for the Home Department

Where a prisoner is unlawfully at large during a sentence, that period is excluded from the time served unless the Secretary of State directs otherwise. The sentence is consequently treated as frozen during the absence. Each later statutory release point, including automatic conditional release, release at the three-quarter point and sentence expiry, is shifted accordingly. This does not unlawfully extend the sentence or amount to double counting. Prison Service Orders cannot alter clear statutory provisions. Detention calculated in this way is prescribed by law for the purposes of Article 5 of the European Convention on Human Rights. A failure to direct that the period count towards the sentence is unlawful only if the exercise of discretion is legally challengeable on the facts.

The claimant, a serving prisoner, sought judicial review of the Secretary of State’s calculation of his release date. He had received a two-year sentence, had been released on Home Detention Curfew, and had then been unlawfully at large for 17 days after the curfew was revoked. Following a later licence revocation, the Secretary of State recalculated the claimant’s release and sentence-expiry dates, moving the proposed licence-release date from 28 November to 15 December 2003.

The claimant argued that the 17 days had effectively been counted twice, contrary to the statutory scheme and Article 5 of the European Convention on Human Rights. He also challenged the failure to exercise the Secretary of State’s discretion to count the period as time served. The central issue was the effect of the period unlawfully at large on subsequent statutory release dates.

1. Claim dismissed. The statutory scheme required the claimant’s release dates to be recalculated to exclude the 17 days during which he was unlawfully at large.
2. Section 49(2) of the Prison Act 1952, read with section 38A(5) of the Criminal Justice Act 1991, meant that time spent unlawfully at large was not counted as part of the period for which the claimant was liable to be detained, unless the Secretary of State directed otherwise. The sentence itself remained a two-year sentence.
3. The period unlawfully at large effectively froze the sentence for its duration. It therefore inevitably shifted the automatic conditional release date, the licence-expiry date and the sentence-expiry date. The result was not an extension of the sentence and did not constitute double counting.
4. Prison Service Orders 6650 and 6700 had no statutory force and could not affect the clear meaning of the statutory provisions.
5. The detention was prescribed by law and therefore did not breach Article 5(1)(a) of the European Convention on Human Rights. There was also no arguable basis for challenging the Secretary of State’s decision not to exercise his discretion in the claimant’s favour, particularly in light of his breaches of the curfew and later licence conditions.
6. Permission to appeal was refused, although the claimant was entitled to seek permission from the Court of Appeal. An expedited transcript was ordered. The defendant did not seek costs.