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

When a prisoner’s Home Detention Curfew licence is revoked and the prisoner is unlawfully at large, the period at large is excluded from calculating the period for which the prisoner is liable to be detained under section 49(2) of the Prison Act 1952.

The sentence is treated as frozen during that period. All later release and expiry dates move forward by the same number of days, including licence expiry and sentence expiry. Home Detention Curfew and ordinary licence arrangements are parallel regimes, so unlawful absence after Home Detention Curfew does not confer an advantage. Prison Service Orders are guidance only and cannot determine the true construction of the legislation.

The appellant was serving a two-year sentence and had received credit for 92 days spent in custody. He was released on Home Detention Curfew, his licence was revoked, and he remained unlawfully at large for 17 days before being arrested and returned to prison. He was later released on licence.

Following recalculation of his release and expiry dates, he sought judicial review, arguing that the 17 days should postpone only his automatic conditional release date. Goldring J refused the application on 25 November 2003. The appeal concerned whether unlawful absence after revoked Home Detention Curfew postponed all subsequent sentence milestones, including licence and sentence expiry.

Scott Baker LJ delivered the first judgment. Mummery LJ and Potter LJ agreed. The appeal was dismissed.

1. Unlawfully at large. Following revocation of the appellant’s Home Detention Curfew licence, he was liable to detention and, while at liberty, was deemed unlawfully at large. Relying on The Queen (S) v Secretary of State for the Home Department [2003] EWCA Civ 426, the court held that knowledge of revocation was unnecessary.
2. Effect of section 49(2). Section 49(2) of the Prison Act 1952 was expressed in wide terms. Unless the Secretary of State directed otherwise, the 17 days unlawfully at large could not be counted towards the period for which the appellant was liable to be detained. The sentence was therefore frozen for that period.
3. Parallel regimes. The Home Detention Curfew and ordinary licence regimes were parallel arrangements. The mirrored provisions of the Criminal Justice Act 1991 did not justify different consequences for unlawful absence under the two regimes.
4. Subsequent dates. Postponing the halfway point necessarily postponed the later statutory milestones, including the two-thirds and three-quarter points, licence expiry and sentence expiry. This did not increase the sentence or deprive the appellant of liberty twice. It merely meant that custody and the period of supervision began and ended later. The Secretary of State was therefore correct to recalculate the licence expiry date by reference to the unlawful absence.
5. Guidance. Prison Service Orders 6700 and 6650 were guidance for prison governors and could not determine the true construction of the legislation.

The appeal was dismissed. The applicant was ordered to pay the respondent’s costs, subject to detailed assessment.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed on 23 March 2004. The applicant was ordered to pay the respondent’s costs, subject to detailed assessment: [2004] EWCA Civ 491.
• Queen’s Bench Division, Administrative Court: Goldring J refused the application for judicial review on 25 November 2003.