Lunn, R (on the application of) v HM Prison Moorland

A prisoner cannot obtain credit towards release or parole eligibility for time spent at liberty under a licence issued by mistake where the statutory early-release scheme did not authorise that licence. The court must give effect to the sentence actually imposed and the statutory distinction between short-term and long-term prisoners. An administrative error does not create a special release regime or confer an undeserved windfall. The fact that a prisoner may be treated as serving a sentence while on a valid licence does not determine the position where the licence lacked legal authority.

The claimant received consecutive sentences in the Crown Court, making him a long-term prisoner under the Criminal Justice Act 1991. Because the imprisonment order was mistakenly completed as recording concurrent sentences, he was released under the provision applicable to short-term prisoners. The error was later corrected and he was returned to custody.

The claimant sought credit for the 65 days spent at liberty, relying on the treatment of licensed prisoners as serving their sentences and, alternatively, on fairness and legitimate expectation. The issue was whether that period counted towards his release or parole eligibility.

1. Application dismissed. The claimant was required to serve the sentence pronounced by the Crown Court, and release was to be considered under the statutory scheme in the ordinary course.
2. The consecutive sentences made the claimant a long-term prisoner. Under section 33 of the Criminal Justice Act 1991, the statutory release provisions applicable to short-term prisoners could not lawfully be used for him. The governor’s release resulted from the mistaken imprisonment order and not from a valid exercise of the statutory power.
3. Section 49(2) of the Prison Act 1952 did not assist the claimant. Although authority established that a prisoner may serve part of a sentence while on licence, that principle did not apply where the licence was issued in circumstances in which no vires existed. The court treated the validity of the licence as decisive.
4. The court declined to convert the administrative mistake into a benefit equivalent to custody. An error by a court official did not entitle the claimant to invoke a special regime or undermine the statutory scheme. The analysis appropriate to the governor’s possible liability for acting on the imprisonment order could differ from the analysis required when calculating the claimant’s detention period.
5. Ex parte Lynn concerned materially different facts and did not justify intervention on fairness or legitimate-expectation grounds. S and Lindo were not mistake cases, although their general approach was consistent with the conclusion reached.
6. Permission to appeal was refused because there was no real prospect of success and no other compelling reason for an appeal. Detailed assessment of costs was ordered.

The judgment records that the Crown Court’s calculation of the earlier sentence was later corrected by the Court of Appeal Criminal Division on 28 July 2005. This judicial review application was then dismissed by the Administrative Court, with permission to appeal refused.