Lunn, R (on the application of) v The Governor of HMP Moorland

A prison governor’s authority to detain a prisoner derives from the court order, read with the applicable statutory release provisions. An order made by a court of competent jurisdiction and valid on its face remains binding until varied or set aside.

For section 49 of the Prison Act 1952, a person is unlawfully at large only when currently liable in law to be detained. Liability is determined from the circumstances and operative court order at the relevant time. A later correction cannot retrospectively make an otherwise lawful release unlawful, although it may operate from the original date when calculating prisoner classification and future release dates.

The claimant was sentenced to a new term of imprisonment consecutive to the balance of an earlier sentence. The written court order mistakenly stated that the terms were concurrent. Acting on that order and the statutory release provisions, the prison governor released him on licence.

The order was later corrected, and the claimant was arrested and returned to prison after 65 days at liberty. The governor decided that he had been unlawfully at large throughout that period and disregarded all 65 days when calculating his release dates under section 49(2) of the Prison Act 1952.

The Divisional Court dismissed the judicial review claim. The claimant appealed, raising the central question whether liability to detention depended on the operative written order or the sentence pronounced by the judge, and whether the later correction retrospectively made his release unlawful.

1. The appeal was allowed. The governor’s decision was quashed, and the matter was remitted for recalculation of the claimant’s release date. Of the 65 days spent on licence, only the three days following the corrected order were to be disregarded under section 49 of the Prison Act 1952.

2. A prison governor’s authority and duty to detain arise from the court order, commonly called the warrant. The statutory early-release provisions govern how that order is administered but do not independently authorise imprisonment. An order of a competent court, made within its jurisdiction and valid on its face, remains binding until varied or set aside. Those required to act on it may do so with confidence in its legal effect.

3. The governor must detain a prisoner for the period required by the order, neither more nor less, and calculate parole and licence dates by reference to the imprisonment specified in it. Under the only operative order on the claimant’s scheduled release date, the governor had no alternative but to release him. Continued detention would have been unlawful.

4. Section 49 applies where a person is absent from a place in which an operative legal authority requires detention. Between release and correction of the order, no order authorised the claimant’s detention. He could not lawfully have been arrested or returned to prison during that period and was therefore not unlawfully at large. While on licence, he also continued to serve his sentence in the community, subject to the licence restrictions.

5. The corrected order immediately restored legal authority for detention and superseded the licence. The claimant consequently became unlawfully at large when that order was made, regardless of his lack of knowledge. The following three days before his arrest did not count towards his sentence.

6. A corrected order may operate from the original date for some purposes. Here it made the claimant a long-term prisoner from that date when calculating parole and early-release dates. It did not, however, retrospectively convert the governor’s lawful release or the claimant’s lawful liberty into unlawful conduct. Whether an amendment operates retrospectively depends on the original order, the amendment and the purpose for which the issue arises. Liberty cannot be removed retrospectively merely through correction of a court’s mistake.

1. Court of Appeal (Civil Division): The appeal was allowed in [2006] EWCA Civ 700. The governor’s decision was quashed and the release-date calculation remitted.
2. High Court, Queen’s Bench Division (Administrative Court), sitting as a Divisional Court: The judicial review claim was dismissed. The court held that the claimant’s mistaken release did not entitle him to credit for the period at liberty.