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

An order of a court of competent jurisdiction authorises detention and remains binding until varied or set aside. Prison administration provisions govern how that order is implemented, but cannot replace it. A prisoner released under the only subsisting order is not unlawfully at large merely because the order was later amended to correct a drafting error. A later amendment may operate retrospectively for calculating prisoner status and release dates, but does not retrospectively make an otherwise lawful release unlawful. Under section 49 of the Prison Act 1952, unlawful presence at liberty depends on whether the prisoner was currently liable to detention at the relevant time. Time spent on licence before a valid order authorising renewed detention therefore counts towards the sentence.

The claimant pleaded guilty to burglary and was sentenced to a consecutive term following recall under an earlier sentence. A court staff member mistakenly recorded the sentences as concurrent. Relying on that order, the prison released him on licence. The order was later amended to reflect the sentence pronounced by the judge, and the claimant was returned to custody.

The governor treated the claimant as unlawfully at large during the 65-day period between release and return, disregarding that time under section 49(2) of the Prison Act 1952. The Divisional Court dismissed the judicial review claim. The appeal concerned whether the claimant’s liability to detention was determined by the sentence pronounced, the original order, or the amended order, and whether the period at liberty counted towards his sentence.

1. Appeal allowed. The governor’s decision was quashed and the matter was remitted for recalculation of the release date.
2. An order of a court of competent jurisdiction is valid and binding until varied or set aside. The order, rather than the early-release provisions themselves, provides the authority for detention. Those provisions govern the administration and implementation of the order.
3. The governor must detain the prisoner for the period specified in the order, calculated with the relevant statutory provisions. Once the applicable early-release date is reached, the governor has no power or duty to continue detention. The release on 24 September 2004 was therefore required by the only order then in existence.
4. Section 49 of the Prison Act 1952 applies only where the prisoner is currently liable to detention and is absent from the place where the law requires detention. Between 24 September and 26 November 2004 there was no order authorising detention. The claimant was not unlawfully at large during that period, and the later amendment could not retrospectively alter that position.
5. The amendment operated retrospectively for calculating the claimant’s status as a long-term prisoner and his parole and release dates. It did not retrospectively render the governor’s earlier release unlawful, particularly where the error was not the claimant’s fault. The 62 days before the amended order therefore counted towards the sentence. Once the amended order was made, the claimant again became liable to detention and was unlawfully at large during the remaining three days, irrespective of his knowledge.

• Court of Appeal (Civil Division): allowed the appeal, quashed the governor’s decision and remitted the matter for recalculation.
• Divisional Court of the Administrative Court: dismissed the judicial review claim.