Ellerton, R (on the application of) v Secretary of State for Justice

A prisoner released on licence remains unlawfully at large where the statutory preconditions for release were unmet and the operative court order required continued detention. An administrative licence cannot supersede an accurately drawn court order or make the prisoner’s absence lawful, even where the prisoner was not at fault and the licence had not been revoked. Time spent unlawfully at large therefore does not count towards the custodial term under Prison Act 1952, subject to the Secretary of State’s discretion to direct otherwise. The principles in R (Lunn) v Governor of HMP Moorland were applied.

The claimant was serving concurrent sentences for offences governed partly by the Criminal Justice Act 1991 and partly by the Criminal Justice Act 2003. Because the statutory conditions for release under the 1991 regime had not been met, he should not have been released when he reached the halfway point. An administrative error nevertheless resulted in his release on licence for 228 days before the licence was revoked and he was returned to custody.

The Secretary of State treated that period as time during which the claimant was unlawfully at large under section 49 of the Prison Act 1952. The central issue was whether the licence made his absence lawful, or whether the original court order and the unmet statutory release conditions prevailed.

1. The claim was dismissed. The claimant was unlawfully at large throughout the 228 days and, absent a direction under section 49(2) of the Prison Act 1952, that period could not be counted towards his custodial sentence.
2. Concurrent sentences governed by the two different release regimes could not result in release in respect of only some sentences. Under section 51(2B) of the Criminal Justice Act 1991 and section 263 of the Criminal Justice Act 2003, release had to await entitlement to release in respect of each concurrent term.
3. The operative court order was accurately drawn up and remained in force. It required the claimant’s detention unless and until the statutory conditions for release were fulfilled. The governor had no power to release him when those conditions had not been met.
4. Following R (Lunn) v Governor of HMP Moorland [2006] EWCA Civ 700, the court order, rather than an invalid administrative act, governed the lawfulness of the claimant’s absence. A licence issued without statutory authority could not supersede the order, even though it identified the correct prisoner, was formally issued, imposed licence conditions and had not yet been revoked.
5. The court regarded the case as a paradigm case for consideration of the Secretary of State’s discretion under section 49(2) to direct that some or all of the period be counted. That observation did not alter the legal conclusion on the judicial review claim.
6. The claim was not out of time. It challenged continuing detention and was brought within three months; in any event, the court would have extended time given the circumstances.