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

A prisoner released on a licence issued without lawful authority is unlawfully at large. The licence is an administrative act and does not become valid merely because the prisoner and officials believed it lawful or because it has not been revoked. This differs from an erroneously drawn court order, which remains operative until amended or corrected. Article 5.1 of the European Convention on Human Rights adds no separate route to a different result. Under section 49 of the Prison Act 1952, time spent unlawfully at large does not count towards the sentence unless the Secretary of State directs otherwise under section 49(2).

The appellant was mistakenly released on licence while serving concurrent sentences governed by successive parole regimes. He remained at liberty for 228 days before being recalled. The error was administrative and was not caused by him, but the Secretary of State recalculated his release date without counting that period, resulting in approximately seven additional months in custody.

The Administrative Court concluded that no judicial remedy could make the period count: [2009] EWHC 2661 (Admin). The central issue on appeal was whether release on an unauthorised administrative licence nevertheless made the appellant lawfully at large, so that the 228 days counted towards his sentence.

Appeal dismissed. Sedley LJ gave the judgment, with which Richards LJ and Golding LJ agreed.

1. The appellant had been released when no statutory power authorised his release. A licence issued without lawful authority was therefore ineffective, and he was unlawfully at large during the 228 days. His ignorance of the error, the officials’ belief that the licence was valid, and his compliance with the recall did not alter that conclusion. The question was objective legality, not a subjective element in being unlawfully at large.

2. The court distinguished R v Governor of Her Majesty’s Prison Moorland (Lunn). That case concerned an erroneous judicial order. The sentence pronounced by the court determined the period of detention, but the custodial authority had to rely on the court order while it remained unamended. A judicial order therefore had continuing validity which an administrative licence issued without power did not possess. The court found no workable basis in this context for treating the licence as voidable rather than invalid from the outset.

3. Article 5.1 of the European Convention on Human Rights did not change the analysis. It restated the common law position, and its effect depended on the same question of whether the release was lawful. R v Dimond did not establish a subjective test. Lord Bingham CJ had merely described a case in which the accused was manifestly lawfully at large.

4. Section 49(2) of the Prison Act 1952 gave the Secretary of State power to direct that time spent unlawfully at large should nevertheless count towards the sentence. The refusal to exercise that power was not the decision under challenge in this appeal. The court considered it proper for the Secretary of State to take a fresh decision in light of the judgment.

5. Sedley LJ tentatively suggested that the purpose of the dispensing power might concern responsibility for the prisoner’s unlawful absence rather than the prisoner’s merits. He expressly left that issue open. The appeal was nevertheless dismissed because the court could not treat the 228 days as time served or otherwise restore the lost liberty.

1. Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed. The court held that the appellant had been unlawfully at large and that the 228 days did not count towards his sentence.
2. Administrative Court: Geraldine Andrews QC, sitting as a deputy judge, dismissed the claim and concluded that no judicial remedy could make the period count: [2009] EWHC 2661 (Admin).