O'Connor, R v

Conviction for escape from lawful custody requires proof that the prisoner was lawfully detained when he escaped. Detention prolonged solely by an official error in calculating the release date is not lawful. A guilty plea entered in ignorance of that error is entered on a false basis and the resulting conviction is unsafe.

Prison Act 1952, section 13 does not validate custody that is otherwise unlawful. Further, where Criminal Justice Act 2003, section 265(1) applies, a court may not direct a new term of imprisonment to begin only after a sentence from which the offender was released early. An unlawful consecutive direction should be corrected by imposing the term from its original date.

The applicant had received a 29-month sentence for burglary in 2006, directed to begin after a sentence already being served. In April 2009, while detained following an error in the calculation of his release date, he pleaded guilty at Stafford Crown Court to escaping from lawful custody and received five months’ imprisonment.

After the time for appealing the conviction had expired, the release-date error was discovered. The Court of Appeal considered whether the applicant had been in lawful custody when he absconded and whether the 2006 direction that the burglary sentence should be consecutive was lawful.

1. The court granted an extension of time and leave to appeal against conviction. It quashed the conviction for escape from lawful custody as unsafe. It also granted leave to appeal against sentence, quashed the unlawful form of the 2006 sentence, and reimposed the 29-month term from 1 September 2006.

2. Lawful custody was an essential element of escape. The court applied R v Dhillon [2006] 1 Cr App R 15 and R v Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19. A prisoner detained because of an error in calculating the release date is not in lawful custody.

3. The court held that section 13 of the Prison Act 1952 concerns circumstances in which a person is deemed to remain in custody, including approved absence from prison. It does not make lawful custody that is otherwise contrary to law.

4. On the statutory calculation accepted by the court, the applicant should have been released on licence on 8 July 2008. He was therefore not lawfully detained when he absconded on 30 March 2009. His guilty plea had been entered in ignorance of that fact and on a false basis, making the verdict unsafe.

5. The 2006 direction that the 29-month term should commence on expiry of an earlier sentence was prohibited by section 265(1) of the Criminal Justice Act 2003. Although section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 could have addressed the position, its possible exercise could not affect the conviction appeal. The sentence was accordingly corrected to run from its date of imposition.

• Court of Appeal (Criminal Division) Granted an extension of time and leave to appeal; quashed the 2009 conviction for escape as unsafe; and allowed the sentence appeal to correct the commencement date of the 2006 sentence.

• Crown Court at Stafford On 6 April 2009, the applicant pleaded guilty to escape from lawful custody and received five months’ imprisonment, consecutive to the sentence then being served.

• Crown Court at Stafford On 1 September 2006, the applicant received 29 months’ imprisonment for burglary, directed to begin after an existing sentence.