Baldauf v Secretary of State for the Home Department

A prisoner whose licence has been revoked is unlawfully at large if absent from the place where the law requires detention, even when detained abroad by foreign authorities. Time spent unlawfully at large is excluded from sentence calculation unless the Secretary of State directs otherwise, and that discretion may properly be confined to exceptional circumstances. The statutory restriction on a court ordering a later sentence to begin after expiry of a licence does not restrict the Secretary of State’s calculation of the expiry date of the earlier sentence. A discretionary ground not put to the decision-maker cannot ordinarily found a later challenge. Article 8 did not impose a positive obligation to seek the prisoner’s transfer from France.

The claimant sought judicial review of the Secretary of State’s decision concerning his release on licence and sentence expiry date. The Secretary of State conceded that the conditional licence imposed on release was unlawful and cancelled it. The remaining issue was whether approximately two years spent in French custody, after revocation of the claimant’s United Kingdom licence, should count towards his United Kingdom sentence. The claimant also argued that statutory provisions concerning consecutive sentences, Repatriation of Prisoners Act 1984, and Article 8 required or supported a different approach.

1. Outcome. The claim for judicial review was dismissed. The claimant’s sentence expiry date remained 23 September 2010. The Secretary of State was awarded the costs of the amended grounds, subject to detailed assessment if not agreed.
2. Under section 49(2) of the Prison Act 1952, read with section 39(6) of the Criminal Justice Act 1991, a person whose licence has been revoked is deemed unlawfully at large if absent from the place where he is required by law to be detained. Detention by the French authorities did not alter that conclusion. The distinction between being physically at large and being absent from the required place of detention was rejected, applying R(S) v the Secretary of State for the Home Department and R(Lunn) v Governor of HMP Moorland.
3. The Secretary of State had a discretion under PSO 6650 to direct that unlawful-at-large time count towards the sentence. The policy properly indicated that such a direction would be appropriate only in exceptional circumstances. It was reasonable to conclude that serving the French sentence should not reduce the period required for the separate United Kingdom sentences. A demonstrated overlap between the offences might have amounted to an exceptional circumstance, but none was established.
4. Section 265 of the Criminal Justice Act 2003, and its predecessor section 84 of the Powers of Criminal Court Sentencing Act 2000, restricted a court’s power when imposing a further sentence. They did not restrict the Secretary of State’s power when calculating the expiry date of the original sentence. The argument was also not raised before the Secretary of State, and could not properly be relied upon as the basis for criticising the exercise of discretion.
5. There was no evidence that the claimant had asked the Secretary of State to seek a transfer from France under the Repatriation of Prisoners Act 1984. The contention that Article 8 imposed a positive obligation to make such a request was unarguable and, in any event, the complaint was substantially out of time. The earlier unlawful licence conditions were adequately remedied by their prompt cancellation; the circumstances did not justify damages.

First-instance judicial review proceedings in the High Court (Administrative Court). No earlier decision is stated in the judgment.