Norman Rowan, R (on the application of) v The Governor of His Majesty's Prison Berwyn & Anor

A prisoner's detention pursuant to a lawful sentence of a competent court does not depend on the continuing existence or possession of a warrant of imprisonment. A warrant may provide evidence or protection in false-imprisonment proceedings, but that function is distinct from the legal authority for detention. Authorities concerning exhausted warrants or detention beyond the lawful release date do not establish a warrant precondition. Where offences were committed after 4 April 2005 and sentence was imposed under section 227 of the Criminal Justice Act 2003, release remains governed by that Act. Purposive interpretation cannot rewrite transitional provisions to confer an earlier release regime. The appeal was dismissed.

The appellant had received an extended custodial sentence for offences of violence and was released on licence in 2007. His licence was revoked, but he remained unlawfully at large until his return to custody in 2019. He challenged the calculation of his sentence, the application of the Criminal Justice Act 2003 release regime, and his detention after the original warrant had been lost or destroyed.

The Divisional Court granted permission for judicial review but dismissed the claim: [2021] EWHC 3114 (QB). The appeal concerned the legal basis of the sentence, the applicable release provisions, whether a warrant was a precondition of lawful detention, and alleged breaches of Articles 5, 7 and 14.

1. Disposition. Lord Justice Holroyde, with Lord Justice Coulson and Lady Justice Elisabeth Laing agreeing, dismissed the appeal and refused the respondents' application for permission to adduce fresh evidence. The fresh evidence was unnecessary to resolve the issues.
2. Nature of the sentence. The court upheld the High Court's finding that the extended sentence for unlawful wounding had been imposed under section 227 of the Criminal Justice Act 2003, rather than section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The contemporaneous record and certificate of conviction were more likely to reflect a clerical error. The surrounding circumstances made it unlikely that the sentencing judge and both counsel had overlooked the materially different regime introduced in 2005. A factual finding of this kind could only be disturbed if unsupported by the evidence or one which the High Court could not properly reach.
3. Release provisions and Convention rights. The appellant's release was governed throughout by the Criminal Justice Act 2003, because the offences were committed after 4 April 2005. The argument for applying the Criminal Justice Act 1991 would require significant rewriting of the relevant commencement order and Schedule 20B to the 2003 Act. There was no proper basis for compounding the alleged sentencing error. The arguments under Articles 5, 7 and 14 of the European Convention on Human Rights therefore fell away. In any event, the court agreed with the High Court that those rights had not been violated.
4. Warrant of imprisonment. Demer v Cook (1903) 88 LT 629 and R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] AC 19 concerned false-imprisonment claims in circumstances where detention was unlawful or continued beyond the proper release date. They did not establish that a warrant's continuing existence or possession by the governor was a precondition to detention pursuant to a lawful sentence. The court applied the distinction recognised in R (Lunn) v Governor of HMP Moorland [2006] EWCA Civ 700: the ability to produce a warrant as evidence of justification is distinct from the lawfulness of detention itself.
5. Statutory references to warrants. Section 12(3) of the Prison Act 1952 and Part 13 of the Criminal Procedure Rules concern the content and effect of warrants. Neither makes a warrant a precondition of lawful detention. The appellant's detention remained justified by the Crown Court sentence and the statutory provisions governing release, revocation and recall.

1. Court of Appeal (Civil Division) — The appeal was dismissed and permission to adduce fresh evidence was refused: [2023] EWCA Civ 27.
2. High Court of Justice, Queen's Bench Division, Administrative Court — The Divisional Court granted permission for judicial review but dismissed the claim on 23 November 2021: [2021] EWHC 3114 (QB). Permission to appeal was granted by Lewison LJ.