Lunn, R (on the application of) v The Governor of HMP Moorland

This is the judgment of the court.

On 19^th May 2003 the appellant, Jonathan Lunn, pleaded guilty before the Barnsley Magistrates to an offence of domestic burglary and was committed to the Crown Court at Sheffield for sentence. He came before His Honour Judge Bentley on 7^th July 2003 when he applied to withdraw his plea and enter a plea of ‘Not Guilty’. The judge heard his application and, having dismissed it, proceeded to pass sentence.

The offence in question had been committed on 27^th March 2003 at a time when the appellant was on licence under section 33(2) of the Criminal Justice Act 1991. He was serving a sentence of 8 years’ imprisonment imposed by the Crown Court at Sheffield on 17^th July 1997 of which there remained (as the judge understood it) an unexpired period of 813 days. In those circumstances the judge ordered him to be returned to prison to serve the outstanding period of that sentence under section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 and to serve a period of two and a half years’ imprisonment in respect of the burglary consecutive to the balance of the previous sentence.

It later became apparent that the number of days for which the appellant could be returned to prison was 731 rather than 813 and the error was put right on appeal.

The order for imprisonment was drawn up by a member of the court staff at Sheffield later that day. In order properly to reflect the sentence passed by the judge it ought to have stated that the court had ordered that 813 days of the earlier be served before the period of imprisonment imposed in respect of the burglary. However, as a result of a simple mistake it stated that the balance of the earlier sentence should be served concurrently with that sentence.

The order as drawn up by the court was sent to the prison in the ordinary way and the date on which the appellant was entitled to be released on licence was calculated on the understanding that he had a total of two and a half years (912 days) to serve and was therefore a short-term prisoner. On that basis he was entitled to be released on licence on 24^th September 2004.

The appellant was duly released on licence on 24^th September 2004. Not long afterwards, however, someone discovered the mistake and on 26^th November 2004 an amended order was made which correctly reflected the sentence passed by Judge Bentley. The appellant was duly arrested on 29^th November 2004 and returned to prison. He had been at large for 65 days during which, it appears, he had observed all the conditions of his licence.

The effect of the amended order was that the appellant became a long-term prisoner within the meaning of section 33(5) of the Criminal Justice Act 1991 and that in turn made it necessary to recalculate the dates on which he would become eligible for parole and for release on licence. It was at this point that the question was raised as to how the 65 days he had spent in the community between 24^th September and 29^th November should be treated. The appellant said, not surprisingly, that it was not his fault that he had been released and that he had continued to serve his sentence, albeit in the community, during that period under the restrictions imposed by his licence. He maintained that the 65 days should not be ignored when calculating the time he was required to spend in custody. However, the prison governor took a different view. He said that since the appellant had been released only as a result of a mistake, and since his release was contrary to the relevant statutory provisions, the appellant was unlawfully at large during those 65 days which therefore had to be disregarded for the purposes of calculating his parole and early release dates in accordance with section 49(2) of the Prison Act 1952.

Section 49 of the Prison Act provides, so far as is material to the present case, as follows:

“(1)

Any person who, having been sentenced to imprisonment . . . . . is unlawfully at large, may be arrested by a constable without warrant and taken to the place in which he is required in accordance with law to be detained.

(2)

Where any person sentenced to imprisonment . . . . . is unlawfully at large at any time during the period for which he is liable to be detained in pursuance of the sentence or order, then, unless the Secretary of State otherwise directs, no account shall be taken, in calculating the period for which he is liable to be so detained, of any time during which he is absent from the place in which he is required in accordance with law to be detained . . . . .”

Being dissatisfied with the governor’s decision the appellant brought proceedings for judicial review and in due course the case came before the Divisional Court. The appellant put forward two main arguments: he submitted that the governor had acted lawfully and in accordance with the court’s order in releasing him on licence and that he could not therefore have been unlawfully at large; alternatively, he submitted that while he was on licence he was to be regarded as still serving his sentence, albeit in the community, and that the 65 days were therefore properly to count as part of his sentence.

The Divisional Court dismissed the claim. It rejected those arguments on the grounds that the appellant had been released as a result of a mistake in drawing up the order for his imprisonment and that his position was governed by the statutory provisions. He could not take advantage of that mistake to obtain what the court described as “an undeserved and undesirable windfall”. Moreover, doubt was expressed as to whether the governor had any power to release the appellant at the time he did, having purported to act under the statutory provisions applicable to short-term prisoners when the appellant was in fact a long-term prisoner.

The appellant now appeals against that decision with the permission of this court. Before us the parties relied on broadly the same arguments as those they advanced below with some additions. In summary, the primary submission of Mr. Weatherby on behalf of the appellant, was that it is the order of the court which ultimately determines the lawfulness of a person’s imprisonment and its permitted duration, not the statutory provisions concerning early release. Those provisions impose a limit on the maximum period for which the prisoner can be detained, but they are essentially administrative in nature and have to be applied in the context of and in discharge of the court’s order. Accordingly, having regard to the order made by the Crown Court on 7^th July 2003, it would have been unlawful for the governor to detain the appellant beyond 24^th September 2004 and that he cannot therefore have been unlawfully at large during the period in which he was at liberty. He also submitted that it would be a violation of the appellant’s rights under art. 8 of the European Convention on Human Rights in respect of the 65 days during which he was subject to the restrictions imposed by his licence if he were not given credit for that period against his sentence.

In his skeleton argument Mr. Coppel submitted that the appellant was in fact a long-term prisoner and that the prison governor had no authority to release him contrary to the statutory provisions relating to early release. In the course of his submissions, however, he accepted that the governor was bound by the terms of the court’s order and therefore had to release the appellant on licence at the appropriate date calculated in accordance with the order and the relevant statutory provisions. However, he submitted that the appellant’s release was nonetheless unlawful because it was contrary to the sentence passed by the judge and the statutory provisions relating to the release on licence of long-term prisoners. Accordingly, he submitted that the appellant was unlawfully at large within the meaning of section 49 of the Prison Act throughout the period during which he was at liberty.

Although the concept of being “unlawfully at large” has been considered in a number of previous cases in relation to a variety of different circumstances, none of the authorities to which we were referred concerned a situation such as the present in which the order as drawn up by the court for the imprisonment of the defendant failed properly to reflect the sentence passed by the judge. This case therefore raises, apparently for the first time, the question whether the lawfulness of a person’s continued detention, and therefore his liability to be detained within the meaning of section 49 of the Prison Act 1952, is to be determined by reference to the terms of the order of the court directing his imprisonment or by the sentence pronounced by the judge, in either case taking into account the statutory provisions governing the early release of prisoners on licence.

When considering this question we think it is important to bear in mind that the statutory provisions governing the early release of prisoners are concerned with the administration of criminal justice in general; it is the order of the court which provides authority for the detention and imprisonment of the person named in it, not the statutory provisions as such, although they are engaged once such an order has been made and dictate the manner in which the order is carried into effect.

The importance of the court order (or ‘warrant’ as it is often called) as providing authority for the detention of a prisoner is apparent from a number of the decided cases. In Demer v Cook (1903) 88 LT 629 the plaintiff was convicted before the magistrates of indecent exposure for which he was sentenced to two months imprisonment with hard labour. A warrant for his imprisonment was drawn up and he was sent to Pentonville prison. He subsequently appealed and was released on bail. On appeal the Recorder altered the original conviction in accordance with his judgment by recording that the plaintiff was guilty of indecent exposure on two separate occasions; he also amended the sentence by remitting the hard labour. The plaintiff was then returned to Pentonville together with a copy of the original conviction as amended and the original warrant for his detention issued by the magistrates, but no further warrant for his imprisonment was issued by the Recorder.

The Divisional Court subsequently held that the conviction before the Recorder was bad because it alleged two distinct offences and the plaintiff was released. He then brought a claim for damages for false imprisonment against the governor of Pentonville in respect of his detention on the second occasion. The governor sought to justify his action by reference to the original conviction before the magistrates and the warrant they had issued, but the court held that the conviction itself was insufficient to authorise his detention and that since the first warrant had expired a fresh warrant was necessary. In the course of giving judgment Lord Alverstone C.J. made the following observations:

“ . . . . . where a gaoler receives a prisoner under a warrant which is correct in form, no action will lie against him if it should turn out that the warrant was improperly issued or that the court had no jurisdiction to issue it. These authorities in no way conclude the present case, because in this case, as already stated, no fresh warrant was issued . . . . .

. . . . . . . . . .

In my opinion the documents already referred to are not equivalent to, and do not take the place of, a warrant.”

In Olotu v Home Office [1997] 1 W.L.R. 328 the plaintiff was remanded in custody pending trial in the Crown Court and a warrant was issued for her detention which directed the prison governor to hold her until she was delivered to the Crown Court in due course of law. The custody time limit was 112 days, but the Crown Prosecution Service failed to obtain an extension of the period of detention and did not arrange for her to be brought back to court for admission to bail. As a result she was detained for 81 days in excess of the prescribed period. The Divisional Court held that although the plaintiff’s detention became unlawful once the custody time limit had expired, so that the Crown Court would have been bound to release her on bail if an application had been made, the governor was not liable for false imprisonment because the period of custody could only be brought to an end by an order of the court and pending such an order the governor was neither entitled nor bound to release her.

Demer v Cook and Olotu v Home Office were both considered by the House of Lords in R v Governor of Brockhill Prison Ex parte Evans (No.2) [2001] 2 A.C. 19. In that case sentences of imprisonment had been imposed on the respondent in respect of a variety of offences, all to be served concurrently. The longest term was one of two years, so the sentence took effect as a term of imprisonment for two years. The governor of the prison at which the respondent was held, following existing decisions of the Divisional Court, calculated her release date by deducting time spent in custody for each offence before aggregating the sentences. That gave a release date of 18^th November 1996. On an application for judicial review and habeas corpus the Divisional Court held that the correct method was to aggregate the periods spent on remand and deduct the aggregate from the total sentence. Using that method the correct release date was 17^th September 1996. The respondent was released and claimed damages for false imprisonment in respect of the 59 days for which she had been wrongly detained. The governor argued that, since he had complied with the law as it was then understood to be, his detention of the respondent for the 59 days in question, although unlawful, was justified. However, the House of Lords rejected that argument on the grounds that the detention of the respondent constituted a tort unless justified by law and that, since the earlier decisions of the Divisional Court did not correctly state the law, they did not justify the governor’s action.

That case was concerned not so much with the lawfulness of the respondent’s continued imprisonment (indeed, it was conceded that it was unlawful) as with whether the governor had a good defence to a claim for false imprisonment. However, the following passage in the speech of Lord Hobhouse at page 45H is of relevance to the particular circumstances of the present case:

“The argument of the Solicitor General persistently confused a valid order for detention which is subsequently set aside with a valid order which is misinterpreted; it also confused a valid order which has not yet been set aside with an order which was never valid. These distinctions are basic to any legal system. An appeal against a conviction or sentence may lead to the conviction being quashed or the sentence being set aside or varied. But up to that time there were lawful orders of the sentencing court which were orders which had to be obeyed. This point was clearly and correctly made by Lord Woolf MR in the Court of Appeal in the present case [1999] QB 1043, 1063, even though the sentencing court may have exceeded its powers in passing the sentence which it did. . . . . . . .

The critical importance of the warrant and what detention it actually commands and authorises applies both ways as illustrated by the judgment in Demer v Cook (1903) 88 LT 629. Lord Alverstone CJ contrasted two situations. One was where the gaoler receives a prisoner under a warrant which is correct in form in which case no action will lie against him if it should turn out that the warrant was improperly issued or the court had no jurisdiction to issue it. The other was where the warrant had on its face expired or the gaoler has received the prisoner without any warrant, in which case the action will lie: “the warrant and nothing else is the protection to the gaoler, and he is not entitled to question it or go behind it”: p 631.

The basic distinction between an ex facie invalid order and an order prima facie valid but which is liable to be set aside is also to be found in the case law of the European Court of Human Rights as illustrated by Benham v United Kingdom 22 EHRR 293.”

The authorities to which we have referred draw a distinction between the intrinsic lawfulness of the continued detention (in the sense that it could be successfully challenged in the courts) and the liability of the prison governor for the tort of false imprisonment. As far as the governor’s position is concerned, it is clear that he is entitled, and indeed bound, to comply with the order of the court and does not incur any liability for false imprisonment provided he has properly done so.

It is an important principle of the administration of justice that an order of a court of competent jurisdiction made in the exercise of that jurisdiction, as it was in this case, is valid and binding until it is varied or set aside, either on appeal or in the proper exercise of the court’s own jurisdiction. (It is unnecessary in this case to consider the position in relation to an order which is unlawful on its face or which is made in excess of jurisdiction, though, as appears from the authorities, an order which is valid on its face is binding even if it was made in excess of jurisdiction and is therefore liable to be set aside.) It is necessary that that should be the case, both in order to preserve the authority of the courts and thereby the orderly administration of justice and to ensure that those who have to take action on the basis of the court’s orders may be confident that they can lawfully do so.

In our view section 49 of the Prison Act 1952 has to be understood in this context. It is the duty of the prison governor to carry out the order of the court in accordance with its terms and the relevant statutory provisions. He is under a duty to detain the prisoner for the required period, neither more nor less, and must calculate the earliest date on which the prisoner can be considered for parole and the date on which he is entitled to be released on licence. Both of these have to be calculated by reference to the period of imprisonment specified in the court order. Once the date for early release is reached the governor has neither the right nor the duty to detain the prisoner any longer and would be acting unlawfully if he were to do so. Thus, in the present case, having regard to the terms of the only order for the appellant’s detention then in existence, the governor had no alternative but to release him on licence on 24^th September 2004.

In those circumstances we are unable to accept that following his release on that date the appellant was unlawfully at large in the sense in which that expression is used in section 49. As subsection (1) makes clear, section 49 is directed to the position of a person in respect of whom there is in force a current order for imprisonment (or the equivalent) but who for some reason is “absent from the place in which he is required in accordance with law to be detained.” Such a person is liable to be arrested without warrant and returned to that place. In the case of the appellant, there was between 24^th September and 26^th November 2004 no order authorising his detention; he could not have been lawfully arrested with a view to returning him to prison and the governor had no authority to detain him during that period. Mr. Coppel submitted that a constable who happened to be aware of the mistake made in drawing up the order could lawfully have arrested the appellant during that period relying on the judge’s pronouncement of sentence, but we are unable to accept that. In the absence of an order of the court authorising his arrest or detention any such action would in our view have been unlawful.

Moreover, it should not be overlooked that while he was at liberty under the terms of his licence the appellant was still serving his sentence, albeit in the community, and was subject to the restrictions imposed by that licence: see R v Governor of Pentonville Prison, Ex parte Lynn (Divisional Court, unreported 7^th December 1999). No doubt the position changed when the second order was made because from that point onwards there was authority in the form of a court order for his imprisonment which would justify his arrest under section 49(2) of the Prison Act. The appellant was arrested three days after that order had been made.

Mr. Weatherby submitted that until his licence had been formally revoked the appellant could not be unlawfully at large so that those three days counted against his sentence as much as the previous 62. In our view, however, that is not right. As soon as the court made an order directing his imprisonment the appellant once again became a person “liable to be detained” and was therefore unlawfully at large within the meaning of section 49. In effect, the order of the court superseded the licence and it made no difference that the appellant was unaware of the fact: see R (S) v Secretary of State for the Home Department [2003] EWCA Civ 426.

Mr. Coppel submitted that the amendment of the order had retrospective effect so that the position was then just the same as if it had always directed that the balance of the former sentence should be served before the sentence passed for the more recent offence. In other words, he submitted that it retrospectively altered the appellant’s position so as to render him a person liable to be detained throughout the period during which he was at liberty on licence. In support of that submission he drew our attention to two cases in which the court considered the operation of the ‘slip rule’, R & T Thew Ltd v Reeves [1982] Q.B. 172 and R v Michael [1976] Q.B. 414.

We think it fair to say that this issue was not argued as fully as it might have been, and indeed it was only after the conclusion of the argument that Mr. Coppel drew our attention to the two authorities to which we have referred. In our view neither of them greatly assists his case. Each of them was concerned with the correction of an order concerning costs and so did not raise issues comparable to those which arise in this case. It is true that in R & T Thew Ltd v Reeves Lord Denning said at page 191G that

“All the cases show that when a slip is corrected in this way, the correction dates back to the date when the document originally took effect . . . . .”

but he immediately qualified that by saying

“. . . . . . unless anything has happened in the meantime to make it inexpedient or unjust to do so . . . . .”

We accept that when an order of the court is amended it takes effect for most purposes in its amended form as from the date of the original order, but it does not follow that it has retrospective effect for all purposes. Whether it has retrospective effect in the sense in which that expression was used by Mr. Coppel in this case may depend on the nature and terms of the original order, the terms of the amendment and the purpose for which the question is being asked. In the present case the amended order itself is a new document, although it bears the date of the original order as well as the date on which the amendment was made. Otherwise, apart from correcting (or rather avoiding) the previous error, it corresponds precisely to the terms of the former order. It is on that basis, as we understand it, that it is said to speak for all purposes with effect from the date of the original order.

We are satisfied that the amendment in this case operates from the date of the original order so as to make the appellant a long-term prisoner with effect from that date for the purposes of calculating his parole and early release dates. In that sense the amendment may be said to be retrospective. However, we do not think that it has retrospective effect so as to render unlawful the governor’s action in releasing the appellant on licence and the appellant unlawfully at large within the meaning of s.49 during the period in which he was at liberty. No authority was cited to us that would support that conclusion and we are reluctant to accept, particularly in a matter affecting the liberty of the subject, that an amendment of the kind that was made in this case is to be treated as having retrospective effect so as to render unlawful an otherwise lawful act.

In the present case, however, we think that the answer to the problem is provided by section 49 itself. A person is unlawfully at large within the meaning of that section only if he is currently liable to be detained. That has to be determined by reference to the circumstances as they existed at the time in question. The appellant was not liable to be detained between 24^th September and 26^th November 2004 and that state of affairs cannot be altered by any subsequent amendment of the order.

In our view, therefore, the appellant was not unlawfully at large within the meaning of section 49 of the Prison Act during the period between his release and the date of the order which authorised his further detention. It follows that, in calculating the period for which he is liable to be detained, 62 of the 65 days he spent on licence do not fall to be disregarded under that section. The Divisional Court considered that to accept the appellant’s argument would give him an undeserved windfall and it is true that the view we have expressed does mean that almost the whole of the time the appellant spent at liberty will fall be treated as if it had been served in prison. On the other hand, the contrary view would give rise to an injustice to the appellant since no account whatever would be taken of the time spent on licence. In this context it has to be borne in mind that the mistake was not of the appellant’s making and in our view it would be unfortunate if he were to be penalised for the court’s mistake. Mr. Coppel submitted that the power given to Secretary of State in section 49(2) of the Prison Act to direct that time unlawfully at large should be taken into account is sufficient to prevent any risk of real injustice. However, although that power will have a valuable role to play in many cases, we do not think that it provides any assistance in determining the meaning of the expression “unlawfully at large”. For the reasons we have given we do not think that the correct interpretation of the Act leads to the conclusion for which Mr. Coppel contended.

In view of the conclusion we have reached on the primary ground of appeal it is unnecessary to consider the other grounds relied on by the appellant. We allow the appeal, quash the governor’s decision and remit the matter to him to recalculate the appellant’s release date in accordance with the terms of our judgment.