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

Mr Ellerton was mistakenly released on licence in the course of concurrent sentences which he was serving under two successive parole regimes. He was at large, purportedly on stringent licence conditions, from 4 April to 19 November 2008, when he was returned to prison having been recalled two weeks earlier. He was thus at large for 228 days.

It is common ground that the National Offender Management Service ("NOMS") had no power to release Mr Ellerton when they did. For reasons set out with clarity and care in the judgment of Geraldine Andrews QC, sitting as a deputy judge of the Administrative Court [2009] EWHC 2661 (Admin), the sentences imposed on Mr Ellerton for robberies committed before 5 April 2005 did not qualify for automatic release on licence and had been the subject of no recommendation by the Parole Board for early release, in part at least because the Home Office, not realising that the pre-2005 regime governed part of his total term, had failed to refer his case to the Parole Board.

Acting on the premise that Mr Ellerton had therefore been unlawfully at large for the 228 days of his mistaken release, NOMS recalculated his release date following his return to prison. The result was that he was not released until 14 August 2009. Within eleven days he had breached his licence conditions and been returned to prison, from which the Parole Board has since declined to direct his release. As the judge said at paragraph 15 of her judgment:

I would qualify this in one respect only. In my view it was grossly unfair. The question, however, is what, if anything, a court of law can now do about it. The deputy judge concluded she could do nothing, but she was sufficiently concerned at being driven to this conclusion to give Mr Ellerton permission to appeal to this court.

So far I have deliberately set out only the bare bones of the case. There is no need to set out the statutory provisions for sentencing and release on licence which brought about the situation I have described. These, together with their impact on Mr Ellerton's sentences, are set out in the judgment below at paragraphs 2 to 10.

I can turn directly to the legal issue they raise. Did the 228 days count towards Mr Ellerton's sentence? If they did, the immediate effect would have been to require Mr Ellerton's discharge not from prison, from which he had been re-released on licence on 14 August 2009, six days before his solicitors issued his judicial review claim, but from the conditions now attached to his liberty. It might also have entitled him to damages (which were claimed without specifying their basis). The one thing no judgment could now do was give him back his 228 days of freedom.

For Mr Ellerton, Mr Stephen Field submits that the state, having released Mr Ellerton on a purportedly lawful licence and, moreover, having restricted his liberty by purporting to impose conditions on it, cannot now be heard to say that its own act was a nullity. The claimant had not escaped but had been released by his custodian on what the custodian and the prisoner took to be a valid licence, and had returned when recalled. The claimant should be regarded in law as having served 228 days of his sentence while he was at large by leave of his custodian.

Mr Field also relies on Article 5.1 of the European Convention on Human Rights which forbids deprivation of liberty save by lawful detention after conviction by a competent court, or by detention for non-compliance with the lawful order of a court. Neither provision does more than restate the common law of England and Wales, and the effect of both depends on exactly the same arguments as the question whether Mr Ellerton was lawfully or unlawfully at large during 2008.

Before turning to the Secretary of State's answer to the claim, it is appropriate to observe (as the judge below observed) that it was open to the Secretary of State to use her power under section 49(2) of the Prison Act 1952 to direct that the time spent unlawfully at large should nevertheless count towards Mr Ellerton's composite sentence. The statutory provision is arguably tailor-made for a case such as this:

However, following the delivery on 28 October 2009 of the judgment of the deputy judge, the National Offender Management Service, exercising the Secretary of State's powers under section 49, considered whether to let the 228 days count towards his sentence. At this stage Mr Ellerton was back in prison for breach of conditions in his subsequent and valid licence. In a letter of 18 December 2009, NOMS refused to exercise the section 49(2) power.

In consequence, Mr Ellerton is still in prison and can expect to remain there until January 2011 unless re-released on licence or unless he succeeds in this appeal. It may still be possible, we do not know, for the Prison Ombudsman to recommend some recompense, but when approached in July 2009 the Ombudsman legitimately declined to take up the case because it was being litigated. Failing this, it is still no doubt possible to offer ex gratia compensation.

The remedy sought in the judicial review claim form issued on 20 August 2009 is primarily a declaration that the failure to release the claimant unconditionally on or after 9 May 2009 was unlawful, since he had by then served his full sentence, having not been unlawfully at large from April to November 2008. Correspondingly, a declaration was sought that the existence and conditions of the licence on which Mr Ellerton had been re-released on 14 August 2009 were unlawful, together with an order quashing it, with the intended effect of setting the claimant unconditionally at liberty. An unspecific claim for damages, which Mr Field was unable to describe fully to us but which presumably related to a period of false imprisonment, was added.

The Secretary of State comes before the court to submit, as his predecessor submitted below, that, notwithstanding that his department's error has taken away someone's liberty, there is nothing the prisoner can do to recover the time lost and nothing the state is prepared to do by way of amends. Neil Sheldon in his skeleton argument (we did not find it necessary to call on him for oral argument) submits on behalf of the Secretary of State that if, as is accepted, there was no power to release Mr Ellerton on licence at the point at which he was released, any licence purporting to authorise his release was a thing writ in water. Since, therefore, he was admittedly at large during the currency of a sentence of imprisonment and since no lawful authority existed for his being at large, Mr Ellerton was unlawfully at large. In the absence of any decision to let it count, section 49 of the Prison Act 1952 requires the time so spent to be left out of account in computing the prisoner's release date, and that has been done.

Both parties rely in some measure on the decision of this court in the R v Governor of Her Majesty's Prison Moorland [2006] EWCA Civ 2700. The case is considered in detail in the judgment of the deputy judge, paragraphs 19 to 28. The decision is authority for the proposition that it is the sentence pronounced by the court which is determinative of any period of loss of liberty, but that the custodial authority is bound to rely on the terms of any consequent court order, even if erroneously drawn, unless and until it is amended. Mr Lunn accordingly secured the benefit of 62 days spent at large because the court's order was drawn in terms purported to permit his release sooner than the sentence passed upon him actually permitted.

The difference between that case and this is that a court order is a judicial act, having validity for as long as it remains unrevoked and uncorrected, while a conditional licence for the release of a serving prisoner is an administrative act which is, on ordinary principles, not valid if issued without power. This exact distinction was addressed in paragraph 26 of this court's decision in Lunn:

The critical question raised by Mr Field's argument is whether such a licence is nevertheless regarded by the law as valid until revoked or amended or, in the now largely superseded public law classification, voidable but not void. Take the present case. If, the day after his provisional release on 4 April 2008, a police officer had asked Mr Ellerton what he was doing back at home, it is Mr Field's case that production of his parole licence would have been sufficient to ensure that he was not re-arrested.

The case, Mr Field submits, is analogous to the R v Dimond [2000] 1 Criminal Appeal Reports 21, where it was held that no offence had been committed by facilitating the flight outside the jurisdiction of an accused who, however, was held not to have been unlawfully at large. When the accused had walked out of court, said Lord Bingham, CJ, with the full acquiescence of all involved, it would be far fetched to suggest that he had been acting unlawfully. Mr Field seeks to derive from this a proposition of law that there is a subjective element in being unlawfully at large. I am afraid that this is not even arguable. All Lord Bingham was describing was a situation in which the accused had manifestly been lawfully at large. Mr Field's core case thus remains that being at large on licence is a matter of administration in which the sentencing court has no interest and no role, with the consequence that an administrative error resulting in release goes only to the quality of the administration and not to its legality.

If Mr Sheldon is right, the police officer whom I postulated, whether he or she realised it or not, would have been entitled in law to re-arrest Mr Ellerton. Had Mr Ellerton's lawyers then obtained permission to issue a writ of habeas corpus it would have been a complete return for the arresting officer to prove the sentences which Mr Ellerton was serving and no answer to the return to produce a licence which could be shown to have been issued without power; that is to say, issued at a time when release was not lawfully possible, absent a recommendation of the Parole Board.

I consider that the latter argument has to be right unless a distinction analogous to, but different form, that in Lunn can be drawn in the present context between a void and a voidable administrative act. I stress "in the present context" because I recognise that the case concerns individual liberty. But we have been pressed with no argument to this effect, and a glance at the textbooks suggests that it would be a highway to nowhere. By the time the courts had settled on the broad proposition that the ordinary consequence of an ultra vires act is "to render the instrument incapable of ever having had any legal effect", per Lord Diplock in Hoffman-La Roche v Secretary of State for Trade and Industry [1975] AC 295, an impenetrable jungle of case law had grown up seeking to distinguish the void from the voidable and the prospectively voidable from the void ab initio: see Wade & Forsyth Administrative Law, 5th edition page 250 to 255, Craig Administrative Law, 5th edition, page 692 to 713, De Smith Judicial Review, 6th edition, paragraph 4-056 ("terminological and conceptual problems of excruciating complexity") to 4-083.

Today there is, in my judgment, no visible means of escape from the conclusion that, having been released on a licence for which there was no lawful authority, Mr Ellerton was unlawfully at large.

I return to the deplorable fact, as I consider it to be, that nothing whatever appears to have been done until after the judgment of the Administrative Court to right the wrong done to Mr Ellerton by using the power in section 49(2) of the Prison Act. He has been left to pay the price of a departmental error in the form of seven extra months in custody.

It may be that even at this distance of time the Prisons Ombudsman can investigate the case and make a recommendation. Meanwhile, there is the decision of 18 December 2009, taken long after it ought to have been taken. Among other things, it gives as a reason for refusing to exercise the section 49(2) power the fact that Mr Ellerton while unlawfully at large failed to comply with the conditions of a licence which, it was the Secretary of State's own case, was invalid. The letter does at least end by apologising; but Mr Field tells us that, when asked to support a challenge by way of judicial review to the decision, the Legal Services Commission put the claimant to an election between doing that and continuing with this appeal. No doubt, on advice, he chose the latter.

I would nevertheless think it perfectly proper for the Secretary of State to take a fresh decision under section 49(2) in the light of the judgment of this court. Without deciding any issue of law, for we have heard no argument on it, I venture to think that the purpose of section 49(2) may be simply to lay down a rule of computation and that the dispensing power it contains is directed not to the merits of the prisoner, which are unlikely ever to be very great, but simply to whose fault it was that he found himself unlawfully at large. That, however, is a question for another day.