S, R (on the application of) v Secretary of State for the Home Department [2003] EWCA Civ 426

Case No C1/2002/2403

[2003] EWCA Civ 426

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(QUEEN’S BENCH DIVISION)

(Mr Justice Maurice Kay)

Venue Royal Courts of Justice

Date Wednesday 16 th April 2003

Strand,

London, WC2A 2LL

Before

LORD JUSTICE SIMON BROWN

(Vice-President of the Court of Appeal Civil Division)

LORD JUSTICE RIX

LORD JUSTICE SCOTT BAKER

Between

THE QUEENRespondent

THE SECRETARY OF STATEAppellant

FOR THE HOME DEPARTMENTAppellant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

S Kovats Esq (instructed by The Treasury Solicitor) for Appellant

N O’Brien Esq (instructed by Messrs Galbraith Branley) for Respondent

Judgment

As Approved by the Court

[1]This appeal raises three distinct questions concerning the proper calculation of a prisoner’s release date under s49 of the Prison Act 1952 (as amended) (“the 1952 Act”) following the revocation of his licence under s39(6) of the Criminal Justice Act 1991 (as amended) (“the 1991 Act”). Although in the particular circumstances of this case the questions are moot - Maurice Kay J below having on 1 November 2002 quashed the licence revocation itself (for reasons given in his reserved judgment on 5 November 2002, the date of the formal quashing order) - he nevertheless expressed his conclusions on two of the points now arising and, recognising their general importance, himself gave the Home Secretary permission to appeal. Laws LJ in this Court later gave the Home Secretary permission to appeal also against the judge’s order quashing the licence revocation but Mr Kovats has wisely chosen not to pursue that aspect of the matter.

[2]Before identifying the points at issue it is first convenient to sketch in the facts of the case to the limited extent now necessary.

[3]The respondent, S, is 52 years of age with a history of offending going back over 30 years. On 31 August 2001, in the magistrates’ court, he was convicted of four offences of harassment and one of breach of a restraining order for which he received concurrent sentences of four months’ imprisonment. Because of time spent remanded in custody that sentence resulted in his immediate release.

[4]On 31 October 2001, in the St Albans Crown Court, S was again convicted of breach of a restraining order. This time the sentence passed was one of 18 months’ imprisonment.

[5]On 19 June 2002 S was automatically released on licence at the half-way stage of his sentence, the licence period being due to expire on 3 November 2002. On 3 August 2002 he was admitted to St Ann’s Hospital in Tottenham. On 5 August he indicated a refusal to remain there voluntarily. An approved social worker made an application under s3 of the Mental Health Act (“the 1983 Act”), supported by the written recommendations of two appropriate medical practitioners, so that S became detained at St Ann’s for treatment under compulsory powers.

[6]The diagnosis in S’s case is that he has a bipolar affective disorder. This requires a regime of medication. Between his release from prison on 19 June and his admission to hospital on 3 August S had ceased complying with that medication regime. This had led to bizarre behaviour including an act of indecent exposure. By reason of the s3 order, the hospital managers had authority to detain S for a period of up to six months in the first instance - see s20 of the 1983 Act. In the event of his going absent without leave from the hospital he would commit no offence, but be subject to a power to take him into custody and return him to hospital pursuant to s18 of the 1983 Act.

[7]On 6 August the probation officer responsible for supervising S’s licence made a formal request for the licence to be revoked, a request endorsed by two senior probation officers the following day.

[8]It is convenient at this stage to set out s39 of the 1991 Act insofar as it applies to determinate sentence prisoners: “39(1) If recommended to do so by the Board in the case of a short-term or long-term … prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison. (2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable. (3) A person recalled to prison under sub-section (1) or (2) above-(a) may make representations in writing with respect to his recall; and

(b) on his return to prison shall be informed of the reasons for his recall and of his right to make representations. (4) The Secretary of State shall refer to the Board- (a) the case of a person recalled under sub-section (1) above who makes representations under sub-section (3) above; and (b) the case of a person recalled under sub-section (2) above. (5) Where on a reference under sub-section (4) above the Board- … (b) recommends in the case of [any short-term or long-term prisoner], his immediate release on licence under this section, the Secretary of State shall give effect to the … recommendation. (6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.” (a) may make representations in writing with respect to his recall; and (b) on his return to prison shall be informed of the reasons for his recall and of his right to make representations. (a) the case of a person recalled under sub-section (1) above who makes representations under sub-section (3) above; and (b) the case of a person recalled under sub-section (2) above. … (b) recommends in the case of [any short-term or long-term prisoner], his immediate release on licence under this section, the Secretary of State shall give effect to the … recommendation.

[9]Pursuant to the probation officer’s request, the Secretary of State revoked S’s licence on 8 August 2002 and recalled him to prison under s39(2) of the 1991 Act. His reasons for doing so were stated as follows:

“You have been recalled to prison because you have breached conditions 5 (vi) of your licence in the following ways: It has been reported by London Probation Service that you have failed to be of good behaviour, not commit any offence and not take action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community, in that, your pattern of behaviour in not co-operating with medical staff in taking your medication has led to serious concern about your unacceptable behaviour. It has been reported that you have continued to make numerous telephone calls of a threatening nature to your brother's place of employment... Furthermore, the Council solicitor has reported to your supervising officer that you were at the Town Hall on 31 July 2002 and 2 August 2002 and were very physically and verbally threatening to the staff there, including threats to kill. In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence.”

Those reasons, it will be noted, say nothing as to the s3 order then in force The Secretary of State, however, was well aware of it.

[10]On 9 August 2002, S, who knew nothing of the Secretary of State’s decision, absconded from St Ann’s Hospital. At about 3.00am the following morning, 10 August, he was arrested by police and taken to Pentonville. He had been at liberty for less than 24 hours. The Prison Service calculated his revised licence expiry date then to be 5 November 2002.

[11]S remained at Pentonville prison’s health care centre until 12 September when he was discharged to ordinary prison accommodation.

[12]On 30 September 2002, through solicitors, S made representations against his recall. These were duly referred by the Secretary of State to the Parole Board pursuant to s39(4) of the 1991 Act. On 9 October 2002 the Board confirmed the recall, ie they refused under s39(5) to recommend S’s release on licence.

[13]On 29 October 2002 Maurice Kay J granted permission to apply for judicial review, an application which, as stated, he heard on 1 November and granted, immediately freeing S. The Parole Board, although joined as second defendants, have played no part in these proceedings. They were not represented either below or on appeal, and no order has been made against them. The Barnet, Enfield and Haringey Mental Health NHS trust were served as an interested party, but no relief was sought against them and they too have played no part in the proceedings.

[14]The essential ground on which the judge below quashed the Secretary of State’s order revoking S’s licence was his failure first to have consulted the doctors (and in particular S’s responsible medical officer (“RMO”)) at St Ann’s Hospital (at the time the s39(2) order was made, of course, S had not absconded). The judge, however, went on to hold that, as soon as the Secretary of State learned that S had been arrested and was now in Pentonville he should at once have considered transferring him back to St Ann’s Hospital pursuant to s47 of the 1983 Act. Section 47 provides, so far as presently material:

“(1) If in the case of person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners - (a) that the said person is suffering from mental illness …; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment …; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as ‘a transfer direction’. … (3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.”

A hospital order supersedes an order under s3 - see s40(5) of the 1983 Act. (a) that the said person is suffering from mental illness …; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment …; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital as may be specified in the direction; and a direction under this section shall be known as ‘a transfer direction’. …

[15]Given that when he made his recall order on 8 August the Secretary of State knew S to be already detained under s3 of the 1983 Act, it may in addition be doubted whether he could then properly have regarded it as “expedient in the public interest to recall [S] before [a recommendation by the Parole Board] [was] practicable” - see s39(2) of the 1991 Act.

[16]In these circumstances it is hardly surprising that Mr Kovats abandoned his appeal against the quashing of the revocation order. Given, moreover, what we have learned since the initial hearing of this appeal on 21st March 2003, it would have been quite absurd to pursue that aspect of the appeal. Although the hearing on 21 March and, of course, the hearing below were conducted on the supposition that the recall a of licensed prisoner detained under s3 of the 1983 Act was not an infrequent event, it has since become clear that the present case is in that regard unique. That and much else was communicated to us by the Home Office through Mr Kovats following the first appeal hearing (after, indeed, our earlier draft judgment had been sent to counsel) initially in writing and then at a brief further hearing on 10 April. This appeal has not run a happy course; on the contrary, it has all been most unsatisfactory. All of the original draft judgment has had to be reconsidered and much of it rewritten.

[17]That, then, is the context within which the questions concerning S’s release date now arise for decision. Maurice Kay J dealt with these in the concluding two paragraphs of his judgment as follows:

“20. The application for judicial review raised a second issue. The original licence expiry date was to be 3rd November. After S had been returned to Pentonville, the Prison Service decided that this licence expiry date should be put back to 5th November on the ground that S had been unlawfully at large on 9th and 10th August [it now appears that the days when S was regarded as unlawfully at large were in fact 8th and 9th August]. The case for S is that until his arrest on 10th August, he did not know anything of the Secretary of State's decision to revoke his licence and recall him to prison, and that he therefore was not unlawfully at large, at least in relation to his sentence of imprisonment. 21. The case for the Secretary of State is that he was unlawfully at large from the moment when the Secretary of State signed the revocation and recall and that S's ignorance of it was irrelevant. That is a proposition that I am unable to accept. It would mean that S would have been unlawfully at large even when he was being detained in St Ann's pursuant to section 3. Any extension of his sentence by reference to a period ‘unlawfully at large’ would have to be based on statutory authority. On behalf of the Secretary of State it is suggested that this is to be found, perhaps by analogy, in section 50(4) of the Mental Health Act, but as that only applies where a transfer direction has been made under section 48 [the reference here should have been to s47], it can have no application to this case. There is no room for deprivation of liberty by analogy. The alternative basis is suggested to be section 49(2) of the Prison Act 1952, but I reject this on the basis that, in my judgment, it does not apply to a time when the person does not know that his licence has been revoked. If, contrary to my earlier holding, S had been lawfully recalled to prison, his licence expiry date would have remained 3rd November 2002.”

[18]Before finally coming to identify the specific questions arising, let me complete the legislative picture. First I must set out s50(4) of the 1983 Act, referred to by

the judge in paragraph 21 of his judgment below:

“For the purposes of s49(2) of the Prison Act 1952 (which provides for discounting from the sentences of certain prisoners periods while they are unlawfully at large) a patient who, having been transferred in pursuance of a transfer direction from any such institution as is referred to in that section, is at large in circumstances in which he is liable to be taken into custody under any provisions of this Act, shall be treated as unlawfully at large and absent from that institution.”

[19]That brings me to s49(2) of the 1952 Act:

“Where any person sentenced to imprisonment, or ordered to be detained in secure accommodation or in a young offenders institution [“YOI”], 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: Provided that: (a) this subsection shall not apply to any period during which any such person as aforesaid is detained in pursuance of the sentence or order or in pursuance of any other sentence of any court in the United Kingdom in a prison or remand centre, in secure accommodation or in an young offenders institution; …”

Provided that:

[20]The three questions now arising are these: i) Was S “at large” on 8 August 2002 when the Secretary of State revoked his licence? If so, then he was deemed by s39(6) of the 1991 Act to have been unlawfully at large. In this event, pursuant to s49(2) of the 1952 Act, no account was to be taken of his time at large in calculating his licence expiry date (the date when, following recall, he fell to be released). On 8 August 2002, as already indicated, S was still in St Ann’s Hospital, detained under s3 of the 1983 Act. ii) Was S “at large” at all prior to his arrest at 3.00am on 10 August given that he did not know until that time that the Secretary of State had in fact revoked his licence? The judge held in terms in paragraph 21 of his judgment that s49(2) “does not apply to a time when the person does not know that his licence has been revoked”. It is this holding above all which the Secretary of State is concerned to overturn on this appeal. iii) How should the period of absence be computed for the purposes of s49(2) of the 1952 Act? Should it be in hours or in days and, if in days, how should absence for part of a day be treated?

[21]The term “at large” in s39(6) of the 1991 Act is not defined. If “at large”, however, the recalled licensee is deemed by the subsection to be “unlawfully at large”. “Unlawfully at large” is the term used in s49(2) of the 1952 Act. Mr O’Brien submits that to be “at large” one must be at liberty. If someone is detained in hospital under compulsory powers pursuant to s3 (or, for that matter, s2) of the 1983 Act, they cannot reasonably be said to be at large. At first blush the argument seems irresistible. I am persuaded, however, that it is wrong.

[22]“Unlawfully at large”, submits Mr Kovats, is the converse of “in lawful custody”: these are two sides of the same coin. Section 13(2) of the 1952 Act deems to be in legal custody those who, for example, are confined in prison or are being transported to or from prison; it does not, however, and nor does any other provision, deem to be in legal custody those detained under s3. Section 49(2), the governing provision, postulates that everyone sentenced to imprisonment (or ordered to be detained in secure accommodation or a YOI) is either in lawful custody detained pursuant to his sentence or is unlawfully at large (unless detained pursuant to some other UK court sentence - see the proviso). Section 50(4) of the 1983 Act places those transferred from prison to hospital under s47 or s48 on the same footing as those still in prison: it ensures that anyone absconding from either will be treated in the same way. But s50(4) deals only with abscondees from hospital transferred “from any such institution as is referred to in [s49(2)]”, ie from prisons and the like, and it dictates that they be “treated as unlawfully at large and absent from that institution”. It says nothing about those detained in hospital otherwise than pursuant to a transfer direction (under s47 or s48) with the result that patients detained under other provisions of the 1983 Act, notably ss2 or 3, are to be regarded as at large irrespective of whether they are in fact in hospital or have absconded from hospital and are liable to be taken back into custody under s18.

[23]The argument is in my judgment correct. If a prisoner is sectioned during his release on licence, once his licence is revoked he is “liable to be detained in pursuance of his sentence” (see s39(6)) and, pending such detention, he is “absent from the place in which he is required in accordance with law to be detained” (see s49(2)). The proviso to s49(2) no more applies to him than it applies to someone detained in a foreign jail awaiting extradition back to the UK, whose status as a person unlawfully at large has long been established - see R -v- Governor of Brixton Prison ex parte Stafford

[1964] 2 QB 625

. It was not, indeed, until s47 of the 1991 Act was enacted that the sentencing judge was given the discretion to take such a person’s loss of liberty abroad into account. And even this power, of course, applies only in the case of unconvicted prisoners who fall to be sentenced following extradition. Convicted prisoners who, having absconded abroad, are later extradited back to the UK after detention in a foreign jail can still only look to the Secretary of State for the favourable exercise of his discretion under s49(2) (“unless the Secretary of State otherwise directs”).

[24]I take the opposite view to the judge below on this issue. Not merely is there nothing in s39 to support the view that the recalled prisoner must know of his licence revocation before becoming unlawfully at large, but reason and policy strongly suggest the contrary. As Mr Kovats points out, the judge’s ruling would produce the undesirable result that a prisoner, once he has breached his licence conditions, would have an incentive to disappear instead of contacting his supervisor to explain the position - an incentive, indeed, to ignore his licence conditions altogether and simply disappear anyway. There would ordinarily be no injustice in his being held to be unlawfully at large even if he does not know of his licence revocation. In the first place he knows the conditions of his licence and the consequences of breaching them, in particular the likelihood of his licence being revoked. Secondly, following the revocation of his licence, the prisoner is in fact enjoying a period at liberty when he ought properly to have been returned to custody and so cannot reasonably complain if the additional time is required to be served at the end of his licence period.

Issue 3 - How should the period of absence be computed?

[25]This was not an issue addressed below but it is obviously of some importance and, rather surprisingly, there is no authority upon it.

[26]It seems to me tolerably plain that time should be computed in days, not hours. The prison system works on the basis of days. The minimum sentence is one day and all sentences are calculated in whole days. Section 42 of the 1991 Act, the section dealing with disciplinary offences in prison, likewise deals only in days - additional days to be served. As for parts of days, the ordinary practice is that any part of the 24 hour day spent in custody is counted as a day’s detention. If, for example, a defendant is sentenced to one day’s imprisonment, he immediately goes free having been detained in court for the period of the hearing. Usually too, at the completion of his sentence, the prisoner is released early in the day, if only for the convenience of the Prison Service.

[27]How, then, do matters stand with regard to parts of days spent “unlawfully at large”? The initial hearing on 21 March was conducted on the wholly false basis that the Prison Service counts any part of a 24 hour day spent unlawfully at large as a full day’s absence. Thus it was, for example, that the appellant was said to have been regarded as absent for 10 August since he was not taken into custody until 3.00am that day. Now we learn, and plainly this is an altogether more satisfactory approach, that in fact the converse is the case: if the prisoner spends any part of the 24 hour day in custody that entire day is counted towards his sentence. Accordingly, if a prisoner absconds at 0005 on Monday and is arrested at 2355 the following day, he is treated for s49(2) purposes as not being absent at all although he will, of course, have been unlawfully at large for a total of two days less ten minutes. (That said, he is likely to face disciplinary proceedings for having absconded.)

[28]It must be noted, however, that this approach only applies when part of the day is spent in custody. When, therefore, part of a day is spent on licence and, upon its revocation, the remainder of the day is spent unlawfully at large ie the prisoner is not that day returned to lawful custody, he is counted as being absent for the whole day. It is for this reason, as we now learn, that the appellant was treated as absent from prison from 8 August, the day his licence was revoked, his detention in hospital that day not counting towards his prison sentence for the reasons given in paragraphs 22 and 23 above.

[29]On the particular facts of this case, it seems to me manifestly unfair to have counted 8 August as a day when the appellant was unlawfully at large and to extend his sentence accordingly. Originally we were told that the Secretary of State had recognised that and had therefore exercised his s49(2) discretion not to count it. Now we are told that no consideration at all was given to the exercise of the Secretary of State’s discretion in this case. For my part I have no doubt that the Secretary of State should have exercised his discretion not to count 8 August as a day of absence and on balance I think he should have taken that same decision with regard to 9 August, the first part of which was also spent compulsorily detained in hospital before the appellant absconded. This being, however, as already explained, a unique case and, for reasons I shall come to, likely to remain so, it is unnecessary to consider further the exercise of the discretion in s3 cases.

[30]A wider point, however, arises: how satisfactory is it that the Prison Service counts the day of licence revocation as a day’s absence unless by chance the prisoner is returned to custody by the end of that day? I say “by chance” because, we are told, the fact of the licence being revoked is notified not to the prisoner himself but only to the releasing prison, the Probation Service and the police. The prisoner himself is not notified as a matter of policy, lest it prove more difficult to recall him. It seems unlikely, therefore, that he will learn of his recall or be arrested and returned to prison the same day. In these circumstances it would seem to me preferable that the day of recall should ordinarily not be counted as a day of absence. True, no part of it will have been spent in lawful custody. But by definition only part of it will have been spent unlawfully at large. If the day following recall counts towards the sentence provided only that the prisoner is arrested before midnight, it is by no means self-evident that the day of recall itself should not be counted. The legislation, one must note, is silent on the point. Should this court therefore now rule that the practice which we are told has been adopted by the Prison Service over very many years has been unlawful with regard to the day of recall? For my part I am not prepared to go that far. I think that the Secretary of State has been entitled to apply s49(2) as he has. We are told, however, that, prompted by this very case, the Prison Service has just embarked on a high level review of questions of revocation and the computation of time and I for my part would encourage a more liberal approach to be taken to the day of revocation itself. The review should further consider what steps can be taken to accelerate the offender’s return to prison following the revocation of his licence. Often, we are told, this may be delayed for up to a week.

Conclusion

[31]In the result I would rule on all three issues in favour of the appellant Secretary of State. That said, the appeal as such fails: the only substantive order made by the judge below was to quash the licence revocation order and that remains quashed. No declarations are necessary: our judgments will speak for themselves.

Footnote

[32]The particular problem arising here because of the s3 order is unlikely to recur. The Prison Service, we are now told, is being instructed that when the revocation of a licence is requested and the offender is already sectioned and is detained in hospital under the 1983 Act, a s47 transfer direction is to be sought at the same time as the revocation request is being dealt with. This is to ensure that any revocation and transfer would operate simultaneously and so avoid the recall of an offender still subject to a s3 order. The Probation Service, we are told, are being similarly instructed in the matter. It is for this reason that I observed earlier that this unique case is likely to remain so.

[33]I agree.

[34]I also agree.

ORDER

No order upon this appeal except that the appellant shall pay the respondent's costs of the appeal, to be assessed on the detailed basis if not agreed, and there be public funding detailed assessment of the respondent's costs. (Order not part of approved judgment)