Lunn, R (on the application of) v HM Prison Moorland [2005] EWHC 2558 (Admin)

Case No CO/8130/2005[2005] EWHC 2558 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 26 October 2005
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
MR JUSTICE PENRY-DAVEY
Between
THE QUEEN ON THE APPLICATION OF JONATHAN LUNNClaimant-v-
Between
THE GOVERNOR OF HMP MOORLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR WEATHERBY appeared for CLAIMANTMR COPPELL appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]This is an application for judicial review which arises in somewhat unusual circumstances. On 7th July 2003 in the Crown Court at Sheffield the claimant was sentenced to two and a half years' imprisonment for an offence of burglary. The judge made it clear that that sentence was to begin after he had served the balance of an earlier sentence for which he was liable, having been in breach of his licence provisions subsequent to release in relation to that earlier offence.[2]Accordingly, the judge's sentence was that the claimant should serve, firstly, 813 days in respect of the previous matter followed by two and a half years' imprisonment for the current offence. I add in parenthesis that the calculation of 813 days was erroneous; the correct figure was 731 days and this was subsequently put right in the Court of Appeal Criminal Division on 28th July 2005. Either way, the consecutive sentences made the claimant a long-term prisoner within the meaning of Section 33 of the Criminal Justice Act 1991. That distinguishes between long-term prisoners, meaning persons serving a sentence of imprisonment for a term of 4 years or more, and short-term prisoners, being persons serving a sentence of imprisonment for a term of less than four years.[3]The practical consequence is that a short-term prisoner must be released in the case of a sentence of 12 months or more on licence after serving half of his sentence by Section 33(1)(b). The corresponding provision for a long- term prisoner in section 33(2) is that as soon as a long- term-prisoner has served two thirds of his sentence it shall be the duty of the Secretary of State to release him on licence. There are of course provisions in relation to parole which may permit of an earlier release.[4]Accordingly, the sentence passed by the judge was clearly a long-term sentence based on two consecutive elements. When a member of the court staff in Sheffield completed the order for imprisonment he erroneously did so on the basis that the two sentences were to run concurrently. On that erroneous basis, the claimant would have been a short-term prisoner and release would have arisen under section 33(1)(b). Acting on the faith of that erroneous document, the governor of the prison at Doncaster released the claimant on the 24th September 2004. The release was on licence, the licence beginning with the words:
"Under the provisions of section 33(1)(b) of the Criminal Justice Act 1991 you are being released on licence."
[5]Some time after that the documentary error was realised and on the 26th November 2004 Sheffield Crown Court issued an amended order for imprisonment making it clear that the two elements of the sentence were to run consecutively with the consequence that the document was brought into line with the judge's sentence and indicated that the claimant was a long- term prisoner. On the 29th November 2004 he was returned to prison.[6]That is where he remains. At some stage in the not too distant future he will become eligible for consideration for parole. The question is precisely at what point that will arise. That in turn depends on how the period between the 24th September 2004 and 29th November 2004, a period of 65 days, falls to be treated. On behalf of the claimant Mr Weatherby makes what is essentially a simple submission. Under section 49(2) of the Prison Act 1952 (as amended) it is provided:
"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."
[7]Mr Weatherby submits that during the 65 days the claimant was not "unlawfully at large" within the meaning of section 49(2) because,(1) the governor acted in accordance with the order when he released the claimant and had no alternative but to do so and,(2) for the whole of the 65 days the claimant was on licence and accordingly serving his sentence, albeit in the community. He is able to point to authority for the proposition that during a period of licence a prisoner is serving part of his sentence, albeit not in prison, see R v Governor of Her Majesty's Prison Pentonville, ex parte Lynn Unreported 7th December 1999, a decision of this court, and The Queen on the application of Akhtar v Governor of her Majesty's Prison Newhall and the Secretary of State for the Home Department, [2001] EWHC Admin 175. If this approach contended for by Mr Weatherby is correct, the claimant would not have been unlawfully at large during the 65 days and they would effectively count towards the qualifying period for his eventual release or eventual consideration for parole.[8]I do not accept these submissions, notwithstanding the attractive way in which they are advanced. The authorities to which Mr Weatherby refers do not deal with a situation where the period on licence was the result of a mistake and was contrary to the provisions of the statutory scheme for early release. The fact is that the sentences imposed on the claimant were consecutive and not concurrent. Statute prescribes the point at which a long-term prisoner, as the claimant undoubtedly is, becomes eligible for consideration for early release or final release.[9]It is not open to a prisoner to take advantage of an error and demand that a period which he spent on licence, but which the statute says he ought to have spent in prison, should count towards the calculation of his earliest release date. It would be quite wrong, in my judgment, for this court to undermine the statutory scheme simply because a mistake was made, that would be to confer an undeserved and undesirable windfall on the claimant. An undetected error of a court official does not enable him to invoke a special regime for himself.[10]The whole of Mr Weatherby's argument depends on the period of licence being equated with the same period in custody in the circumstances of this case. In my judgment, that simply cannot apply where the licence was one for which no vires existed at the time which it was sought to be imposed. As I have related, the governor purported to act under the provisions of section 33(1)(b); those provisions apply to a short-term prisoner. Because of the sentence of the judge the claimant was not and is not a short-term prisoner.[11]Accordingly, I reject the argument based on the validity of the licence for the period of the 65 days. I appreciate what Mr Weatherby says about the liability of the governor to act on the terms of an order for imprisonment if he is to avoid possible actions for damages. However, what is the correct analysis for one purpose in this situation may not be the correct analysis for another. I reached this conclusion on the basis of what seem to me to be first principles. The position is not the same as it was in The Queen on the Application of S v Secretary of State for the Home Department [2003] EWCA Civ 426 or The Queen on the Application of Michael Lindo v The Secretary of State for the Home Department [2004] EWCA Civ 491, which were not mistake cases.[12]However, it seems to me that whilst these authorities are not directly in point, the approach adopted in them is consistent with the approach that I have taken to the exceptional facts of this particular case. I therefore reject Mr Weatherby's primary submission.[13]His fall back submission is that if he is wrong in his legal analysis about the period on licence, nevertheless the claimant ought to be given the benefit of the 65 days for the purpose for which he seeks it on the basis of legitimate examination or general fairness and as illustrated in the case of Ex Parte Lynn, to which I have referred. That seems to me to have been a totally different situation on different facts.[14]I for my part am not disposed to intervene on the second basis upon which Mr Weatherby invites intervention. In my judgment, the appropriate course is for the sentence as pronounced by the judge to be served and for release to be considered under the terms of the Criminal Justice Act in the normal course. I would therefore dismiss this application.[15]MR PENRY-DAVEY: I agree.

LORD JUSTICE MAURICE KAY: Thank you both very much.

[17]MR WEATHERBY: Can I seek leave to appeal on this matter? As my Lord has indicated, there is no direct authority on this point; it is a complicated matter.

LORD JUSTICE MAURICE KAY: There is now.

[19]MR WEATHERBY: Of course there is now, no impertinence meant but hitherto there is no authority on this point and I seek leave to take the point further.

LORD JUSTICE MAURICE KAY: It would not help your client, would it, because it would not come into the Court of Appeal even if you were to get it there, to win hands down, and time would be against you.

[21]MR WEATHERBY: It would be very difficult to do that within the 30 days or so. However, it is a point of some general application but further than that it is also licence expiry dates and expiry dates to which it relates.

LORD JUSTICE MAURICE KAY: I cannot have very general application because fortunately the court clerks do not literally promulgate mistaken orders. Mr Coppell, do you want to say anything?

[23]MR COPPELL: It is not a general application. As we have seen from the authorities, this is the first mistake in the case so we say there is no ...

LORD JUSTICE MAURICE KAY: We refuse permission and we do not think there is a real prospect of success and there is certainly no other compelling reason to grant leave.

[25]MR WEATHERBY: Can I simply ask for the detailed assessment of costs?

LORD JUSTICE MAURICE KAY: Of course. Thank you both very much.