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

Factual and Procedural Background

The case concerns the mistaken release on licence of the Appellant while serving concurrent sentences under two successive parole regimes. The Appellant was at large, subject to licence conditions, from 4 April to 19 November 2008, a total of 228 days, before being recalled to prison. It was undisputed that the National Offender Management Service ("NOMS") lacked the power to release the Appellant at that time, as part of his sentences did not qualify for automatic release on licence due to the pre-2005 regime. The error arose partly because the Home Office failed to refer the Appellant's case to the Parole Board. Following his return to custody, NOMS recalculated his release date, resulting in a later release in August 2009, after which the Appellant breached licence conditions and was returned to prison. The Appellant sought judicial review challenging the lawfulness of his continued imprisonment and the failure to count the 228 days at large towards his sentence. Permission to appeal was granted after a deputy judge concluded no relief was possible despite concerns about fairness.

Legal Issues Presented

1. Whether the 228 days during which the Appellant was mistakenly released on licence should count towards the service of his sentence.
2. Whether a licence issued without lawful authority can be regarded as valid until revoked or amended, or whether it is void ab initio.
3. The scope and application of section 49(2) of the Prison Act 1952 in allowing the Secretary of State to direct that time unlawfully spent at large be counted towards the sentence.
4. The legal consequences of administrative error in releasing a prisoner unlawfully and the availability of remedies including declarations and damages.

Arguments of the Parties

Appellant's Arguments

• The state, having released the Appellant on a purportedly lawful licence with conditions imposed, cannot now treat that release as a nullity.
• The Appellant did not escape but was released by his custodian under what appeared to be a valid licence and returned when recalled.
• The Appellant should be legally regarded as having served the 228 days of his sentence while at large on licence.
• Reliance on Article 5.1 of the European Convention on Human Rights, which prohibits deprivation of liberty except by lawful detention, supporting the argument that the Appellant was lawfully at large.
• Analogy to the case of R v Dimond, suggesting a subjective element in lawful detention and that the administrative act of releasing on licence should be treated as valid until revoked.

Respondent's Arguments

• The licence issued without power was invalid and of no legal effect, rendering the Appellant unlawfully at large during the 228 days.
• Section 49 of the Prison Act 1952 mandates that time spent unlawfully at large be excluded from sentence calculation unless the Secretary of State directs otherwise.
• The administrative error, although regrettable, does not create legal validity for the licence or entitlement to count the time at large towards the sentence.
• The Appellant's breach of licence conditions while unlawfully at large further justified refusal to count the 228 days towards the sentence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the nature of the licence issued to the Appellant, concluding that it was an administrative act lacking lawful authority and thus void ab initio. Unlike a court order, which retains validity until amended or revoked, an administrative licence issued without power cannot confer lawful liberty. The court rejected the Appellant's argument that the licence should be treated as valid until revoked, emphasizing established principles that ultra vires acts have no legal effect. The court further considered the statutory framework under section 49(2) of the Prison Act 1952, which allows the Secretary of State discretion to count time unlawfully spent at large towards a sentence, but noted that this discretion had been exercised against the Appellant after the deputy judge's ruling. The court acknowledged the unfairness of the situation but found no legal basis to override the statutory and common law principles governing lawful detention and sentence calculation. The court also addressed and distinguished relevant precedents, affirming that the administrative error did not create lawful release and that the Appellant remained unlawfully at large during the 228 days.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct consequence is that the Appellant remains lawfully detained until the recalculated release date, with the 228 days at large excluded from sentence calculation. The court acknowledged the unfairness of the situation caused by administrative error but held that no legal remedy was available to restore the lost liberty or alter the sentence computation absent the Secretary of State's intervention under section 49(2). No new precedent was established; the decision reinforces the principle that unlawful administrative acts cannot confer lawful liberty and that remedies for such errors lie within statutory discretion or alternative compensation mechanisms rather than judicial relief.