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

Factual and Procedural Background

The case concerns a long-term prisoner serving concurrent sentences for offences committed both before and after 5th April 2005. The prisoner was released on licence after serving half his custodial sentence under the mistaken belief that the provisions of the Criminal Justice Act 2003 applied to all sentences. The prisoner was convicted on 10th February 2006 of two robberies committed before 5th April 2005 and one attempted robbery committed after that date. On 24th March 2006, he received concurrent sentences totaling four years and 130 days, with credit for time spent on remand. The sentencing order accurately reflecting the Judge’s sentence was drawn up and remained in force.

The significance of 5th April 2005 lies in the application of different legislative regimes: offences before that date fall under the Criminal Justice Act 1991 (CJA 1991), and those after under the Criminal Justice Act 2003 (CJA 2003). The prisoner qualified as a long-term prisoner under both Acts due to the length of sentence.

The licence provisions differ between the two Acts. Under the CJA 1991, release on licence is discretionary after half the sentence is served and mandatory after two-thirds, with licence conditions lasting until three-quarters of the sentence. Under the CJA 2003, release on licence is mandatory after half the sentence, with licence conditions continuing until the full sentence expiry date.

The prisoner’s concurrent sentences under different regimes created a conflict in release eligibility. Parliament resolved this by providing that release cannot occur unless the prisoner qualifies under all relevant sentences.

At the parole eligibility date (PED) on 5th April 2008, the prisoner was not eligible for release under the CJA 1991 regime because the Parole Board had not recommended release. However, due to an administrative error, all sentences were treated as subject to the CJA 2003 regime, resulting in the prisoner’s erroneous release on licence on 4th April 2008. The error was discovered later, the licence was revoked on 5th November 2008, and the prisoner returned to custody on 19th November 2008, after spending 228 days on licence.

The legal issue arose as to whether the 228 days spent on licence should count towards the prisoner’s custodial sentence. The Secretary of State treated the prisoner as "unlawfully at large" during that period, thus not counting the time on licence and requiring continued detention until 14th August 2009, when release on licence was mandatory.

Legal Issues Presented

1. Whether a prisoner released on licence due to an administrative error, when not statutorily entitled to such release, is "unlawfully at large" within the meaning of section 49 of the Prison Act 1952.
2. Whether the time spent on licence under such mistaken release should count towards the prisoner’s custodial sentence.
3. The interpretation and application of the statutory provisions governing release on licence under the Criminal Justice Act 1991 and 2003, particularly in cases involving concurrent sentences subject to different regimes.
4. The scope of the Secretary of State’s discretion under section 49(2) of the Prison Act 1952 to direct that time spent unlawfully at large be counted towards the sentence.

Arguments of the Parties

Appellant's Arguments

• The prisoner was not "unlawfully at large" during the 228 days on licence since his release was pursuant to a validly signed licence document.
• It would be absurd and unfair to treat a prisoner as unlawfully at large when the Secretary of State had directed release on licence.
• The provisions of the Prison Act 1952 should be interpreted to impose the consequences of administrative errors on the State rather than the prisoner.
• Analogous to the Court of Appeal’s decision in R (Lunn) v Governor of HMP Moorland, where a prisoner was held not unlawfully at large during a period of mistaken release based on a court order subsequently corrected.
• A police constable presented with both the court order and the licence would not arrest the prisoner, indicating lawful release.
• The licence, although issued in error, was valid and binding until revoked, and thus determined the lawfulness of the prisoner’s absence from custody.

Respondent's Arguments

• The operative court order directing imprisonment remained in force and accurately reflected the sentence, thus the prisoner had no power to be released on licence on 4th April 2008.
• The licence issued in error could not supersede the court order and was ineffective to legitimize the prisoner’s absence from custody.
• Following the principles in Lunn, the court order governs lawfulness, not the mistaken licence.
• The prisoner was "unlawfully at large" from the moment of mistaken release until return to custody, regardless of the existence of the licence.
• The Secretary of State correctly treated the prisoner as unlawfully at large, postponing release until the statutory conditions were fulfilled.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (on the application of Lunn) v The Governor of HMP Moorland [2006] EWCA Civ 700	Interpretation of "unlawfully at large" under s.49 Prison Act 1952; validity and effect of court orders and licences in determining lawful detention and release.	The Court applied Lunn to establish that a court order accurately reflecting the sentence governs lawfulness of detention; a licence issued erroneously cannot supersede such an order. The prisoner was therefore "unlawfully at large" despite the existence of a licence issued in error.

Court's Reasoning and Analysis

The court analysed the statutory framework governing release on licence under the Criminal Justice Acts 1991 and 2003, noting the different regimes and the statutory mechanism resolving conflicts for prisoners serving concurrent sentences. It emphasized that the operative court order directing imprisonment was valid and binding, accurately reflecting the sentences passed.

The court considered the meaning of "unlawfully at large" under section 49 of the Prison Act 1952, concluding that it is not defined in the statute but must be understood in the context of lawful detention. The court found that a prisoner released on licence without fulfilling the statutory preconditions is "unlawfully at large," even if the release was pursuant to a licence document signed by the governor.

The court relied heavily on the Court of Appeal’s decision in Lunn, which held that a valid court order governs lawful detention and that a licence issued erroneously cannot override that order. The prisoner’s absence from prison was therefore unlawful despite his ignorance and the existence of licence conditions.

The court rejected the appellant’s argument that the licence should be treated as valid until revoked and that the prisoner was lawfully at large during the 228 days. It held that the licence issued in error could not supersede the operative court order, which mandated imprisonment.

The court acknowledged the harshness and unfairness of this result, recognizing that the prisoner was penalized for an administrative error not of his making. It noted that the Secretary of State had discretion under section 49(2) of the Prison Act to direct that the time unlawfully at large be counted towards the sentence, but no such direction had been made.

The court also considered procedural issues regarding the timeliness of the judicial review claim and exercised discretion to allow the claim to proceed despite arguments of delay.

Holding and Implications

DISMISSED: The court dismissed the claim for judicial review on the merits.

The court held that the prisoner was "unlawfully at large" during the 228 days on licence issued in error, and consequently, that time cannot count towards his custodial sentence absent a direction to the contrary by the Secretary of State under section 49(2) of the Prison Act 1952. The operative court order prevailed over the erroneous licence, requiring the prisoner’s detention until lawful release conditions were met.

The decision results in the prisoner serving additional time in custody beyond the period spent on licence. The court expressed regret at the unfairness but emphasized that the legal principles and precedent mandated this outcome. No new precedent was established; the ruling applies existing law as articulated in Lunn.

The court suggested that the Secretary of State’s discretion under s.49(2) could be exercised to mitigate the harshness of this outcome, but noted that no such exercise occurred at the relevant time. It further recommended that any late application for such a direction be considered sympathetically, though practical benefit may be limited.