Penology and criminology – Imprisonment – Release on licence

R (on the application of Ellerton) v Secretary of State for Justice: CA (Civ Div) (Lords Justices Sedley, Richards, Goldring): 7 July 2010

The appellant (E) appealed against the dismissal of his claim for judicial review ([2009] EWHC 2661 (Admin)) of the respondent secretary of state’s ­decision not to count time that he had spent on licence towards his sentence of imprisonment.

E had been mistakenly released on licence in the course of serving concurrent sentences for offences of robbery and attempted robbery. He was returned to prison having spent 228 days on licence once the National Offender Management Service (NOMS) realised that there had been no power to release him on licence. As a result of that administrative error, E had effectively been unlawfully at large for 228 days. Consequently, NOMS determined that the 228 days could not count towards the time spent on his custodial term. The secretary of state subsequently refused to exercise his powers under section 49(2) of the Prison Act 1952 to count the time E had spent unlawfully at large towards his custodial sentence. E sought a declaration that he had not been unlawfully at large for the 228 days spent on licence. The judge determined that he had been unlawfully at large so as to preclude that time from counting towards his custodial term. E submitted that the secretary of state should not be allowed to say that his own act in releasing E on purported lawful licence was a nullity and that, accordingly, he should be regarded as having been on lawful licence. The secretary of state contended that, notwithstanding his department’s error in releasing E on licence, there was nothing E or the state could do by way of amends; the authority by which E was released on licence was writ on water, there being no lawful authority to release him.

Held: (1) The ordinary consequence of an ultra vires act was to render the instrument incapable of ever having had legal effect, F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 HL applied. There was, thus, no viable escape from the conclusion that when E was released on a licence, for which there was no lawful authority, he had to be taken as being unlawfully at large, despite the unfairness of the situation.

(2) (Obiter) The prison ombudsman might yet be minded to investigate E’s situation.

(3) (Obiter) It could well be proper for the secretary of state to make a further decision under section 49(2), which laid down a rule of computation directed not necessarily to the merits of a prisoner but simply to whose fault it was that the prisoner might have found himself unlawfully at large.

Appeal dismissed.

Stephen Field, Joanne Cecil (instructed by Mackesys) for the appellant; Neil Sheldon (instructed by Treasury Solicitor) for the respondent.