Prisoner released in error not unlawfully at large
27/06/2006
The Times has today reported the case of R (Lunn) v Governor of HMP Moorland [2006] EWCA Civ 700 which clarifies that a Governor must rely on an 'Order for Imprisonment' rather than the sentence of the court. This appeal also overturned a ruling that Mr Lunn had been "unlawfully at large" within the meaning of section 49 of the Prison Act during the period between his release and the date of the Order which authorised his further detention; he will now be released 62 days earlier. (The Times 27/06/2006)
R (Lunn) v Governor of HMP Moorland [2006] EWCA Civ 700
The case involved a prisoner who was released prematurely from his sentence because of an error in the 'Order for Imprisonment' (the warrant prepared by the sentencing court providing authority for the Governor to detain). The judge had passed two sentences to be served consecutively, but the official who prepared the Order recorded them to be served concurrently. The mistake was spotted and the Order amended after Mr Lunn had spent 65 days at large on licence. The Governor treated the 65 days as 'unlawfully at large', pursuant to Section 49(2), Prison Act 1952, and consequently disallowed the days in calculating release dates. Mr Lunn judicially reviewed on the basis that he could not have been unlawfully at large because the Governor had no option but to release him, he had been released on licence and had complied with its onerous conditions, and any ambiguity in the provisions should be resolved in favour of liberty. The Divisional Court supported the Governor, holding that the original decision to release was ultra vires, and therefore the licence was of no effect.
"Extract from The Times Law Report:
"The case raised, apparently for the first time, the question whether the lawfulness of a person's continued detention was to be determined by reference to the terms of the order of the court directing his imprisonment or by the sentence pronounced by the judge.
It was an important principle of the administration of justice that a court order was valid and binding until it was varied or set aside"
"
Mr Lunn successfully argued on appeal that the Governor had acted lawfully in releasing Mr Lunn because he was required to act on the Order, and that Mr Lunn had therefore been lawfully serving his sentence on licence up until the Order was amended 62 days later. As a result, Mr Lunn will now be released 62 days earlier.
The case is important because it clarifies that the Governor has to act on the Order rather than the sentence of the court, and that the subsequent amendment of an Order does not act retrospectively to convert a period on licence to one of 'unlawfully at large'.
A further unusual twist in this case was that the judge had made another error in calculating the sentence itself, which had previously been rectified in the Court of Appeal - Criminal Division.
> download judgment (judgment 25/05/2006)
Pete Weatherby represented Mr Lunn in the Divisional Court and in both Divisions of the Court of Appeal, instructed by Messrs Mills Kemp and Brown .
