Practice and Procedure

R (On the application of S) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2003)

PUBLISHED April 16, 2003

If a prisoner was detained under s.3 Mental Health Act 1983 during his release on licence, once his licence was revoked, he was "unlawfully at large" for the purposes of s.49 Prison Act 1952 and s.39 Criminal Justice Act 1991.Appeal from the decision of Maurice Kay J who quashed the licence revocation of the respondent ('S'). S was 52 years of age with a history of offending going back over 30 years. In October 2001, S was convicted in the Crown Court of breach of a restraining order and sentenced to 18 months' imprisonment. He was released on licence in June 2002, half way through that sentence. In August 2002, S was admitted to hospital and detained under s.3 Mental Health Act 1983. The secretary of state revoked S's licence and recalled him to prison under s.39(2) Criminal Justice Act 1991. S absconded from the hospital, was arrested and returned to prison. The judge quashed the revocation of the licence but gave leave to appeal on the correct expiry date of the licence. The issue was whether the licence expiry date should have been put back under s.49(2) Prison Act 1952 on the ground that S had been "unlawfully at large" when he had absconded from the hospital and before he was arrested and returned to prison. S argued that he had not been unlawfully at large because until he was arrested he did not know that his licence had been revoked. The secretary of state argued that S's ignorance of the revocation and recall had been irrelevant.HELD: (1) If "at large" when his licence was revoked, S was deemed to have been "unlawfully at large" by s.39(6) of the 1991 Act. "Unlawfully at large" in s.49(2) of the 1952 Act was the converse of "in lawful custody". Someone detained in hospital under s.3 of the 1983 Act could be unlawfully at large. If a prisoner was sectioned during his release on licence, once his licence was revoked, he was liable to be detained in pursuance of his sentence and, pending such detention, he was absent for the place in which he was required in accordance with law to be detained. (2) The recalled prisoner did not have to know of his licence revocation before becoming unlawfully at large. (3) The period of absence should be calculated in whole days. The practice of the prison service was that if the prisoner spent any part of the 24 hour day in custody, that entire day was counted towards his sentence. Where part of a day was spent on licence and, upon its revocation, the rest of the day was spent unlawfully at large, he was counted as being absent for the whole day. It would be preferable that the day of recall should ordinarily not be counted as a day of absence, since the revocation was not notified to the prisoner himself, but the court would not rule that the practice of the prison service was unlawful. (4) The issue in this case was unlikely to recur because the prison service had been instructed that when the revocation of a licence was requested and the offender was already sectioned and detained in hospital under the 1983 Act, a transfer direction was to be sought under s.47 of the 1983 Act instead of recalling an offender still subject to an order under s.3 of the 1983 Act.Appeal dismissed.

[2003] EWCA Civ 426