No: 201001472/3932/C3 
Neutral Citation Number: [2010] EWCA Crim 2842
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 17 November 2010

B e f o r e:

LORD JUSTICE LAWS 

MR JUSTICE BLAKE 
 
THE RECORDER OF BRIGHTON AND HOVE
(His Honour Judge Richard Brown DL) 
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

CHRISTOPHER O'CONNOR 
 
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Computer Aided Transcript of the Stenograph Notes of  
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Miss C Stone appeared on behalf of the Applicant
Mr M Heywood appeared on behalf of the Crown
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J U D G M E N T
1.	MR JUSTICE BLAKE:  On 6 April 2009 in the Crown Court at Stafford this applicant pleaded guilty to escaping from lawful custody and was sentenced to five months' imprisonment to commence on the expiry of a sentence already being served.  He had previously, on 21 August 2006, pleaded guilty to a count of burglary and another count of having an article with a blade and was sentenced for those offences on 1 September 2006 to 29‑months' imprisonment on count 1 and 12‑months' imprisonment concurrent on count 2 with the judge directing that that term of imprisonment should commence on the expiry of a sentence already being served.  
2.	In due course, after the time for applying for leave to appeal against conviction had expired, it came to light that there had been an error by the prison service in calculating the release date on the sentence imposed in 2006 and that error gave rise to this application for an extension of time and leave to appeal against conviction.  Once the matter had been referred to this court another problem came to light about the 2006 sentence.  
3.	Dealing, first, with the application in respect of conviction.  It is common ground between the applicant and the Crown that it is a necessary pre‑condition for a conviction for the offence of escape from lawful custody that the prosecution prove that the prisoner was in lawful custody at the time of the escape: see R v Dhillon [2006] 1 Cr App R 15.  A prisoner who is held in custody through an error in calculation of the release date is not in lawful custody: see R v Governor of Brockhill Prison ex parte Evans [2001] 2 AC 19.
4.	For the avoidance of doubt, section 13 of the Prison Act 1952, whilst it deems custody to be lawful in certain circumstances, is directed at when a person is deemed to be in custody at all, for example, when he is outside the prison on some approved scheme, but is not directed to making lawful that which is not in accordance with the law.
5.	It is accordingly common ground that there was an error in the calculation of the release date.  Under section 33(3) of the Criminal Justice Act 1991 this applicant should have been released on licence at the three‑quarter point of his sentence, namely 8 July 2008.  He was accordingly not in lawful custody on 30 March 2009 when he absconded from HMP Sudbury.  As the custody was not lawful and the plea of guilty was entered into on a false basis in ignorance of the true release date, this gives rise to a question that can be entertained by this court as to whether the verdict is unsafe.  It is certainly not the first time that the complexities in the criminal sentencing regime have given rise to uncertainty in the administration of justice.  
6.	We grant the application for an extension of time in which to seek leave to appeal against conviction, we grant such leave, we quash the conviction and set it aside as unsafe for the reasons we have set out.
7.	In addition, the subsequent point concerned the form of the sentence that the learned judge imposed in 2006.  We have already explained that on 1 September the learned judge directed that the 29‑months' imprisonment should commence on the expiry of a sentence that was already being served.  It is common ground that he had no power to do that in the particular circumstances of this case when the appellant, as he now is, had been returned on a previous occasion to prison.  
8.	Section 265(1) of the Criminal Justice Act 2003 states:
"A court sentencing a person to a term of imprisonment may not order or direct that the term is to commence on the expiry of any other sentence of imprisonment from which he has been released early under this statute."
9.	Essentially those provisions applied through a sequence of arrangements under the statutory regime in respect of a sentence that was imposed on 2 September 2004.  Although there are powers available to the court under section 116 of the Powers of the Criminal Courts (Sentencing) Act 2000 to address the problem that arose in September 2006, even if those powers had been exercised, it appears that the maximum period for which this appellant could have been sentenced would have come to an end on 18 April 2008 and should not have affected the conclusion to which we have already come on the conviction appeal.
10.	In those circumstances, we propose to quash the sentence of 29‑months' imprisonment and reimpose it, 29‑months' imprisonment, to commence from the date the sentence was imposed, 1 September 2006.  To that extent we grant leave on the sentence appeal as well.  We allow the appeal to that extent.
11.	MISS STONE:  My Lord, I am grateful.  Could I make just two observations in relation to your Lordship's judgment?  Two small matters.  The first is, I think your Lordship said that the applicant ought to have been released on 8 July 2008, which is, in my respectful submission, correct, however, that would have been the point at which ‑‑ not the three‑quarter point of the original sentence but the halfway point in the consecutive sentence.  My Lord, as I said, I don't think anything turns on it but just as a point of clarity.
12.	The second is, my Lord, in my respectful submission, the maximum order under section 116 of the 2000 Act would have been somewhat shorter than was assessed by the Court of Appeal lawyer in preparing the case summary.  I apologise.  It is only when I went back to do the arithmetic that I came to this view.  The only point I would have on your Lordship's judgment in which your Lordship said that the sentence would come to an end on 18 April 2008.  I have not got the precise date to hand, I am afraid, but I have got the number of days.
13.	MR JUSTICE BLAKE:  I am not sure it makes any difference to the sentence appeal.  It may make a difference elsewhere.  We are not concerned with that and we proceeded on the basis of the summary writer's note.  I think it was the Court of Appeal who first drew attention to this problem.
14.	MISS STONE:  I would respectfully agree, my Lord.  I do apologise for that.  I am in your Lordship's hands.  I can provide the dates to your Lordship if that would assist, otherwise I am content to leave it. 
 
(pause while the bench conferred) 
15.	LORD JUSTICE LAWS:  Clearly it will not make any difference to the outcome of this appeal.  We will not take any further steps ourselves.  If it turns out to be a matter which is relevant in any other context, then that will, I suppose, be demonstrated in that context.
16.	MISS STONE:  Grateful, my Lord.