2023 Jan 18
The claimant was recalled to prison having failed to comply with the conditions of his release on licence. He remained unlawfully at large for a number of years until he was eventually returned to prison to serve the remainder of his sentence. On his return to prison, he was informed that the original warrant for his imprisonment had ben destroyed. The claimant brought a claim for judicial review, inter alia, challenging the lawfulness of his detention on the ground that in the absence of a warrant of imprisonment there was no lawful authority for his detention. The Divisional court dismissed the claim, holding that the basis for the lawful detention was the sentence pronounced by the Crown Court, and although the issuing of a warrant for imprisonment served a number of purposes, the existence of a warrant was not a precondition of the lawfulness of the detention and that the decision in Demer, which related to different circumstances, did not dictate a different conclusion.
On the appeal—
Held, appeal dismissed. It was not the case that the existence of a warrant for imprisonment was a precondition of lawful detention pursuant to the order of a court of competent jurisdiction. Although the issuing of a warrant for imprisonment was, of course, routine, was convenient for a number of reasons and from the gaoler’s point of view might in practical terms be essential, none of that meant that the lawful sentence of a court could not be carried into effect unless a specific document was in existence. In particular the fact that a gaoler, who had been sued for false imprisonment, to produce a warrant as evidence of a lawful justification for the detention of a prisoner had to be distinguished from the lawfulness of the detention itself. It was implicit in the judgment of the Divisional Court, and inevitable on the evidence before it, that a warrant for imprisonment had been initially issued by the Crown Court. It was not suggested that the claimant might have been taken from the court to prison, and received and processed into the prison as a convicted and sentenced prisoner, without the usual warrant being in existence. It followed that the warrant had to have been lost or destroyed at some later date; and the date and circumstances of the loss or destruction did not affect the issues in the claimant’s case. The claimant’s detention had at all material times been justified by the sentence of the Crown Court and the application of the relevant statutory provisions governing release on licence, revocation of licence and recall. His detention had not become unlawful because at some point during the many years when he was unlawfully at large the original warrant had been lost or destroyed (paras 43, 46, 51–55, 57, 58).
Edward Fitzgerald KC and Philip Rule (instructed by Instalaw Solicitors Ltd, Newcastle-under-Lyme) for the claimant.
Hugh Flanagan (instructed by Treasury Solicitor) for the defendants.