AC-2025-LON-001576 - [2025] EWHC 2592 (Admin)

Release on Licence.

The Claimant’s case is that not only was no licence given to the Claimant, but (a) no release ever occurred, relying here on the Defendant’s witness statement (“.. the Claimant was not automatically released at his CRD. Instead, .. he was moved from HMP Swaleside to HMP Wandsworth on 14 September 2022…);” (b) no licence was ever signed for the Defendant; (c) no date of licence exists; and (d) the Claimant was nottold he would be on licence in the UK if not released in the UK. It is said that it would be a fiction to invent (i) a non-existent UK release, plus (ii) a fictional licence document by operation of law despite no such document having been signed into effect, and (iii) its conditions. In short, no licence exists, and there were no conditions to be breached.

The Defendant responds that, first, this is not one of the Claimant’s Grounds and was raised for the first time in his Skeleton argument (dated 2 September 2025). Mr Laverack points to paragraph 55 of the Claimant’s Statement of Facts and Grounds, where in the context the challenge to the refusal to revoke the recall (Ground 1) it was said “First, because it is no part of the Claimant’s case that he was not “on licence” as a matter of law at the relevant time …” Consistently with paragraph 55, this point was not taken when Ground 4 (the challenge to the initial recall decision) was outlined in the Grounds (paragraphs 66 – 70). Mr Laverack suggested that not only had there been no permission granted to take this point, but the Defendant might have wished to file further evidence on the issue.

I did not understand Mr Rule KC to dispute that the point had not been set out in the Claimant’s Grounds, but he pointed out that there had been no objection taken to the argument in the Defendant’s Skeleton and he did not accept that any further evidence would have been of legitimate assistance.

It seems to me that the Defendant’s objection is justified: this issue was not raised by the Grounds and there has been no application to amend them. A formal application would have enabled the Defendant to consider whether further evidence was needed. I am not persuaded that evidence on the normal process(es) of release or their formalities, and recordkeeping in this case would have been irrelevant, not least given the basis on which the Claimant sought to distinguish the case of R (Keiserie) v Secretary of State for Justice [2019] EWHC 2252 (Admin), which the parties agree is the most relevant authority on this issue.

However, I have not disposed of the issue on the basis of the status of the pleadings as I am also not persuaded that the argument has merit.

In R(Keiserie), HHJ Keyser QC considered an argument that an offender who had been detained in hospital prior to the expiry of his custodial release date was not subject to a licence. In that case, “On 17 October 2018, the claimant was formally released from custody under [s244(1) Criminal Justice Act 2003]. At that date, however, he was being held at Hellesdon Hospital, and upon his release from custody he remained in hospital.” (judgment, para 5). He had already been informed that he would continue to be detained in hospital under a notional hospital order (making his discharge a matter for the treating clinicians). He was not given a copy of any licence or told of its provisions (although a licence had been drawn up by the Prison Service). In proceedings triggered by the claimant’s absconding from hospital, HHJ Keyser considered whether there was nevertheless a licence and held:

“Mr Rule treats the closing words of section 244(1) ("the duty of the Secretary of State to release him [the is the fixed-term prisoner] on licence under this section") as imposing two distinct duties on the Secretary of State, the one to release the prisoner and the other to issue a licence. That disjunction seems to me be contrary to the scheme intended by the Act and by the provisions relating to conditions and the purpose of conditions in licences and recall. In my judgment, it is not a case of the Secretary of State doing two things—(1) releasing and (2) giving a licence—, as though a release under section 244 might be a release other than on licence if the Secretary of State complied with the first duty (release) but failed to comply with the second duty (licence). Release under section 244 simply is a release on licence. There is no doubt that the scheme for the inclusion both of standard conditions and of additional conditions means that something in the nature of a document is likely to be practical in the great majority of cases and necessary in many. However, the statutory provisions contain no particular requirement for any formality for the existence of the licence.”

And at paragraph 29:

“There is not a release and a licence. There is a release on licence”.

In this case, Mr Rule seeks to distinguish these conclusions on the basis that R(Keiserie) concerned the (non) issue of a licence to a person who “had been released” (see para 5 of the judgment, above) whereas in this case, the Claimant “had not been released”. In addition to the points outlined at para 45 above, he relies on the statement to this effect in the Defendant’s witness statement, also set out above.

This seems to me to place too much weight on language in a statement which is addressing the fact that Mr Quilligan was never discharged from custody. Rather, Mr Laverack submits that in law the authority for his detention passed from the custodial sentence (to 14 September 2022) to the extradition warrant (from 15 September 2022 onwards, until he left the UK on 28 September 2022).

I am far from persuaded that the Secretary of State failed to release the Claimant from the detention that was sanctioned by his sentence of imprisonment and must therefore have been in breach of the legal duty under s244(1), which is what the Claimant argues. That would involve, to adapt the language of the Claimant, a fiction: inventing a non-existent, continuing UK detention – i.e., a continuance of the detention that flowed from the sentence of imprisonment, as opposed to one arising from the extradition warrant. Just as in R(Keiserie), the release was notional, as in practice detention continued – but under a different legal basis. If the continued detention had been challenged after 15 September 2022 (by an application for habeas corpus, for example), it would have been met by reliance on the extradition warrant and I do not consider that the absence of any obvious formality attending the initial release from sentence would alter the position in law.