DIRECTOR OF PUBLIC PROSECUTIONS [2002] EWHC 433 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
[2002] EWHC 433 (Admin)Case No NO: CO/133/2002Venue Royal Courts of Justice, Strand, London WC2
Between
DIRECTOR OF PUBLIC PROSECUTIONS
Before
Lord Justice KennedyMr Justice ForbesMR M SPACKMAN (instructed by Welch & Co) appeared on behalf of the AppellantMR G WALTERS (instructed by CPS Dyfed-Powys area) appeared on behalf of the RespondentDate 26 February 2002
[2]1. MR JUSTICE FORBES: This is an appeal by way of case stated from the decision of the justices sitting at the Youth Court in Cardigan on 10th September 2001, whereby the justices convicted the appellant of an offence of escape from lawful custody contrary to common law, committed on 6th July 2001 and in respect of which offence the justices made an order of absolute discharge. The facts, as found by the justices, are as follows (see paragraph 2 of the case stated):
"2.2 The appellant E is a minor, aged fourteen, born on 19th November 1986. "2.3 The appellant appeared before the Aberystwyth Court on 2nd of July 2001 on a charge of dwelling house burglary, aggravated vehicle taking, assault occasioning actual bodily harm and criminal damage having been arrested on warrants issued without bail on 29th June 2001 when he failed to attend the Youth Court. "2.4 The Court on 2nd of July 2001 heard an application from the prosecution that the appellant should be remanded into secure accommodation. No application was made for bail. The Court adjourned the case until the 6th July 2001 ... " " ... "2.6 The Court had been informed that a secure accommodation placement was not available for the appellant. "2.7 The Court sitting on the 2nd July 2001 lawfully remanded the appellant to local authority accommodation with a requirement that the local authority detain him in secure accommodation. "2.8 The appellant was not in fact detained in secure accommodation by the local authority between the 2nd and 6th of July 2001 as no such accommodation was in the event available. "2.9 The appellant was brought to the Cardigan Youth Court on the 6th of July 2001 -- a court usher reported his attendance. "2.10 Before the appellant's case was called on the 6th of July 2001 he left the Cardigan Courthouse, while still subject to the Court's orders of the 2nd July 2001, and absconded. "2.11 The Court on 6th July 2001 issued a warrant for the appellant's immediate arrest. "2.12 The appellant was arrested on that warrant later on the 6th of July 2001 and was then taken to Court at Llanelli on 7th July 2001 having also been charged with the offence of escape from lawful custody. "2.13 Between the 2nd July of 2001 and the 6th of July 2001, and at the stage the appellant absconded from Court he was in lawful custody."
It is this last finding of fact which is at the heart of this appeal. It is the appellant's case that he was not in custody at the time he absconded and that there was no evidence upon which the justices could properly find that he was in lawful custody at that time.[3]The evidence which the justices heard is summarised in paragraph 3 of the case stated as follows:
"3.2.1 The Crown called only one witness to give oral evidence, the court usher Alan Hugh Morgan who said in evidence: "3.2.1.1 E had been brought to Court on the 6th of July 2001 by a member of the Youth Offending Team, Malcolm McHugh. "3.2.1.2 During the morning he had been present both in the hallway and on the pavement with others. At 10.50 am, E had put his head round the door and asked if he was next and was told yes. "3.2.1.3 Shortly after 10.50 am E was nowhere to be found on the court premises. "3.2.1.4 During the morning before he absconded, E had been allowed by the sessional worker to go outside the court premises with Malcolm McHugh and another member of the youth offending team. "3.2.1.5. At various times while E was outside, the youth offending team member or members with him changed. It was clear that E was the responsibility of the youth offending team, even though no particular individual was constantly monitoring E."
[4]In addition, the statement of the other court usher on duty, Thomas Hayden Davies, was read to the Court. The contents of his statement corroborated the evidence of the first court usher but provided nothing further by way of additional evidence. The appellant himself did not give evidence. However, he did call a Mrs Christine Dearling to give evidence on his behalf. Mrs Dearling is described as the senior practitioner of the youth offending team and her evidence is summarised in the case stated in the following terms:
"3.3.2.1 Mrs Dearling said that she had been present on the 2nd July and was aware before the case was called that the prosecution would seek a remand to secure accommodation (under section 23(4) of the Children and Young Persons Act 1969). "3.3.2.2 When on the 2nd of July 2001 Mrs Dearling telephoned the appropriate authority to find out where E would go, she was told that there was no place available. "3.3.2.3 With the knowledge that there was no secure placement available, the Court continued to make an order. "3.3.2.4 Mrs Dearling again telephoned the Youth Justice Board after the Court had made an order (under S23(4) of the Children and Young Persons Act 1969) and was advised that it was the responsibility of the local authority to place E somewhere until a place became available. She was to contact the Youth Justice Board in the morning and at 4 pm daily in the interim. "3.3.2.5 E was placed with a private organisation in Pembroke on a twenty-four hour placement. There was no overnight accommodation but they would take him camping. It was an outdoor pursuits week where he was supervised twenty-four hours a day. The alternatives would have been foster care or back home if appropriate. "3.3.2.6 Mrs Dearling accepted that the fact that accommodation was not available did not affect the remand. "3.3.2.7 She said that normally youths would go straight from the court to the secure remand and this was the first time she had ever known there not to be a place available. She said that it is usual to take the youth to the police station to await transportation which is what happened in the present case. "3.3.2.8 On this occasion, the 2nd of July 2001, E was taken to Aberystwyth Police Station and was collected from there by Impact Services, who would accommodate him until a secure placement became available."
[5]The parties' submissions before the magistrates are summarised in paragraphs 4 and 5 of the case stated. It is not necessary to refer to those in any detail. However, it is helpful to refer to the summary of the case which was put to the magistrates on behalf of the appellant and as summarised in paragraphs 5.7 and 5.8 of the case stated, in particular the latter. The two paragraphs are in the following terms:
"5.7 That when he attended Court on the 6th of July 2001, the appellant was not placed in the available cells and was not chaperoned. "5.8 That if the appellant were to be in custody, he would have been accommodated in the cells or at the very least he would have been accompanied by security officers with the power to handcuff him."
[6]It is therefore clear from the way the case was argued on behalf of the appellant that the magistrates were not required to focus on the degree of control which was actually exercised over the appellant when he was brought to and kept at the Magistrates' Court on 6th July 2001. Had they been asked to do so, then no doubt they would have considered making more specific findings of fact with regard to that aspect of the matter than in the event they did. As it seems to me, and to the extent that it is necessary to do so for the proper disposal of this appeal, it therefore falls to this court to draw such inferences from the evidence as we consider appropriate in the light of the evidence placed before the magistrates and as summarised in the case stated.[7]So it was that the justices came to the following conclusions (see paragraph 7 of the case stated):
"7.1 The orders made on the 2nd July 2001 remanding E into local authority accommodation and secure accommodation remained in force at all material times including the time when he ... absconded from Court on the 6th of July 2001. "7.2 That as the appellant had not been admitted to bail, conditional or unconditional, the nature of a remand into local authority accommodation was one of 'custody' within the meaning of all the material legislation. "7.3 That as the orders of the Court remained in force at the stage the appellant absented himself without lawful authority from the Court premises he is guilty of the offence of escaping from lawful custody ... "
[8]The justices accordingly convicted the appellant of the offence with which he was charged. The questions which are posed for the opinion of this court are as follows:
"8.1 Is the nature of a remand to local authority such that the appellant is deemed to be 'in custody' for the purposes of determining whether, if he absconds from the appropriate authority, he can be said to be guilty of escaping from lawful custody? "8.2 If the answer to question 8.1 is in the negative, does an order that the appellant be kept in secure accommodation then mean that he is 'in custody' for the purposes of determining whether, if he absconds from the appropriate authority, he can be said to be guilty of an offence of escaping from lawful custody? "8.3 Does there need to be a person present charged with the authority of detaining the appellant, with the power to apprehend and detain him, if necessary by force, before an appellant who absconds can be guilty of escaping from lawful custody? "8.4 In all the circumstances, were we right in our belief that the appellant should be convicted of the offence charged?"
[9]I turn to deal with the relevant law and statutory provisions. It is common ground that escape is an offence at common law (see Archbold Criminal Pleading, Evidence and Practice 2002 at paragraph 28-191). In order to establish the offence, it is necessary for the prosecution to prove the following three elements:(1) that at the material time the defendant was in custody;(2) that the custody was lawful; and(3) that the defendant escaped from that lawful custody.[10]As I have already indicated, there is no issue as to the fact that the appellant absconded on 6th July 2001. The sole issue is whether he was in custody at the time. It is also appropriate to observe at this stage that, if the appellant was in custody at the time, there is no issue as to whether that custody was lawful: see paragraph 15 of Mr Spackman's helpful written skeleton argument, which concession he repeated in the course of his oral submissions to us today. Section 13(2) of the Prison Act 1952 provides as follows:
"A prisoner shall be deemed to be in legal custody while he is confined in or being taken to or from any prison and while he is working or is for any other reason outside the prison in the custody or under the control of an officer of the prison and while he is being taken to any place to which he is required or authorised by or under this Act ... to be taken, or is kept in custody in pursuance of any such requirement."
[11]By section 43(5) of the Prison Act 1952 it is provided that section 13 is to apply to remand centres, detention centres, youth custody centres and secure training centres and to persons detained in them as they apply to prisons and prisoners.[12]So far as material, section 23 of the Children and Young Persons Act 1969 as amended is in the following terms:
"(1) Where-- "(a) a court remands a child or young person charged with or convicted of one or more offences. "(b) he is not released on bail, "the remand or committal shall be to local authority accommodation and in the following provisions of this section any reference to a remand shall be construed as including a reference to a committal. " ... "(3) Where a person is remanded to local authority accommodation, it shall be lawful for any person acting on behalf of the designated authority to detain him. "(4) Subject to subsection (5) and (5)(a) below, a court remanding a person to local authority accommodation may after consultation with the designated authority require that authority to comply with the security requirement, that is to say a requirement that the person in question be placed and kept in secure accommodation. "(5) A court shall not impose a security requirement except in respect of a child who has attained the age of 12 and then only if-- "(a) he is punished with or has been convicted of a violent or sexual offence or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more and the court is of the opinion that only such a requirement would be adequate to protect the public from serious harm from him. " ... "(12) In this section secure accommodation means accommodation which is provided in a community home, a voluntary home or a registered children's home for the purpose of restricting liberty and is approved for that purpose by the Secretary of State. Young person means a person has attained the age of 14 years and is under the age of 17 years."
[13]Mr Spackman accepted that the conditions of section 23(5) of the 1969 Act were satisfied in the case of this appellant and that the court therefore did have the power to remand the appellant to local authority accommodation under section 23(1) and to impose a security requirement under section 23(4). However, Mr Spackman pointed out that it was common ground that the appellant was not being held in secure accommodation at the time he was brought to court on 6th July 2001. Furthermore, the appellant had been brought to court by members of the youth offending team for the Aberystwyth area and not by anybody from the local authority. However, in my view, this latter point is of no substance. On the evidence available to the magistrates, it can properly be inferred that the members of the youth offending team were, in the circumstances of this case, persons acting on behalf of the designated authority within the terms of section 23(3) of the 1969 Act.[14]Mr Spackman also stressed that there was no evidence to show what, if any, steps Mr McHugh or any other member of the youth offending team had taken to control or detain the appellant at Aberystwyth Magistrates' Court on 6th July 2001, particularly immediately prior to his absconding. In my view, it is not surprising that the magistrates did not make specific findings of fact with regard to that particular aspect of the matter, having regard to the way in which the case had been argued on behalf of the appellant (see above). Had the matter been argued before them in the way that it was argued before us, namely that the essential question was the degree of control being exercised over the appellant by any member or members of the youth offending team, then the magistrates would have made appropriate findings of fact to the effect, as I would myself infer the position to have been, that at all material times the appellant was under the control of the members of the youth offending team and that he knew perfectly well that he was not entitled to run away from that team, having been brought to the Aberystwyth Magistrates' Court by them on 6th July 2001. In my view, the evidence from the ushers, both oral and written, fully support such an inference and would have justified the magistrates in making those findings of fact.[15]Mr Spackman submitted further that the Bail Act 1976 and the Prosecution of Offences Act 1985 make specific reference to the term "custody", but no such specific reference to custody is made in section 23 of the 1969 Act. It was Mr Spackman's submission that, in effect, the provisions of section 23 did not make provision for detention in custody but provided a regime for ensuring that a child or young person attend court when required to do so and that, in the meantime, there is no risk to the public of any further offending.[16]Mr Spackman referred in his written skeleton argument to the decision of the House of Lords in the R v Secretary of State for the Home Department ex parte A [2000] 2 AC 276 , in which their Lordships held that time spent by a defendant remanded to local authority accommodation did not count towards any custodial sentence and was not deducted therefrom because it was not time spent in "accommodation provided for the restriction of liberty" within the meaning of section 67(1A)(c) of the Criminal Justice Act 1967, whether or not there were any restrictions on liberty such as a curfew condition, but that the position was otherwise where the time spent was actually spent in secure accommodation, for which express provision had been made in the[17]Mr Spackman suggested that the word "custody" should be given its ordinary and natural meaning. He submitted that there was no or no sufficient evidence that the appellant was under any person's control at the time when he absented himself from the court. He pointed out that, in the normal course of events, an adult in custody would be brought to court by the prison service and detained in the cells before being brought up into the dock. He submitted that, if for any reason a person in custody was simply allowed to go free by the persons who were transporting him to the court, then in no sense could that person be said to be in the custody of anybody, once he was free. Mr Spackman suggested that it was possible to envisage examples where, notwithstanding a remand in custody, the person was not in fact being held in custody. It was his submission that, if a defendant remanded in custody by the court was simply allowed to go free from the court, instead of being taken down to the cells, it could not be said that the defendant was in custody simply because the court had made an order that he should be kept in custody. He submitted that common sense dictates that such a person is not in the custody of anybody and maintained that, although the court had ordered the person to be kept in custody, the making of the order did not then mean that the person was as a fact in custody; rather it meant that the person in question should be in custody. In other words, the court order makes lawful any detention of the defendant or any other restriction on his liberty which might otherwise amount to a tortious act on the part of the person who was detaining the defendant in question.[18]In his written skeleton argument Mr Spackman further suggested that his submissions were given some support by the deeming provision in section 3 of the Prison Act 1952, to which I have earlier referred, although he accepted that the section does not apply in this particular case because the appellant was not being held in any of the types of centre provided for by section 43(5) of the Act. However, it was his submission that, if the justices were correct in holding that to order the remand of a defendant in custody meant that thereafter the defendant is to be considered to be in custody, then there would be no need for such a deeming provision as is found in section 13(2) of the Prison Act, because the prisoner will always be deemed to be in legal custody by virtue of the order remanding him in custody.[19]I agree with Mr Spackman's submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. "Custody" is an ordinary English word, which should be given its ordinary and natural meaning, subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word "custody" is defined in the following terms, amongst others:
"Confinement, imprisonment, durance."
[20]As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case.[21]In my judgment an order of the court whereby a defendant is remanded to appear at court on a date in the future is of relevance to the issue whether a defendant is in lawful custody at any time during the period of remand in at least two ways: first, the order in question will indicate whether the remand is to be custodial in nature; second, the terms of the order will determine whether any such detention in custody is lawful. In my view the order made by the magistrates on 2nd July 2001, whereby the appellant was remanded to 6th July 2001, was custodial in nature because, not only did it remand him into the care of the local authority, but it also required that he be placed in secure accommodation. To my mind such a remand is so restrictive of the appellant's liberty that it can properly be said to be custodial in nature. In the course of his oral submissions Mr Spackman very frankly agreed that that was so. There is therefore no issue in this case but that the order made by the magistrates on 2nd July 2001 was custodial in nature.[22]The lawfulness of the regime, which was, in fact, thereafter applied to the appellant during the period of remand between 2nd and 6th July 2001, was established by that order. The appellant was at all times fully aware of that fact. Although the regime applied to the appellant was, as a matter of fact, less restrictive of his liberty than it could have been, it was one which could lawfully have been made much more restrictive of the appellant's liberty. In particular, the various members of the youth offending team did have the power under section 23(3) of the 1969 Act to detain the appellant, if it was necessary to do so.[23]In my judgment, the appellant remained under the direct lawful control of the youth offending team when he was brought to the Magistrates' Court on 6th July 2001, and he knew that to be the case. I have no doubt that the evidence heard by the magistrates would have entitled them to infer, as I infer, that such was the factual situation. There was no suggestion that the appellant had been brought to the court and then abandoned by those who were responsible for bringing him there. In my judgment, the evidence of the ushers and of Mrs Dearling would have entitled the magistrates to find and they would have found, as I infer the position to have been, that the various members of the youth offending team exercised control over the appellant at all material times and also that he knew perfectly well that he was not entitled to leave the premises without the permission of some member of the youth offending team. In those circumstances, as it seems to me, it was open to the magistrates to come to the conclusion, had they been asked to consider the matter in those terms, that the nature of the restrictions on the appellant's freedom of movement, which resulted from the terms of the court order of 2nd July 2001 and by reason of the powers of those who maintained direct control over the appellant whilst he was at court on 6th July 2001, was such that the appellant was in lawful custody at the time he absconded. I am fortified in that conclusion by the decision of this court in DPP v Richards [1988] 1 QB 701 , in which it was held that the person who had surrendered his bail had an obligation to abide by the procedures of the court where he was due to appear and to report to the appropriate person. In the course of his judgment in that case Glidewell LJ said this at page 711, letters C to D:
"I take the view that if a court provides a procedure which, by some form of direction, by notice or orally, instructs a person surrendering to bail to report to a particular office or to a particular official, when he complies with that direction, he surrenders to his bail. Thereafter, albeit he may not be physically restrained, albeit he may be allowed to sit in the court concourse and visit the court canteen, he is in the custody of the court. I have already suggested that he is under an implied, if not an express obligation, not to leave the building without consent until the case is called on."
[24]As it seems to me, the situation described by Glidewell LJ in that passage of his judgment is directly comparable to the circumstances applicable to the appellant at the Magistrates' Court on 6th July 2001. He had been brought to the court by and had remained under the control of the youth offending team members, who were acting on behalf of the designated local authority. The appellant knew perfectly well at all times that he was not entitled to leave the court and that he was to remain there with the youth offending team until his case was called on. The various members of the youth offending team had the lawful power to detain him if he sought to leave the building without permission. In my view that situation is directly comparable to that described by Glidewell LJ and in which he came to the conclusion that the circumstances were such that the defendant in question was in lawful custody.[25]For those reasons, as it seems to me, and on the evidence which is summarised in the case stated, the magistrates were entitled to come to the conclusion, as they did, that the appellant had escaped from lawful custody. I would therefore give the answer "Yes" to question 8.4 and, in the circumstances of this case, do not find it either appropriate or necessary to answer questions 8.1, 8.2 and 8.3.[26]For those reasons, I would therefore dismiss this appeal. 27. LORD JUSTICE KENNEDY: I agree that, from the facts as found, we can infer that, at the time when he ran off, the appellant was under restraint, in that he was at court in company with members of the youth offending team, who had the power, as he knew, if necessary, to restrain him. His liberty was thus restricted and he was therefore in custody. It is not even contended that the custody, if it existed, was unlawful, and so I too would dismiss the appeal and answer the questions in the way indicated by my Lord.[28]This being an appeal from a decision of a youth court, nothing must be reported which could lead to the identification of the appellant. I do not think anything has been said, either by my Lord or myself, which would lead to such identification, but I give that warning.[29]Is there any order that anyone requires in relation to taxation of costs or otherwise? MR SPACKMAN: My Lord, I think in relation to the appellant there is a full representation order in force and so, unless I am told otherwise -- LORD JUSTICE KENNEDY: If you need an order for taxation, you may have it. MR SPACKMAN: I am very grateful.

order

see the speech of Lord Hope at page 282D to page 283A. Mr Spackman submitted that whether or not a person is in custody is a question of fact to be determined in each particular case. He submitted that, in their findings at paragraph 7.2 of the case stated, the justices had erred in deciding that, because the appellant was not on bail, he was therefore in custody. Mr Spackman argued that the regime under section 23 of the 1969 Act is an alternative to custody, in which a defendant is remanded to local authority accommodation, and it was Mr Spackman's further submission that the justices had confused the concept of making an order remanding the appellant to what they considered constituted custody with the question of whether the appellant was in fact in custody at the time when he was alleged to have escaped.

Cited in 4 later judgments