Foster & Anor v Director of Public Prosecutions [2004] EWHC 2955 (Admin)

Case No CO/3368/2004[2004] EWHC 2955 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 1st December 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE PITCHFORD
Between
RICHARD FOSTERAppellantMICHAEL RUTHERFORDAppellant-v-DIRECTOR OF PUBLIC PROSECUTIONS(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS L MARSHALL (instructed by Howells) appeared for FIRST APPELLANTMR P WEATHERBY (instructed by Irwin Mitchell) appeared for SECOND APPELLANTMR M NEALE (instructed by the Director of Public Prosecutions) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE PITCHFORD: On 19th February 2004, Richard Stephen Foster, aged 19, and Michael Rutherford, aged 33, were each convicted by Deputy District Judge Barr at Sheffield Magistrates' Court of an offence contrary to section 2(1)(a) and section 4, of the Child Abduction Act 1984. I shall, in view of the complainant's age, use initials to protect her from the risk of identity.[2]The particulars of offence in each case were as follows:
"On 2nd March 2003 ... without lawful authority or reasonable excuse detained S, a child under the age of 16, so as to remove her from the lawful control of LT, a person having lawful control of the child..."
[3]The appellants appeal their convictions by way of case stated and their appeals have been consolidated. The relevant facts as found by the Deputy District Judge, or agreed, are as follows. S was born on 18th September 1987. At the time of the alleged offences she was aged 15. She was living in Rotherham with foster parents Mr and Mrs T, in whose control she lawfully was for the purposes of section 2, Child Abduction Act 1984. On the afternoon of 1st March 2003 S met her girlfriends in Rotherham to make a journey by bus to Meadowhall in Sheffield. One of her friends was supposed to meet her boyfriend, the appellant Foster, but it appeared that he had stood her up and Michael Rutherford turned up instead. S became separated from her friends when they set off home. Rutherford took S back to his address in Sheffield where he was living with Foster. There S was plied with drink. S was supposed to be at home by 5 pm. Mr T, her foster parent, eventually made contact with her by her mobile phone at 8 pm. She said she was on the way home. At 9 pm she still had not returned and her mobile phone was switched off. Mr T contacted social services. He telephoned the father of one of S's friends. He learned that S had been left near Meadowhall with a male person. Mr T reported S missing to the police at or about 10.45 pm. The police made inquiries, Police Constable Arrowsmith telephoned Rutherford's home at 1.30 am, Sunday 2nd March. He was told that they were looking for S who was underage and had been reported as a missing person. The Deputy District Judge found that that information was made known also to Foster. Foster went on foot to a local garage taking S with him in case the police arrived to take her home. When they returned, the police had not yet been. At about 2 am Police Constable Arrowsmith and Police Constable Brocklebank arrived at Rutherford's home. They were told by the appellants that S had been there but had since left. That was a lie. In fact, to their knowledge, S was hidden in the attic space to avoid being found by the police. They failed to reveal S's presence in the house and assured the officers that if she returned they would contact the police. S sent a text message to Mrs T at 2.30 am saying that she was at her mate's home and would return in the morning. In fact S slept the rest of the night at the house. At 7 am police revisited Rutherford's address, found S in the living room and took her home. The appellants were arrested at the same address an hour later.[4]On the day of trial Rutherford pleaded guilty to two offences of unlawful sexual intercourse. The Deputy District Judge found both men guilty of abduction. The appellants now appeal their convictions and the single common ground of appeal advanced is that the offence charged under section 2(1)(a) could not have been committed on 2nd March 2003.[5]Miss Marshall, for the appellant Foster, submitted that the actus reus of the offence was complete on 1st March 2003, when Rutherford took S to his home and both men kept her there so as to remove her from the lawful custody of her foster parents. Since the prosecution accepted that neither man knew that S was under 16 until the early hours of the following morning, they would have had a statutory defence to a charge of abduction on 1st March 2004 had such a charge been laid against them.[6]Mr Weatherby, for the appellant Rutherford, put the argument somewhat differently. His submission was that, irrespective of how it had occurred, S's foster parents had lost lawful control by the time Mr T telephoned the police at 10.45 pm on 1st March. Accordingly, what the appellants did in the early hours of 2nd March 2003 could not have removed her from the lawful control of S's foster parents. What they did could only have kept her out of the lawful control of those who were entitled to it. If any offence was committed on 2nd March 2003, therefore, it could only have been abduction contrary to section 2(1)(b) of the Act with which they were not charged and which was not an alternative to the charges laid.[7]It is common ground that section 2 creates two separate means by which the offence can be committed. Neither of them is an alternative verdict for the other. The Deputy District Judge found at the close of the prosecution case that, first, consent was not a defence, and secondly an act of removal took place on 2nd March when, knowing the girl's true age, the appellants took no steps to return her. The question posed for the decision of this court by the Deputy District Judge was this:
"Can the operative act of removal from lawful authority for the purposes of S2(1)(a) Child Abduction Act 1984 occur four hours after the qualifying child has arrived at the appellant's home at the suggestion of one of the appellants simply because the appellants later became aware of the fact that the qualifying child is under sixteen years?"
[8]The relevant parts of section 2 of the Child Abduction Act 1984 read as follows:
"(1) Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen -- "(a) so as to remove him from the lawful control of any person having lawful control of the child; or "(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child. "2. ... "3. In proceedings against any person for an offence under this section, it shall be a defence for that person to prove -- "(a) ... "(b) that, at the time of the alleged offence, he believed the child had attained the age of sixteen."
[9]Explanatory of the term "detains" is section 3, which in its material parts provides:
"For the purposes of this part of this Act -- "(a)... "(b)... "(c) a person shall be regarded as detaining a child if he causes the child to be detained or induces the child to remain with him or any other person ..."
[10]It follows from the wording of the section that an offence may be committed either by taking a child so as to(a) remove her from, or(b) keep her out of the lawful control of any person, or by detaining a child so as to (a) remove her from, or (b) keep her out of the lawful control of any person. As Mr Weatherby submits, on behalf of Rutherford, rightly, in my view, there will be circumstances when a child may be removed from lawful control by detention rather than taking. The most obvious example is an occasion when the child is in the company of another with the agreement of her parent or guardian, but ceases to be so when knowingly detained beyond the period agreed. In his example, when consent knowingly expired, removal occurred. If, on the other hand, the child was already out of the lawful control, then any subsequent taking or detention could only have the effect, submits Mr Weatherby, of keeping the child out of the lawful control of someone entitled to it.[11]The issue for the District Judge was whether, notwithstanding an earlier taking or detention, the events of 2nd March 2003 were capable of amounting to a detention so as to remove S from the lawful control of her foster parents.[12]It is first appropriate to consider the meaning of the words "so as to remove or take" and the mens rea required for this offence. In Mousir [1987] Crim LR 561, the Court of Appeal Criminal Division, in a case of attempt, held, upon a concession made by the appellant, that the words "so as to remove or keep from the lawful control of any person" within the meaning of section 2(1) is a question of objective fact. If the child, by reason of the taking or detention by the defendant, was removed or kept from the lawful custody of a parent, then an offence was committed. It was not necessary for the prosecution to prove that the defendant intended by his action to remove the child from the lawful control of the parent. We have obtained a transcript of the judgment of Ralph Gibson LJ, delivered on 3rd March 1987. Certain passages are material here and demonstrate why the court was emphatic in its approval of the concession. At page 3 of the transcript, Ralph Gibson LJ said this:
"We have said that it is necessary to refer to the legislative history of s2. [Counsel] has drawn the Court's attention to the fact that the provisions of s2 of the 1984 Act, which create this offence, were passed in consequence of the Report of the Law Revision Committee on Offences Against the Person (Cmmd 7844,1980). The section represents, we think, Parliament's response to the relevant parts of that Report. It is right that this Court may have regard to that part of the Report to see what any mischief in the law was then thought to be, and at which it may be right to suppose that the legislation was directed. "
In para 242 of that Report we see that the Law Revision Committee had been concerned by the ruling in the case of R v Jones [1973] Crim LR 621, which had been decided upon the phrase, 'taking out of the possession and against the will of the parent', in s20 of the Sexual Offences Act 1956. This paragraph describes the facts in that case, which was an attempt by a man to induce two small girls to go with him for the purpose of his indecently assaulting them, by offering them an inducement in the form of sweets. The paragraph continues: 'He was charged with attempting to commit an offence under section 20 of the 1956 Act. The judge directed the jury to acquit the defendant. He ruled that the words 'taking out of the possession and against the will of the parent' are to be taken as meaning some conduct by the defendant amounting to a substantial interference with the possessory relationship of parent and child. The word 'possession' in section 20 shows that it is this possessory relationship that the section sets out to preserve and in this case the defendant's conduct could not amount to an attempt to breach such a relationship. Although the case was distinguished in R v Mears [1975] Crim LR 155, a case on section 56 of the Act of 1861, we are anxious that the decision in Jones should be reversed because conduct like that in the case of Jones should as a matter of policy amount to an offence. The problem is how to define the offence. The degree of interference we wish to cover is interference with the responsibilities of the persons having the lawful control of the child, whether permanently or for the time being, for the well-being of the child. Interference should not have to be substantial as it has been held in Jones. The actual form of words would be a matter for the draughtsman.' "[Counsel] submitted of course that the extent to which Parliament has dealt with the perceived defects in the law has to be determined by reference to the words used in the statute, and not by the hopes and intentions of the members of the Law Revision Committee; and we so approach our task."[13]Later, at page four of the transcript:
"[Counsel] accepted, as in our view is clear, that the phrase 'so as to' is concerned with the objective consequence of the taking or detaining, and not with the subjective purpose of the accused in doing what he did. He has contended however that the question whether the taking or detaining had that consequence is a question of fact which the jury must be directed to consider by reference to the true meaning in law in this context of the word 'control'."
[14]Later, at page five:
"It is right of course that the question whether any taking or detaining of a child has had the consequence of removing or keeping him out of the lawful control of the person having lawful control of him is a question of fact, and the jury in considering it must have regard to the meaning of 'lawful control'. We do not think that any attempt to define the word is necessary or desirable. It is an ordinary word in the English language, and Parliament did not find it necessary to enact any definition of limitation or extension in this statute. It seems to us that the concept of 'control' may to some extent vary according to the person having the control at the relevant time, whether it be a parent or a schoolmaster or a nanny."
[15]The section was further considered by the Court of Appeal Criminal Division R v Leather [1994] 98 Cr App 179, in a constitution over which Watkins LJ presided. Mousir does not appear to have been cited. The nature of the activity which caused the trial judge in Leather to find a case to answer was the encouragement of children to go with him in diversion of the activity in which they were engaged with their parents' consent. In counts one to three, the children were walking home from a supermarket, in counts four to eight the children were playing football. When they were approached by the appellant he, using a pretext, encouraged them to leave what they were doing and accompany him. He did not touch any of the children and they all said that they felt free to leave the appellant's company if they had wished. The issue for the court was the meaning of the words "so as to remove him from the lawful control".[16]The submissions made on behalf of the appellant were that, although there was a taking within the meaning of the section, it was not a taking which had the effect of removing the child geographically from the lawful control of anyone else. The court held that the words removal from "lawful control" implied no geographical element. Owen J, delivering the judgment of the court, noted that paragraph 243 of the 14th report of the Criminal Law Revision Committee, that is to say the report which had been examined in the case of Mousir, said at page 183:
"'We appreciate also that an act such as taking a child for a walk without first obtaining the consent of the parent may theoretically come within the offence, but in all bona fide cases one or other of the defences will plainly be available.'"
[17]He continued, also at page 183:
"We do not accept that the concept of 'control', as used in this Act, has a necessary spatial element. Who has control of a child is a question of fact. If, for example, 'physical control', by which is meant a taking hold of the child and continuing to hold the child, is taken by a stranger at a time when the child has been, up to that time, in the control of its parents, then that would inevitably amount to a removal of the child from the control of its parents. Of course, it may be that in such circumstances there would also be a detaining of a child so as to move him from the lawful control of his parent or other person. "
Here we are concerned with taking rather than detaining, taking by section 3 requires some movement sufficient to amount to an accompanying. In considering the meaning of the words 'so as to remove him from the lawful control of the person having lawful control of the child', the example is relevant and in our judgment indicates that no geographical removal is contemplated in the words 'so as to remove him from the lawful control of any person having lawful control.' Indeed, in the example which is given, in paragraph 243, which has been indicated already, there does not seem to be any geographical content contemplated such as that for which [counsel] argues. We are satisfied that the words with which we are concerned do not require the removal of the child but the removal of the control of the child from the parent or other person having lawful control to the accused. There is no need for any complicated definition of the word 'control'. It is a perfectly ordinary English word in every day use."[18]I therefore accept the argument advanced by Mr Neale in detail in his skeleton argument and briefly in oral argument on behalf of the respondent, that the word "remove" is intended to convey a substitution of the authority by an accused for that of the person lawfully having it, and not the physical removal of the child from any particular place.[19]The court then considered the terms in which the judge had left the issue to the jury. At page 182, Owen J noted that counsel had submitted that there was no evidence that the children had been removed from the control of their parents or other lawful custodian:
"In respect of the counts which were of attempted abduction it was submitted that there was no evidence to show that the appellant's intention had been to remove the particular children from the ambit of lawful control."
[20]It will therefore be appreciated that the court was concerned not only with completed alleged offences, but attempts to commit them in respect of which the intention required may have been different.[21]The direction to the jury given by

the judge at trial included the following:

"How do you decide whether there has been a removal by this man of the child from the control of that child's parents? There are various ways that one can formulate that. Mr Burn has made various suggestions. Has the defendant substituted his authority or will for that of the parent's? Is it a case of substitution? Or has he stepped in between the parent and the child and taken control of the child? Or, as I am going to put to you, I think you might find it effectively sums up the position, was he, the defendant, and not the parent effectively in control of the child at that time? You might think it, is really a matter for you, that that perhaps is the signpost which will help you. Was he and not the parent effectively in control of the particular child at the time when they were together?"
[22]Finally at page 185:
"First, was the particular child in the control of his parent at the particular time? ...Secondly, if he was in control or she was in the control of the parent at the particular time, did the defendant take the child? We have talked about taking. If so, if he did take the child, did this have the effect of removing the child from the control of his parent?"
[23]It is to be noted that, in giving directions as to the completed alleged offence, the judge did not ask the jury whether they were sure the defendant intended to remove the child from the lawful control of the parent, only whether what the defendant did had the effect of removing the child from that lawful control. In other words, the test of removal was an objective one. Owen J said, after consideration of those passages at page 185:
"We see no defect in this summing-up."
[24]The question what is the mens rea required for the offence was considered by this court in Re Owens [2000] 1 Cr App 195. The applicant was committed for extradition to the United States where she had been indicted on kidnapping charges the equivalent of section 2(1) of the 1984 Act. She applied for a writ of habeas corpus on the ground that there was no prima facie case against her. The agreed facts included that, to the applicant's knowledge, two children, for whom she was caring and whose nanny she had been, had no parent with lawful control over them. Their father had been killed, their mother had never sought to exercise control over them and she believed that the mother had abandoned them. The applicant was unaware that their grandmother had been granted an ex parte order for temporary custody when she flew with the children that day from the United States to Germany where, until his death, their father had been serving as a soldier in the US military. It was argued before the Metropolitan Magistrate at Bow Street that section 2(1) created an offence of strict liability, subject to the jury being satisfied that the applicant had no lawful authority or reasonable excuse for her actions.[25]The United States' position changed before the Divisional Court. It was, with the approval of the court, conceded that mens rea was required. It was argued that mens rea was established if the applicant knew that someone other than herself was lawfully entitled to control at the time of the taking. The court was not prepared to find that there was evidence that the applicant was aware that anyone, other than the applicant herself, had lawful control of the children. Simon Brown LJ, as he then was, expressed his conclusion as to the requirements of section 2(1) as follows at page 200 letter G:
"Just which offence is this applicant said to have committed? It clearly cannot be the offence, under paragraph (a), of taking these children so as to remove them from either the mother's or the grandmother's lawful control, since neither had such control. Nor can it be, under paragraph (b), the offence of taking the children so as to keep them out of the mother's entitlement to lawful control: by the time of the flight out of the United States the mother had no such entitlement, and even before that the applicant knew nothing of the Wyoming orders. If it is said, under paragraph (b), that the offence was committed against the grandmother, the prosecution have to argue that the applicant's ignorance of the grandmother's legal entitlement is simply immaterial. "
I would not be disposed to place such a wide construction on the subsection. Given, as I understood now to be conceded, that mens rea is required, this surely can only be an intention, when taking the children, to keep them out of the control of someone known to be entitled to such control. It is not sufficient that the applicant knew the grandmother was intent on applying for control and thus might already have been granted it. I would construe the words 'so as to' to mean 'with the intention of', rather than merely 'with the effect of'. That is not to say that it will always be necessary to establish that the offender knows just who does have, or is entitled to, lawful control."[26]It does not appear that the decisions of the Court of Appeal Criminal Division in Mousir and Leather were cited to their Lordships. This court is bound by those decisions.[27]What, then, is the state of the law as to the mens rea requirement? For my part, I would conclude that the mens rea of the offence of abduction under section 2 is an intentional or reckless taking or detention of a child under the age of sixteen, the effect or objective consequence of which is to remove or to keep that child within the meaning of section 2(1)(a) or (b). With great respect to the court in Owens, it does not seem to me that the applicant's argument upon the construction of section 2 could or should have survived the judgment of the Court of Appeal Criminal Division in Mousir and Leather. It does not appear to me to have been necessary to require an intention to remove the child from the lawful custody of another, or to keep the child against the entitlement of the grandmother, to arrive at the same result had a prosecution proceeded. The offence is not committed if the defendant has lawful authority or a reasonable excuse for taking or detaining the child. On the agreed facts in Owens, it is difficult to see how the prosecutor could have established that the applicant did not have a reasonable excuse. She plainly did. She was in actual control of the children and had been since their father's death. She had taken them to the United States to attend his funeral. Although she knew that their grandmother intended to apply for custody, she was unaware that she had done so when she took the children back to Germany, after taking legal advice that it was permissible for her to do so.[28]Finally our attention has been drawn to the decision of the Court of Appeal Criminal Division in A [2001] Cr App 418. The court held that it was immaterial that the child consented to removal from the lawful control of her mother. Whether the child consented or not, the question for the jury was whether the defendant's deliberate actions were an effective cause of the child accompanying him. There might be several concurrent causes, one of which may be the child's own wishes. In A, however, the taking and keeping could not have occurred unless the appellant had agreed to drive the child to London with him and to live in the car with her for nine days. His actions amounted to taking and they were an effective cause of the child being kept out of the lawful control of her mother.[29]Turning to the facts of this case, I accept the submissions made on behalf of the appellants that Rutherford's action, in taking S to his home, did have the effect of removing her from the control of her foster parents. Foster's complicit action in detaining S at the house did have the effect of removing or keeping her from the control of her foster parents. Neither man was, on the agreed facts, guilty of the offence of abduction on 1st March 2003, since each of them believed S to be aged sixteen or over. Had it not been for their belief, they would have been guilty of abduction on that day.[30]The factual situation had however changed dramatically by 2.30 am on 2nd March 2003. The appellants had been told that the girl was aged fifteen, she had been reported missing from her home and that the police were looking for her. Assuming, for the purposes of this appeal, that S did not wish to be restored to her foster parents and took advantage of the appellant's willingness to allow her to hide from the police and to stay the night, I am in no doubt, contrary to Miss Marshall's submission, that they detained her within the meaning of section 2(1), since that willingness constituted an inducement, albeit at her own request, to stay with them, as contemplated by section 3(c).[31]I turn then to the final, and in my view determinative, question in this appeal, which is whether what the appellants did on 2nd March 2003 had the effect of removing S from the lawful control of her foster mother. At first sight, the submission made by Mr Neale on behalf of the prosecutor is an attractively simple one. It is that the Deputy District Judge was concerned only with the unlawful acts of the appellants. He was not concerned with what may have been the consequences of any lawful act of theirs on 1st March. Looking at the events of the early hours of 2nd March, it is plain that what they did had the effect of removing lawful control from the foster parent.[32]As Mr Weatherby has demonstrated to me, however, the submission, whilst attractive, is wrong in law, because it is clear from the wording of the section that Parliament intended a material distinction to be drawn between the two forms of the offence, which, when applied to facts such as the present, is critical to guilt or innocence. Paragraph (a) uses the word "having" as the verb which qualifies or explains lawful control of the child, while paragraph (b) uses the words "entitled to lawful control of the child". It seems to me that two conclusions follow. The first is that the distinction between removal from a person having control, and keeping from a person entitled to control, is intended to reflect two materially different states of affairs. The first requires the child there and then to be in the lawful control of someone when taken or detained. The second requires only that the child is kept out of the lawful control of someone entitled to it when taken or detained.[33]Paragraph (b) would indeed cover a situation in which the child had run away from lawful control and is, while out of lawful control, detained unlawfully by the defendant. Such a construction of paragraphs (a) and (b) is consistent with the judgment of Simon Brown LJ in the case of Owens, which I have cited earlier, commencing at page 200 letter G, and concluding at letter A on page 201.[34]The second conclusion I would draw from the separation of these concepts is that, when laid in a charge, each is a material averment which alleges one of two separate forms of the same offence. By the time these appellants knew that their inducements to S were unlawful, she was no longer in the lawful custody of her foster mother. That she was no longer in her lawful custody because, by their own lawful conduct, they had substituted themselves in her place is in my view not material. The offence charged was not proved.[35]With reluctance, I have to conclude that for these reasons the appeals must be allowed.

LORD JUSTICE ROSE: I agree. As we are respectfully differing from the observations of Simon Brown LJ, as he then was, in Owens [2001] Cr App 195 at 201B, I should say that I specifically agree with my Lord's analysis of the authorities on this aspect of the case. The appeals are allowed and the convictions quashed.

[37]MISS MARSHALL: Your Lordships, if I may make an application for costs from central funds and an order for taxation by the --

LORD JUSTICE ROSE: I assume you have a representation order, have you?

[39]MISS MARSHALL: We do have a representation order, yes, my Lord.[40]MR WEATHERBY: I support that application. The difficulty in respect of Mr Rutherford is, I understand, the representation order does not cover work done before the representation order.

LORD JUSTICE ROSE: That is usually the case.

[42]MR WEATHERBY: That is the significance of asking for costs from central funds, because then that work would be covered.

LORD JUSTICE ROSE: Do you have anything to say about that?

[44]MR NEALE: No, my Lord.

LORD JUSTICE ROSE: Yes, we grant both appellants an order for their costs to be paid from central funds. Thank you.

Cited in 2 later judgments