R H v DPP
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GAGE |
| Judgment Date | 04 April 2003 |
| Neutral Citation | [2003] EWHC 878 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/136/2003 |
| Date | 04 April 2003 |
[2003] EWHC 878 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Gage
CO/136/2003
MR M TRIGG (instructed by Bishop & Light) appeared on behalf of the CLAIMANT
MR H DAVIES (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
This an appeal by way of case stated from a decision of Justices for the Sussex (Central) Petty Sessional Area, who convicted the appellant of an offence of escape from lawful custody contrary to common law. The central issue in the case is whether at material time when the appellant admittedly absconded he had escaped from lawful custody. The appellant was aged 15 at the time. The facts as found by the magistrates can be briefly stated and I take them directly from paragraph 2, (a) to (f) of the case stated.
"a) On the 23rd day of August 2002, the appellant appeared before the Brighton Youth Court and was remanded to local authority accommodation, without any security requirement, under section 23 of the Children and Young Persons Act 1969.
"b) Following the remand, the appellant was released from custody into the care of Alex Cooter, an acting senior practitioner for the Brighton and Hove Youth Offending Team, who was to arrange his placement during the period of the remand. Alex Cooter had not been present in court when the order remanding the appellant was announced but had been informed of the decision by the appellant's solicitor, and this was also confirmed by a member of Premier Prison Services, the prisoner escort service. Alex Cooter had not seen the remand warrant, and did not have the warrant in her possession at the time she accepted the appellant into her care.
"c) The order of remand was custodial in nature, being a refusal of bail and a remand to local authority care.
"d) At the time arrangements were being made for his placement, the appellant was under the direct lawful control of the youth offending team who had power under section 23(3) of the Children and Young Persons Act 1969 to detain him.
"e) The appellant was briefly left unsupervised, and, during that period, having been told by Alex Cooter not to move, absconded.
"f) By absconding without authority, the appellant escaped from lawful custody."
The magistrates then go on to summarise the evidence before them in what is described as a short statement of evidence (sub-paragraphs A to D). The contentions before the magistrates are set out which were: on behalf of the appellant it was submitted that he, having been remanded to local authority accommodation with no provision for secure accommodation, was not in custody. So far as the respondent is concerned, it was contended that he was at all material times in lawful custody. The opinion of the magistrates is set out at paragraph 6:
"We were of the opinion that the order for the remand of the appellant into the care of the local authority was custodial in nature, and the appellant knew this to be the case. At the time when he absconded, the appellant was under the direct lawful control of Alex Cooter, a member of the youth offending team, who was in the process of arranging where he was to be placed during the period of the remand. Alex Cooter, and other members of the youth offending team, had power to detain the appellant under section 23(3) of the Children and Young Persons Act 1969 if it was necessary to do so. We were satisfied beyond reasonable doubt that at the material time the appellant was in lawful custody because his immediate freedom of movement was under the direct control of another, and by absconding, he escaped from lawful custody, and accordingly, we found him guilty of the offence as charged. He was sentenced to a supervision order for 12 months with conditions."
The magistrates then set out four questions for the opinion of the High Court. The first two are perhaps most material.
"i) Whether the justices were wrong in law in finding that the appellant, having been remanded into the care of the local authority and without any order having been made, that he be held in secure accommodation, was therefore in custody.
"ii) Whether the justices were wrong in law in finding that it was therefore possible for him to escape from local authority accommodation when there was no control or restriction on his freedom of movement."
Mr Trigg, on behalf of the appellant before me, submits that in their findings of fact the magistrates have elided findings of law and findings of fact. In particular, he submits that the finding that the order was custodial in nature was not a finding of fact, but at best, a finding of mixed fact and law. He further submits that insofar as it was a finding of law, it was wrong. In support of this submission he relies on dicta of Lord Hope and Lord Clyde in the case of R v Secretary of State Home for the Department ex parte A [2000] 2 AC p.276. I shall return to that decision later in this judgment.
Secondly, he submits that although section 23(3) of the Children and Young Persons Act provides power for Miss Cooter as acting senior practitioner of the youth offending team to detain the appellant, the magistrates were wrong on the evidence before them to conclude that she did so detain the appellant. He submits that something more than just telling the appellant not to move was required. In any event, the evidence of the appellant, being confused as to what was going on, shows that he did not appreciate that he was being detained under section 23(3). In the circumstances, submits Mr Trigg, the appellant cannot be found guilty of escape from lawful custody. Mr Trigg relies on provisions of section 32 of the Children and Young Persons Act as showing that the remedy for a person absenting himself from local authority accommodation is arrest by a police officer.
Mr Davis, for the respondent, submits that by virtue of section 23(3) Of the Children and Young Persons Act, this was an order which was custodial in nature. He relies on observations of Kennedy LJ in E v DPP [2002] EWHC Admin at page 433. He submits, in addition, that section 32 of the Act give powers to police officers to arrest, without warrant, a young person who is absent from local authority accommodation, and that reinforces his submission that the order made was custodial in nature. Further, he submits that in any event the fact that the appellant was taken from the cells by Miss Cooter and told to wait while she went to find a way into the youth offending team office is quite sufficient to show that she was exercising her powers under section 23(3) to detain the appellant. So it is submitted, on behalf of the respondent, that the magistrates were quite entitled to find that he was escaping from lawful custody when he absconded. It seems to me that in essence the issue can be simply stated in one question: was the appellant in lawful custody at the time that he absconded? I turn now to the statutory provisions.
The section 23 of the Children and Young Persons Act 1969, as amended, states, insofar as is relevant for this case, the following:
"(1) Where —
(a) a court remands a child or young person charged with or convicted of one or more offences or commits him for trial or sentence, and
(b) he is not realised 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 committal."
Sub-section 2 is not relevant. Sub-section 3 reads:
"(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 sub-sections (5) and (5A) below, a court remanding a person to local authority accommodation may, after consultation with the designated authority, require that authority to comply with a security requirement, that is to say, a requirement that the person in question be placed in secure accommodation."
Sub-section (5) deals with those who qualify for a secure requirement. Sub-section (6) is not relevant and I turn to sub-section 7 which reads:
"[Subject to section 23AA below] A court remanding a person to local authority accommodation without imposing a security requirement may, after consultation with the designated authority, require that person to comply with —
(a) any such conditions as could be imposed under section 3(6) of the Bail Act 1976 (c 63) if he were then being granted bail; and
(b) any conditions imposed for the purpose of securing the electronic monitoring of his compliance with any other condition imposed under this sub-section."
Finally, sub-sections (9) and (10) deal with conditions which may be required after consultation with the designated authority. It will be seen from a recital of these statutory provisions that a distinction is to be drawn between a young person committed to local authority accommodation and a young person committed to local authority...
To continue reading
Request your trial
-
R v David John Montgomery
...will deal with in a moment, we have considered the case of Rumble [2003] 167 JP 203 and in particular the judgment of Buxton LJ; the case of H v DPP [2003] Crim.L.R 560, both of which are referred to in the leading case on this topic of R v Dhillon [2006] 1 Cr.App.R 237. 6 We have also cons......
-
R v Dhillon (Pritpal)
...him, and his vulnerability to the offence of escaping, depended upon the precise nature of the physical constraints imposed upon him." 19 In H v DPP [2003] Cr LR 560, the defendant was remanded to local authority accommodation by a Youth Court without any security requirement. Following the......
-
Taueki v New Zealand Police
...R v Goodwin [1993] 2 NZLR 153 (CA). E v Director of Public Prosecutions [2002] EWHC 433 (Admin); H v Director of Public Prosecutions [2003] EWHC 878 (Admin), [2003] Crim LR 560; R v Rumble [2003] EWCA Crim 770, (2003) 167 JP 205; Regina v Dhillon [2005] EWCA Crim 2996, [2006] 1 WLR Regina v......
-
Joel Francisco Estevez v Court of Mantua (Italy)
...judgment, the Court of Appeal refer altogether to E v DPP, to which I have referred, Rumble, to which I have referred, and H v DPP [2003] EWHC 878 (Admin). This collection of authorities illustrates, in fact-specific contexts, situations in which courts have regarded a person as being in c......
-
Legal Commentary
...lawful custody (E. v Director of Public Prosecutions [2002] Crim. L.R.737). In the subsequent case of R (on the application of H.) v DPP [2003] EWHC 878Admin., the same issue was posed where the defendant had been remanded to localauthority accommodation without a security requirement and, ......