R v D
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WATKINS |
| Judgment Date | 31 October 1983 |
| Judgment citation (vLex) | [1983] EWCA Crim J1031-1 |
| Docket Number | No. 3051/R/82 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 October 1983 |
[1983] EWCA Crim J1031-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Watkins
Mr. Justice Mustill
and
Mr. Justice Skinner
No. 3051/R/82
MR. N. TAYLOR, Q.C. and MR. P. RALLS appeared on behalf of the Appellant.
MISS A. CURNOW and MR. N. PURNELL appeared on behalf of the Crown.
(As approved by the Judge)
Mr. Justice Skinner is unavoidably absent from the courtroom today. I need hardly say, however, he is a party to this judgment.
On 18th May 1982, at the Central Criminal Court, before His Honour Judge Lymbery and a jury, the appellant (a New Zealander, then 42 years of age) was, in respect of events which took place on 13th and 14th December 1978, convicted of the false imprisonment of his wife Audrey (Count 2) and of being in contempt of court, in that by taking E. – then two years of age and a ward of court –outside England and Wales and out of the care and control of her mother without the consent of the court, he did an act calculated to interfere with the due administration of justice (Count 4). He was acquitted of kidnapping E. at that time (Count 1). In respect of events which took place on 6th November 1981, he was convicted of a similar offence of contempt of court, E. then being a ward and five years of age (Count 7) and of kidnapping E. in that he stole and unlawfully carried her away against her will (Count 6). For these offences, he was sentenced to concurrent terms of imprisonment, all suspended for two years, of two years, four months, six months and fifteen months respectively. He appeals against his convictions for contempt of court and of kidnapping only.
The history of this stormy and unhappy family affair begins with the marriage of the appellant to Audrey on 28th July 1973. It was her second marriage. She had a son by her first marriage which ended in divorce and a girl, S., born in 1965 and a boy J., born in 1969, of a long standing relationship with another man.
In January 1974, the appellant, Audrey, S. and J. went to live in New Zealand. E. was born there on 6th February 1976. In April 1977, S. and J. returned here to live with their maternal grandparents. In the following September, the appellant, Audrey and and E. came to England ostensibly on a year's holiday. They went to live in a flat in Harold Hill, Romford in Essex. The marriage was under considerable strain by 10th April 1978 when Audrey applied to the Family Division, by originating summons served on the appellant, to have E. made a ward of court and for an order that she have the care and control of her. They separated. She went to a secret address after he had said he would take E. to New Zealand.
On 21st July, a Registrar of the Family Division, by consent, ordered that: (1) E. continue to be a ward; (2) she remain in the care and control of her mother; and (3) a welfare officer's report be prepared with regard to the appellant's application for access. By that time, the appellant had returned to New Zealand where, on 21st April, Audrey had commenced proceedings for, inter alia, custody of E.
By the late Autumn of 1978, the appellant had made, upon his return at about that time to England, careful and devious preparations to take the law into his own hands and to take E., if necessary by force, away from her mother. To assist him in this reprehensible endeavour, he enlisted the assistance of two violent men named Hunter and Aherne.
On 13th December, these three men, at about 11.15 p.m. when Audrey was watching television, pushed their way into the flat at Harold Hill where she had been living with all three children for some time. The appellant had a rope in his hand. Hunter wore a stocking mask and plastic gloves and carried a knife. He unscrewed the door bell. Aherne had a pair of scissors and a knife.
The appellant told Audrey that he had come to take E. away. She told the other two men that E. was a ward of court. They were as indifferent to that as was the appellant himself. Frightened out of her wits, Audrey woke E. up and dressed her in the presence of an even more frightened S. The appellant then took her away, she showing no signs of distress as she went. Before leaving the flat, in company with Aherne, the appellant showed Audrey an article which he said was a gas bomb. It was, he sad, to be left with Hunter who knew how to activate it and who would, as he did for several hours, remain behind so that the appellant could have a good start on his journey before the police were informed about what was going on. Thus it was that E. was taken away from her mother and afterwards by air to New Zealand.
Hunter remained in the flat until 4.30 a.m. the following morning. Audrey telephoned the police when he left. He and Aherne were soon apprehended and at Chelmsford Crown Court on 19th March 1979, they were sentenced to concurrent terms of imprisonment of two years for false imprisonment and twelve months for possessing prohibited weapons. A move was made to have the appellant extradited from New Zealand on a charge of false imprisonment, but the application therefor to the Supreme Court was unsuccessful.
Meanwhile, Audrey obtained from Mr. Justice Purchas in the Family Division on 14th December 1978, ex parte orders that E. be returned to her forthwith and that the appellant be brought before a judge of the Family Division as soon as possible and an injunction restraining the appellant from, upon E.'s return to her mother, removing the child from her care and control and from taking E. out of England and Wales. Subsequently, Audrey went to New Zealand. On 30th January 1979, the Supreme Court there, by consent, awarded her custody of E. with liberty to take her back to England and gave the appellant access on terms to be agreed or as ordered by a court in England.
Early in February 1979, Audrey and E. returned to England and went to live at an address in Peterborough which was not revealed to the appellant. In October 1981, the question of access remaining unresolved, the appellant came to England, discovered where they were living with S. and J., and began to keep a watch on the house.
On 6th November, the appellant was let into the house at about 8.00 a.m. by J. He went upstairs to where E. – whom he had not seen for three years – was with her mother. He said he had come to take E. away. Audrey, having tried to reason with him, picked her up and, whilst shouting out that she wanted the police informed, carried E. out of the house. The appellant followed her, seized E. and pushed Audrey into some bushes. By now, neighbours were in the street watching this distressing scene. They saw the appellant rush with E., still in her pyjamas, struggling and screaming into a waiting car which was quickly driven away.
The appellant took E. to Eire. Two days later she was reunited with her mother who had flown there. The appellant was arrested on a warrant issued by Havering Magistrates' Court, brought back to England and charged with inter alia the offences already referred to.
On the day following his convictions, Mr. Justice Wood in the Family Division, discharged that part of Mr. Justice Purchas's order relating to the appellant's apprehension and ordered that he should not have access to E. (who was to remain in her mother's care and control) and that the appellant be restrained from communicating with E. and from molesting both her and her mother.
The appellant and Audrey are now divorced, as a result of proceedings commenced a considerable time ago which were not concluded sooner owing to difficulties at times in tracing the whereabouts of the appellant.
In the social enquiry report, prepared for the criminal proceedings, the probation officer observed (with much justification, we think): "I realise that this case is one of great complexity. Moreover, it is fraught with the kind of mutual bitterness and emotional conflict more often found in a matrimonial court than in one of criminal jurisdiction." Later on, the probation officer went on: "Situations like this are sadly familiar to Probation Officers writing reports for Divorce Courts. Only the very extremes of Mr. Daily's behaviour resulting in criminal charges and national publicity make it different from countless other similar cases, whereby the two parties concerned become so locked in battle that eventually neither can or will move sideways. ….. In that kind of situation, children become weapons or armoury, as they have so unhappily become in this case."
The Family Division is indeed all too well acquainted with the often appalling consequences of matrimonial strife. It has formidable powers to control the interests of children and to punish those who contemptuously disobey the orders made for the benefit of children whether or not they be wards of court.
This is a very serious example of the deliberate flouting by a father on two occasions, separated by several years in time, of court orders affecting a ward, but not so serious as to, in our view, prevent the judges of the Family Division and all other judges of the High Court for that matter, from sufficiently and properly punishing this appellant for being in contempt for unlawfully and by force taking E. away from her mother.
To resort to the criminal court for this purpose is very unusual, if not unique. We were informed that it was done here seeing that the appellant faced anyway the grave criminal charge of false imprisonment, among others, so that all matters could be disposed of once and for all. We shall say later what we think of the wisdom or otherwise of including in the indictment the so-called common law...
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