R v David John Montgomery
| Jurisdiction | England & Wales |
| Judge | SIR RICHARD CURTIS,LORD JUSTICE THOMAS,MR JUSTICE BEAN,MR JUSTICE UNDERHILL |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] EWCA Crim 2157,[2007] EWCA Crim 1398 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2007/0057/C3,No: 200700057 C3 |
| Date | 31 July 2007 |
[2007] EWCA Crim 1398
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thomas
Mr Justice Bean
Sir Richard Curtis
No: 2007/0057/C3
MR M LEVY appeared on behalf of the APPLICANT
MR G MCKINLEY appeared on behalf of the CROWN
David John Montgomery's date of birth is 9th August 1971, so he is 35 years of age and he has a bad criminal record.
Before the court this day are two applications put forward by Mr Levy of counsel on his behalf. First, there is a renewed application for leave to appeal against a sentence of eight months' imprisonment for an offence of escape contrary to common law. The date of the offence is alleged to have been 20th April 2006. The sentence passed was consecutive to the totality of a previous sentence of six years imposed on 4th October 2004. The relevant Crown Court is Woolwich. The judge was His Honour Judge Stone and the date of sentence was 9th June 2006. The applicant was represented by counsel before the learned judge and he pleaded guilty to the indictment. The application has been referred to the full court by the Registrar.
The second application is an application for an extension of time of no less than 178 days since, to use the words of the letter the relevant solicitors wrote to the Registrar, “a possible issue only arose some time in mid-November 2006” and that is why they ask for that extension of time.
The first thing to note about application number one is that this court has no evidence of the facts relating to the escape. At the hearing on 9th June 2006 the Crown opened their case in a limited way, namely that the applicant had been recaptured at 3.30 pm on 19th May 2006 when by chance he was recognised by a passing police officer in the street as an escapee and the applicant admitted who he was—of course that was hardly necessary because the officer knew who he was. But he was recognised as wanted for prison escape. The place where he was walking was Shoreham Road, Otford, Kent. He was arrested under section 49 of the Prison Act and taken to the police station. It is uncertain to us at this stage what leave precisely this applicant was given, who gave it and what are the terms or conditions of the leave given, nor is the Prison Rule or other statutory authority governing such leave known. Those matters, in the light of Mr Levy's submission, should in our view be ascertained beyond peradventure.
The point Mr Levy has made before us is that because Parliament passed the Prison (Return to Custody) Act 1995 creating a summary offence of failure to return from leave from a prison, it follows that Parliament has taken a view that the common law offence of escape did not apply to failures by prisoners to return to prison from leave. We express no view on this matter at this stage. The point of course is that there is a time limit in this Act which has long since expired so there is no question of any conviction being substituted in this particular case. For the benefit of the full court who will have to deal with this matter, for the reasons we 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.
We have also considered a different point that Mr Levy did not address us about until after the adjournment when the court drew his attention to the case of Saik [2004] EWCA Crim. 2936 and R v Boal [1992] 1 QB 591 and observations by Lord Brown of Eaton-under-Haywood (as he now is) in that particular case. This point deals with something different, namely whether this court should in its discretion permit an applicant who has pleaded guilty in the circumstances of this case now to say that he has been wrongly convicted and obviously there are considerations of justice running outside this case to be taken into account.
Consequently, we shall, in the light of the Crown's concession that this is an arguable case, give leave. We have to say that had that concession not been made we should have been unlikely to have granted the application. However, we can see that it may be that the full court should be seized of this matter since it is not an entirely infrequent difficulty and can obviously reach their own conclusion when the matter has been fully and properly argued with the facts ascertained clearly and the legal submissions made after full consideration rather than somewhat on the hoof as has happened for good reasons in front of us.
For those reasons this application succeeds to the limited extent stated.
Mr Levy, the question you raised in relation to your skeleton. Your skeleton obviously does not pick out the point which my Lord, Bean J, drew to your attention on section 13. Your skeleton really is in two documents, I say that by no means as a criticism, but I do think that as this is probably for the Government a potentially extremely important case in terms of money and as it is only going forward because of the Crown's concession, I think it is important that you consolidate your skeleton argument, make what you can of section 13 or whatever other section or authority you like and then I think we should ask that the—how long will it take you to do that?
Not very long, my Lord. I can certainly do it by the end of next week.
When is your client's EDR?
His actual EDR is July of next year. He has, believe it or not, a parole hearing in July.
So it is conceivable he could be released in July.
Yes.
But his EDR, supposing the eight month sentence is unlawful, when would his EDR be? Still next year?
It is still well into next year.
The case ought to come on some time in July. Therefore could we ask you to do this in a fortnight.
I can comfortably do that.
14 days, shall we say 4th June. Is that sensible for you?
That is a bank holiday.
I do not think 4th June is a bank holiday. The bank holiday is in one week's time.
I was about to go to a wedding on the wrong date. I am grateful to your Lordship.
We have saved you some embarrassment anyway. Do that and then I think the Crown should respond within a fortnight of that. It will give you the opportunity to do the necessary and proper research on this subject because potentially you appreciate if Mr Levy is right and his case will be no different to anyone else's cases because they will all have this hallmark of being out of time, a new point to be taken, and therefore the point you conceded today really, unless the Crown takes a different view, would possibly have to apply in every one of them and therefore there is potentially quite a large problem here if Mr Levy turns out to be right. Could you ask the CPS to produce, do you think, a skeleton within a fortnight to be available on 18th June with the case to be listed in July. The only reason I am anxious to do that is if you turn out to be right we might as well save at least the embarrassment of your client being in prison longer than he should.
My Lord, yes.
Then it would be helpful to have some proper background—it just strikes me that you make an assertion that early on the provisions of, for example, day release and all of this sort of stuff is modern. I suspect that open prisons have operated in this way for years before 1995, but I have no idea, and I would imagine we have never been so heartless a society that we would refuse to allow prisoners in loose conditions to go off. So there must be a long history of offending but maybe the point has never been tested.
My Lord, actually I have had quite a good look at it.
The CPS may be able to help on what the practice has been.
I have certainly never come across a case where someone has been charged in this situation. I am sure hundreds of people have and no one has taken the point.
Large numbers of people I am sure have been charged and have served time in prison as a result of this which if you are right they should not have been.
There may have been a change when the rules about remission were changed. Would it not have been dealt with in the old days by a charge before the Governor and then the prisoner having to serve beyond half or beyond two-thirds of the original sentence and so never got to the criminal courts?
That may be right. I know that day release certainly goes back 50 years at least.
The CPS may be able to help because they will, without any doubt, be able to have access to the advice that was given to the Home Office Working Party that is referred to. But it may be that that authority—whether you are permitted to go into that is not a matter we will decide. But we think that because of the potential importance of this point to other prisoners—and it is your understanding Mr McKinley—
It is, my Lord. I think it is still being routinely charged.
Of all the people who may have been charged with this offence and should not have been, if you are right, Mr Levy. Is there anything else you need from us. You have legal representation?
Yes, I do not need anything else, my Lord.
Thank you very much for your help, both of you. We will refer the application on...
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