R v Dhillon (Pritpal)
| Jurisdiction | England & Wales |
| Judge | Mr Justice David Steel |
| Judgment Date | 23 November 2005 |
| Neutral Citation | [2005] EWCA Crim 2996 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 November 2005 |
| Docket Number | Case No: 200500079.C2 |
[2005] EWCA Crim 2996
IN THE HIGH COURT OF JUSTICE
COUERT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
His Honour Judge McDowall
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Mr Justice David Steel and
The Recorder of Winchester
His Honour Judge Brodrick
(Sitting as a Judge of the Court of Appeal, Criminal Division)
Case No: 200500079.C2
Mr Piers Mostyn acting for the Appellant
Mr Peter Herrity acting for the Respondent
On the 14 December 2004 at the Crown Court at Isleworth the appellant was convicted before His Honour Judge McDowall and a jury of escape contrary to common law. The jury was unable to reach a verdict with regard to other counts charging him with the offences of dangerous driving, assault occasioning actual bodily harm and criminal damage.
On the 16 December 2004 he was sentenced to 8 months imprisonment. With respect to the other counts, the prosecution offered no evidence and formal verdicts of not guilty were entered.
He appeals against that conviction by leave of the single judge.
The background is as follows. At 07.49 am on 30 September 1998, police officers arrested the appellant as an illegal immigrant. He was thereupon transported to a police station where, following examination by a doctor, he was taken by a police officer to Hillingdon Hospital in order for a suspected knee injury to be X-rayed.
It was the prosecution case that, after receiving treatment, the appellant escaped from police custody by leaving the hospital. It was the defence case that the appellant, having received his treatment and seeing no police officers, simply left the hospital and went home unaware that this would be treated as an escape.
The evidence was in very short compass. A PC Mitchell said that at 1.00 pm he was told to go to Hillingdon Hospital to take over the custody of the appellant from another officer. (This latter officer was not called to give evidence and indeed PC Mitchell could not remember his name). When he arrived at the A & E waiting area, he said that the appellant was pointed out to him by his colleague. His colleague was said to have observed "that is Dhillon" and the person concerned appeared to respond to his name.
PC Mitchell did not stay with the appellant when the latter went in to be seen by the triage nurses and then X-rayed. He had expected to see the Appellant re-emerge into the waiting room following treatment. However, he lost contact with him and, after conducting a search which revealed an alternative exit, reported that the appellant was missing.
In his police interview the appellant gave predominantly no comment responses to the questions that were put. However, he expressly denied escaping from police guard. In his oral evidence he said that he had not been aware that he had been under police guard at the hospital. After he had been X-rayed he could see no police officers waiting for him. He therefore went over to where he knew a police officer had been but again could not find anyone and so he left the hospital.
The focus of this appeal, reflecting the leave granted by the single judge, was the question whether the summing up adequately directed the jury as to the ingredients of the offence of escape on the unusual facts.
It is convenient to begin consideration of the substance of this appeal by seeking to identify the ingredients of the offence of escape at common law which is a relatively unusual offence. Indeed the sections devoted to the offence in the standard text books perhaps lack the degree of particularity needed to assist a trial judge when embarking on such a task. It is at least clear that it is an indictable offence at common law for a prisoner to escape without the use of force from lawful custody: see Archbold (2005) para. 28–191. The following authorities are of some further assistance.
First Timmis [1976] Crim.LR 129. The defendant had been stopped as a result of erratic driving and breathalysed. The test proving positive, the defendant was told that we would be taken in custody to a police station and he was placed in a police car. He was then left alone for some considerable time whereafter he got out of the car and walked into a public house on the opposite side of the road where he remained for about an hour.
At some stage the police followed him but could not find him, although it was not suggested he was actively seeking to conceal himself. The defendant in due course gave himself up at the police station and he was charged with escape. A motion to dismiss the ensuing indictment was refused. The note of the court's finding in this regard reads: -
" The general principle was that all persons were bound to submit themselves to the process of the law once lawfully arrested. … Hence it was possible that where a defendant deliberately and with the intention of evading the criminal process, breached his custody, the offence of escape could be committed."
In this regard the editor's comment is to the effect: -
"There seems to be no suggestion that it is an ingredient of the offence that the accused should intend to remain at large permanently nor that he should escape with any particular object in view. In these respects, the direction (in the subsequent trial) might have been too favourable to the accused."
In Dillon [1982] AC 484, the custody officer had unlocked two cells and the two prisoners occupying them had escaped. He was charged with negligence in permitting them to escape out of custody. At the trial there was no affirmative evidence that the prisoners had ever been lawfully detained. The Crown relied on the fact that the prisoners were in actual detention at the lock-up as raising a presumption that their detention there was lawful.
On appeal to the Judicial Committee of the Privy Council, the appeal was allowed. In the judgment of Lord Fraser there is the following passage at 487e.
"Their Lordships are of the opinion that it was essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the defendant. … The lawfulness of the detention was a necessary precondition for the offence of permitting escape, and it is well established that the courts will not presume the existence of facts which are central to an offence…
It has to be remembered that in every case where a police officer commits the offence of negligently permitting a prisoner to escape from lawful custody, the prisoner himself commits an offence by escaping and it would be contrary to the fundamental principles of law that the onus should be upon a prisoner to rebut a presumption that he was being lawfully detained which he could only do by the (notoriously difficult) process of proving a negative."
In E v DPP [2002] Crim LR 737, a youth court remanded the appellant to a local authority with a requirement that the local authority detain him in secure accommodation. No such accommodation was however available. He was brought back to the Youth Court by a member of the youth offending team but then absconded. He was later convicted of escape. An appeal by way of case stated contended that there was no evidence upon which the justices could properly find that he was in lawful custody. This issue was held to be a question of fact:-
"Custody was an English word which should be given its ordinary and natural meaning namely "confinement, imprisonment, durance" subject to any special meaning given to it by statute. For a person to be in custody his liberty had to be subject to such constraint or restriction that he could be said to be confined by another in the sense that the person's immediate freedom of movement was under the direct control of another…"
As regards the constraints involved on the facts, and the defendant's knowledge of them, the report goes on:-
"The order made by the justices in the present case whereby the appellant was remanded was custodial in nature not only did it remand him into the care of the local authority but it also required that he be placed in secure accommodation. Such a remand was so restrictive of the appellant's liberty that it could properly be said to be custodial in nature. The lawfulness of the regime which was thereafter applied to the Appellant in the period of remand was established by that order. The appellant was at all times fully aware of that fact. …"
The references to "direct control" in the earlier passage quoted above was considered in Rumble [2003] 167 JP 203, where a defendant had surrendered to his bail at a Magistrates Court. There was no usher and no security staff. Following imposition of a custodial sentence, the defendant escaped through the public entrance. It was submitted on an appeal that the defendant was not under "direct" control of anyone. Buxton LJ dealt with this submission peremptorily: -
"That argument only has to be stated for it to be seen that it be extremely odd if it were correct. Once a person surrenders at the court as...
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