R v Rahman
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 23 May 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J0523-4 |
| Docket Number | No. 7285/B/83 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 May 1985 |
[1985] EWCA Crim J0523-4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Glidewell
and
Mr. Justice Kennedy
No. 7285/B/83
MR. J. PLATTS-MILLS, Q.C. and MR. M. SYED appeared on behalf of the Appellant.
MR. T. CASSEL appeared on behalf of the Crown.
On 25th November 1983 at the Crown Court at Inner London Sessions House, this appellant. Mohammed Rahman, was convicted of false imprisonment, which was an allegation contained in count 2 of the indictment and at a later stage, in December, he was sentenced to twelve months' imprisonment. There were other matters alleged against him which will have to be dealt with on questions of sentence at a later stage of this judgment.
So far as the false imprisonment was concerned, let me say this: there were originally in the indictment two counts relating to the child in question. Her name was Rummana. The first count alleged that the appellant had kidnapped her, the second count, already referred to, alleged that he had falsely imprisoned her.
The decision of the Court of Appeal in R. v. D (1984) A. C. 778, had at that stage just been published. That decision was first of all to the effect that the common law offence of kidnapping did not exist in the case of a child under the age of 14, where the defendant was the parent. It was secondly to the effect that a parent could not be convicted of the offence of kidnapping where the child victim was unmarried and under the age of 18. That being the situation in law at the time, the Crown decided that they could not proceed on the kidnapping charge and a verdict of not guilty by direction was accordingly entered on that particular count. That was a decision which was plainly correct, if we may say so, at that time.
The trial of the false imprisonment count then proceeded. It proceeded as far as the close of the prosecution case, when submissions were made by Mr. Platts-Mills to the effect that there was no case to answer. Those submissions were based primarily, though not entirely, upon the Court of Appeal decision in R. v. D. Analogies were drawn between kidnapping and false imprisonment, and it was submitted to the learned Judge that those analogies having been drawn, just as the prosecution were not in a position to proceed on the the case on the false imprisonment should come to an end at t
The learned Judge, Judge Mason, was given the benefit of lengthy arguments on either side in order to assist him to make up his mind. He rejected the defence submissions and inded that the case should continue. The appellant then expressed his wish, obviously acting upon advice, to change his plea. The indictrent accordingly was put to him again and he pleaded guilty to the false imprisonment.
Since then the House of Lords have reversed the Court of Appeal's decision in R. v. D. Since that case forms perhaps the basis of the arguments which have been addressed to this Court, it might be helpful first of all to see what it was the Court of Appeal decided, upon which the prosecution based their withdrawal, so to speak, of the charge of kidnapping, and secondly, how it was that the House of Lords altered that decision.
The leading speech with which all of their Lordships, with the exception of Lord Bridge of Harwich who had one small reservation to make, agreed, was that of Lord Brandon. The two points of law which were certified were these: "(a) Whether the common law offence of kidnapping exists in the case of a child victim under the age of 14 years; and (b) whether in any circumstances a parent may be convicted of such an offence where the child victim is unmarried and under the age of majority." The Court of Appeal held that the answers to both those points should be in the negative and it was on that basis that the Court quashed the appellant's conviction.
Lord Brandon of Oakbrook at page 805 said this: "For the reasons which I have given, I consider that the Court of Appeal was wrong in answering the second certified point of law in the way in which they did. I am of opinion that, having regard to the changed social conditions and legal attitudes existing today, it is possible for a father to commit the common law offence of kidnapping his own minor child. It follows that I would answer the second, as well as the first, of the two certified points of law in the affirmative."
It would also perhaps be helpful if I were to read two short passages from the speech of Lord Brandon. First of all at page 800 he says: "From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Secondly, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse. "
A further passage at page 804 reads: "In coming to their conclusion with regard to the second point, the Court of Appeal appears to have relied on two main considerations. The first consideration was that, if a father snatched a child contrary to an order of a court relating to its custody or care and control, such court had ample powers to punish him for contempt of court. That being so, it was not necessary that his conduct should be brought within the province of the criminal law; it was rather, by reason of the difficulties characteristic of disputes between parents about their children, much better that it should not. This consideration appears to me to be one of policy only, for which there is indeed much to be said, and about which it will be necessary to say something more at a later stage. In my opinion, however, it is not a consideration which can of itself have any bearing on the question whether the second limitation on the scope of the common law offence of kidnapping exists or not."
What in this Court we have to ask ourselves is this: Was the Judge, in the light of subsequent events, and in particular in the light of the decision of the House of Lords in R. v. D., right or wrong in rejecting the submissions made to him by Mr. Platts-Mills at the close of the prosecution case? If he was wrong, then the change of plea from not guilty to guilty was based on a wrong decision by Law and this appeal should succeed. If on the other hand he was right, than the plea of guilty was not brought about by anything improper which had happened at the trial and there is no reason to set it aside or to allow the appeal.
Having said that, let me turn to the facts which related to this charge of false imprisonment. The daughter Rummana came to England with her mother and father, this appellant, when she was 2 years old. Her mother returned to Bangladesh – that is where they come from – after quite a short time. Rummana was fostered out by her father but with the consent and with the assistance of the local authority at the time. She was 14 or 15 years of age when these events took place – it is not clear which and it does not matter for the purposes of this case. She was certainly at school. Her 'O' levels were coming up, so to speak, later in the academic year and she was at that particular time about to sit some mock '0' level examinations. She apparently wished to remain at school and she was very anxious to be in a position to take these test papers. It seems that she did not wish particularly to...
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