Shepherd v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Dingemans |
| Judgment Date | 04 October 2017 |
| Neutral Citation | [2017] EWHC 2566 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 October 2017 |
| Docket Number | CO/5377/2016 |
[2017] EWHC 2566 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Treacy and Mr Justice Dingemans
CO/5377/2016
Mr T Finch (instructed by Dere Street Solicitors) appeared on behalf of the Appellant.
Mr A Payter (instructed by the Government Legal Department) appeared on behalf of the Respondent.
This is an appeal by way of case stated from the decision of the Crown Court at Newcastle made on 22 nd April 2016. On that date the Crown Court heard an appeal from the South East Northumberland Magistrates Court by Mr Shepherd against two convictions. They were, firstly, for taking a child without lawful authority contrary to s.2(1)(b) of the Child Abduction Act 1984 and secondly, detaining a child without lawful authority contrary to the same provision.
The two offences had been committed on different dates. The case stated records that the original conviction by the magistrates' court was on 27 th January 2016. It should be noted that the case stated in the form before us is one prepared by the court by order of Mr Justice Sweeney in replacement of an initially non-compliant case submitted to this court.
In relation to the first conviction the appeal was allowed but in relation to the second conviction the appeal was dismissed. It is the dismissal of the appeal against conviction on the second charge which is in issue before us today. The Crown Court's relevant findings of fact were succinctly stated as follows:
“On 24.11.15 Joe Bryan Shepherd was served with a child abduction warning notice informing him that [BH's] mother did not give permission for him to communicate with her daughter or for him to allow her daughter to enter or stay in his home or be in his company. On 7.12.15 [BH] (d.o.b. 11.5.01, then aged 14) went to the home of Joe Bryan Shepherd. She knocked on the door which he opened, she asked if she could come in to make a roll-up cigarette, he agreed and allowed her to come in. The police attended and found her downstairs in his home.”
On behalf of the appellant it was submitted that the foregoing facts were insufficient to support a conviction for the offence of child abduction by detaining a child without lawful authority. On behalf of the Crown Prosecution Service as an interested party it was submitted that on the facts disclosed the offence was made out. In addition, the CPS raised the question of delay on the part of the appellant in the present proceedings.
Insofar as it is relevant for the purposes of the present proceedings s.2(1) of the Child Abduction Act 1984 provides as follows:
“Subject to sub section 2 below, a person, other than one mentioned in sub section 2 below commits an offence if, without lawful authority or a reasonable excuse, he takes or detains a child under the age of sixteen…
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.”
Section 3 is a definition section and provides where relevant:
“For the purposes of this Part of this Act…
(c) a person shall be regarded as detaining a child if he causes the child to be detained or induces the child to remain with him or any other person…”
The appellant's submission was that on the facts found BH had voluntarily attended at the appellant's home. There was no evidence that the appellant had done an act which caused BH to be detained with the result that BH was kept out of the lawful control of her mother. Permitting or allowing the child to be within the premises was insufficient unless the appellant had caused the child to be detained or induced her to remain with him. The facts found were, it was submitted, insufficient to establish the offence. In particular, there was no detention. The CPS contended to the contrary by reference to the terms of the statute and decided cases.
The question posed for the opinion of this court by the Crown Court was “was the Crown Court entitled to refuse the appeal in the light of the facts it found to be proved?”
I will deal first with the issue of delay. It appears that the appellant's solicitors notified an intention to appeal by way of case stated in good time to the Crown Court and that the court agreed to state a case. Then, in mid June 2016, the appellant submitted a draft case to the court which the court accepted with the proviso that agreed witness statements, a transcript of the appellant's evidence and a transcript of the court's judgment should be added to the stated case. By 28 th June 2016 the appellant's solicitors had received copies of relevant documents but they did not attempt to lodge the stated case until 7 th September. The documentation was not in the proper form. On 5 th October a further attempt was made to lodge the case but without an application to extend time. On 24 th October 2016 the appellant's notice with an appropriate application to extend time was received by the High Court.
CPR 52 CPD 2.2 provides that an appellant must file an appellant's notice at the appeal court within 10 days of the date of the case stated by the court. Accordingly, the appellant's notice in this case should have been filed by 8 th July 2016. It was not filed in proper form until about 15 weeks later. The burden is on the defaulting party to persuade the court to grant relief. That will include taking into account (i) the...
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James David Pringle v R
...authorities, in particular R v A [2000] 1 WLR 1879 and Shepherd v The Crown Court Sitting at Newcastle upon Tyne (ex p DPP) [2017] EWHC 2566 (Admin). 52 As stated in R v A at p1884: “Section 3(a) does not expressly provide that the person concerned must solely cause the child to accompany......