England and Wales Court of Appeal (Criminal Division) Decisions

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
		23 November 2005

Mr Justice David Steel :

1. 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.

2. 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.

3. He appeals against that conviction by leave of the single judge.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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."

13. 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."

14. 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.

15. 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."

16. In E v DPP [2002] Crim LR 737, [2002] EWHC 433 (Admin), 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…"

17. 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. …"

18. 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 Mr Rumble did and was obliged by law to do, it would be very surprising indeed if the court's right to control him, and his vulnerability to the offence of escaping, depended upon the precise nature of the physical constraints imposed upon him."

19. In H v DPP [2003] Crim LR 560, [2003] EWHC 878 (Admin), the defendant was remanded to local authority accommodation by a Youth Court without any security requirement. Following the remand the defendant was released from custody into the care of a member of the youth offending team. The defendant was briefly left unsupervised but, having been told not to move, absconded. The defendant was charged with escape.

20. The report records as follows: -

    "In order to determine whether an order made under section 23 of the 1969 Act was custodial in nature which was a question of fact it was necessary to concentrate on the moment when it was alleged that the defendant absconded. In the instant case the justices had remanded him to local authority accommodation under section 23 without attaching conditions and that sanction gave power to the local authority to detain the defendant. He had been told not to move by the youth offending team member so that it was unrealistic to suggest he did not know he was being detained and that he was not entitled to simply run off. In those circumstances there was ample evidence upon which the justice could have concluded that his immediate freedom of movement was under the direct control of the youth team member and that by absconding he was escaping from her custody."

21. In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things: -

    i) that the defendant was in custody;

    ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not);

    iii) that the custody was lawful; and

    iv) that the defendant intentionally escaped from that lawful custody.

22. The judge's directions on the law relating to escape appear at, or at least amongst, pages 16 to 20 of the summing up. The passage starts at p. 16 as follows:

    "As far as the law on the fourth count, that is escape, this is a common law offence. In other words, there is no specific Act of Parliament setting out what is an escape and what is not. The first thing, obviously, that the prosecution have to prove so that you feel sure, is that on this particular day in time, Mr Dhillon was in a lawful custody at Hillingdon Hospital.

    Well, again you have heard that, however it happened in terms of what had happened earlier in that day, then there is no doubt at all that eventually Mr Dhillon was arrested. Although there is some element of dispute as to what he was arrested or told he was being arrested for. There is no dispute, as I say, that he was arrested, that I say he was held at the garage until some other transport turned up, and that he was taken to the police station, presented to the officer called the Custody Sergeant, who has to make the decision on whether he is detained or not, and he was not given bail or otherwise told to report back to the police station on some other occasion.

    What we do know happened is that a doctor, a force medical examiner, Dr Lauder, came along to have a look at the police who had been involved in this incident, and Mr Dhillon himself. And you remember that yesterday afternoon you had this statement read to you."

23. The judge then inserted a long section dealing with the earlier counts of assault as regards the nature of any injury sustained by two police officers. He then reverted to the escape count at p. 18 as follows: -

    "The point is that the doctor, as far as Mr Dhillon was concerned, said that he should be taken to – he ought to be taken to hospital to get an X-ray so that you could rule out any question of a broken bone.

    Now, escape is not something that has to be anything dramatic like, sort of, suddenly using martial arts skills or digging a tunnel to get away. If you are once in lawful custody, then a simple sort of walking out or taking advantage of some carelessness, would amount to escape. And you can imagine at any location, if at a police station, for example, again hypothetical one, you have been stuck in a cell but someone forgot to close the door properly, so that you can walk out of it, and then someone has carelessly left a door open so you get into the outside.

    I mean, you are not having to do anything dramatic to get out, you are taking advantage of carelessness, but that would be escape from lawful custody. You know that you are not being invited to leave or told you can go, but to come back in a week's time for an interview. At that stage you are perfectly well aware that you are detained.

    Being taken off to a hospital is, obviously, in a slightly difference category, because you are not being kept in a cell. But the circumstances may, I do stress, may, lead you to say, that the police here are not obligingly saying: "Well, we will give you a lift to hospital and when the medics have finished we will give you a run back to whatever address you want to go to.

    You may think that in the circumstances of this case, the object of the exercise is to have this gentleman taken to hospital to check that he had not got broken bones, and then to bring him back to the police station so that you can continue with enquiries, interviews or anything else that is going on. But, again, and that is a factual matter that you have to be looking at.

    The defence that Mr Dhillon is raising -- and again I do remind you that it is not for him to make a defence good, it is for you to rule it out -- is to say that: "Yes, I was taken to Hillingdon Hospital. I knew I was going to see the medics. I was not particularly aware of anyone keeping their eye on me. When the medics called me in I was sent for X-ray and then I was tired, I wanted to have a nap, and by the time that I say I was ready to go away, there was no policeman there. I even went to where policeman was, had been, that had brought me there, to see if there was anyone there, no one there." So, you know, what else was there to do? Just to go away to the address of his choice.

    Again, that is a matter that factually is a matter for you as to whether that was capable of amounting to an escape, as opposed to, for example, insisting that someone called the police to say: "You arrested me, you haven't bailed me. Will you please come and pick me up again?" But again, as you can appreciate, the question of an escape does not have to be anything like the "Great Escape" with, sort of, tunnels or trying to, sort, of jump the wire or anything. Simply taking advantage of carelessness, can constitute an escape. It is again a matter for you.

    So I hope that is making the law plain to what the issues are in this particular case and I am now going to turn to the evidence."

24. We are bound to say that this last sentence was unduly optimistic if only because of the discursive nature of the direction – partly concerned with the ingredients of the offence of escape but largely concerned with a discussion of relevant (and irrelevant) factual material. Indeed, it represents a good example of the outcome where there has been no discussion about the appropriate directions of law prior to summing up and accordingly no focus on the specific issues that arise on the facts.

25. The shape of the evidence made it clear that there were issues relating to the continuity of the custody following the initial arrest (in particular the hand-over to PC Mitchell) and relating to the appellant's awareness or otherwise of the constraints on him. It was accordingly particularly important to identify these issues by reference to the make-up of the offence of escape. This, in our judgment, the summing-up conspicuously failed to do.

26. It is true that, later in the summing up, the judge reverted to the escape count. But in discussing the evidence, the issues continued to be analysed in a inordinately diffuse manner: -

    "Now, members of the jury, I have already dealt with, what I call the law about the escape charge. You have heard again the evidence about how it was -- I have reminded you the evidence about how it was that Mr Dhillon was taken to hospital by the police. Again, it is one of the criticisms about the way the case is prepared, that there is no evidence from the officer who took him there to give, what you call, the continuity to show exactly how things were done. Again, though it is matter for you, but you may think that if one police officer is being given charge of a prisoner, because that is what Mr Dhillon seems to have been, that he is not going to, sort of shove off without making sure that someone is taking over properly, because otherwise he could be in trouble. And, likewise, an officer who is taking over is likely to want to be sure as to know who is the prisoner. Because you will remember that the officer who attended, Mr Mitchell, had had no dealings with Mr Dhillon.

    So again it is what, as I say, you would expect to happen. But remember the evidence is about what did happen and from that you only have the account of Mr Mitchell, saying that, he turned up and with his colleague, he could not remember his name or anything, pointed out to him in, I think, it was both physically and by word, saying: "That is Dhillon" and that the person responded and his understanding was, his perception was responding to his name.

    One thing that you, for example, might think it is highly unlikely that in an A & E waiting room, which again, you may or may not have had the experience of being there, liable to be quite busy, that when one policeman's is not going to arrive and say: "Oh, he's in here" and then walk off, because that would not really do.

    It is a matter for you whether you think there is any question of the evidence being less than satisfactory. If you think there is any doubt at all about the man that Mr Mitchell had his eye on being the defendant, Mr Dhillon, then, of course, the evidence becomes to a degree vague. All you are left with then is Mr Dhillon's account about being at the hospital, finishing with the medics, no police there, so he went -- whether it was his home or some other address, does not matter, I mean, just went on his own sweet way.

    But again, members of the jury, this is factual assessment about what the officer said happened. If you say that, well, that does make you sure that he got the right man to keep an eye on, you then get to the point about, how did this happen. And Mr Mitchell's account, effectively, was that he thought that going in to the triage, which is the sorting out whether you need immediate surgery or you can go home or here are some aspirins or painkillers and that is it, the sorting out bit.

    He was expecting Mr Dhillon to re-emerge into the waiting area, he did not and then discovered to his horror there were other ways out. He had been X-rayed and so on, and he made a bit of a search, could not find anything, and then in his own terms had to contact authority and come back to face the music. Not a case of losing a mass murderer, or anything like that, where you would be frantically on the radio to get all units looking out for someone of a particular description. And again, a matter for you, but in terms of what was involved here, you may be unsurprised that you were not dealing with a police officer actually handcuffed to the suspect and sitting with him all the time and going with him when he comes to see the medics and so forth. It is in the scale of things, was not that kind of a case.

    But, as I say, that is what the evidence was on that point and the basic clash is between what the officer says, which, is effect, Mr Dhillon taking advantage of his lack of precautions to make good his escape. And again you can understand that Mr Dhillon, on his own account, had still got some unfinished business in this country, before he was going to leave again. Or whether it was someone who just did something, that he was not intending to do any escaping, he was effectively thinking: "Well, no police here, I am sure they will find me again." Matter for you as a matter of fact what you make of it."

27. We are left rather breathless by this passage and remain concerned that the jury were not in any sense adequately instructed on the issues. Little or no controversy arose from the initial arrest (and the consequent lawful custody) or indeed from the final "escape" (in the sense of eluding any continuing custody). What was in issue was the question of the continuity of the custody and the appellant's knowledge of it.

28. Although the judge made considerable play of what might be assumed to have happened on PC Mitchell's arrival, the jury's task in assessing continuity was potentially impeded by the absence of any evidence from the police officer who took the appellant to hospital and who was later said to have effected the handover to him (a handover which on any view was relatively informal). There was a live issue as to whether the appellant was still subject to sufficient direct control at the time of his escape two hours later. By the same token, there was an issue as to the appellant's knowledge since his case was that, whilst he saw the first officer leave, he never saw the second officer arrive and could find no substitute.

29. This was a case arising from events some six years earlier. It raised issues of some difficulty against an unusual factual background. A careful direction on the law and a consequential careful identification of the relevant issues was called for. Taking the summing up both in its constituent parts and as a whole does not, in our judgment, match up to these requirements. We are unable to conclude that the conviction was safe and it must be quashed.