England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 14 November 2007

1. LORD JUSTICE HUGHES: This applicant pleaded guilty to an offence of escape on 1st August 2007. He had been serving a sentence of 42 months' imprisonment and on 30th June 2007 he had been given one day's town leave. He should have returned in the evening, but he did not.
2. The grounds of his application for leave to appeal against conviction are that, as has been established by this court in R v Montgomery [2007] EWCA Crim 2157, a failure to return from home leave, whilst it is the offence contrary to section 1(1) of the Prisoners (Return to Custody) Act 1995, is not an offence of escape because at the material time the defendant is not in custody. The decision of this court in Montgomery was given on 31st July 2007 - that is to say the day before the defendant pleaded guilty to the offence of escape. With all due diligence nobody could have been expected to know of the decision in Montgomery by the following day in Preston.
3. This was a plea of guilty. It was not, however, a plea of guilty in which the admission contained within the plea was a significant part of establishing the offence. It was rather a case in which on the agreed facts, as there could be no dispute that they were, the offence had not been committed in law. In those circumstances we allow the appeal against conviction and quash the conviction.
4. With the assistance of Mr McEntee for the Crown, we have given consideration to the question of whether it is open to this court to substitute a conviction for the offence contrary to the 1995 Act. The court's power to substitute is contained in section 3A of the Criminal Appeal Act 1968. Put shortly, the power to substitute arises if certain conditions are satisfied, one of which is that the defendant could on the indictment before the court have been convicted of or pleaded guilty to the alternative offence. The offence against section 1(1) of the 1995 Act is not an alternative offence available to the jury on an indictment for escape. No offence contrary to the Prisoners (Return to Custody) Act was before the court. It is a summary offence and the various mechanisms by which a summary offence can sometimes come before the Crown Court do not apply in the present case. In those circumstances we are satisfied that the power to substitute does not arise.
5. We ought to say two things for the attention of those who may, for all we know, have more elderly convictions for escape recorded in circumstances similar to this before the decision in Montgomery. The first is this. If there was any dispute of fact, a plea of guilty is an admission of the facts which is likely to prevent this court from later entertaining any appeal on the basis that the facts were other than the plea of guilty necessarily admits. The second is important. Where a conviction for an offence of escape of this alleged kind precedes Montgomery and an application to this court would entail an application for an extension of time, it is likely to be refused. It is likely to be refused on the principles which are explained by this court in R v Ramzan [2006] EWCA Crim 1974, as subsequently approved in other cases in this court. In short, it is a classic case of a subsequent change of law in a case in which had the law been correctly understood at the time there was available another offence which the defendant undoubtedly committed.
6. Those observations may be of some assistance if, in later cases, applications are contemplated in circumstances which differ from that of this case. This is a case in which the plea of guilty was tendered on 1st August, after Montgomery, and no extension of time is applied for, or necessary. In those circumstances this appeal against conviction is allowed.