England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
HHJ PATIENCE QC
T20100912

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/07/2011

Lord Justice Hooper:

1. During the course of the oral hearing we granted the appellant leave to appeal sentence and, taking into account the fact that the appellant had already served the equivalent of a six month sentence of imprisonment, substituted for the sentence a conditional discharge for one year. We also announced our decision that the appeal against conviction did not succeed. We now give our reasons for these two decisions.
2. On 2 March 2011 in the Crown Court at Maidstone (HHJ Patience QC and a jury) the appellant was convicted, by unanimous verdict in each case, of two offences of taking a child without lawful authority so as to remove her from the lawful control of the person having lawful control over her, contrary to section 2(1)(a) of the Child Abduction Act 1984 (counts 1 & 2).
3. On 30 March 2011 he was sentenced to 9 months' imprisonment concurrent on each count, making a total sentence of 9 months' imprisonment.
4. The provisions of section 39 of the Children and Young Persons Act 1933 are engaged in this case because the two children in the case were aged 3 years. An order under section 39 was made in relation to proceedings in the Crown Court and we continue that order in respect of the two children. We shall not identify them or their mothers in this judgment.
5. On 5 August 2010 Mrs X and Mrs Y took their 3 year old daughters to a local park. As the women were talking the little girls began pushing their buggies round the park. Not for the first time they ended up near the park bench on which the appellant and another were sitting. The appellant, who had been drinking and was sitting on a bench with another man, took hold of the girls' hands and walked with them for a distance of about 20 to 30 metres, leaving the buggies by the bench. When the mothers confronted him he said he was going to show them a teddy bear in a window of a house overlooking the park and he referred to his own children. The mothers took hold of their children and the incident came to an end.
6. It was not in dispute that a very large teddy bear could be seen in the first floor window of a house overlooking the park and that the teddy bear could be seen from an area not far away from where the mothers took hold of their children.
7. In interview the appellant said that his behaviour was a silly mistake and he should have just told the children where the bear was. If he had seen his children disappearing with a stranger he would have been distressed.
8. The appellant gave evidence. He is an educated man of hitherto good character who had become an alcoholic. Alcoholism ran in the family and may well have been triggered in the appellant by tragic loss.
9. There was no evidence that the appellant, when he took hold of the children's hands, had any ulterior motive. In his drunken state he wanted to show the children the teddy bear in the same way as he had shown his children the teddy bear. He said that he had not intended to take the children out of the park.
10. Section 2 (1) of the Child Abduction Act 1984 provides:

Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen—

(a) so as to remove him from the lawful control of any person having lawful control of the child; or

(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.

11. Section 3 of the Act defines "taking" in the following way:

a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken.

12. It is accepted that the appellant took the child.
13. At trial it was conceded by counsel – not Ms Burns – that on the evidence the appellant had taken the children out of the lawful control of their mothers. That followed, so the judge told the jury, from the following three concessions:

It is conceded that the defendant took Child X, and indeed Child Y, by the hand and walked away with them across the park without enquiring of the children where their parents were, without asking the children to go and get their mothers' permission to be taken across the park, and without getting the direct permission of the parents themselves.  There is no dispute, therefore, that that is what he did.

14. The sole issue for the jury was whether the appellant had a reasonable excuse for taking the children away from the lawful custody of their mothers in the light of his evidence about why he took hold of the children's hands. The jury rejected that defence.
15. It is now submitted that counsel should not have made the concession.
16. It is established that, in so far as the taking out of lawful control is concerned, the prosecution need only prove an intentional or reckless taking (or detention) the objective consequence of which is to remove (or keep) the child from the lawful control of any person having lawful control of the child. See Foster v DPP [2005] 1 WLR 1400, at paragraph 36 cited in X [2010] EWCA Crim 2367, para. 18. The appellant had thus intentionally taken the children.
17. Ms Burns submits that the concession was wrongly made because the jury would have been entitled to find that the objective consequence of what the appellant did was not to remove the children from the control of their mothers. She submits that the mothers at all times retained control albeit that the appellant had some control also.
18. In Norman [2008] EWCA Crim 1810, Thomas LJ giving the judgment of the Court in paragraph 26 summarised the authorities on this point:

In R v A [2000] 1 Cr App R 418 (at page 424), this court held that a person took a child within the meaning of the Act if his actions were an effective cause of the child accompanying him; the consent of the child was irrelevant. In R v Leather (1994) 98 Cr App R 179, this court held that no spatial or geographic element was involved; the question was whether the child was deflected by some action of the appellant from what he would, with parental consent, have been doing.

19. Applying Leather, was counsel at trial entitled to concede that the children were deflected by the appellant from what they would, with parental consent, have been doing? In our view, the answer must be in the affirmative. It follows, at least on the facts of this case, that counsel was entitled to concede that the appellant did remove the children from the control of their mothers.
20. For these reasons we dismissed the appeal against conviction.
21. We turn to sentence.
22. There is no doubt that the incident had a very deleterious effect on the mothers. One wrote of feeling constantly anxious, guarded and abnormally protective, concluding that the ordeal unfortunately would always haunt her.
23. The judge said that he was not prepared to speculate about the appellant's motive. He recognised that alcohol had had a disinhibiting influence. He took the view that the offences were of the utmost severity and crossed the custody threshold.
24. We do not agree that the custody threshold was crossed.
25. In our view the judge should have sentenced the appellant on the basis that he did not intend to remove the children from the control of their mothers and that his only intention was to show them the teddy bear. Whereas it was no defence that the appellant did not intend to remove the children from the control of their mothers and whereas on the jury's findings, the appellant had no reasonable excuse, both his intention and motive were highly relevant on the issue of sentence.
26. In our view, a non-custodial sentence should have been passed. Given that the appellant has now served the equivalent to a six month sentence, we quash the sentence of 9 months' imprisonment and substitute for that sentence a conditional discharge for one year.