England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		20 January 2011

Thursday 20 January 2011

THE LORD CHIEF JUSTICE:

1. On 23 August 2010, in the Crown Court at Birmingham, before Her Honour Judge Fisher and a jury, the applicant was convicted (among other offences) of attempting to escape from lawful custody. The other offences included two relating to the possession of criminal property, two of possession of Class A drugs with intent to supply and one of dangerous driving. On 23 September he was sentenced to a total of six years' imprisonment. A concurrent sentence of two years' imprisonment was imposed for the offence of attempting to escape.
2. The remaining ancillary orders are irrelevant to the single issue which relates to the conviction of attempting to escape from lawful custody. The Registrar has referred the applicant's application for leave to appeal against conviction to the full court. We grant leave.
3. The facts are straightforward. On 7 November 2009 the appellant went to the Victoria Law Courts in Birmingham where a remand hearing involving a man who later became his co-accused was due to take place. The officers who dealt with the remand believed that the appellant was wanted by the police for involvement in conspiracy to supply Class A drugs. The appellant was stopped and told that he was wanted on suspicion of involvement in the drug-related conspiracy and he was handcuffed. However, he was not told that he was under arrest. According to the unequivocal evidence of the police officer in the case, he was never arrested. He was told that he would be arrested, but not when this would happen, and that the arrest would be effected not by the officers who had detained and handcuffed him, but by other officers and that he would have to wait. On the arrival of those officers the appellant ran off. He was pursued and caught approximately 100 yards away. He was then arrested. Although the appellant could have been arrested by the officers who detained and handcuffed him, he was not.
4. We have not been invited to consider whether any other possible offence, such as obstructing the police, may have been committed. The judgment in this case is confined to the narrow question whether, on the basis of the facts, the offence of attempting to escape from lawful custody could be sustained.
5. It is a long-established offence at common law to escape from lawful custody. The ingredients of the offence were most recently analysed in R v Dhillon [2006] 1 Cr App R 15 in the context of a defendant who escaped from police custody after he had been arrested. It is implicit in the decision, consistently with an earlier decision of this court in R v Timmis [1976] Crim LR 129, that the offence of escape is not limited to those who escape from prison, or remand centres, or similar institutions following an order of the sentencing court, or for that matter following a remand in custody, but that it does extend to those who do so after they have been arrested by the police. However, it has become an elementary principle of the administration of criminal justice that the court will not create new criminal offences, and in the words of Professor John Spencer in his valuable article "Public Nuisance -- a Critical Assessment" [1989] CLJ 55: "nor is it open to the courts to widen existing offences so as to make punishable conduct of a type hitherto not subject to punishment". That article was considered with approval in R v Rimmington [2006] 1 AC 459.
6. Accordingly, if the appellant's actions in running away from the police when he did fell within the existing ambit of the common law offence of escape from lawful custody, that is what they did; otherwise he is not guilty of this offence.
7. It remains an essential ingredient of the offence that the defendant has escaped from lawful custody. In this case the appellant was certainly subject to an element of police restraint when he ran away. On the prosecution case it had been made clear to him, and he must have understood that the officers required him to remain where he was. However, he was not arrested. It is submitted that, as he was not under arrest, he was not in custody -- at any rate in the sense that he was subject to lawful compulsion to remain where he was at the behest of the police.
8. The duty of police officers to bring offenders to justice does not provide them with broad powers which they are entitled to exercise when and how they think it reasonable for them to do so, even if, assuming that they have the powers, it would be reasonable for them to do so. Statutory powers of arrest are granted by the Police and Criminal Evidence Act 1984, as amended by subsequent statutes such as the Police Reform Act 2002 and the Criminal Justice Act 2003, as inserted by the Police and Justice Act 2006. Powers are also granted to stop and search under various different statutes, including the Police and Criminal Evidence Act 1984, the Criminal Justice and Public Order Act 1994 and the Terrorism Act 2000. However, the powers do not extend to a right to detain a citizen because it would help the police more readily to exercise their responsibilities. As Lawton LJ observed in R v Lemsatef (1977) 64 Cr App R 242:

"Police officers either arrest for an offence or they do not arrest at all. .... The law is clear. Neither arrest nor detention can properly be carried out without the accused person being told the offence for which he is being arrested."

Kenlyn v Gardiner [1967] 2 QB 510 established the same point when two boys who had been detained for questioning by the police attempted forcibly to resist the attempt to detain them. They were not guilty of assaulting the police officers in the execution of their duties because the officers had no power to detain them for questioning.

9. In Kenlyn v Gardiner we have the advantage of the report of the argument developed before Lord Parker CJ, Winn LJ and Widgery J which reveals the position at common law. In the course of the argument advanced by Mr John Rogers (as he then was) on behalf of the appellants (the police officers), Lord Parker asked the direct question: "Where does one find that there is power to detain short of arrest?" The response was: "There is no direct authority on the point: see Rice v Connolly, which is as near as possible, and suggests there is none." Mr Michael Worsley (for the respondents) submitted that that the officers had the power of arrest having regard to what they had already seen. Lord Parker said: "That cannot be right. If there is an arrest, then the law comes into force. Can the officers say, 'We are not going to arrest you, but just going to hold you'?" Mr Worsley referred to authority which led Winn LJ to intervene: "Whatever the power to arrest or seize a man may be, since he was not arrested, what has Hale [Hale's Pleas of the Crown] to do with it? The officers were using some force not part of the process of arresting. Where is the finding that they intended to arrest?" The response was: "One cannot doubt that arrest would have followed ...."
10. In giving the first judgment, Winn LJ felt compelled to a conclusion which he regretted. He said (at page 519B):

"This officer might or might not in the particular circumstances have possessed a power to arrest these boys. I leave that question open, saying no more than I feel some doubt whether he would have had a power of arrest; but on the assumption that he had a power to arrest, it is to my mind perfectly plain that neither of these officers purported to arrest either of these boys."

He ended his judgment by recording that the conduct of the police officers in this case constituted a technical assault. The other members of the court agreed.

11. The most recent decision on this topic is Wood v Director of Public Prosecutions [2008] EWHC 1056 (Admin), where it was held that

"Where a police officer restrains a person but does not at that time intend or purport to arrest him, then he is committing an assault even if an arrest would have been justified."

12. Applying that observation to this case, the officers who detained the appellant did not arrest or purport to arrest him. They anticipated that he would at some future, unspecified, time be arrested by other officers.
13. There are a number of other authorities to the same effect. We do not propose anxiously to parade the list.
14. It is sufficient to end with a reference to section 29 of the Police and Criminal Evidence Act 1984, which provides that where, for the purposes of assisting with an investigation, a person has attended a police station voluntarily, or indeed any other place where a constable is present, or accompanies a constable to a police station without having been arrested, he is entitled to leave "at will" unless placed under arrest, and if a decision is taken by a constable to prevent him from leaving "at will", he must be informed that he is under arrest and indeed informed of the grounds for the arrest.
15. This clear statutory provision confirms, if confirmation were needed, that, without arrest, there is no broad power in the police to detain the citizen.
16. Although we understand how the police officers in this case came to involve themselves in a process which was intended eventually to culminate in the arrest of the appellant, they made a deliberate decision not to arrest him. The common law offence of escape from custody does not cover those who escape from police restraint or control before they have been arrested. We cannot widen the ambit of this criminal offence by making it apply to those whose arrest has been deliberately postponed.
17. In those circumstances this appeal must be allowed and the conviction quashed.