England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PORTSMOUTH
HH JUDGE HETHERINGTON

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/02/2012

President of the Queen's Bench Division :

1. The issue in this appeal was whether the judge was correct in circumstances which had arisen in refusing to permit the defence of necessity to be raised in answer to a charge of removing a child from the jurisdiction, contrary to s.1 of the Child Abduction Act 1984 (the 1984 Act).

The background facts

2. The basic facts are not in dispute:

i) In 1993 the appellant married Mr S. L was born on 15 January 2000. In 2002 the appellant and Mr S separated. They were then divorced and County Court proceedings ensued in relation to L. In the course of the proceedings in the Family Court, when Mr S applied for contact and residence, the appellant alleged that he had sexually abused L. After a contested hearing before Her Honour Judge Campbell the judge in a judgment dated 15 April 2005 found, taking into account all the evidence she had heard and the standard of proof, that the alleged sexual abuse had not taken place. The judge also found that the appellant had, over a long period of time, impressed upon L her unfounded concerns and suspicions of sexual abuse.

ii) The judge continued arrangements under which L lived with the appellant but had contact with Mr S.

iii) On 7 October 2008, a consent order was made regulating contact and residence. Under that consent order it was agreed that Mr S could have contact with L, staying with him on alternate weekends, over school half terms and for up to three consecutive weeks in the summer holidays. The order also provided in these terms:

"Neither party shall be entitled to remove L from England and Wales for a period in excess of three days without the prior permission of the other parties or permission of the court."

iv) The appellant continued to believe that L was being subjected to sexual abuse by Mr S. Among the matters which gave rise to that belief was L's complaint at school that Mr S had asked her to do things in the bedroom and had threatened to kill her and others if she did not. In 2009, according to the appellant, L began experiencing flashbacks for which she was seen by a doctor; L had said to her that she wanted time away from Mr S because things were getting too much for her.

v) In January 2010 the appellant applied to vary the contact order. She met with police and subsequently with the local authority in relation to her allegations against Mr S.

vi) In March 2010 Mr S made a cross-application for contact and residence orders. On 22 March 2010 there was an initial Child Protection Conference which was conducted on the basis of the findings of Her Honour Judge Campbell. According to the appellant the panel refused to consider the accuracy of the earlier allegations of abuse and considered that L should be made the subject of a Child Protection Plan due to concerns about the emotional harm being suffered by L.

vii) A further meeting took place on 29 March 2010 at which the appellant was informed that the local authority would apply for a care order.

viii) On 31 March 2010 the appellant took L to Spain and thence to Gibraltar without the consent of either Mr S or the Court.

ix) As a result of court proceedings in England and Wales an interim care order was made and the appellant and L were traced to Gibraltar. Court orders were then made for the return of L to England and Wales. She returned on 26 May 2010.

The appellant's defence statement

3. On 16 July 2010 the appellant was arrested and charged with abduction contrary to s.1 of the Child Abduction Act 1984. She admitted her action in taking L to Spain was in breach of the court order. It was accepted that none of the exemptions in s.1(4) and s.1(5) of the Child Abduction Act 1984 applied. Her defence to the charge was set out in the defence statement. This recited the facts we have summarised. After referring to the meeting on 29 March 2010 it continued:

"[The appellant] was extremely frightened by this decision. She believed that [L] would be subjected to further sexual abuse by her father and/or others as a result of the consistent refusal by the authorities to investigate adequately or act on the allegations made by [L] that she had been sexually abused.

It is accepted that on 31 March 2010 [the appellant] and [L] left the jurisdiction and travelled to Gibraltar. [The appellant] honestly and reasonably believed that [L] was at imminent risk of serious injury or harm due to sexual abuse and the only way to prevent this was to remove [L] from the United Kingdom. Her actions were reasonable and proportionate in the circumstances."

4. On 8 November 2010 His Honour Judge Price made a direction at the Crown Court at Portsmouth that the Court should decide as a matter of law whether what was set out in the defence statement amounted to a defence.
5. Before the matter was argued, Coleridge J refused an application in the Family Division by the appellant to re-open the findings of Her Honour Judge Campbell. No appeal was made from that decision.

The ruling of the judge

6. The issue which Judge Price directed was heard in the Crown Court at Portsmouth on 25 February 2011 by His Honour Judge Hetherington. In a ruling given on 28 February 2011 he held that the defence of necessity was not available. After review of the authorities to which he had been referred, including the decision of this Court in R v Quayle [2005] 1 WLR 3642 (to which we refer at paragraph 11 below) he held:

i) The prospect of sexual abuse was far from being imminent or immediate. The local authority had to apply for a care order. The care order then had to be made. The consequence of the order had to be that L came into contact with Mr S so as to open the way for sexual abuse. If the appellant had feared such a chain of events, her remedy was to contest the care proceedings. It had never been necessary to remove L out of the jurisdiction.

ii) The legislative scheme governing the care of children and the provisions in respect of child abduction set out specific defences. Following the guidance in Quayle, there was no room for a defence of necessity or duress of circumstances to an offence under s.1 of the 1984 Act. A defendant's remedy was to seek the protection of the Court. It was no answer for a defendant to say that he had no faith in the process or judgment of the Court as the statute proceeded on the footing that the Court was competent to protect the child.

7. In the light of that ruling, at a hearing on 4 July 2011, the appellant admitted four elements of the offence and a verdict of guilty was formally returned by the jury. No sentence was then passed upon her, pending an application to this Court for leave to appeal. That leave was granted. At the conclusion of the hearing we dismissed the appeal for reasons to be given later. We did so as we did not wish there to be any further delay in sentencing the appellant.

The submissions made on behalf of the appellant

8. In submissions to this Court Miss Bache, who had not appeared below, sought to put forward a case that went further on the facts than those set out in the defence statement (see paragraph 3 above) and on which the judge had made his ruling. She said, on instructions, that the position was that the appellant had in fact believed that L would be put into Mr S's care without a court order and that the Court could do nothing in those circumstances to prevent the imminent risk of abuse.
9. It became plain, on subsequent enquiry that Miss Bache very properly made of the advocate who had appeared for the appellant before Judge Hetherington, that no such evidence had been put before the judge. The matter had been argued before the judge on the basis of the defence statement. It was accepted in those circumstances, that this Court had to consider the issues on the basis on which Judge Hetherington had considered the matter, namely on the basis of the defence statement.
10. As is apparent from the judge's ruling, his decision was based on two separate considerations, namely that the legislative scheme did not permit a defence of necessity in the circumstances that had arisen and that, even if it did, there was no case that could be made out for a defence of necessity to arise. We will consider each of those issues in turn.

Does the legislative scheme permit the defence of necessity?

11. In Quayle, this Court had to consider whether the appellants, who possessed or cultivated cannabis, could avail themselves of the defence of necessity in answer to charges under the Misuse of Drugs Act 1971; it was contended that the necessity lay in the alleviation of chronic pain or assistance with sleeping. This Court held that the defence of necessity was not available in those circumstances by reason of the legislative policy set out in the Act: see paragraphs 57-8 of the judgment.
12. It is clear that the legislative scheme relating to the protection of children, of which s.1 of the Child Abduction Act 1984 is part, is premised on the ultimate position of the court to see that arrangements are made which are in the best interests of the child; that its processes and orders must ultimately determine with whom the child is to have contact, where the child is to reside and who is to have custody. As the orders of the court can more readily be enforced if a child is within the jurisdiction of the courts of England and Wales, the underlying policy set out in that legislative scheme is reinforced by s.1 of the 1984 Act which makes it a crime to remove a child out of England and Wales without the appropriate consent – that of a parent or similar person or the Court; s.1(4) and s.1(5) of the 1984 Act provide specific defences including a belief in consent or an unreasonable refusal to consent.
13. In the present case, in our view, the legislative policy we have set out is very clear. It is impossible to see how, within the legislative scheme, the legislature could have contemplated that a parent could have the defence of necessity available in respect of the offence of removing a child from England and Wales where the whole purpose of making removal an offence was to reinforce the objective of retaining the child within England and Wales so the child could be subject to the protection of the court. S.1 of the 1984 Act is not concerned with circumstances where a parent might wish to contend that it was necessary to refrain from handing the child to another person in the jurisdiction who might subject the child to abuse. Whether a person could avail himself of that defence in such circumstances is not a matter we have to decide. The 1984 Act is concerned with removing the child from the jurisdiction of the court. It is an integral part of the statutory scheme which allows no place for the defence of necessity where a child is removed without consent from the jurisdiction.
14. In our view, therefore, the judge was right to conclude that there could not be a defence of necessity within the legislative scheme.

Necessity on the facts of the case

15. If, contrary to our view, a defence of necessity was available, we consider that the judge was also correct in deciding, given the way in which the matter had been advanced before him on the basis of the defence statement, that no defence of necessity could arise. We were referred to a number of decisions, including in particular, R v Colin Martin (1989) Cr App R 343, DPP v Rogers [1998] Crim LR 202, R v Abdul Hussain (transcript, 17 December 1998) [1999] Crim LR 570 and R v Shaylor [2001] 1 WLR 2206 where this Court has considered the defence of necessity and duress of circumstances. On the issue that arises on this appeal on the facts of this case, as set out in the defence statement, we can leave open the question as to whether there is a distinction between necessity and duress of circumstances (cf. Smith & Hogan 13^th edition at para 12.2.2 (p374))
16. As the issue in the appeal is whether there was a defence to be left to the jury, it is sufficient to refer to R v Colin Martin on the need for a belief based on objective grounds and objectively reasonable action taken in consequence. Simon Brown J, giving the judgment of the Court presided over by the Lord Chief Justice, summarised the principles applicable to the defence of necessity:

"First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused's will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called "duress of circumstances".

Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result? Second, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was yes, then the jury would acquit: the defence of necessity would have been established."

It is clear from that statement of the law, described in Abdul Hussain by Rose LJ as "the clearest and most authoritative guide to the relevant principles", that the defendant's belief and the consequential actions must be judged on objective grounds (see also the late Professor Sir John Smith's note on DPP v Rogers in the Criminal Law Review).

17. On the facts of the case as advanced in the defence statement, there was no available defence that should have been left to the jury. There could be no reasonable belief that a threat was imminent nor could it be said that a person was acting reasonably and proportionately by removing the child from the jurisdiction in order to avoid the threat of serious injury.

Conclusion

18. It is for those reasons that we dismissed the appeal.