QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF H||(CLAIMANT)|
|THE DIRECTOR OF PUBLIC PROSECUTIONS||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR H DAVIES (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
Crown Copyright ©
"a) On the 23rd day of August 2002, the appellant appeared before the Brighton Youth Court and was remanded to local authority accommodation, without any security requirement, under section 23 of the Children and Young Persons Act 1969.
"b) Following the remand, the appellant was released from custody into the care of Alex Cooter, an acting senior practitioner for the Brighton and Hove Youth Offending Team, who was to arrange his placement during the period of the remand. Alex Cooter had not been present in court when the order remanding the appellant was announced but had been informed of the decision by the appellant's solicitor, and this was also confirmed by a member of Premier Prison Services, the prisoner escort service. Alex Cooter had not seen the remand warrant, and did not have the warrant in her possession at the time she accepted the appellant into her care.
"c) The order of remand was custodial in nature, being a refusal of bail and a remand to local authority care.
"d) At the time arrangements were being made for his placement, the appellant was under the direct lawful control of the youth offending team who had power under section 23(3) of the Children and Young Persons Act 1969 to detain him.
"e) The appellant was briefly left unsupervised, and, during that period, having been told by Alex Cooter not to move, absconded.
"f) By absconding without authority, the appellant escaped from lawful custody."
"We were of the opinion that the order for the remand of the appellant into the care of the local authority was custodial in nature, and the appellant knew this to be the case. At the time when he absconded, the appellant was under the direct lawful control of Alex Cooter, a member of the youth offending team, who was in the process of arranging where he was to be placed during the period of the remand. Alex Cooter, and other members of the youth offending team, had power to detain the appellant under section 23(3) of the Children and Young Persons Act 1969 if it was necessary to do so. We were satisfied beyond reasonable doubt that at the material time the appellant was in lawful custody because his immediate freedom of movement was under the direct control of another, and by absconding, he escaped from lawful custody, and accordingly, we found him guilty of the offence as charged. He was sentenced to a supervision order for 12 months with conditions."
"i) Whether the justices were wrong in law in finding that the appellant, having been remanded into the care of the local authority and without any order having been made, that he be held in secure accommodation, was therefore in custody.
"ii) Whether the justices were wrong in law in finding that it was therefore possible for him to escape from local authority accommodation when there was no control or restriction on his freedom of movement."
"(1) Where --
(a) a court remands a child or young person charged with or convicted of one or more offences or commits him for trial or sentence, and
(b) he is not realised on bail,
The remand or committal shall be to local authority accommodation; and in the following provisions of this section any reference to a remand shall be construed as including a reference to committal."
Sub-section 2 is not relevant. Sub-section 3 reads:
"(3) Where a person is remanded to local authority accommodation, it shall be lawful for any person acting on behalf of the designated authority to detain him.
(4) Subject to sub-sections (5) and (5A) below, a court remanding a person to local authority accommodation may, after consultation with the designated authority, require that authority to comply with a security requirement, that is to say, a requirement that the person in question be placed in secure accommodation."
"[Subject to section 23AA below] A court remanding a person to local authority accommodation without imposing a security requirement may, after consultation with the designated authority, require that person to comply with --
(a) any such conditions as could be imposed under section 3(6) of the Bail Act 1976 (c 63) if he were then being granted bail; and
(b) any conditions imposed for the purpose of securing the electronic monitoring of his compliance with any other condition imposed under this sub-section."
"If a child or young person is absent without consent of the responsible person . . .
(b) from local authority accommodation . . .
(iii) to which he has been remanded or committed under section 23(1) of this Act;
He may be arrested by a constable anywhere in the United Kingdom or Channel Islands without a warrant.
(1B) A person so arrested shall be conducted to --
(a) a place of safety;
(b) the local authority accommodation; or
(c) such other place as the responsible person may direct,
At the responsible person's expense."
"19. I agree with Mr Spackman's submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. 'Custody' is an ordinary English word, which should be given its ordinary and natural meaning, subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word 'custody' is defined in the following terms, amongst others: 'confinement, imprisonment, durance'.
20. As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case."
"The system which has thus been laid down by section 23 of the Act 0f 1969, as amended, provides the court with the following options. A child or young person may be either released on bail or remanded to local authority accommodation. If a young person who has attained 15 years is remanded to local authority accommodation, the court has the power, but only if the case satisfies the stringent requirements of section 23(5), to impose a security requirement on the local authority. The effect of that requirement is that the young person must be kept in secure accommodation while he or she remain so remanded. The accommodation in which he or she is to be kept is accommodation provided in a home approved by the Secretary of State 'for the purpose of restricting liberty:' see the definition in section 23(12). If the court decides to remand the child or young person in local authority accommodation without imposing a security requirement, it has power to impose such conditions on that person as it could have imposed as conditions of bail under section 3(6) of the Bail Act 1976."
"It seems to me that the position in which the respondent found himself when he was remanded on local authority accommodation which was not 'secure accommodation' as defined in the Regulations of 1991 was analogous to that of a person who has been released on bail. Various conditions may be imposed under section 3(6) of the Bail Act which have the effect to a greater or lesser degree of restricting that person's liberty. They may take the form, as one of the conditions did in this case, of an express curfew on the movements of the person while he remains on bail. Or they may have the effect indirectly by requiring the person to report to a police station at certain times or not to go to certain places or addresses where trouble may be anticipated. The significant point for present purposes is that the definition of 'relevant period' which is set out in section 67(1A) of the Act of 1967 for the purposes of the computation referred to in section 67(1) makes no mention of periods during which the person was under restrictions of that kind. What it refers to is periods during which the person was held in custody or in conditions which have the same effect on the person's liberty as holding him in custody. A person who is on bail is free to do what he chooses. He is bound by the conditions of bail, and he is subject to the sanction of imprisonment if he is found to have been in breach of them. But the decision is his as to whether he will comply with them, and so long as he is on bail he remains at liberty. The fact that the respondent was able to and did abscond from the local authority accommodation for so many days during the period of his remand is a powerful demonstration of this point. The local authority had no power to prevent him from absconding, because the accommodation where he was living had not been approved by the Secretary of State for the purposes of restricting liberty: see Regulation 18 of the Regulations of 1991. The residents were not detained and the bedroom doors and the front door were not locked. All the staff could do was to log the movements of the residents to record any breaches of the conditions imposed on them under section 23(7) of the Act of 1969."
"The present version, which I have already summarised, was introduced by section 60(1) of the Criminal Justice Act 1991 in substitution for the earlier section. In the substituted section, echoing the pattern of what had gone before, one can see the distinction between the two forms of disposal on remand. The one is a remand to the care of the local authority, with the possibility of the imposition of conditions. The other is a remand with the further provision of a security requirement."
"In my view the order made by the magistrates on 2 July 2001, whereby the appellant was remanded to 6 July 2001, was custodial in nature because, not only did it remand him into the care of the local authority, but it also required that he be placed in secure accommodation. To my mind such a remand is so restrictive of the appellant's liberty that it can properly be said to be custodial in nature."
"I agree that, from the facts as found, we can infer that, at the time when he ran off, the appellant was under restraint, in that he was at court in company with members of the youth offending team, who had the power, as he knew, if necessary, to restrain him. His liberty was thus restricted and he was therefore in custody."