CO/136/2003 
Neutral Citation Number: [2003] EWHC 878 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 4 April 2003
 
B E F O R E:

MR JUSTICE GAGE 

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THE QUEEN ON THE APPLICATION OF H
(CLAIMANT)

-v- 

THE DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
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MR M TRIGG (instructed by Bishop & Light) appeared on behalf of the CLAIMANT
MR H DAVIES (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
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J U D G M E N T 
(As Approved by the Court) 
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Crown copyright©
Judgment 

1.	MR JUSTICE GAGE:  This an appeal by way of case stated from a decision of Justices for the Sussex (Central) Petty Sessional Area, who convicted the appellant of an offence of escape from lawful custody contrary to common law.  The central issue in the case is whether at material time when the appellant admittedly absconded he had escaped from lawful custody.  The appellant was aged 15 at the time.  The facts as found by the magistrates can be briefly stated and I take them directly from paragraph 2, (a) to (f) of the case stated.
"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." 
2.	The magistrates then go on to summarise the evidence before them in what is described as a short statement of evidence (sub-paragraphs A to D).  The contentions before the magistrates are set out which were: on behalf of the appellant it was submitted that he, having been remanded to local authority accommodation with no provision for secure accommodation, was not in custody.  So far as the respondent is concerned, it was contended that he was at all material times in lawful custody.  The opinion of the magistrates is set out at paragraph 6: 
"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."  
3.	The magistrates then set out four questions for the opinion of the High Court.  The first two are perhaps most material.  
"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."  
4.	Mr Trigg, on behalf of the appellant before me, submits that in their findings of fact the magistrates have elided findings of law and findings of fact.  In particular, he submits that the finding that the order was custodial in nature was not a finding of fact, but at best, a finding of mixed fact and law.  He further submits that insofar as it was a finding of law, it was wrong.  In support of this submission he relies on dicta of Lord Hope and Lord Clyde in the case of R v Secretary of State Home for the Department ex parte A [2000] 2 AC p.276.  I shall return to that decision later in this judgment.  
5.	Secondly, he submits that although section 23(3) of the Children and Young Persons Act provides power for Miss Cooter as acting senior practitioner of the youth offending team to detain the appellant, the magistrates were wrong on the evidence before them to conclude that she did so detain the appellant.  He submits that something more than just telling the appellant not to move was required.  In any event, the evidence of the appellant, being confused as to what was going on, shows that he did not appreciate that he was being detained under section 23(3).  In the circumstances, submits Mr Trigg, the appellant cannot be found guilty of escape from lawful custody.  Mr Trigg relies on provisions of section 32 of the Children and Young Persons Act as showing that the remedy for a person absenting himself from local authority accommodation is arrest by a police officer.  
6.	Mr Davis, for the respondent, submits that by virtue of section 23(3) Of the Children and Young Persons Act, this was an order which was custodial in nature.  He relies on observations of Kennedy LJ in E v DPP [2002] EWHC Admin at page 433.  He submits, in addition, that section 32 of the Act give powers to police officers to arrest, without warrant, a young person who is absent from local authority accommodation, and that reinforces his submission that the order made was custodial in nature.  Further, he submits that in any event the fact that the appellant was taken from the cells by Miss Cooter and told to wait while she went to find a way into the youth offending team office is quite sufficient to show that she was exercising her powers under section 23(3) to detain the appellant.  So it is submitted, on behalf of the respondent, that the magistrates were quite entitled to find that he was escaping from lawful custody when he absconded.  It seems to me that in essence the issue can be simply stated in one question: was the appellant in lawful custody at the time that he absconded?  I turn now to the statutory provisions. 
7.	The section 23 of the Children and Young Persons Act 1969, as amended, states, insofar as is relevant for this case, the following:  
"(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."  
8.	Sub-section (5) deals with those who qualify for a secure requirement.  Sub-section (6) is not relevant and I turn to sub-section 7 which reads: 
"[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."  
9.	Finally, sub-sections (9) and (10) deal with conditions which may be required after consultation with the designated authority.  It will be seen from a recital of these statutory provisions that a distinction is to be drawn between a young person committed to local authority accommodation and a young person committed to local authority accommodation with a security requirement.  I have also been referred to, and must now set out, some of the provisions of section 32.  That is headed, "Detention of absentees".  As originally enacted, it dealt with a person who was sent to a remand home, special reception centre, training school or committed to care of a fit person under the Children and Young Persons Act of Northern Ireland.  By amendment, it also includes sub-section (1A) which deals with those, among others, who have been remanded to local authority accommodation.  So far as is material, it reads: 
"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."  
10.	It is common ground between the parties that the question of whether a person is in lawful custody is a question of fact.  Such was decided in E v DPP, the citation to which I have already referred.  In that case, Forbes J, giving the leading judgment of the Divisional Court, said: 
"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."
11.	Much of the argument before me has centred on whether the order made in this case was custodial in nature.  In ex parte A the House of Lords held that an order under section 23 committing a 15-year-old youth to non-secure local authority accommodation, made subject to certain conditions, was not such as to qualify for credit to be given against his sentence of 4 months' detention in a Young Offender's Institution pursuant to section 67(1A)(c) of the Criminal Justice Act 1967.  The issue in that case was whether an order under section 23, committing a young person to non-secure accommodation, was of a category which restricted his liberty so as to amount to a form of custody for the purposes of section 67(1A)(c).  The House of Lords held that it was not.  The main speeches of the House were given by Lord Hope and Lord Clyde with which all the other law Lords agreed.  At page 280, Lord Hope described the system under section 23.  At letter B he stated: 
"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."
12.	Later in his speech, at page 282, letter D, he stated:
"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."
13.	It is to be observed that in his speech, Lord Hope did not refer to section 23(3).  Lord Clyde, having first detailed the history of section 23 and also section 67 of the 1969 Act, stated at page 285, at the bottom of letter H: 
"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."
14.	It follows that the decision in ex parte A is a decision specifically upon the issue of whether such an order qualifies for credit being given in respect of a custodial sentence.  It is not specifically directed to the point in this case, although Mr Trigg submits that it is powerful support for his submission that an order for non-secure accommodation is not a custodial order.  However it is to be observed that Lord Clyde, in his speech, refers to the fact that an order for non-secure accommodation does not mean that the court, when deciding whether or not to give credit for any period where a defendant is in local authority accommodation against any sentence, will not do so.  In each case it will be a question of fact, although where it is secure accommodation, that is sufficient to show that credit should be given.  At the end of his speech he points out that in each case where there is a non-secure accommodation order made, it will be for the judge to decide whether in the circumstances of the committal or remand, credit should be given.  In my judgment, section 23(3) was not referred to in the speeches of Lord Hope and Lord Clyde because it was not specifically relevant to the decision that the House was asked to make.  
15.	It seems to me quite clear from E v DPP that an order committing a young person to local authority secure accommodation is custodial in nature.  The decision in ex parte A supports this proposition and the decision of the court in E v DPP decides that it is the case.  To go back to the judgment of Forbes J, this time at paragraph 21 in the middle of the paragraph, he stated: 
"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."
16.	Kennedy LJ, agreeing with Forbes J, stated at paragraph 27: 
"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."
17.	On the difficult question of whether this order was custodial in nature or not, it seems to me that it is certainly capable of being custodial in its application.  As Mr Trigg concedes, section 23(3) gives the designated authority wide powers if necessary to detain a young person such that his liberty is so constrained as to take him into custody.  There are additional powers of the court to make conditions under section 23(9) and 23(10).  It also seems from the terms of section 32 that the designated authority can refuse to consent to a young person being absent from such accommodation.  If he is absent from the accommodation without consent, he may be arrested by a constable without a warrant.  Mr Trigg submits that this is the appropriate remedy available if a young person absconds from local authority accommodation, rather than to charge him with escape from lawful custody.  However this power exists in respect of those absent from secure accommodation as well as non-secure accommodation.  In the case of the latter, E v DPP shows that he can be charged with escape from lawful custody.  
18.	In my judgment, the resolution of the issue in this case is to be found by concentrating on the moment when it is alleged that the appellant absconded.  Before the magistrates, he was represented by a solicitor.  The magistrates remanded him to local authority accommodation under section 23 of the Act without attaching conditions.  This section gives power to the local authority to detain him.  He was taken down to the cells to await the arrival of Miss Cooter.  The evidence shows that it was her responsibility to get him from custody and take him back to the youth offending team office whilst his placement was organised.  She explained to him that he was remanded to local authority accommodation.  Having taken the appellant to the office and being unable to gain access, she left him on the steps of the Youth Court entrance and told him not to move while she gained access by another entrance to the office.  It is right to note that she said he seemed confused, but in my judgment, it is unrealistic to suggest that at that time he did not know that he was being detained.  He must have known that he was to accompany Miss Cooter and remain with her until arrangements had been organised for his placement and that he was not entitled simply to run off or make off.  
19.	In the circumstances, in my judgment, there was ample evidence upon which the magistrates could conclude, as they did, that at that time his immediate freedom of movement was under the direct control of Miss Cooter, and that by absconding, he was escaping from her custody.  Their finding that he knew that the order was custodial in nature, in my view, is no more than a finding that he knew perfectly well that he was in Miss Cooter's charge and could not just make off.  In view of all that had passed that morning in court, and his release from the cells to Miss Cooter, that was also, in my view, a conclusion that the magistrates were quite entitled could reach.  In the circumstances, in my judgment, the magistrates were right to conclude that at the particular time when he absconded, he was in lawful custody and that by absconding he was guilty of the offence of escaping from lawful custody.  
20.	In the circumstances, turning to the questions that the court is asked to answer:
21.	(1) Whether the justices were wrong in law in finding that the appellant, having been remanded into the care of the local authority without any order having been made that he had held in secure accommodation and was therefore in custody: my answer to that is they were not wrong in law so to find.
22.	(2) 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 its freedom of movement: that does not really arise in this case because on my finding and their findings he was restricted in his movement by Miss Cooter.
23.	The other decisions do not arise for an answer.  Accordingly, for those reasons, the appeal must be dismissed.  Very well, any other orders that anybody seeks? 
24.	MR TRIGG:  My Lord, simply this.  Of course this is an appeal from the Youth Court and, of course, in your Lordship's judgment no mention has been made of the young man.  I have made mention -- 
25.	MR JUSTICE GAGE:  The usual order be made that this case should be referred to as "H" v DPP.  
26.	MR TRIGG:  Thank you.  Secondly, this appeal, on behalf of the appellant certainly, has been under full representation order.  Might I invite the court to allow taxation in relation to that.
27.	MR JUSTICE GAGE:  Certainly.  Thank you both very much, it was a not uninteresting morning.