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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wilkins, R. v [2015] EWCA Crim 2364 (16 June 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/2364.html Cite as: [2016] 4 WLR 109, [2015] EWCA Crim 2364, [2016] 2 Cr App R 4

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16 June 2015

1. LORD JUSTICE BEAN: On 14th June 2014 the appellant was serving a sentence of imprisonment at HMP North Sea Camp, an open prison. He had been there for around seven months. The prison comprised a central prison site and outlying fields. The eastern boundary of the prison was marked by gates close to a sea bank. The northern boundary was marked by gates next to a shallow ditch. There was a wooden bridge with steps allowing access to the slopes of the sea bank at the intersection of the two boundaries. There was an out of bounds sign on the eastern gate.
2. At 8 pm a roll-call was conducted and the appellant was found to be missing. He had last been seen at 5 pm that day. The police and prison officers subsequently found him in a rape seed field beyond the boundaries of the prison. He did not have permission to be there. A prison officer spoke to him shortly after his apprehension and recalled that the appellant had said that he thought he was still within the prison boundaries. He was prosecuted on the basis that he intentionally crossed beyond the prison boundary and had committed the common law offence of escape.
3. The defence case statement said that the defendant:

"…..went for a walk in the Prison grounds, as was his habit, some time after 5 pm on 14th June. He sat down under some trees at the corner of the Prison's football field to smoke a cigarette. [He] fell asleep and when he awoke it was getting dark. He was aware that he must have missed the 8 pm roll call.

The defendant's intention was to make his way back to his unit without being seen, so that he could present himself to an Officer there and therefore allay any suspicion that he had tried to abscond from the Prison. Rather than walk back across the football field where he feared he would be seen, he made his way along the Prison perimeter towards his unit. As he walked he saw a Prison van and hid in a crop field. He eventually gave himself up from this location.

At no time did the defendant intend to escape from lawful custody. At no time did he believe that he stepped beyond the boundaries of the Prison."

The case was tried before Mr Recorder Dooley and a jury. In summing-up the Recorder gave directions on escape which included the following:

"What is it to escape? The word conjures up ideas of tunnelling under walls, breaking down fences, climbing walls, climbing fences, something dramatic. In fact for the purpose of this case it is nothing of the sort. A prisoner has escaped if he has put himself outside the confines of the prison where he has been in lawful custody and has done so intentionally, that is he does it deliberately knowing that he has overstepped the prison boundaries."

After drawing a distinction between the intention to cross the line and the reason for crossing the line, he said this:

"The motive or reason for a prisoner removing himself from custody is not a material consideration when considering whether the offence has been committed or not. It is the fact of escape coupled with the intention to do so which is at the heart of this case and it is for you to decide on the evidence whether you are sure or not sure that an escape coupled with the requisite intention took place.

Does the prisoner need to know precisely where the boundary lies? In the context of an open prison quite clearly the prisoner may not know but if he in fact crosses that border with the intention of crossing it, with the intention of absenting himself permanently or temporarily, then the offence is made out. He must know of course that there is a boundary and he must intend to cross it because in so doing he is intending to remove himself from lawful custody.

You need to be satisfied so that you are sure of four things. Firstly that the defendant was in custody, secondly that he knew he was in custody, thirdly that that custody was lawful, and fourthly and most importantly in the context of this case that he intentionally escaped from that lawful custody."

4. The last paragraph was a direct quotation of paragraph 21 of the judgment of this court given by David Steel J in R v Dhillon [2006] 1 CrAppR 15. As the Recorder said to the jury, plainly there was no dispute and could be no dispute about the first three of the four elements of the offence identified by David Steel J. The question in this case was whether the Recorder's directions properly stated the ingredients of the fourth element, "that the defendant intentionally escaped from lawful custody."
5. Mr Dacre, the appellant's counsel, has referred us to Dhillon and to two other authorities. All are different from the present case on their facts. Dhillon concerned a prisoner who was taken to hospital for an x-ray and absconded from the x-ray department. The issue was whether he had by doing so escaped from lawful custody. Montgomery, another decision of this court [2007] EWCA Crim 2157, concerned a prisoner who had been released for a day's leave on what is now called "release on temporary licence" and failed to return. This court held that a failure to return from authorised leave does not constitute the offence of escape. A case on which Mr Dacre placed particular reliance was a decision of Judge Mynett QC in the Crown Court in R v Timmiss [1976] Crim.L.R 129. The defendant was stopped as a result of his erratic driving, was directed to take a breathalyser test by a police officer and was told on the test proving positive that he was to be taken into custody to Shrewsbury Police Station. While the officer was trying to move his vehicle, the defendant left the scene and went to a public house for a drink. The learned judge held that there was a case to go to the jury on the question of whether on these facts the defendant had committed the offence of escape. There was a motion to quash the indictment which he refused. The case proceeded to a trial and the judge directed the jury that they could convict the defendant if (a) he had been lawfully arrested, and (b) he had breached that custody with the deliberate intention of doing an act that was wholly inconsistent with his being in custody, as for example taking a drink, and designed only to defeat the due process of law to which he was bound to submit following a lawful arrest. This was so even though it might be that the escape was only intended to be temporary, provided his intention was to do some act while at large which would defeat or was intended to defeat and impede the criminal process, for example the destruction of evidence that might lead to his eventual conviction.
6. In his ruling refusing a motion to quash the indictment the judge had used a slightly different (but very similar) phrase, that the offence of escape could be committed where a defendant "deliberately and with the intention of evading the criminal process breached his custody." The commentary in the Criminal Law Review says this:

"There seems to be no suggestion that it is an ingredient of the offence that the accused should intend to remain at large permanently nor that he should escape with any particular object in view. In these respects, the direction ... might have been too favourable to the accused."

Finally, Mr Dacre drew our attention to Prison Service Instruction 47/2011, which in the current edition says at paragraph 1.36:

"There is no offence in law of 'absconding' from prison, only of 'escaping' either with or without the use of force. But for adjudication purposes an escape may be defined as a prisoner leaving prison custody without lawful authority by overcoming a physical security restraint such as that provided by fences, locks, bolts and bars, a secure vehicle, or handcuffs (see paragraph 1.11 for escapes from courtrooms ('dock jumpers')). An abscond is where a prisoner leaves prison custody without lawful authority but without overcoming a physical security restraint."

8. A further paragraph dealing with the prison disciplinary charge of a prisoner absenting himself from any place where he is required to be says this:

"1.71. This charge can apply to incidents within the establishment, or outside where the prisoner is escorted, or briefly goes outside an open prison, with the intention of returning shortly (e.g., visiting a nearby shop). But if the prisoner has no intention of returning [other provisions of the prison service instruction, namely those dealing with an escape in terms of prison adjudication language] will apply."

10. We agree with the draft of the Prison Service Instructions that the criminal law as opposed to the Prison Service internal manuals does not distinguish between absconding and escaping, in that where a prisoner leaves prison custody without lawful authority, but without overcoming a physical security restraint, that may only be an abscond in prison terminology. But it constitutes the offence of escape at common law.
11. We agree with the critical commentary in the Criminal Law Review on the terms of the direction to the jury given in the Crown Court in the case of Timmiss. We think the commentators are clearly right to say that it is not a necessary ingredient of the offence of escape that the accused should intend to remain at large permanently, nor that he should escape with any particular object in view. The phrase used by the judge "with the intention of evading the criminal process" may be a helpful one in a context of somebody who is waiting at the roadside to see what the police are going to do about a breathalyser result - we make no ruling on that because it is not the case before us.
12. But the present case is much simpler than the case of Timmiss or for that matter (n its facts) the case of Dhillon. The appellant was in lawful custody at the prison. The necessary ingredients of the offence of escape, as set out in the judgment in Dhillon, included the thought of intentional escape from custody. Where a prisoner is serving a sentence, whether in an open or closed prison, this means intentionally going beyond the boundaries of the prison knowing he was not allowed to go there. In the present case the judge's direction was entirely correct.
13. Mr Dacre sought to draw a distinction between a prisoner who crosses the boundaries of the prison intending to do something outside of the prison, such as going to see a girlfriend or going to have a drink at a public house with his friends, as opposed to the defendant in the present case who was outside the boundary for a short period with no such particular intention. We think that it is over-complicating the law to draw any such distinction. The defendant intentionally went beyond the boundaries knowing he was not allowed to go into the field. Whether he had any ulterior purpose is beside the point. It is similarly beside the point whether he intended to remain at large for hours, days or permanently. All that of course goes to the seriousness of the offence. The learned Recorder in passing a sentence of four weeks' imprisonment - of which no complaint is or could be made – observed that, as examples of the offence of escape go, this was very much at the bottom of the scale. That was a sensible view to take.
14. It may be that there are offences of such triviality in this context that no sensible prosecutor would bring the matter before the criminal courts, but we cannot say that the present case was in this category. The offence was clearly committed. The Recorder gave impeccable directions to the jury. They were entitled to find the case proved and accordingly this appeal must be dismissed.