Practice and Procedure


PUBLISHED March 10, 2003

Where a defendant surrendered to bail he was in lawful custody and under the court's control there was no need for any direct physical control by another.Appeal against conviction with leave of the single judge. On 28 November 2002 at Swansea Crown Court before HH Judge Morton, the defendant ('R') pleaded guilty to escaping lawful custody and was sentenced to six months imprisonment. On 24 September 2002 R, having surrendered to bail, appeared at the Swansea Magistrate's Court facing charges for a number of offences. There was no usher or security guards present just the court clerk and there was no dock in the court. The chairman of the Magistrates passed a custodial sentence and R shouted abuse. When told to be quiet he said "I've had enough of this", jumped over the bench where he had been standing and escaped via the public exit. On 2 October he was recognised by a police officer and detained. The only issue before the judge was whether R was in lawful custody when he escaped. The judge held he was, as custody had the same meaning as in the Bail Act 1976. When R, contrary to the Magistrate's wishes, left he had escaped. R appealed conviction on the ground that the conclusion of the judge was contrary to the decision of E v DPP EWHC Admin 433 which had imposed a requirement that a person in custody had to be under the "direct control" of another. An application for leave to appeal sentence was also made.HELD: (1) Once a person surrendered to the court it would be very surprising if the court's right to control him was dependant on the exercise of some sort of physical constraint. That was obviously not what E v DPP (supra) had said. For that to be the case then E v DPP would have to have departed from the decision in DPP v Richards 1988 Cr App R 97 which held that once a person was held under the Bail Act 1976 then he was in custody. (2) The judge in E v DPP (supra) was not seeking to impose different rules he was merely directing himself to the particular facts of that case. He held that the question of whether there was "direct control" would be dependant on the facts of each case. In the present case that question was concluded by the fact that R had surrendered to the court. There was, therefore, no merit in the appeal against conviction. (3) The present case arose because of the arrangements in the Magistrate's court. The chairman passed a custodial sentence where there was nobody available to take the defendant away. In a similar situation, where the court proposed to pass a custodial sentence, it should adjourn so as officers of the court could be called before sentence was passed. That would prevent unlawful acts, like those committed by R, from being repeated. (4) The application for leave to appeal sentence was refused.Appeal dismissed. Application refused.

[2003] EWCA Crim 770