H v Director of Public Prosecutions

Whether a young person is in lawful custody is a question of fact, determined by whether his immediate freedom of movement is under another’s direct control. A remand to non-secure local authority accommodation is capable of being custodial in its application, despite the absence of a security requirement. The decisive question is the young person’s position when he absconds. Where a person acting for the local authority has assumed responsibility for him, instructed him to remain, and is exercising direct control over his movements, the person may be in lawful custody under section 23(3) of the Children and Young Persons Act 1969. Absconding in those circumstances may constitute escape from lawful custody.

The claimant, aged 15, was convicted by the Sussex (Central) Justices of escaping from lawful custody at common law. He had been remanded under section 23 of the Children and Young Persons Act 1969 to local authority accommodation without a security requirement. After being released from the cells into the care of a youth offending team practitioner, he was told not to move while arrangements for his placement were made, but absconded.

The claimant appealed by way of case stated. The central issue was whether, at the time of absconding, he was in lawful custody, notwithstanding that the remand was to non-secure accommodation and no general restriction had been imposed on his freedom of movement.

1. Appeal dismissed. The justices were not wrong in law to find that the claimant was in custody. The second question, concerning escape from accommodation where there was no general restriction on movement, did not arise because the claimant was found to have been restricted by the practitioner at the relevant time.
2. Whether a person is in lawful custody is a question of fact. Applying E v DPP [2002] EWHC Admin, custody bears its ordinary meaning and exists where the person’s immediate freedom of movement is under the direct control of another.
3. A remand to non-secure local authority accommodation is capable of being custodial in its application. Section 23(3) gives the designated authority power to detain the young person, and sections 23(9) and 23(10) provide additional powers to impose conditions. Section 32, permitting arrest of absentees from both secure and non-secure accommodation, did not prevent a charge of escape from lawful custody.
4. R v Secretary of State for the Home Department, ex parte A [2000] 2 AC 276 concerned credit against sentence for time spent in local authority accommodation. Its conclusion that non-secure accommodation did not qualify for that purpose did not determine whether the claimant was in custody at the moment of absconding. The omission of section 23(3) from the speeches was explained by its lack of relevance to that issue.
5. On the facts, the claimant had been taken from the cells into the practitioner’s charge, told that he was remanded to local authority accommodation, and instructed not to move while she arranged access to the youth offending team office. The justices were entitled to conclude that his immediate freedom of movement was under her direct control and that he knew he could not simply leave.

• Youth Court: The justices convicted the claimant of escape from lawful custody and imposed a 12-month supervision order.
• High Court (Administrative Court): On appeal by way of case stated, the court dismissed the appeal and answered the first question in the negative. The remaining questions did not arise.