Dhillon, R v

To prove the common-law offence of escape, the prosecution must establish that the defendant was in custody, knew or was reckless as to being in custody, was lawfully detained, and intentionally escaped. Custody requires a sufficient restriction of immediate freedom of movement, but not continuous physical restraint.

Where continuity of custody and the defendant’s awareness are realistically in issue, the jury must receive a clear and focused direction on those elements. A diffuse summing-up which leaves the relevant factual issues unidentified may render a conviction unsafe.

The appellant was convicted at the Crown Court at Isleworth of escaping from lawful custody after leaving Hillingdon Hospital, where he had been taken for an X-ray following his arrest. He maintained that he did not know he remained under police guard and left only after he could find no police officer.

There was no evidence from the officer who took him to hospital or purportedly handed responsibility for him to PC Mitchell. The appeal concerned whether the jury had been adequately directed on the ingredients of common-law escape, particularly the continuity of custody and the appellant’s knowledge of it.

1. Appeal allowed; conviction quashed. The summing-up did not adequately direct the jury on the issues necessary to decide whether the conviction for escape was safe.

2. The court held that common-law escape requires proof that the defendant was in custody, knew or was reckless as to that custody, was lawfully detained, and intentionally escaped. The authorities showed that custody concerns effective control over immediate freedom of movement. It does not depend upon uninterrupted physical restraint: see Timmis [1976] Crim.LR 129, Dillon [1982] AC 484, E v DPP [2002] Crim LR 737, Rumble [2003] 167 JP 203 and H v DPP [2003] Cr LR 560.

3. The original arrest and the act of leaving were not the central difficulties. The live issues were whether custody had continued after the informal handover at hospital and whether the appellant knew that he remained subject to its constraints. The absence of evidence from the first officer materially affected those issues.

4. The judge’s directions were discursive and concentrated on illustrations and assumed factual possibilities. They did not identify the legal ingredients or relate the disputed evidence to continuity of custody and knowledge. Given the unusual facts and the age of the events, a careful legal direction and focused identification of those issues were required. The court could not conclude that the conviction was safe.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction for escape: [2005] EWCA Crim 2996.
• Crown Court at Isleworth: On 14 December 2004, convicted the appellant of escape contrary to common law. On 16 December 2004, sentenced him to eight months’ imprisonment.