Montgomery, R. v

For the common-law offence of escape from lawful custody, custody requires a person’s immediate freedom of movement to be under the direct control or charge of a representative of authority. Physical confinement is unnecessary, but a person who has been lawfully and unsupervisedly released from prison is not in custody during that release. Failure to return when the release ends is therefore not an escape from custody. It is a failure to return to custody. A separate statutory offence may apply where a temporarily released prisoner remains unlawfully at large without reasonable excuse.

The appellant was serving a custodial sentence and was temporarily released from an open prison under Rule 9 of the Prison Rules to attend employment. He was not supervised but had to return to prison at a specified time each evening.

When he failed to return, he was convicted at Woolwich Crown Court, following a guilty plea, of escape from lawful custody and received a consecutive eight-month sentence. The appeal concerned whether an unsupervised prisoner who does not return at the end of temporary release is in custody immediately before, or at the moment of, the non-return.

1. Appeal allowed; conviction quashed. The admitted facts did not disclose the common-law offence of escape from lawful custody. The court granted leave and an extension of time because, if the legal advice on the offence was wrong, the guilty plea had been entered on incorrect advice.

2. R v Dhillon [2006] 1 Crim App R 15 established that the prosecution must prove custody, the defendant’s knowledge or recklessness as to custody, the lawfulness of the custody, and intentional escape. The issue here was the first element.

3. The court approved the approach in E v Director of Public Prosecutions [2002] EWHC Admin 433. Custody is a factual question. It exists where a person’s liberty is sufficiently constrained that his immediate freedom of movement is under the direct control of another. A person may therefore be in custody without physical confinement, provided that he remains in the charge of a representative of authority. The decisions in R v Rumble [2003] EWCA Crim 770 and R (on the application of H) v Director of Public Prosecutions [2003] EWHC Admin 878 were consistent with that principle.

4. Section 13(2) of the Prison Act 1952 was a useful confirmation of that understanding. It contemplates custody outside prison where the prisoner is in the custody or under the control of a prison officer.

5. During a Rule 9 temporary release, the appellant was neither confined nor under the direct or immediate control of any authority. Release necessarily meant that he was not then in custody. When the period expired, he should have returned, but his failure to do so was not an escape from existing custody.

6. The court did not rely on the statutory alternative in section 1(1) of the Prisoners (Return to Custody) Act 1995. It noted, however, that the provision created a summary offence for a temporarily released prisoner who, without reasonable excuse, remained unlawfully at large after the release period expired.

• Court of Appeal (Criminal Division) Allowed the appeal, granted leave and an extension of time, and quashed the conviction for escape from lawful custody.
• Woolwich Crown Court Following a guilty plea, convicted the appellant of escape from lawful custody and imposed eight months’ imprisonment consecutive to his existing sentence. The lower-court citation was not stated in the judgment.