Wakeman v R.

For an offence under section 2(1)(a) of the Child Abduction Act 1984, the prosecution need prove an intentional or reckless taking whose objective consequence is to remove a child from the lawful control of a person having lawful control. There is no spatial or geographic requirement. The material question is whether the child was deflected by the defendant’s act from what the child would, with parental consent, have been doing.

A lack of intention to remove the child is not a defence where the statutory elements are made out and no reasonable excuse is established. It may nevertheless be highly relevant to sentence. Sentencing must reflect the offender’s actual intention and motive.

The appellant was convicted at the Crown Court at Maidstone of two counts of taking a child without lawful authority, contrary to section 2(1)(a) of the Child Abduction Act 1984. He had taken two three-year-old children by the hand and walked with them across a park. The jury rejected his reasonable-excuse defence.

He received concurrent sentences of nine months’ imprisonment. On appeal, he challenged trial counsel’s concession that his conduct had removed the children from their mothers’ lawful control. He also challenged the custodial sentence. The central issues were whether that concession was properly made and whether custody was justified.

1. The appeal against conviction was dismissed. Applying R v Leather, the Court held that trial counsel had been entitled to concede that the children were deflected by the appellant from what they would, with parental consent, have been doing. There was no need to show that he intended to take the children out of the park or that they were removed over any particular geographical distance.

2. The Court applied the established construction of section 2(1)(a) of the Child Abduction Act 1984. For removal from lawful control, the prosecution need prove an intentional or reckless taking with the objective consequence of removal from that control. The appellant had intentionally taken the children. On the facts, the taking removed them from their mothers’ control, notwithstanding that the mothers quickly intervened.

3. The appeal against sentence was allowed. The absence of an intention to remove the children from their mothers’ control was no defence, and the jury had rejected reasonable excuse. However, the appellant’s intention and motive remained highly relevant to sentence. He should have been sentenced on the basis that his only intention was to show the children a teddy bear, rather than to remove them from their mothers.

4. The custody threshold had not been crossed. The Court quashed the concurrent sentences of nine months’ imprisonment and substituted a conditional discharge for one year, taking account of the period already served.

• Court of Appeal (Criminal Division) — In [2011] EWCA Crim 1649, dismissed the appeal against conviction but allowed the appeal against sentence, quashing the custodial sentence and substituting a one-year conditional discharge.

• Crown Court at Maidstone — On 2 March 2011, convicted the appellant of two offences under section 2(1)(a) of the Child Abduction Act 1984. On 30 March 2011, imposed concurrent sentences of nine months’ imprisonment.