Heys, R. v

Under section 2(3)(b) of the Child Abduction Act 1984, the defendant need prove only an honestly held belief that the child was at least 16. The belief need not be reasonable. Its reasonableness may be evidence bearing on whether it was honestly held, but it is not an additional legal requirement.

A conviction is unsafe where the jury may realistically have applied a reasonable-belief test after that test was wrongly advanced in opening and the judge did not clearly correct it in the summing-up.

The appellants were convicted at Preston Crown Court on 15 June 2010 of three counts of abducting a child. They appealed their convictions on counts 1 and 2, concerning two girls who had stayed at Mr Heys’s home and had represented themselves as being over 16.

The appellants relied on the statutory defence in section 2(3)(b) of the Child Abduction Act 1984. Crown counsel incorrectly told the jury in opening that the belief in the girls’ age had to be reasonable. Although counsel corrected that error in closing, the judge’s summing-up did not expressly state that reasonableness was not the test. The central issue was whether the resulting directions made the convictions unsafe.

1. Appeals allowed. The convictions on counts 1 and 2 were unsafe and were quashed. The conviction on count 3 was unaffected.

2. The defence under section 2(3)(b) of the Child Abduction Act 1984 required proof, on the balance of probabilities, that the particular appellant honestly believed that the child had attained 16. It did not require a reasonable belief. The reasonableness of an asserted belief could nevertheless assist the jury in deciding whether the belief was honestly held: Williams (1984) 78 Cr App R 276 and R v Beckford [1988] AC 130.

3. Crown counsel’s erroneous introduction of a reasonable-belief requirement was not corrected until closing, after the jury had heard the evidence on the assumption that the opening accurately stated the law. The judge gave an accurate initial direction on honest belief, but did not expressly say that reasonable belief was not the test. His subsequent reference to objective circumstances was capable of reinforcing the erroneous test.

4. There was therefore a lively chance that the jury decided the case by requiring reasonable, rather than honest, belief. That risk rendered the convictions on counts 1 and 2 unsafe.

5. The court declined to order a retrial. It took account of the time already served, the continuing convictions on count 3, and the force of the evidence on counts 1 and 2.

• Court of Appeal (Criminal Division) Allowed the appeals against the convictions on counts 1 and 2 and made no order for a retrial.
• Preston Crown Court Convicted both appellants on 15 June 2010 of three counts of abducting a child.