Iqbal, R v

The common-law offence of escape from lawful custody extends to a person who escapes police custody after arrest. It does not extend to a person who flees police restraint before arrest.

Police officers have no general power to detain a citizen merely because detention would assist their duties. Restraint without an arrest, even where arrest could have been justified, does not place the person in lawful custody. Section 29 of the Police and Criminal Evidence Act 1984 confirms that a person not under arrest may leave at will.

Courts must not widen an existing criminal offence to criminalise conduct outside its established scope.

The applicant was convicted at Birmingham Crown Court of several offences, including attempting to escape from lawful custody. He received a concurrent sentence of two years’ imprisonment for that offence within a total sentence of six years.

Police officers stopped and handcuffed him at court because they believed he was wanted in connection with a drug conspiracy. They told him that other officers would arrest him later, but they neither arrested nor purported to arrest him. He ran away before those officers arrived and was caught shortly afterwards.

The appeal concerned the narrow question whether fleeing in those circumstances could amount to attempting to escape from lawful custody.

1. Appeal allowed. The conviction for attempting to escape from lawful custody was quashed.
2. Lawful custody is an essential ingredient of the common-law offence. The offence is not confined to escape from prison or a remand institution. It can extend to a person who escapes police custody after arrest: R v Dhillon [2006] 1 Cr App R 237; R v Timmis [1976] Crim LR 129.
3. The applicant was not, however, under arrest when he ran away. Police duties do not create a general power to detain a citizen whenever detention would assist an investigation. As explained in R v Lemsatef (1977) 64 Cr App R 242, officers either arrest for an offence or do not arrest. Kenlyn v Gardiner [1967] 2 QB 510 established that detention for questioning without arrest was outside police powers. Wood v Director of Public Prosecutions [2008] EWHC 1056 Admin confirmed that restraint without an intention or purported intention to arrest is an assault, even if arrest could have been justified.
4. Section 29 of the Police and Criminal Evidence Act 1984 reinforced the same conclusion. A person who has not been arrested is entitled to leave at will. A decision to prevent departure requires an arrest and notification of its grounds.
5. Although the officers could have arrested the applicant, they deliberately postponed arrest. Their restraint therefore did not put him in lawful custody. To treat his flight as escape would impermissibly widen an established criminal offence, contrary to the principle supported by R v Rimington [2006] 1 AC 459.

• Court of Appeal (Criminal Division) — leave to appeal against conviction was granted. The appeal was allowed and the conviction for attempting to escape from lawful custody was quashed ([2011] EWCA Crim 273).
• Crown Court at Birmingham — on 23 August 2010, the applicant was convicted of attempting to escape from lawful custody and other offences. On 23 September 2010, he received a total sentence of six years’ imprisonment, including a concurrent two-year sentence for the escape offence.