Evans, R v

In the Crown Court, and absent special local or case-specific arrangements, a defendant on bail surrenders to custody by entering the dock and placing himself in the hands of custody officers. Surrender also occurs when a hearing before the judge begins and the defendant is formally identified, whether or not he enters the dock. Arraignment always constitutes surrender.

Mere attendance at the court building, or a report to an usher that the defendant is present, does not amount to surrender. The position may differ where a court has directed defendants to report to a specified official as its procedure for accepting surrender. A post-sentence Crown Court has no jurisdiction to permit a guilty plea to be vacated.

The appellant attended Birmingham Crown Court while on bail for a burglary case. His advocate told the usher that he was in the building. Before the case was called, the appellant left and did not return.

After his arrest the next day, he pleaded guilty to burglary and to failing to surrender to custody contrary to section 6(1) of the Bail Act 1976. A month after sentence, the Crown Court purported to permit him to vacate the latter plea, but ruled on the agreed facts that he had not surrendered.

On appeal, the central issue was whether notification to the usher that the appellant was present had amounted to surrender to custody.

1. Appeal dismissed. The appellant had not surrendered to custody before leaving the Crown Court. His conviction for failing to surrender contrary to section 6(1) of the Bail Act 1976 was therefore correct.
2. The Crown Court judge had no jurisdiction, after passing sentence, to allow the appellant to vacate his guilty plea. The court was functus officio. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 concerns alteration of a sentence or ancillary disposal; it does not confer a power to vacate a plea after sentence. That error did not prevent the Court of Appeal from considering the conviction recorded on the original guilty plea, because the plea was entered on agreed facts and the issue was whether those facts constituted the offence.
3. Sections 2(2), 6(1) and 7(2) of the Bail Act 1976 distinguish failure to surrender to custody from absence after surrender. The latter does not constitute the statutory failure-to-surrender offence, although a warrant may be issued under section 7(2) and other criminal consequences may follow.
4. What amounts to surrender may depend on a particular court’s arrangements. The court accepted the principle in DPP v Richards that compliance with a direction to report to a designated official can amount to surrender. Birmingham Crown Court, however, had made no such arrangement. An usher’s task of ascertaining whether parties are ready did not amount to acceptance of a defendant into custody.
5. In the ordinary Crown Court case, surrender requires the defendant personally to enter the dock and place himself under the custody officers’ control. Alternatively, it occurs when a hearing begins and the defendant is formally identified before the judge. Reporting presence to an usher, particularly through an advocate, neither puts the defendant into custody nor overtly subjects him to the court’s directions. The notice requiring attendance from 9.30 am required the defendant to be available to surrender when called upon; it was neither a condition requiring surrender precisely at that time nor a requirement that every defendant enter custody simultaneously.
6. The court additionally observed that bail and any magistrates’ court recognisance lapse at the first Crown Court appearance. The Crown Court must therefore consider bail at the conclusion of that hearing, although it may renew appropriate conditions and make a recognisance continuous for later appearances.

• Court of Appeal (Criminal Division): dismissed the appeal and upheld the conviction for failing to surrender to custody.
• Crown Court at Birmingham: following guilty pleas to burglary and failure to surrender, imposed 12 months’ imprisonment for burglary and a concurrent 14 days for the bail offence. The judge later purported to permit withdrawal of the latter plea, but ruled that the agreed facts established the offence.