Mortimore, R. v

For the purposes of the Child Abduction Act 1984, detaining a child includes inducing the child to remain with the defendant. The child’s willing consent does not prevent detention. The objective question is whether the defendant’s positive inducement caused the child to remain and thereby kept the child out of lawful control.

Shelter, company or hospitality may amount to inducement. The inducement need be a cause of the child’s continued presence, not its sole cause, and may be inferred from circumstantial evidence. A related previous conviction and a child-abduction warning notice may be admissible where they explain the relationship and bear on lawful authority, reasonable excuse, and whether the defendant induced the child to remain. The notice does not itself create an offence.

The appellant was convicted by a jury at Cardiff Crown Court of detaining a 15-year-old child, SR, contrary to section 2(1) of the Child Abduction Act 1984. SR had gone to his home rather than school and was found there by police after approximately four and a quarter hours.

The appellant had previously pleaded guilty to an offence involving SR. A child-abduction warning notice had also told him that SR’s mother did not consent to SR being in his company. The prosecution relied on the previous conviction and notice as evidence.

With leave of the single judge, the appellant appealed against conviction. He contended that there was no evidence of detention, that the previous conviction and notice should have been excluded, and that the summing-up was unfairly prejudicial. The central issue was whether his conduct could amount to inducing SR to remain with him.

1. Appeal dismissed. The judge was entitled to leave the case to the jury, and the jury had been correctly directed on the ingredients of the offence.

2. Section 3(c) of the Child Abduction Act 1984 provides that a person detains a child if he causes the child to be detained or induces the child to remain with him. Accordingly, the prosecution did not have to prove that SR remained against her will. A child who freely and willingly remains with a defendant may nevertheless be detained if the defendant induced that continued presence.

3. The proper inquiry was objective: whether the appellant’s positive inducement caused SR to remain with him so as to keep her out of her mother’s lawful control. As explained in Foster and Rutherford v DPP [2004] EWHC 2955 (Admin), the appellant’s act had to be a cause, but not the only cause, of the child’s remaining.

4. Although there was no direct evidence of inducement, the circumstances permitted the inference. SR was found concealed in the appellant’s bedroom after being at his home for several hours. The jury could infer that her continued absence from home and school depended on his preparedness to provide shelter and hospitality. The judge did not withdraw that issue from the jury; he made clear that the inference was one for them to accept or reject.

5. The warning notice did not create an offence and was not a legal definition of the statutory offence. It was nevertheless relevant background. It showed that the appellant knew SR was under 16 and, more importantly, that her mother did not consent to SR being with him. The previous conviction was relevant and probative of whether he had again sheltered SR from those with lawful control. Admission of that evidence was not unfairly prejudicial.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2013] EWCA Crim 1639.
• Cardiff Crown Court: A jury convicted the appellant on 20 September 2012 of detaining SR contrary to section 2(1) of the Child Abduction Act 1984. He was sentenced on 4 October 2012 to nine months’ detention.