Mortimore, R. v

LORD JUSTICE PITCHFORD: This is an appeal against conviction with the leave of the single judge.

The appellant, who was born on 4 February 1992 is now aged 21 years. At the time of the events which were the subject of the indictment he was aged 20 years. On 20 September 2012 the appellant was tried at Cardiff Crown Court before His Honour Judge Daniel Williams, upon an indictment in which he was charged that on 25th April 2012, without lawful authority or reasonable excuse he detained SR, a child under the age of 16 years, so as to keep her out of the lawful control of KR, her mother, a person entitled to lawful control of the child. The jury returned a verdict of guilty and on 4 October 2012 the appellant was sentenced to 9 months' detention, from which 100 days were ordered to count for the purposes of section 240 of the Criminal Justice Act 2003. We have referred to the child as SR because she remains under age and the court has continued an order under section 39 of the Children and Young Persons Act 1933. For the same reason, if necessary, we shall refer to her mother by the initials KR.

SR was born on 27 December 1996. On 25th April 2012 she was aged 15 years. On a number of occasions before the 25th April 2012, KR had reported her daughter missing. On some of those occasions she had been found with the appellant. On 6th January 2012 the appellant pleaded guilty in the Magistrates' Court to the taking or detention of SR contrary to section 2(1)(b) of the Child Abduction Act 1984. On that occasion the appellant had admitted SR to his home in Grangetown, Cardiff, where he lived his family. When the police made enquiries at that address he told them that SR was not there. In fact she was hiding under his bed in an upstairs room.

In consequence of the facts which gave rise to that earlier offence, a Child Abduction Warning Notice, dated 22nd December 2011 was served on the appellant. In its material parts the notice read as follows:

On 25th April 2012 SR left home to go to school. She did not arrive. Instead at about 8.00 am she went to the appellant's house where she was admitted and remained. At about 11.00 am a social worker visited SR's home and spoke to her mother. As a result KR reported to the police that her daughter was missing. Enquiries were made at the appellant's home at 2.15 pm. They found him sitting on his bed wearing boxer shorts and a T-shirt. SR was lying on the same bed under the duvet. She was fully clothed. The appellant was arrested and made no comment either then or in interview. No positive case was put forward by the appellant in the defence statement prepared on his behalf. At trial the prosecution was simply challenged to prove its case. At the outset of the trial the prosecution made a successful application to the trial judge to adduce in evidence the appellant's previous conviction for child abduction and the issue of the warning notice.

The prosecution evidence was essentially uncontested. At the close of the prosecution case the appellant made an unsuccessful submission to the judge that there was no case to answer. The appellant himself did not give evidence. The jury returned after a retirement of some 12 minutes with a verdict of guilty.

The appellant appeals against conviction on three grounds. The first is that on the uncontested facts there was no evidence upon which the jury could have found that the appellant had detained SR within the meaning of the 1984 Act. Secondly, it was submitted that neither the warning notice nor the previous conviction should have been admitted in evidence. Thirdly, it is submitted that the judge's directions to the jury upon the essential issue in the case were unfairly prejudicial to the appellant.

Section 2(1) of the Child Abduction Act 1984 provides in the terms which are material to the present appeal as follows:

We shall turn, first, to the technical admissibility of the evidence of the appellant's previous conviction for an identical offence and the service of the warning notice. The judge ruled that the conviction was relevant because it tended to establish the appellant's propensity to detain the child or to induce her to remain with him. Furthermore, as the judge put it, it would have been absurd for the jury to approach this case on the basis that the clock started on 25 April 2012.

The circumstances in which SR was found in the appellant's home on the earlier occasion provided the jury with important explanatory evidence of the relationship between them. We agree with the judge. Upon the question whether the appellant had a reasonable excuse for detaining the child, it was relevant to establish that the appellant had been given an explicit warning that he did not have the consent of the child's mother and might be arrested if he was found in company with her.

This is not a complete answer to the appellant's ground of appeal. The judge retained a discretion to decline to admit the evidence on the ground that it would be unfairly prejudicial to admit it, either under section 101(3) Criminal Justice Act 2003 or under section 78 of the Police and Criminal Evidence Act 1984.

Mr Martin submits, on behalf of the appellant, that the prosecution case was weak. The conviction should not have been admitted under section 101(1)(c) or (d) and section 103 of the 2003 Act - see R v Hanson [2005] 2 Cr App R 21 CA. As to the warning notice, it is submitted that its contents were of no legal affect and it was therefore irrelevant to the issues the jury were required to decide.

We shall return to these issues later in this judgment, since it seems to us necessary first to consider the requirements of the offence under section 2 of the Child Abduction Act 1984 and the strength of the prosecution.

The judge ruled at the close of the prosecution case that there was a case to answer. For the purposes of Mr Martin's submission, it was conceded that SR had been in the appellant's company for some four-and-a-quarter hours and that after the arrival of the police the appellant told his sister, who had opened the door to the police, to say that SR had been present for half-an-hour. The judge accepted that the prosecution was required to prove that the appellant had, by his positive act, induced the child to remain at his home. This could be, the judge found, by the provision of shelter, company or hospitality. It was necessary for the prosecution to prove that the appellant's inducement was a cause of the child's continued presence in his house. These were matters, the judge found, for the jury to resolve.

We accept Mr Martin's submission that there was no direct evidence of inducement. Nonetheless, the circumstances in which the two young people were found were such that in our view the inference was fairly and properly available to the jury that her presence at his home could only be explained by the appellant's inducement to her. We acknowledge that the jury was not bound to draw that inference. But the test for the judge was not whether the only inference was that sought by the prosecution but whether the jury could, on the evidence they had heard, safely draw it so that they were sure of the appellant's guilt.

In his opening directions to the jury the judge directed them that they were entitled to draw inferences, but warned that they were not permitted to speculate. Later, at page 4 of our transcript, he directed them as follows:

In our judgment, the judge's direction to the jury as to the necessary constituents of the offence was correct. The offence did not require proof that the child did not consent; on the contrary section 3(c) necessarily implies that a child is detained if induced to remain with the defendant whether the child remains freely and willingly or not. The question for the jury was whether, as a matter of objective fact, the appellant had by his inducement to the child caused her to remain with him so as to keep her out of the lawful control of her mother (see Foster and Rutherford v DPP [2004] EWHC 2955 (Admin), [2005] 1 WLR 1400).

What then of the status of the warning notice? We accept Mr Martin's submission that disobedience to the warning notice could not create any offence. In his summing-up the judge did not imply that it did. His directions were aimed specifically not at the warning notice but at the terms of the sections. He said at paragraph 4F:

It was, as we have said, relevant evidence, since it made clear to the appellant that the person who had lawful control of the child, SR's mother, did not consent to the child being or remaining in the appellant's company. The appellant could not therefore advance as a defence that he had lawful authority or a reasonable excuse to be in the company of the child.

We turn then to the state of the evidence as it was at the close of the prosecution case. We accept that the only evidence of inducement was the circumstances in which SR was found in the appellant's home and the duration of her stay. We do not, however, accept Mr Martin's submission that the prosecution case was therefore weak. It was an inference plainly available to the jury that this girl could not and would not have remained away from her home or her school were it not for the appellant's preparedness to offer her shelter out of communication at his home. As the judge emphasised to the jury, the offence comprised not disobedience to the notice but inducement to the girl, by his positive act, to remain with him.

In this regard it seems to us that the appellant's previous conviction was admissible because it was relevant and probative upon the issue whether the appellant had on the present occasion sheltered SR from those who rightfully had her control. It would, indeed in our view, have been strange if the events of the earlier incident had been kept from the jury, who had to make a decision as to with what mind the appellant had the child in his company for that period of 4 hours or so.

We do not consider that the admission of the bad character evidence and the warning notice was unfairly prejudicial. As we have said, the appellant chose not to give evidence. He put forward no positive case that he had not by his actions induced SR to stay, or that he had taken any step to convince her that she should not remain. Finally, it is submitted that in the passage from the summing-up, which we have earlier recited, the judge effectively withdrew from the jury the critical issue whether there was an inducement.

On the contrary, in our view, the judge was reminding the jury of the inference which the prosecution invited them to draw. He made it plain that whether or not they drew that inference was a question for them and not for him. The jury was plainly in no doubt upon the evidence which they had heard.

For these reasons we find nothing of substance in the grounds of appeal and for that reason the appeal must be dismissed.