Foster & Anor v Director of Public Prosecutions

MR JUSTICE PITCHFORD: On 19th February 2004, Richard Stephen Foster, aged 19, and Michael Rutherford, aged 33, were each convicted by Deputy District Judge Barr at Sheffield Magistrates' Court of an offence contrary to section 2(1)(a) and section 4, of the Child Abduction Act 1984. I shall, in view of the complainant's age, use initials to protect her from the risk of identity.

The particulars of offence in each case were as follows:

The appellants appeal their convictions by way of case stated and their appeals have been consolidated. The relevant facts as found by the Deputy District Judge, or agreed, are as follows. S was born on 18th September 1987. At the time of the alleged offences she was aged 15. She was living in Rotherham with foster parents Mr and Mrs T, in whose control she lawfully was for the purposes of section 2, Child Abduction Act 1984. On the afternoon of 1st March 2003 S met her girlfriends in Rotherham to make a journey by bus to Meadowhall in Sheffield. One of her friends was supposed to meet her boyfriend, the appellant Foster, but it appeared that he had stood her up and Michael Rutherford turned up instead. S became separated from her friends when they set off home. Rutherford took S back to his address in Sheffield where he was living with Foster. There S was plied with drink. S was supposed to be at home by 5 pm. Mr T, her foster parent, eventually made contact with her by her mobile phone at 8 pm. She said she was on the way home. At 9 pm she still had not returned and her mobile phone was switched off. Mr T contacted social services. He telephoned the father of one of S's friends. He learned that S had been left near Meadowhall with a male person. Mr T reported S missing to the police at or about 10.45 pm. The police made inquiries, Police Constable Arrowsmith telephoned Rutherford's home at 1.30 am, Sunday 2nd March. He was told that they were looking for S who was underage and had been reported as a missing person. The Deputy District Judge found that that information was made known also to Foster. Foster went on foot to a local garage taking S with him in case the police arrived to take her home. When they returned, the police had not yet been. At about 2 am Police Constable Arrowsmith and Police Constable Brocklebank arrived at Rutherford's home. They were told by the appellants that S had been there but had since left. That was a lie. In fact, to their knowledge, S was hidden in the attic space to avoid being found by the police. They failed to reveal S's presence in the house and assured the officers that if she returned they would contact the police. S sent a text message to Mrs T at 2.30 am saying that she was at her mate's home and would return in the morning. In fact S slept the rest of the night at the house. At 7 am police revisited Rutherford's address, found S in the living room and took her home. The appellants were arrested at the same address an hour later.

On the day of trial Rutherford pleaded guilty to two offences of unlawful sexual intercourse. The Deputy District Judge found both men guilty of abduction. The appellants now appeal their convictions and the single common ground of appeal advanced is that the offence charged under section 2(1)(a) could not have been committed on 2nd March 2003.

Miss Marshall, for the appellant Foster, submitted that the actus reus of the offence was complete on 1st March 2003, when Rutherford took S to his home and both men kept her there so as to remove her from the lawful custody of her foster parents. Since the prosecution accepted that neither man knew that S was under 16 until the early hours of the following morning, they would have had a statutory defence to a charge of abduction on 1st March 2004 had such a charge been laid against them.

Mr Weatherby, for the appellant Rutherford, put the argument somewhat differently. His submission was that, irrespective of how it had occurred, S's foster parents had lost lawful control by the time Mr T telephoned the police at 10.45 pm on 1st March. Accordingly, what the appellants did in the early hours of 2nd March 2003 could not have removed her from the lawful control of S's foster parents. What they did could only have kept her out of the lawful control of those who were entitled to it. If any offence was committed on 2nd March 2003, therefore, it could only have been abduction contrary to section 2(1)(b) of the Act with which they were not charged and which was not an alternative to the charges laid.

It is common ground that section 2 creates two separate means by which the offence can be committed. Neither of them is an alternative verdict for the other. The Deputy District Judge found at the close of the prosecution case that, first, consent was not a defence, and secondly an act of removal took place on 2nd March when, knowing the girl's true age, the appellants took no steps to return her. The question posed for the decision of this court by the Deputy District Judge was this:

The relevant parts of section 2 of the Child Abduction Act 1984 read as follows:

Explanatory of the term "detains" is section 3, which in its material parts provides:

It follows from the wording of the section that an offence may be committed either by taking a child so as to (a) remove her from, or (b) keep her out of the lawful control of any person, or by detaining a child so as to (a) remove her from, or (b) keep her out of the lawful control of any person. As Mr Weatherby submits, on behalf of Rutherford, rightly, in my view, there will be circumstances when a child may be removed from lawful control by detention rather than taking. The most obvious example is an occasion when the child is in the company of another with the agreement of her parent or guardian, but ceases to be so when knowingly detained beyond the period agreed. In his example, when consent knowingly expired, removal occurred. If, on the other hand, the child was already out of the lawful control, then any subsequent taking or detention could only have the effect, submits Mr Weatherby, of keeping the child out of the lawful control of someone entitled to it.

The issue for the District Judge was whether, notwithstanding an earlier taking or detention, the events of 2nd March 2003 were capable of amounting to a detention so as to remove S from the lawful control of her foster parents.

It is first appropriate to consider the meaning of the words "so as to remove or take" and the mens rea required for this offence. In Mousir [1987] Crim LR 561, the Court of Appeal Criminal Division, in a case of attempt, held, upon a concession made by the appellant, that the words "so as to remove or keep from the lawful control of any person" within the meaning of section 2(1) is a question of objective fact. If the child, by reason of the taking or detention by the defendant, was removed or kept from the lawful custody of a parent, then an offence was committed. It was not necessary for the prosecution to prove that the defendant intended by his action to remove the child from the lawful control of the parent. We have obtained a transcript of the judgment of Ralph Gibson LJ, delivered on 3rd March 1987. Certain passages are material here and demonstrate why the court was emphatic in its approval of the concession. At page 3 of the transcript, Ralph Gibson LJ said this:

Later, at page four of the transcript:

Later, at page five:

The section was further considered by the Court of Appeal Criminal Division R v Leather [1994] 98 Cr App 179, in a constitution over which Watkins LJ presided. Mousir does not appear to have been cited. The nature of the activity which caused the trial judge in Leather to find a case to answer was the encouragement of children to go with him in diversion of the activity in which they were engaged with their parents' consent. In counts one to three, the children were walking home from a supermarket, in counts four to eight the children were playing football. When they were approached by the appellant he, using a pretext, encouraged them to leave what they were doing and accompany him. He did not touch any of the children and they all said that they felt free to leave the appellant's company if they had wished. The issue for the court was the meaning of the words "so as to remove him from the lawful control".

The submissions made on behalf of the appellant were that, although there was a taking within the meaning of the section, it was not a taking which had the effect of removing the child geographically from the lawful control of anyone else. The court held that the words removal from "lawful control" implied no geographical element. Owen J, delivering the judgment of the court, noted that paragraph 243 of the 14th report of the Criminal Law Revision Committee, that is to say the report which had been examined in the case of Mousir, said at page 183:

He continued, also at page 183:

I therefore accept the argument advanced by Mr Neale in detail in his skeleton argument and briefly in oral argument on behalf of the respondent, that the word "remove" is intended to convey a substitution of the authority by an accused for that of the person lawfully having it, and not the physical removal of the child from any particular place.

The court then considered the terms in which the judge had left the issue to the jury. At page 182, Owen J noted that counsel had submitted that there was no evidence that the children had been removed from the control of their parents or other lawful custodian:

It will therefore be appreciated that the court was concerned not only with completed alleged offences, but attempts to commit them in respect of which the intention required may have been different.

The direction to the jury given by the judge at trial included the following:

Finally at page 185:

It is to be noted that, in giving directions as to the completed alleged offence, the judge did not ask the jury whether they were sure the defendant intended to remove the child from the lawful control of the parent, only whether what the defendant did had the effect of removing the child from that lawful control. In other words, the test of removal was an objective one. Owen J said, after consideration of those passages at page 185:

The question what is the mens rea required for the offence was considered by this court in Re Owens [2000] 1 Cr App 195. The applicant was committed for extradition to the United States where she had been indicted on kidnapping charges the equivalent of section 2(1) of the 1984 Act. She applied for a writ of habeas corpus on the ground that there was no prima facie case against her. The agreed facts included that, to the applicant's knowledge, two children, for whom she was caring and whose nanny she had been, had no parent with lawful control over them. Their father had been killed, their mother had never sought to exercise control over them and she believed that the mother had abandoned them. The applicant was unaware that their grandmother had been granted an ex parte order for temporary custody when she flew with the children that day from the United States to Germany where, until his death, their father had been serving as a soldier in the US military. It was argued before the Metropolitan Magistrate at Bow Street that section 2(1) created an offence of strict liability, subject to the jury being satisfied that the applicant had no lawful authority or reasonable excuse for her actions.

The United States' position changed before the Divisional Court. It was, with the approval of the court, conceded that mens rea was required. It was argued that mens rea was established if the applicant knew that someone other than herself was lawfully entitled to control at the time of the taking. The court was not prepared to find that there was evidence that the applicant was aware that anyone, other than the applicant herself, had lawful control of the children. Simon Brown LJ, as he then was, expressed his conclusion as to the requirements of section 2(1) as follows at page 200 letter G:

It does not appear that the decisions of the Court of Appeal Criminal Division in Mousir and Leather were cited to their Lordships. This court is bound by those decisions.

What, then, is the state of the law as to the mens rea requirement? For my part, I would conclude that the mens rea of the offence of abduction under section 2 is an intentional or reckless taking or detention of a child under the age of sixteen, the effect or objective consequence of which is to remove or to keep that child within the meaning of section 2(1)(a) or (b). With great respect to the court in Owens, it does not seem to me that the applicant's argument upon the construction of section 2 could or should have survived the judgment of the Court of Appeal Criminal Division in Mousir and Leather. It does not appear to me to have been necessary to require an intention to remove the child from the lawful custody of another, or to keep the child against the entitlement of the grandmother, to arrive at the same result had a prosecution proceeded. The offence is not committed if the defendant has lawful authority or a reasonable excuse for taking or detaining the child. On the agreed facts in Owens, it is difficult to see how the prosecutor could have established that the applicant did not have a reasonable excuse. She plainly did. She was in actual control of the children and had been since their father's death. She had taken them to the United States to attend his funeral. Although she knew that their grandmother intended to apply for custody, she was unaware that she had done so when she took the children back to Germany, after taking legal advice that it was permissible for her to do so.

Finally our attention has been drawn to the decision of the Court of Appeal Criminal Division in A [2001] Cr App 418. The court held that it was immaterial that the child consented to removal from the lawful control of her mother. Whether the child consented or not, the question for the jury was whether the defendant's deliberate actions were an effective cause of the child accompanying him. There might be several concurrent causes, one of which may be the child's own wishes. In A, however, the taking and keeping could not have occurred unless the appellant had agreed to drive the child to London with him and to live in the car with her for nine days. His actions amounted to taking and they were an effective cause of the child being kept out of the lawful control of her mother.

Turning to the facts of this case, I accept the submissions made on behalf of the appellants that Rutherford's action, in taking S to his home, did have the effect of removing her from the control of her foster parents. Foster's complicit action in detaining S at the house did have the effect of removing or keeping her from the control of her foster parents. Neither man was, on the agreed facts, guilty of the offence of abduction on 1st March 2003, since each of them believed S to be aged sixteen or over. Had it not been for their belief, they would have been guilty of abduction on that day.

The factual situation had however changed dramatically by 2.30 am on 2nd March 2003. The appellants had been told that the girl was aged fifteen, she had been reported missing from her home and that the police were looking for her. Assuming, for the purposes of this appeal, that S did not wish to be restored to her foster parents and took advantage of the appellant's willingness to allow her to hide from the police and to stay the night, I am in no doubt, contrary to Miss Marshall's submission, that they detained her within the meaning of section 2(1), since that willingness constituted an inducement, albeit at her own request, to stay with them, as contemplated by section 3(c).

I turn then to the final, and in my view determinative, question in this appeal, which is whether what the appellants did on 2nd March 2003 had the effect of removing S from the lawful control of her foster mother. At first sight, the submission made by Mr Neale on behalf of the prosecutor is an attractively simple one. It is that the Deputy District Judge was concerned only with the unlawful acts of the appellants. He was not concerned with what may have been the consequences of any lawful act of theirs on 1st March. Looking at the events of the early hours of 2nd March, it is plain that what they did had the effect of removing lawful control from the foster parent.

As Mr Weatherby has demonstrated to me, however, the submission, whilst attractive, is wrong in law, because it is clear from the wording of the section that Parliament intended a material distinction to be drawn between the two forms of the offence, which, when applied to facts such as the present, is critical to guilt or innocence. Paragraph (a) uses the word "having" as the verb which qualifies or explains lawful control of the child, while paragraph (b) uses the words "entitled to lawful control of the child". It seems to me that two conclusions follow. The first is that the distinction between removal from a person having control, and keeping from a person entitled to control, is intended to reflect two materially different states of affairs. The first requires the child there and then to be in the lawful control of someone when taken or detained. The second requires only that the child is kept out of the lawful control of someone entitled to it when taken or detained.

Paragraph (b) would indeed cover a situation in which the child had run away from lawful control and is, while out of lawful control, detained unlawfully by the defendant. Such a construction of paragraphs (a) and (b) is consistent with the judgment of Simon Brown LJ in the case of Owens, which I have cited earlier, commencing at page 200 letter G, and concluding at letter A on page 201.

The second conclusion I would draw from the separation of these concepts is that, when laid in a charge, each is a material averment which alleges one of two separate forms of the same offence. By the time these appellants knew that their inducements to S were unlawful, she was no longer in the lawful custody of her foster mother. That she was no longer in her lawful custody because, by their own lawful conduct, they had substituted themselves in her place is in my view not material. The offence charged was not proved.

With reluctance, I have to conclude that for these reasons the appeals must be allowed.

LORD JUSTICE ROSE: I agree. As we are respectfully differing from the observations of Simon Brown LJ, as he then was, in Owens [2001] Cr App 195 at 201B, I should say that I specifically agree with my Lord's analysis of the authorities on this aspect of the case. The appeals are allowed and the convictions quashed.

MISS MARSHALL: Your Lordships, if I may make an application for costs from central funds and an order for taxation by the --

LORD JUSTICE ROSE: I assume you have a representation order, have you?

MISS MARSHALL: We do have a representation order, yes, my Lord.

MR WEATHERBY: I support that application. The difficulty in respect of Mr Rutherford is, I understand, the representation order does not cover work done before the representation order.

LORD JUSTICE ROSE: That is usually the case.

MR WEATHERBY: That is the significance of asking for costs from central funds, because then that work would be covered.

LORD JUSTICE ROSE: Do you have anything to say about that?

MR NEALE: No, my Lord.

LORD JUSTICE ROSE: Yes, we grant both appellants an order for their costs to be paid from central funds. Thank you.