Escaping from prison: the law

Daniel Khalife has been accused of escaping from HMP Wandsworth by attaching himself to the underside of a food delivery van. He was reported as being at large for approximately 75 hours before being apprehended by a plain clothes police officer in Greenford, approximately 12 miles away. He was originally on remand having been charged with terrorism offences and was awaiting trial.  He has pleaded not guilty to an additional offence of escaping from lawful custody.  This article explores the offences relating to escaping from custody.

Escaping from lawful custody

It is an offence at common law (meaning it has not been made an offence by legislation but instead by case law) for a prisoner to escape without the use of force from lawful custody. The elements of the offence (as per Dhillon, R v [2005] EWCA Crim 2996) are:

1. The defendant was in custody;
2. The defendant knew he was in custody (or at least was reckless as to whether he was or not);
3. The custody was lawful; and
4. The defendant intentionally escaped from that lawful custody.

A prisoner, on temporary release from prison, does not commit the offence of escaping from lawful custody, but may be guilty of another offence.

The case of Purchase, R. [2007] EWCA Crim 1740 has provided guidance as to how long a prison sentence someone guilty of escaping from prison is likely to receive:-

1. Where a prisoner escapes on his own due to some personal pressure, the sentence should be measured in months.
2. Where professional criminals are assisted to escape by others on the outside, the sentence should be measured in years.

Relevant factors in sentencing include:

1. The degree of planning;
2. Whether violence was used or damage was caused;
3. The reason for the escape;
4. Whether the escapee surrendered or made arrangements to surrender;
5. How long the escapee was at large; and
6. What else the escapee did whilst he was at large.

Breaking Prison

If someone uses force to escape from prison, they are guilty of the separate offence of breaking prison. The breaching must be an actual use of force, although it need not be intentional; therefore when a prisoner, in effecting his escape, accidentally broke some loose bricks at the top of the prison wall, he was guilty of a prison breach (Haswell (1821) R&R 458).

Someone guilty of this offence is likely to receive a longer prison sentence than someone guilty of simply escaping prison. The case of Coughtrey, R v [1997] EWCA Crim 224 provided the following guidance:

1. Prison breaking is a serious offence for which a significant term of imprisonment should always be expected.
2. The sentence for prison breaking will usually run consecutively to the original sentence unless the prisoner is serving a life sentence.
3. Other factors to take into account when sentencing some guilty of the offence include:
   1. The original crime for which the offender had been imprisoned;
   2. The offender’s behaviour whilst in prison;
   3. The circumstances of the escape;
   4. Whether he surrendered to custody; and
   5. Whether the offender pleaded guilty to the escape.

Assisting a prisoner to escape

As per section 39 of the Prison Act 1952, it is an offence for someone to assist a prisoner escape or attempt to escape from custody.

It is also an offence for someone to facilitate the escape of a prisoner by conveying anything into prison to assist them in the escape or by giving the prisoner anything to help them escape by any other means.

Someone guilty of this offence can be sent to prison themselves for up to 10 years.

Harbouring an escaped prisoner

As per section 22(2) of the Criminal Justice Act 1961, a person who knowingly harbours an escaped prisoner or gives them any assistance with the intent to prevent, hinder or interfere with them being recaptured is guilty of an offence.

Someone guilty of this offence can be sent to prison themselves for up to 10 years.

Remaining at large

Under section 32(ZA) of the Crime (Sentences) Act 1997 and section 255ZA Criminal Justice Act 2003, a person recalled to prison is guilty of an offence if they:

1. Have been notified (either orally or in writing) of the recall; and
2. Fail, without reasonable excuse, to take all necessary steps to return to prison as soon as possible.

Someone guilty of this offence can be sent to prison (in addition to the time they need to serve on the recall) for up to two years.

Comment

It is clear that someone guilty of escaping or assisting someone escape from prison is likely to receive a lengthy prison sentence for doing so. The reasoning for this is clear and can be seen from the reaction to Daniel Khalife’s alleged escape; fear was instilled into the public for 75 hours and the country was on high alert, with ports and motorways being closed and lengthy delays caused due to extra searches being carried out. Given the resources available to law enforcement agencies, it is unlikely someone is going to be at large for very long. The risks of escaping (or helping someone escape) from prison greatly outweigh the benefits, and it would take a desperate person to go to such measures.

Send us an email, complete our online enquiry form or call us on 020 3944 6225 to find out how our criminal defence solicitors can help if you are facing investigation or prosecution.