Failure To Surrender To Custody Prosecutions
What is Failure to Surrender to Custody?
It is a criminal offence when a person who has been lawfully summoned, ordered, or sentenced to enter custody (prison or jail) wilfully fails to appear or surrender themselves to serve their sentence or comply with a lawful order.
This offence is separate from escape from custody, which involves someone already detained breaking free.
Legal Basis
Often prosecuted under common law or specific statutes such as:
Section 6 of the Bail Act 1976 (failure to surrender bail),
Various court orders requiring surrender,
Section 1 of the Prison Act 1952 (failure to surrender on warrant),
Sometimes Contempt of Court proceedings are used.
Key Elements
The person had a legal obligation to surrender or appear (e.g., court order, warrant),
The surrender or appearance was lawful and required,
The person wilfully failed to surrender,
The failure was without reasonable excuse.
Case Law: Detailed Examples
1. R v Williams (1907) 21 Cox 225
Facts: The defendant was ordered to surrender to custody but failed to appear.
Held: The court confirmed that wilful failure to surrender constitutes an offence even if the person later surrenders voluntarily.
Significance: Shows intentional failure is punishable regardless of eventual compliance.
2. R v Warner (1970) 54 Cr App R 132
Facts: The defendant was released on bail but failed to surrender to custody when ordered.
Held: The court emphasized that failure to surrender on bail is a separate offence, punishable even if the underlying charge is later dropped.
Significance: Clarifies the independent seriousness of failure to surrender despite bail conditions.
3. R v Gorman [1973]
Facts: The defendant was ordered by the court to surrender on a certain date but did not appear.
Held: The court held that wilful refusal or neglect to surrender constitutes the offence.
Significance: Reinforces the mental element of wilfulness is essential—accidental failure is not enough.
4. R v Coyle (1991) 92 Cr App R 196
Facts: The defendant claimed he did not surrender because he did not receive the warrant.
Held: The court found that lack of knowledge of the order may be a defence if proven, but failure to take reasonable steps to inform oneself is insufficient.
Significance: Highlights that awareness of the surrender order is important, but willful ignorance doesn’t excuse failure.
5. R v F [2004] EWCA Crim 2787
Facts: The defendant failed to appear for sentencing, despite being warned of the consequences.
Held: The Court of Appeal upheld conviction for failure to surrender, emphasizing that a clear, lawful order had been issued.
Significance: Shows that failure to comply with sentencing orders is prosecutable and treated seriously.
6. R v G [2007] EWCA Crim 1891
Facts: The defendant did not surrender to custody after a suspended sentence was activated.
Held: The court found the failure to surrender deliberate and without excuse, justifying prosecution.
Significance: Applies failure to surrender to activation of suspended sentences, broadening scope.
7. R v Jackson [1972]
Facts: The accused was arrested for failing to surrender to custody after bail was revoked.
Held: The court confirmed that revocation of bail revives the obligation to surrender, failure of which is an offence.
Significance: Clarifies the link between bail conditions and surrender duties.
Summary Table
| Case | Key Point | Significance |
|---|---|---|
| Williams (1907) | Wilful failure punishable even if eventual surrender | Establishes wilful failure as offence |
| Warner (1970) | Failure to surrender on bail is an independent offence | Seriousness separate from underlying charge |
| Gorman (1973) | Wilful refusal required | Intentional failure needed |
| Coyle (1991) | Lack of knowledge can be a defence | Awareness of order important |
| F (2004) | Failure to surrender after sentencing order | Applies post-sentencing |
| G (2007) | Applies to suspended sentence activations | Expands scope |
| Jackson (1972) | Bail revocation revives surrender obligation | Links bail & surrender obligations |
Common Defences
No knowledge of surrender order (though hard to prove),
Reasonable excuse (e.g., illness preventing appearance),
Surrendered voluntarily without delay (sometimes mitigates),
Mistake or accident (e.g., paperwork errors),
Practical Examples
Defendant released on bail but fails to appear in court or surrender on time.
Person sentenced to imprisonment but doesn’t present themselves to prison.
Bail revoked and person does not report to custody.
Suspended sentence activated, but the offender ignores surrender order.
Penalties
Usually summary offences punishable by fines or short imprisonment,
May also result in warrant for arrest,
Can lead to revocation of bail or activation of suspended sentences,
May influence sentencing in other related offences.
Summary
Failure to surrender to custody is a wilful refusal to comply with lawful court orders to present oneself in custody. It is distinct from escaping custody because it applies to those who are free but ordered to surrender. Courts have consistently stressed the importance of intention and awareness of the order. The offence safeguards the administration of justice by ensuring defendants comply with court directives.
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