Daniel Khalife: Sentencing Cases of Escape

In light of Daniel Khalife’s recent high-profile alleged escape from HMP Wandsworth, barrister Anthony James looks at the offence of escape and case law on sentence.

Daniel Khalife was remanded in custody at HMP Wandsworth ahead of his trial for offences contrary to the Official Secrets Act and the Terrorism Act 2000. His trial is due to begin on 13 November 2023. Khalife is accused of escaping custody on 6 September 2023 before he was arrested on 9 September 2023.

With the offence of escape in the spotlight, this article looks at the elements of the offence itself and the guidance that can be drawn from sentencing case law, in the absence of sentencing guidelines. It is hoped that this article is of use as a quick reference guide to the case law to give practitioners and lay people alike a snapshot of the sentences this offence can attract.

The Offence of Escape

The offence of escape is a common-law offence, punishable with imprisonment at large.

The elements of the offence are as follows:

1. 1. D was in custody, including police custody and prison;
   2. D knew this or was reckless as to whether he was or not;
   3. The custody was lawful (irrespective of whether D was guilty of the offence for which he was held in custody); and
   4. D intentionally escaped from said custody.

Sentencing Cases

In all of the cases analysed below, the defendants had pleaded guilty. Therefore, the starting points and final sentences passed should be seen in light of that.

The Leading Case: R v Purchase [2008] 1 Cr App R (S) 58

This leading case divides the likely sentence into two categories:

1. 1. Where prisoners escape on their own and have some kind of personal pressure which persuades them to do so (measured in months);
   2. Where professional prisoners are assisted by others on the outside (measured in years).

P pleaded guilty to escape in the Crown Court. P had been sentenced to two years’ imprisonment and was transferred to an open prison. He absconded from the prison on the date of his son’s 5th birthday. He went to stay with friends, and became involved in a fight in which he sustained serious injuries. He then stole a car and drove it to his home. He was arrested after being absent from prison for 15 days. Sentenced to nine months’ imprisonment, consecutive to the existing sentence. This was upheld on appeal.

Calvert-Smith J gave a useful summary of the case law of the offence:

[5] The authorities which have been decided on the appropriate level of sentence in this class of case divide roughly into two: cases like the present where a prisoner on his or her own escapes from custody and has some kind of personal pressure which persuades him or her to do so, and cases where professional criminals are assisted to escape by confederates outside (or sometimes even inside) the prison. The former category of case attracts sentences which are measured in months and the latter category in years.

[6] In this class of case there are a number of factors which the courts have considered over the years in assessing where in the scale of months a particular case should fit. Was there planning or was this an impulse? Was there violence or damage caused? What was the reason for the escape? Did the offender surrender or make arrangements to surrender before he was caught? How long was he at large? What else did he do while he was at large?

Professional Prison Break: R v Coughtrey [1997] 2 Cr App R (S) 269

C was serving life imprisonment for murder. Two years into his sentence, he and another burnt through a perimeter fence with oxyacetylene (gas welding) equipment and scaled an outer wall using a ladder. C surrendered just over a week later and was charged with the similar offence of breach of prison, which involves some breaking, cutting or forcing in the course of escape. Having pleaded guilty in the Crown Court, C was sentenced to 7 years’ imprisonment concurrent with his life sentence. This was reduced to 4 years on appeal and McCowan LJ held the following:

• A substantial sentence of imprisonment is always to be expected because of the fear and apprehension it generates, the disorder it may lead to and the need for deterrence;
• Consecutive sentences will almost always be imposed unless the escapee is serving a life sentence;
• Relevant factors are: (i) nature/circumstances of original crime; (ii) conduct in prison; (iii) methods of escape, including planning and outside involvement; and (iv) whether D handed himself in.

Contrived Escape: R v Wilson [1993] 14 Cr App R (S) 314

While on remand, W complained of being unwell and was taken to hospital, where he asked to go to the toilet. In the toilet, he purported to collapse, complaining at how close the police officer was standing. He persuaded him to stand aside whilst he used to the toilet and then climbed through a small window. The Court agreed this was a contrived situation to enable W to escape. The lack of violence however, meant it merited a sentence of 15 months’ imprisonment following W’s guilty plea.

Personal Reason to Escape: R v Banks-Nash [2007] 1 Cr App R (S) 18  

B walked out of an open prison shortly before his parole date. He was at large for 188 days before arrest. He pleaded guilty to escape. The judge had sentenced on the basis that B was in great fear of a serious threat from a drug gang. The Court of Appeal agreed it was a mitigating circumstance but only carried limited weight as escape was not the best way of confronting the matter. B took no steps to surrender himself and had got into trouble with police during his time at large. The correct sentence was one of 9 months.

Personal Reason of Limited Value: R v Brockway [2008] 2 Cr App R (S) 4

B left an open prison and remained at large for 20 months. B pleaded guilty and cited his daughter’s being seriously ill in hospital as a reason for the escape. A sentence of 2 years was considered manifestly excessive and was reduced to 12 months, taking into account Banks-Nash. The Court expressed some doubts as to the value in mitigation of the reasons for an escape.

Open Prison: R v Patmore [2011] 2 Cr App R (S) 21

P was serving a sentence of 16 years’ detention in a YOI for robbery and escape, having jumped out of the dock during a hearing and running away. 6 years into his sentence, P walked out of an open prison and remained at large for a period of weeks. When police located him, he attempted to evade arrest by climbing onto the roof of another property. P pleaded guilty in the Crown Court. The Court of Appeal identified the fact that P was confined in a place with a less strict regime with a greater degree of trust placed in him as an aggravating factor. The sentence was reduced to 15 months’ imprisonment but other factors related to P’s release date affected the decision.

Escaping the Dock Causing Injury: R v Sutcliffe (1992) 13 Cr App R (S) 538

S pleaded guilty to burglary and escape from lawful custody. He was released on licence from a custodial sentence and shortly afterwards committed a burglary at an office and was arrested on the spot. When he appeared before the magistrates’ court and was refused bail, he jumped out of the dock and attempted to run away but was immediately restrained by police officers, one of whom was injured in the process. That injury resulted in the officer being off work for some four days and permanently losing some movement in the joint of one finger. S was sentenced to six months’ imprisonment for burglary and 12 months’ imprisonment consecutive for escape. This was substituted for six months on appeal but the Court made clear that for offences of this kind, it is quite essential for the courts to mark the seriousness by imposing immediate sentences of imprisonment.

Summarising Older Case Law: R v Roberts [1998] 2 Cr App R (S) 455

R pleaded guilty in the Crown Court to escaping from lawful custody. He was taken in custody to a magistrates’ court. He jumped out of the dock and ran away, pursued by custody officers. R ran out of the court building and disappeared. He remained unlawfully at large for six weeks. Sentenced to 18 months’ imprisonment, consecutive to a sentence for other offences. This was reduced to nine months on appeal.

Evans LJ outlined some relevant considerations for such cases:

In those circumstances, there can be no doubt but that a sentence of immediate imprisonment consecutive to the 18 month sentence passed in respect of the other offences was the appropriate sentence in this case. The authorities show that an important factor to consider is whether the escape was opportunistic, as it was in Sutcliffe and as it was here, as distinct from one which carefully planned, as was the case in Wilson. There, Hobhouse J. said that the inevitable interference was that there had been a contrived situation by the appellant, who had created an opportunity to escape and then taken advantage of it. That factor does not apply here. On the other hand, in Sutcliffe there was evidence of some injury caused to one of the prison officers in restraining the escaping prisoner. His attempt was successful. In Sutcliffe’s case the escape lasted only a few minutes. Here, it was successful and lasted for much longer. Taking account of those authorities, and the nature of the offence, it seems to us that this case has to be regarded as rather more serious than Sutcliffe though less serious than Wilson. Mr Glasgow has not sought to dissuade us from that view. In our judgment, the appropriate sentence in this case was one of nine months’ imprisonment. The sentence of 18 months passed in respect of the offence of escape from lawful custody is therefore quashed, a sentence of nine months’ imprisonment is substituted. That sentence remains consecutive to the others that were passed, making a total sentence of two years and three months in place of the three years originally imposed.

Related Proceedings Dropped: R v Jarvis [2002] 2 Cr App R (S) 123

J pleaded guilty to escaping from lawful custody. J appeared before the Crown Court charged with aggravated burglary. The case was adjourned to a different court centre to enable a particular witness to give evidence on a television link. J, who was in custody, leapt over the dock and tried to escape through the court doors. He was tackled by two security guards and an off duty police officer. There was a struggle for a period of four or five minutes before he was overpowered. The police officer sustained a cut to his thumb. The prosecution for aggravated burglary was eventually dropped. Sentenced to 12 months’ imprisonment. This was reduced to six months on appeal.

Offence Committed in Course of Escape: R v Smith [2020] 1 Cr App R (S) 49

S pleaded guilty to attempting to escape from lawful custody and assaulting a court security officer. S was remanded in custody when appearing before a magistrates’ court for drug offences. During his bail application, S attempted to escape from the secure dock by jumping off a chair and grabbing the top of the glass partition on the dock to try and climb out. M, together with another court security officer, tried to grab hold of S but was kicked in the face causing a cut to his nose and consequential bleeding. Eventually, S was brought back under control by other officers. M also suffered an injury to his elbow during the course of the incident. S was sentenced to 17 weeks’ imprisonment on each offence to be served consecutively to each other. This was upheld on appeal.

Anthony James is a criminal and regulatory barrister. He is instructed, as a both a led junior and junior alone, in cases covering the full spectrum of criminal law. Anthony is particularly interested in cases involving complex legal argument and has developed expertise in that area.”