CRIME — Crime and disorder — Vagrancy — Defendant found in yard after burglary committed next door — Prosecution alleging defendant hiding from police after burglary — Whether defendant found in yard for “unlawful purpose” — Vagrancy Act 1824, s 4

JL (A Youth) v Crown Prosecution Service

QBD: Auld LJ and Collins J: 16 July 2007

An accused was “found” in an inclosed yard for an “unlawful purpose” within the meaning of s 4 of the Vagrancy Act 1824 when he had been seen or discovered in an inclosed yard with criminal conduct in mind.

The Divisional Court of the Queen’s Bench Division (Auld LJ and Collins J) so held when allowing the appeal by way of case stated of the defendant, JL, from a decision of the Tyne and Wear Justices, sitting at Sunderland Youth Court on 15 February 2007, rejecting his submission of no case to answer and convicting him of being found in an inclosed yard for an unlawful purpose, contrary to s 4 of the Vagrancy Act 1824.

The prosecution case was that the defendant had been hiding from the police after having committed a burglary in the flat next door to the yard in which he was found. There was no direct evidence linking the defendant to the burglary.

S 4 of the 1824 Act provides: “every person being found … in any inclosed yard, garden, or area, for any unlawful purpose … shall be deemed a rogue and vagabond …”

COLLINS J said that it was not clear from the case stated what the crucial facts found by the justices were, nor did the questions in the case stated address the question to be considered. In order to satisfy the terms of s 4 of the Vagrancy Act 1824 it was necessary for an individual to be “found” in an inclosed yard for an “unlawful purpose”. S 4 of the 1824 Act had been created to deal with soldiers wandering around the country after the Napoleonic Wars. An individual was “found” within the terms of s 4 if they were either seen or discovered there for an unlawful purpose, even if they were not arrested until later. For there to be an “unlawful purpose” there had to be some criminal activity in mind. Hiding from the police was not an unlawful purpose since it was not a criminal purpose. Furthermore whilst there was no obligation upon justices to give reasons for rejecting a case of no case to answer it might be necessary in certain cases to do so. It ought to have been made clear to the defendant whether he was facing a charge of intention to commit a burglary or that a burglary had taken place. Since the case against the defendant was flimsy in the extreme the conviction was quashed and the appeal was allowed.

AULD LJ said that the words in s 4 of the 1824 Act meant what they said and that a well founded inference that a state of affairs existed before the defendant was found but which no longer existed when they were found was insufficient for the purposes of s 4. S 4 was preventative in nature and was intended to prevent conduct escalating into mainstream criminal conduct. It should be resorted to with caution.

Appearances: Quincy Whitaker (Ben, Hoare, Bell LLP, Sunderland) for the defendant; Robert O’ Sullivan for the Crown Prosecution Service (Crown Prosecution Service, Newcastle upon Tyne).

Reported by: Jessica Giles, solicitor