England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Thursday 13th March 1997

B E F O R E :

THE VICE PRESIDENT

( LORD JUSTICE ROSE )

MR JUSTICE OWEN

and

MR JUSTICE MORLAND

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R E G I N A

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DEAN ANDREW JAMES

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR E BALLENTYNE appeared on behalf of the Appellant

MR D HERBERT appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Thursday 13th March 1997

JUDGMENT

THE VICE PRESIDENT: Mr Justice Morland will give the judgment of the Court.

MR JUSTICE MORLAND: The appellant appeals against his conviction for robbery at the Derby Crown Court before his Honour Judge Appleby QC on 28th June 1996. The appellant had been jointly charged with the robbery of a taxi driver named Ratyal at Burton-on-Trent on 14th May 1995 with Frank Allgood, who pleaded guilty to robbery on rearraignment.

The basic facts were not in dispute. In the early hours of 14th May 1995 Mr Ratyal was waiting in his cab at a taxi rank outside a nightclub. The appellant, Frank Allgood and two girls got into the cab. They had had drink. Mr Ratyal drove off in the direction of the requested destination. En route Mr Ratyal was asked to stop because it was said one passenger was feeling sick, so Mr Ratyal stopped the cab. All four passengers got out and started to walk away. Mr Ratyal called after them asking for the fare. Frank Allgood and the appellant walked back to Mr Ratyal and said, "We're not paying you so you might as well stop fucking asking for it". Frank Allgood then punched Mr Ratyal three or four times in the face and head. The appellant grabbed hold of Mr Ratyal. Frank Allgood threw some more punches at Mr Ratyal, and then went to the cab and stole £200 from a bag in the cab, some papers and a set of keys belonging to Mr Ratyal.

The crucial questions which the jury had to determine were, firstly, whether they were sure the appellant grabbed Mr Ratyal as part of a joint assault with Frank Allgood, or may the appellant have grabbed Mr Ratyal in an attempt to protect him from the assault of Frank Allgood, which was the appellant's evidence. Second, whether they were sure that the appellant, in a joint enterprise with Frank Allgood, assaulted Mr Ratyal with the intention of stealing from him.

The appellant's case was that he did not assault Mr Ratyal, that he had no intention of stealing from him, and that he was unaware that Frank Allgood had done so.

Mr Ratyal said in evidence, and we quote from the summing-up at page 6E to G:

"I got out of the taxi and said, "Hey mates, you haven't paid yet". They were about ten yards away. Then both the men walked towards me. Allgood said: "What do you fucking want?" He was right in front of me. Then the defendant was at the side of me. I thought they were going to attack me but before I was clear in my mind as to what was going to happen Allgood hit me two or three punches. I felt a bit dizzy. The defendant armlocked my throat. It stopped me breathing. He held me in an armlock round the throat. The other man then hit me six or seven times more.'"

The appellant said in evidence, and we quote from the summing-up at page 12B to F:

"Frank started getting really abusive, not only to the taxi driver, but also towards me. I did not want to argue with him and provoke him. He went over to the taxi driver who took a couple of steps back. He punched the taxi driver to the face and head two, three or four punches. I knew I could not get Frank away. I tried to get the taxi driver away from Frank. I grabbed him round the shoulder. I did not take hold of him round the neck. I intended to get him away from Frank. I had my arms round his chest and shoulders, probably when using force to get him away my arm slipped at some point onto his neck. It was never intentional. Frank was trying to get more punches into the bloke.

I was very frightened about Frank and what he was going to do to this bloke. I could not stop him from punching him. Eventually the bloke went to the floor, Frank ran off shouting that if the police came round don't say anything or you'll get the same. This threat has always worried me ever since.

I do not know what Frank was doing by the cab, he went to the passenger side for 20 or 30 seconds before he ran off."

One of the girls who had been a passenger in the cab, the appellant's girlfriend, Angela Kempf, gave evidence on the appellant's behalf and she said, and we quote from the summing-up at page 14A to B:

"I saw Dean had got the taxi driver in like an armlock, arms like round his shoulders to his neck. Frank was throwing punches from in front of the taxi driver. Dean was pulling him and telling Frank to leave it."

When interviewed by the police the appellant denied having been in the taxi and put forward, with Angela Kempf, a false alibi notice. Their explanation for this was they were terrified of Frank Allgood.

It is submitted on the appellant's behalf by Mr Ballentyne that that conviction is unsafe because the judge failed to direct the jury properly as to the ingredients of robbery. In particular, that even if the jury disbelieved the appellant's explanation for grabbing or holding Mr Ratyal, they could not convict the appellant unless they were also sure that the appellant, at the time of the assault, had the intention that a theft from Mr Ratyal should take place.

Robbery is defined by section 8(1) of the Theft Act 1968, and the relevant words are:

"A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so , [we emphasise those words] he uses force on any person....."

We have emphasised the words "in order to do so" because, theoretically, if A assaults B and disables him without having any intention of stealing from him, and then A opportunistically, B being disabled, steals from him, A is not guilty of robbery but of two legally separate offences, assault and theft: see R. v. Margaret Harris , decided on 19th February 1988, and the judgment of this Court given by Leonard J in the Court of Appeal transcript at page 7E.

Thus in this case if the appellant and Allgood jointly assaulted Mr Ratyal without then having the intention of stealing from him and then, opportunistically, Mr Ratyal being disabled, Allgood, or the appellant and Allgood, stole from the cab of the taxi, the appellant would be not guilty of robbery even if the jury disbelieved his account of the robbery. The judge did not give the jury the statutory definition of robbery.

In Dawson and Jones (1977) 64 Cr.App.R. 170, Lawton LJ said, at page 171:

".....this Court is of the opinion that in these cases what judges should now direct their attention to is the words of the statute. This has been said in a number of cases since the Theft Act 1968."

Nowhwere in his summing-up did the judge direct the jury specifically that the assault, or the use of force, must be in order to steal: see Shendley [1970] Crim.L.R. 49. Nor did he do so when the jury came back with a question on the aspect of theft.

What the judge said in his summing-up was, and we quote from page 3B to G:

"What do the prosecution say in this case? They say that he was a participant in the robbery of Mr Ratyal, the taxi driver. There is no doubt that the taxi driver was robbed. He was subjected to violence and he was robbed, because Allgood has pleaded guilty to the violence and the robbery. The fact that he has pleaded guilty to it is not evidence against this defendant. He has pleaded guilty to the fact that he attacked this taxi driver and he robbed him."

We interpose to say that what the judge further should have said was that Allgood's plea of guilty was not evidence that the appellant was guilty, either of assaulting Mr Ratyal or that the robbery had in fact taken place.

To continue with the citation from the summing-up at page 3D:

"To convict this defendant you must be satisfied so as to be sure that he was a party to that robbery, he was a party to the violence, and he was a party to the subsequent taking of the money.

You may think, members of the jury, the issue really turns on whether you are satisfied so as to be sure that he held this man in an armlock, a headlock, in order that he could be attacked....."

We interpose there to say that he omitted to say "in order that theft should take place". We continue quoting from the summing-up:

".....and you are satisfied so as to be sure that he was not seeking in any way to protect this taxi driver by pulling him away and trying to prevent Allgood from attacking him and saying: 'Stop it'. For if you are satisfied so as to be sure that he was part of the attack so as to render this taxi driver helpless in the face of a torrent of blows from Allgood, then you may think the rest of the evidence falls into place.

Well, there it is, members of the jury. To convict him you must be satisfied so as to be sure that he was a participant in the violence and the taking of this taxi driver's money."

Nowhere in that passage did the judge spell out to the jury the essential ingredient of the offence of robbery; that is that use of force has to be with the intention of stealing. Of course, in very many cases the inference of that intention can be readily drawn from the circumstances.

After the jury had been out for two hours they came back with this question:

"Can we convict the defendant of robbery if the majority feel that he is guilty of assault but are uncertain about the theft because there has been no clear evidence?"

It is regrettable that before the judge answered that question in the presence of the jury counsel for the Crown did not alert the judge to the wording of section 8(1) and, in particular, the requirement that the use of force had to be with the intention of stealing.

The answer that the judge gave to the jury's question was:

"Members of the jury, to convict the defendant of robbery you can only convict him if you are satisfied he was a party not only to the violence, but also to the taking of the taxi driver's property, not just of the violence, but to the taking of the taxi driver's property as well.

What you are entitled to do is to ask yourselves if you are satisfied so as to be sure he was guilty of the violence, you are entitled to ask yourselves why was he a party to that violence, but you must be satisfied that he was a party to the taking of the property as well as to the violence to convict him of robbery. There we are, thank you members of the jury."

Again the judge did not refer to the requirement that the use of force had to be with the intention of stealing.

On the directions given by the judge the jury must have been sure that the appellant, jointly with Allgood, was a party to both the assault and the theft.

Does the judge's omission to direct the jury on the essential ingredient of intent to steal at the time of the assault render the verdict unsafe? In our judgment it does. We cannot come to the conclusion that if the jury had been properly directed they could only have convicted the appellant of robbery.

However, we have the power under section 3 of the Criminal Appeal Act 1968 to substitute for the conviction of robbery a conviction which, inevitably, on the directions given to the jury, they would have returned. They must, by their verdict, have been sure that the appellant was guilty of the assault on Mr Ratyal and was a party to the subsequent theft from him. Therefore we substitute a verdict of guilty of theft in substitution of the conviction for robbery, and to that limited extent this appeal against conviction is allowed.

LORD JUSTICE ROSE: Mr Ballentyne, there was no application for leave to appeal against sentence.

MR BALLENTYNE: There was not, but, my Lord, might I make that application?

LORD JUSTICE ROSE: Yes. We shall grant the necessary extension of time, and we shall grant you leave to appeal against sentence. What do you want to say about it?

Sentence appeal heard

MR JUSTICE MORLAND: We now go on to consider the question of sentence on the basis of the substituted conviction for theft.

We have regard to the fact that this was a theft perpetrated after an assault had been made on the victim of the theft, thus disabling him.

On looking at the papers, and considering the summing-up, in our judgment it is clear that Frank Allgood was the prime mover in the commission of the offence on Mr Ratyal. It was Allgood who caused the worst part of the violence on Mr Ratyal, and it was Allgood who actually took the money from the driver's part of the taxi cab.

Allgood is approximately two years older than this appellant. He is a person who had a previous conviction of great seriousness in 1989 when he was sentenced to a total period of five years' detention for conspiracy to burgle, aggravated burglary and robbery, with two further offences taken into consideration.

For the offence of robbery of Mr Ratyal, Allgood was sentenced, on his plea of guilty, to three years and six months' imprisonment.

We have had placed before us, in relation to this appellant, not only his antecedents, but a Pre-sentence Report that was before the trial judge and a number of references speaking well of this appellant. We are particularly impressed by what the appellant himself has written to us, saying:

".....although I have appealed against my conviction, I have used my time spent in prison in a constructive way by undertaking a course in industrial cleaning, from this I will receive a certificate to hopefully help me find work after my release."

There is support for his constructive behaviour in prison from a memorandum before us from the Prison Service.

However, the appellant, in the past, was not averse to violence, although, considering the sentences imposed, they were of a completely different class and degree to the violence that was inflicted on Mr Ratyal. The appellant was convicted in the juvenile court of assault and theft when he was given a conditional discharge in 1991; for assaulting the police, a section 47 assault, he was given a total of 24 hours in an Attendance Centre and fined; and in a youth court in 1993, for breach of the Attendance Centre orders, he was ordered to serve two months' detention in a Young Offender Institution. Apart from that he has not been convicted of any serious offences whatever.

It is important that we emphasise the serious nature of both assaults and thefts from taxi drivers, who are particularly vulnerable to such assaults and such thefts from people who use their cabs when they are under the influence of drink, as this appellant was.

In our judgment, in passing sentence on the theft, it is right for us to take into account the background, including the finding that the jury must have made that this appellant took part in the assault before the theft on Ratyal.

However, we do consider that the sentence passed by the learned judge for the robbery of three years and nine months is too much for the conviction which we have substituted of theft. The sentence that we pass for the offence of theft is a sentence of of three years' detention in a Young Offender Institution.

He is under 21, is he not?

MR BALLENTYNE: My Lord, yes he is.