England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		15th January 1998

MRS JUSTICE SMITH: On 12th July 1997 at the Central Criminal Court before Mr Recorder Sells the applicant was convicted on count 1 of the indictment of false imprisonment; on count 3, blackmail; and on count 5, robbery. On 20th September 1997 he was sentenced to a term of three years' detention under section 53(2) of the Children and Young Persons Act 1933, with two twelve month periods of detention concurrent on the other counts of the indictment. He now renews his application for leave to appeal against conviction after refusal by the single judge.

He had appeared with two co-accused. Jay Richard McConnell, who was also convicted on count 1 of false imprisonment, on five counts of blackmail and one of robbery (count 5). He was detained for four years under section 53(2) of the 1933 Act. His application for leave to appeal against conviction was refused and has not been renewed. The other person on the indictment was H, a young woman, who was charged with false imprisonment and blackmail. She was acquitted on both counts.

In 1995 the complainant, Thomas Birkert, was a schoolboy aged about 17 or 18, studying for his A' levels. Some years earlier he had received an inheritance, and subject to some parental supervision, controlled a bank account containing several hundred pounds. He also had a bank card. He owned a Renault motorcar. His complaint was that, for a period of four days, beginning in the evening of Wednesday 1st November 1995, he was imprisoned by the applicant Francis and McConnell. For part of the time he alleged that the young woman H had participated in this imprisonment. However, as we have indicated, she was acquitted.

Events began while Birkert was shopping in a video shop in South Kensington. He was approached and beckoned outside by the applicant and McConnell. He went outside to meet them because, he said, he was afraid of Francis on account of some previous trouble between them when he claimed Francis had stolen a cassette player from him. On this occasion, he said that outside the video shop the applicant and McConnell forced him to hand over his watch, a ring and £10 - although, in the event, both defendants were acquitted in respect of that allegation. Birkert said that the two youths told him that he was to go to his bank and use his cash card to obtain money for them. They threatened him that if he ran away they would catch him and hurt him. He went with them, he said unwillingly, to a bank in Knightsbridge, where he withdrew £60. That was the subject of count 3, the offence of blackmail.

Thereafter he claimed the two youths made him take them to his motorcar, and he was made to drive them to various places in and around London. He said that the applicant took from him his golf clubs and pool cues, which had been in the boot of his car. That allegation was the subject of the conviction under count 5, the robbery. The items had later been found in the applicant's room in a bail hostel where he lived. The allegation was that Birkert had been threatened with violence at the time that these were taken.

Birkert claimed that he was threatened with violence on many occasions during the ensuing four days. He was allowed to telephone his parents from time to time, but was made to tell them not to telephone the police. On one occasion he told them that he was going to a party with friends.

He was made to drive to Southsea, where H lived. On the first occasion they arrived there at about 3 am on 2nd November. Shortly afterwards they drove back to London, arriving at about 6 am. Later they went back to Southsea, with H driving the car. Then Birkert was made to drive the applicant and McConnell back to London. At one stage he had tried to run away. He went into a kebab shop and asked the owner to call the police, but he was pursued by the applicant and left the shop with him. He said that the applicant had threatened him on this occasion that, if he tried to escape again, he would be killed. He said that he became exhausted from lack of sleep. He was taken to the bail hostel again and to McConnell's flat and again to Southsea to see H. From time to time he was told that he would soon be released.

This course of conduct continued until Saturday 4th November. During that time McConnell made Birkert withdraw several sums of money from his account. Those were the subject of several separate counts of blackmail of which McConnell was in due course convicted.

Birkert's parents became increasingly anxious during these four days, but the police were reluctant to take action. By Saturday 4th November, when Birkert did not attend a football match at Stamford Bridge for which he held a season ticket, the parents had become extremely worried. That day McConnell caused Birkert to telephone his mother to arrange for more money to be transferred into his bank account. He spoke to her over the telephone, but she said that the money could not be credited to his account until after the weekend. McConnell then told Birkert to arrange with his mother to receive money at a petrol station. An arrangement was made to meet at a petrol station near Guildford. When the applicant, McConnell and Birkert attended, the police arrived on the instruction of Birkert's mother and arrests were made.

The defence at the trial was that Birkert had been entirely willing to go with the defendants. He had, as it were, kicked over the traces of his usual rather sheltered existence and had been only too happy to experience a different way of life. When Birkert had gone into the kebab shop, it had been to buy food, but he and the applicant had come out together as they did not like the look of the place.

Mrs Birkert gave evidence that, while on the telephone on the Saturday, she had told her son that she had cancelled his bank card. She then claimed to have heard a voice in the background saying:

"Tell them to uncancel it and we will let you go."

As we have indicated, the applicant was duly convicted on counts 1, 3 and 5.

In the written grounds before this Court, complaint is made first of the judge's direction on the law relating to false imprisonment. After reading count 1 to the jury and drawing to their attention that it alleged that the applicant had assaulted and unlawfully and injuriously imprisoned Thomas Birkert and detained him against his will, the Recorder said this:

"What is false imprisonment? Members of the jury it consists, first of all, of the unlawful and intentional or reckless restraint of a person's freedom of movement from a particular place."

He then said, and it is this next sentence of which complaint is made:

"In other words, it is an unlawful detention which stops a person moving away and acting as he would wish."

The complaint of that last sentence to which we have just referred is that the evidence was not that Birkert had been prevented from moving from a particular place but was ordered to drive around from place to place; he had not been confined to a particular place.

We see no merit whatsoever in that complaint, particularly when one sees that two sentences later the Recorder said this:

"Obviously false imprisonment may take many forms. At one extreme it may consist of a literal imprisonment of an individual within walls and behind bars. It may also consist of the restraint of an individual's movement, not within a single place of confinement but upon the restriction of his movement accompanied by violence, or the threat of violence, which makes the person the effective prisoner of a particular person who is committing this offence."

We agree with the single judge when he said that he could not fault the Recorder's direction on false imprisonment.

Second, it is said that the convictions of the applicant and McConnell were perverse vis-a-vis the acquittal of H. It appears that H gave evidence that Birkert had spent two hours alone with her during which time he could have left at his will. If the jury had accepted that, as it appears they did, it would undermine Birkert's evidence that at all other times he had not been voluntarily associating with the accused.

Here again, in our view, there is no merit in this submission. H was in quite a different position from the applicant and McConnell. She had only been present intermittently. She was a young woman of good character. Moreover, for at least part of the time when Birkert was in her company there was evidence which the jury may well have accepted that he was exhausted due to lack of sleep.

Third, the complaint is made that the Recorder was wrong to admit the evidence of what Birkert's mother said she overheard on the telephone on Saturday 4th November. It is said that this was inadmissible hearsay. The maker of the statement could not be identified.

It was certainly true that the maker of the statement had not been identified. Moreover, Birkert himself had not given evidence that those words had been spoken. However, as the single judge in refusing leave pointed out:

"What Mrs Birkert heard in the background of the telephone conversation ... was admissible as evidence of the restraint of Thomas Birkert by somebody [who was present], contrary to your defence of voluntary association."

With that observation this Court agrees. The single judge also expressed the view that the conviction on count 1 was not unsafe.

For the reasons which we have already given, we find no merit in the three grounds of appeal before the Court and we have no hesitation in saying that this application should be refused.