England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2 Date Tuesday 3rd August 1999
		Tuesday 3rd August 1999

LORD JUSTICE ROCH: On 15th October 1998 at the Oxford Crown Court before Her Honour Judge Mowat and a jury, the appellant was convicted of count 3 on the indictment (attempted robbery). On 13th November 1998 he was sentenced to a combination order of 36 months probation and 40 hours community service. The jury acquitted him on counts 1 and 2 in the indictment. He appeals against conviction with leave of the single judge.

On 20th April 1998 the appellant went into three different banks in the centre of Oxford between 1.45 and 2.15 in the afternoon and, so it was the prosecution's case, attempted to obtain money from each of those banks saying that he had a gun.

The defence put forward by the appellant at his trial was that he did not have the necessary criminal intent either because he was drunk, or because he was carrying out a drunken joke, or because he was a pathetic individual seeking to draw attention to himself.

The facts of the three counts were these. The first count related to events at Lloyds Bank at 1.45 pm that day. The cashier there, Miss Julie Ward said that she saw the appellant standing behind the counter, he ignored the queuing system and said that he wanted money. She thought that he wanted to withdraw money and asked him more than once if he had an account with the bank. To those questions she received no response so she passed him a piece of paper to write down his account details. She noticed that he smelt of alcohol. At that point the appellant said he had a gun. According to Miss Ward he was quiet, not aggressive, when he spoke he slurred his words. She thought he was drunk and she did not take him seriously. The customer at the next till was treating it as a joke. Miss Ward thought it was rather humorous. The police were not called and she did not institute the robbery procedure. She told the jury that at no time was she in fear.

Miss Ward's supervisor, Jane Butler, said that the appellant was drunk and incoherent. He followed her to the customer service area and sat down. The appellant asked Miss Butler if she was going to give him any money and put his face right next to hers. Miss Butler said no, unless the appellant had an account. At that point the appellant fell over. Miss Butler asked the appellant to leave and escorted him to the door. She told him that he could return when he was sober. She told the jury that she was not frightened, that the appellant had given her his proper name and said to her "Will you tell the police I've done a robbery?" Miss Butler told the jury that he spoke like someone who was drunk and not aware of what he was saying.

Teresa Addison was a cashier at Barclays Bank. She saw the appellant at about 2.10 pm. She was dealing with another customer, a Mr Cooper, when the appellant interrupted her. She asked the appellant to queue but he said that he wanted some money and kept insisting that she handed over money. He was holding a cloth bag in the crook of his arm. Miss Addison said that the appellant said he had a gun and pushed his arm towards the glass to show her. She thought there was something in the bag that was six to nine inches long. The appellant said to her "This is a stick up". At first she thought it was a joke but then she started to panic. She did not smell alcohol but she thought that the appellant might be mad. In her view the appellant's speech was not slurred. He said that he had a gun about three times and told her not to push the button. She pushed the button. Mr Cooper put the appellant's hands behind his back, took him to one side to calm him down, and then ushered him out. Miss Addison told the jury that the appellant's tone was not aggressive but was threatening.

Mr Cooper gave evidence that he heard the appellant ask for money; he heard the appellant say he had a gun. He was a bit shocked but did not feel threatened. The appellant had his hand in his jacket pocket but Mr Cooper could see that it was the appellant's fingers through the lining which were being pointed and not a gun. Mr Cooper thought the appellant was an attention seeker and was not seriously trying to rob the bank. Mr Cooper could not recall smelling alcohol but did think that the appellant might be mentally ill. He moved the appellant away from the counter. He described the appellant's way of speaking as rather off-pat, as if he got it off the television. The appellant had asked him if he was CID in an eager way as though hoping that Mr Cooper was a policeman. Mr Cooper, after taking the appellant out of the bank, did not go back into the bank nor did he think the matter serious. He did not try to contact the police at that time.

Miss Sarah May is an employee of the National Westminster Bank. Her evidence was that at 2.15 pm the appellant stumbled up to the counter where she was working. He said to her "Give me your money". She thought he was pointing something towards her under his jacket although she could not see anything. At first she did not think it was a serious robbery. Her colleague and herself thought it best to follow the lay down procedure and they dropped to the floor and shouted "raid" and pressed the alarm. They then heard the appellant say "Call the police. I've done it. This is great." When they got up he was sitting on the sofa in the customer service area with the manager. When he asked for the police to be called the appellant seemed to be jovial. At that point Miss May thought that he might be drunk. She noticed that he swayed when he walked. Her colleague Miss Thorne (also a cashier) thought that the appellant had pointed something at them. She thought the appellant was drunk. She told the jury he was laughing and seemed to be treating it as a big joke. She told the jury that the appellant had said "I did it. I did it. Call the police."

A customer in that bank, Mr Powell, saw the appellant with his hand in his pocket pointing it and saying "Give me money" and according to Mr Powell also saying "I'm not going to hurt you". Mr Powell grabbed the appellant from behind and felt that there was nothing in the appellant's pocket. The appellant did not struggle, but he ranted and he laughed about a robbery. The appellant smelt of alcohol. Mr Powell thought that the appellant wanted to be arrested and wanted attention.

The manager of the bank, Mr Talbot, heard the appellant saying "I've robbed the bank. Arrest me. Please arrest me. I'm not well. I am an ill man." In that witness' view the appellant appeared drunk and did not appear to be "all there". Mr Talbot told the jury that the appellant had given him his benefits book in order to prove who he was.

The first police officer to arrive seems to have been a Woman Police Constable Murphy. According to her the appellant said to her "I want to be arrested. Look at all this excitement. I love it." She arrested him under the Mental Health Act as well as for attempted robbery. She thought that the appellant was able to understand the seriousness of what was going on. It would seem that the police took the matter seriously and a firearms team were called out as well as a helicopter.

The jury heard evidence from an Inspector that the next morning the appellant under caution had said that he had left the public house and wanted money. He did not really mean it. He did not hurt anyone. It was only a joke. He had been into two banks and had been put out and he was arrested in the third bank and then the appellant asked "Am I in trouble?" In the presence of a solicitor later in interview the appellant changed his story somewhat, but he was still saying that he had not thought that he was scaring people, he was playing a joke and trying to make people laugh.

The appellant gave evidence before the jury. His account was that he could remember going into one bank but then could remember nothing until waking up in a police cell - the visits to the other two banks being blanked out of his memory.

Miss Duncan presents this appeal on the ground that the conviction on count 3 is unsafe because of the acquittals on counts 1 and 2, the point being that if the evidence in relation to counts 1 and 2 did not make the jury sure that the appellant had the necessary intent for robbery then there is no detectable reason why the evidence in relation to count 3 should have been sufficient to make the jury sure that the appellant had the necessary intent.

The law is this. The burden of establishing that verdicts cannot stand together is on an appellant who relies upon the ground of inconsistent verdicts to found his appeal. Inconsistency alone is not enough. The inconsistency must be of a kind which renders the conviction unsafe. Logical inconsistency is not enough. If there was good evidence to support the conviction and the logical inconsistency can be explained, for example as in McCluskey, that the jury considered having convicted the defendant of the serious charge that the other charge in that case (affray) was trivial and unnecessary; or as in the case of Segal (1976) Crim.L.R 325, that having convicted the accused of one count it was oppressive to convict him of a second count. In that case the jury convicted the defendant of driving in a dangerous manner but acquitted him of driving at a dangerous speed. In that case this court took the view that the jury probably considered it unnecessary and oppressive to convict him of two offences in relation to the same piece of driving.

Turning to this appeal, the summing-up of the judge was beyond criticism. The judge set out the matters that the prosecution had to establish with great clarity and reminded the jury of the relevant evidence again concisely and clearly in a way which should have been of the greatest assistance to the jury. At page 4A the judge directed the jury in this way:

"On your indictment before you are three counts of attempted robbery, as you know, all happening within about half an hour of each other on the same day, 20th April, three banks in Oxford's Cornmarket. You will be asked for a separate verdict on each count. There is no such thing as a global verdict to the whole indictment, and there is no reason in law why your verdicts in respect of each count should be the same. They could be any combination of guilty or not guilty as a matter of law."

And then the judge said, and we find this significant:

"You may think the reality in this case is that they will all go one way."

But the judge did add:

"But that may not necessarily be so and it is a matter for you to make up your minds whether there are any different considerations which apply to one as opposed to another".

Here the issue was the same in all three cases. It was not disputed that the acts done by the appellant in each case were sufficient for attempted robbery provided that he had the necessary intent. Consequently the only issue in each case was had the prosecution proved the necessary intent to the requisite degree? It is difficult to conceive that the appellant was intending to commit a bank robbery against the National Westminster Bank at 2.15 pm but had not been intending to commit a robbery against Lloyds Bank at 1.45 pm and Barclays Bank at 2.10 pm. The evidence of the appellant's demeanour and behaviour was the same or very similar in all three cases. It may be that the jury considered that matters had gone beyond a joke in count 3 and that in count 3 members of the bank staff had been frightened and for that reason they should convict on the third count whilst acquitting on counts 1 and 2. If that was the jury's approach then the jury ignored the direction that the judge very properly gave them that the jury should not look at the reactions of the eyewitnesses to what was occurring but should concentrate on what and whether the prosecution had proved that the appellant had the necessary intent.

In our judgment the evidence that the appellant intended to rob was unsatisfactory. There was evidence that he was well under the influence of drink and that his behaviour was that of a man who suffered mental illness. He had been drinking, and the evidence was consistent with his being what he is - a lonely, isolated, elderly man seeking attention from others. In those circumstances we have reached the conclusion that the conviction on the third count is unsafe and we allow this appeal and quash that conviction.