England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		19th June 2009

1. LORD JUSTICE RIX: This is an appeal against conviction which on the surface appears to be concerned with the simplest possible of factual situations but which in the course of argument has demonstrated that the matter was not by any means simple.
2. On 8th July the appellant, William Codsi, in the Crown Court at Isleworth before His Honour Judge McDowall and a jury, was convicted of robbery on one count and acquitted of attempted robbery on another count. He was later ordered to comply with a community order with a requirement of 100 hours unpaid work and a supervision requirement to last 18 months. He appeals against conviction with the leave of the Full Court. The Full Court gave leave on the following single ground:

"The applicant seeks leave to appeal against his conviction on 8 July 2008 for robbery on the sole ground that the summing-up was unstructured, inadequate and defective in some material particulars including the elements of robbery and joint enterprise."

3. The essential facts were that on 18th November 2007 two brothers, Henry and Edward Godfrey, respectively 18 and 16 years old were walking along Park Road in Chiswick when they were approached by the appellant and his friend, Vincent Dang, then also respectively 18 and 16 years old the appellant asked them for some money, following which Henry Godfrey handed over £2.20. Dang then asked Henry Godfrey for a further £20 and a mobile telephone. Henry Godfrey refused to give him anything else following which he walked away with his brother. Dang then pursued them and punched Henry Godfrey to the side of the head, following which he ran away. The handing over of £2.20 was charged as count 1, a count of robbery, in which the appellant was convicted. The request or demand for a further £20 and a mobile telephone was the subject matter of the attempted robbery (count 2) upon which the appellant was acquitted. No separate charge was brought in respect of the punch to Henry Godfrey's head by Dang.
4. Police were called to the scene. They took descriptions from the two brothers, and shortly thereafter the appellant and Dang were found and arrested at Chiswick railway station. They were taken to the local police station where they were interviewed.
5. The prosecution case was one of joint enterprise. Following the appellant's initial request for money, Dang made further requests which became stronger and more aggressive, such that they amounted to an implied threat. Whilst Dang was making these demands of the complainant, Henry Godfrey, the appellant was standing beside Dang and agreeing with him. That is a composite account of the prosecution case which, for present purposes, is an inadequate introduction to this judgment. However, it has emerged, in the course of the written and oral submissions during this appeal, that we are left in considerable doubt as to exactly how the prosecution did put its case. We will develop this point below.
6. The defence case was that, at any rate so far as the appellant was concerned, no robbery had taken place. The appellant had simply begged Henry Godfrey for some money to buy cigarettes, following which the £2.20 had been handed over. The incident occurred in the appellant's own neighbourhood, where he was well known to local residents and was aware of the presence of CCTV cameras. It was Dang, who did not live in the area and had a number of previous offences for similar offences, who had threatened to pursue and punch Henry Godfrey. When we say that was the defence case, it was the case essentially developed through counsel's submissions at trial.
7. The appellant gave no evidence at trial. He had however given an interview, albeit in the absence of any solicitor. In that interview, to put the matter as briefly as possible, he had denied doing anything that could amount to a threat or intimidation, and said that he had merely begged money for cigarettes. He also sought to exculpate Dang from any participation in any of these events.
8. At the last moment Dang, who had pleaded guilty to both counts, gave evidence for the prosecution. His evidence was that following an initial request for money being turned down by the brothers, it was the appellant who told him to make the brothers hand over their money. He said that those instructions were given loudly enough for the brothers to hear. However, that part of his evidence was not reflected in the evidence of the brothers. He accepted that he had lied to police when he told them that he was not involved in the robbery and that the whole of it was down to the appellant. That is what he had said in interview. He also said that when he demanded the £20 and a mobile telephone from the brothers the appellant was no longer with him and he therefore exculpated the appellant from any participation in the attempted robbery.
9. So far as appears from the summingup, the brothers gave evidence that they were repeatedly asked for money, that Dang became increasingly aggressive and that the appellant agreed with him. They also said that when Dang demanded the £20 and the mobile telephone from them, the appellant was still with Dang.
10. Their evidence, however, and this is important in the light of the appellant's defence that, so far as he was concerned, he was only a beggar and not a threatener, therefore not a robber, was more complex and nuanced than a reading of the summing-up would indicate. For these purposes, we have to turn, not to the summing-up but to the skeleton argument of Mr Dunn-Shaw, who appears on behalf of the appellant, as he did at trial, for the detail of the brother' evidence. That detail is not disputed by Mr Pinfold, who appears on behalf of the Crown, as he did at trial.
11. Thus Henry Godfrey's evidence was that two men had come up to them and asked for some money. At first for £1, which was refused, and then for £2. He said that it was the shorter one - that is the appellant, who was considerably shorter than Dang, a youth who is described as being of great height - who had made these initial requests. It was then the taller man, in other words Dang, who said: "Don't annoy me. Don't piss me off." The shorter one was asking for the money for cigarettes. In cross-examination Henry Godfrey said that he had seen the shorter one in the area before these events. He described the shorter one as "begging for money for cigarettes". He went on to say that things became ugly when the taller one got involved. He said that he had paid the shorter one, thinking they would go away. He was asked: "If the taller boy was not there, do you think you would have given the shorter one money just to go away? The answer: "Yes, that's fair."
12. His brother, Edward, gave evidence, as follows. He described the defendants as crossing over the road to ask for some money for cigarettes, £1 at first. There was no threat in the first request: "After we refused they kept asking and asking. The taller boy became progressively more aggressive, not the shorter boy. The shorter boy did ask us for £1 but was definitely less threatening that the taller boy. The shorter boy was not too threatening but agreeing with the older boy."
13. In cross-examination, he said that his brother had paid them to make them go away. The taller was aggressive. The shorter one agreed with him. The short one was begging. The taller became aggressive. He was asked: "Is it fair to say that if the taller hadn't intervened, there wouldn't have been no trouble?" To which he answered "yes". In re-examination he said again, that whereas the taller boy was aggressive in demanding money, the shorter boy was agreeing with him.
14. Against that background, the ground of appeal which we have already recited is in effect an omnibus complaint that the judge in his summing-up failed, both to direct the jury properly as to the law as to the ingredients of robbery and joint enterprise, and also adequately to sum-up the evidence for the jury. As a consequence of both those failures, it is further submitted that the judge wholly failed to assist the jury in identifying what material parts of the evidence were relevant to any issue that was before them.
15. Although it is accepted that the general issue of whether what was going on during these events was begging or robbery, nevertheless, as the submissions this morning have worn on, we have come to realise that it is impossible to distil from the summing-up exactly what the Crown's case was. The Crown's case might have been and possibly was, that from first to last, the appellant and Dang were, in the colloquial phrase used to express what lawyers call joint enterprise, "in it together". In that joint enterprise each was playing his own defined, understood, agreed and (it might even be said) rehearsed role that the appellant was, as it were, the beggar, asking politely, or as the judge, at one point in his summing-up remarked "the good cop" -- a slightly strange analogy but there we are. Whereas Dang, with his physically intimidating size was the aggressive partner, or what the judge described as "the bad cop". That might have been the Crown's case but in truth we are at a loss to know whether it was.
16. Alternatively, it might have been the Crown's case that, even in the absence of an initial agreement for a joint enterprise of robbery, this was a case where what might well have stated as a mere matter of begging on the part of the appellant, became not only robbery on the part of Dang - that was an admitted fact before the jury - but a robbery in which the appellant had come to participate, either by that kind of a joint enterprise which can be described as encouragement, or simply by the fact that it was the appellant who received the £2.20 from Henry Godfrey having heard Dang's threats. Ultimately, in his submissions to us this morning, it is the latter way, and the latter way only that Mr Pinfold for the Crown has sought to put the case to us. He has emphasised, at the forefront of his submissions, a matter which had escaped our attention because it is nowhere mentioned in the summing-up itself, although it is not a disputed fact, that it was to the appellant and not to Dang that Henry Godfrey gave his money. He submits, therefore, that when all is said and done about the defects in the judge's summing-up, which he has not sought to explain or redeem, the conviction is safe, because it was the appellant who received the money after hearing Dang utter his threats. Whether the conviction can be saved as a safe conviction on this ground is something that we will consider after saying something more about the defects of the summing-up.
17. We will not read extensively from the summing-up, in part because that would take too long but mainly because, as we have said, Mr Pinfold has not sought to argue against the criticisms of the summing-up which Mr Dunn-Shaw has brought to bear. But essentially the defects can be described as follows. First of all, when the judge dealt with the ingredients of robbery, which he did briefly at pages 4 - 5 of the transcript, it can possibly be said that one can find there the various ingredients of robbery, but not in the simple form in which they could, and in our judgment, should have been put to the jury, namely as a citation of the definition of robbery from the statute, under section 8 of Theft Act 1968, namely:

"If he steals and immediately before or at the time of doing so, in order to do so, he uses force of any person or puts or seeks to put any person in fear of being there and then subjected to force."

18. This is despite the fact that as set out in paragraph 21-101 of Archbold 2009, the case of R v Dawson and James 64 Cr App R 170 is cited for the proposition that in directing a jury where the charge is robbery, the judge should direct his attention to the words of the statute themselves. If the judge had done so, he would have appreciated that on the facts and issues of this trial, there were two aspects of mens rea upon which he should have concentrated, so as to assist the jury in their task. On those relevant facts and issues, the judge should have emphasised, first of all, that there had to be an intention to steal, that is to say to appropriate someone else's property dishonestly and for these purposes the dishonesty must have consisted in the threat of force, and secondly, the judge should have concentrated on the other aspect of the mens rea found in the words "seeks to put any person in fear", which again would be tied up with the threat of fear. We do not say that the judge wholly omitted to refer to such aspects in his own gloss of the statute, but he did wholly fail to assist the jury with the real issues in the case to the effect that they would have to consider carefully the appellant's state of mind at all relevant times that were before them on the two counts. We consider that when the judge's direction on robbery is taken together with his inadequate dealing with the evidence in the case, that that amounts to an inadequate direction.
19. The same can be said for his direction as to joint enterprise. The judge, in directing the jury on joint enterprise, wholly failed to make clear to the jury whether they should consider an agreement type of joint enterprise, or an encouragement kind of joint enterprise; or, indeed the sort of hybrid joint enterprise which was Mr Pinfold's final resting place, namely a joint enterprise whereby the appellant became an actual participant in the robbery in the course of it, by receiving the money, after hearing the appellant issue his threats or implied threats.
20. The judge did not use the expression "joint enterprise", nor did he direct them in the classic terms to be found, for instance, in the basic direction recommended by the Judicial Studies Board. That direction classically uses the phrase about playing different parts but being in it together, as part of a joint plan or agreement.
21. The judge talked instead about "joint activity", or acting together. He did not direct the jury in terms of an agreement, or in terms of encouragement. He did not direct them by specific reference to the fact that it was the appellant who received the money. He did not refer anywhere in his summing-up to the fact that it was the appellant who received the money. The receipt of the money was spoken of in a way which totally obscured to whom the money had been given. Indeed in context, the inference would be that it had been given to the person who was described at the relevant point of the summing-up as being the aggressive partner, namely Dang.
22. We consider that that is, given what turns out to being the nuances of this otherwise simple case, an inadequate direction on joint activity. Its inadequacy is again part and parcel of the judge's failure to make clear exactly what the prosecution case was and to assist the jury with the particular facts, dealing with the issue or issues that were before them.
23. The next matter which amounts to a defect in the summing-up is that the evidence was dealt with inadequately. If one asks the question of how Dang's evidence was dealt with, the answer is that it was referred to in a few lines at 10G - 11A of the transcript, where Dang's evidence is that it was the appellant who had told him to make the brothers hand over the money. It is perfectly true that the judge warned the jury about the difficulties with Dang's evidence, reminding them that in giving evidence he might be doing so for the purposes of assisting himself in matters where he had already accepted his guilt on both counts, and reminding them also of his previous convictions, which for a youngster of 16 were by no means inconsiderable.
24. The judge also, it is fair to point out, reminded the jury, albeit in a different part of his summing-up, that it had been Dang's evidence that the appellant had told him to make the brothers hand over the money in the brothers' hearing, whereas there had been no such evidence from the brothers. Nevertheless, the fact that Dang's evidence about the circumstances in which he played an aggressive role on the instructions of the appellant had to be contrasted with the brother's evidence, which was also dealt with extremely briefly at 6G to 7C of the summing-up, was no where adequately dealt with. In effect, the nuanced evidence which we have already cited, taking it from Mr Dunn-Shaw's skeleton argument was rolled up into a short summary of the brothers' evidence to the effect that, whereas Dang was getting more aggressive, the appellant was there "and I think the word they used was agreeing with him." That was the evidence of Edward Godfrey but not, we think, as the matter was put before us, the evidence of Henry Godfrey. But since the essential issue for the jury was whether this was begging or robbery, that was an inadequate summing-up of the brothers' evidence. The judge, in order to put the appellant's defence fairly before the jury, ought to have reminded the jury of the fuller evidence which we have recited.
25. At its highest against the appellant, the evidence of one of the brothers was that the appellant was agreeing with the more aggressive Dang. But that was the evidence at its highest. At its lowest, the evidence of the brother most intimately concerned, Henry Godfrey, described the appellant as begging for cigarette money. In between the highest and the lowest, there was evidence to the effect that, but for the more aggressive Dang, there would have been no trouble or concern.
26. The judge's failure to sum-up the evidence of the prosecution witnesses was in its way all the more important in a case where the appellant had not given evidence himself. Of course that was his own decision and the judge was required, if he saw fit, and one wholly understands why he did, to give a direction regarding his failure to give evidence accordingly. But the matter was complicated by the interview which the appellant had given. Mr Dunn-Shaw frankly tell us that the way he approached the matter, in his address to the jury, was to rely primarily upon the brothers' own evidence to support his submission that the appellant had been doing nothing more than begging. Therefore, he was not minded to pick his way carefully, as he would have had to have done, between that part of the appellant's interview which was consistent with the defence case at trial, namely that it was a case of begging only, without threat or intimidation on his part, and that part of his interview which was plainly a lie, namely where he sought to exculpate Dang. That was, we understand, a legitimate approach for an advocate to take on the case that he had to deal with.
27. The judge, however, without discussing the matter with counsel beforehand, proceeded to give a Lucas direction in relation to the appellant's interview. Fair enough, in one sense, for there certainly had been lies in the interview. But if the judge was going to give a Lucas direction in relation to those lies, it was incumbent on him, we think, to take a little care in the circumstances of the case to discuss with counsel what part of the interview amounted to lies and what part of the interview might have been consistent with the defence case at trial. As it was, all the jury got was a direction which emphasised before them that, although the appellant had told lies at his interview, they were nevertheless to take account of what then followed namely, a Lucas direction. The lies in question regarding the exculpation of Dang, were nowhere identified. We consider that that was another error in the judge's summing-up.
28. When all of these errors are put together, errors in directing the jury on the law, errors in summing-up the evidence before the jury, and really a total failure to bring both law and evidence to bear on the critical issue of the case, and when one adds to that complete opacity as to exactly how the Crown were putting their case of joint enterprise, we consider that this conviction is unsafe.
29. Mr Pinfold seeks to save it, as we have already indicated, by the simple fact that it was the appellant who received the money. However, in the light of the evidence before the jury and in the light of their acquittal on count 2, we do not consider it possible to conclude that the conviction on count 1 was safe. It is possible that Henry Godfrey gave the money to the appellant, rather than to the aggressive demanding Dang, for the very reason that he either consciously or intuitively considered it safer to hand money to a beggar rather than to a robber. In any event, despite Dang's evidence, seeking to exculpate the appellant from the second count, the judge directed the jury at the start of his summing-up that, although separate consideration had to be given to the two counts, it was "obviously likely that you would reach the same conclusion on each of them." That at first puzzled us, given the basic facts of the case, until Mr Pinfold made his submission that the critical factor in the case was that it was the appellant who had received the money. On that basis, one can understand the judge's feeling that the jury would be likely to come to the same conclusion on both counts, despite the exculpatory evidence of Dang, who was obviously a witness upon whom the jury could not place confident reliance. If by the end of the robbery on count 1 the appellant had become a participant by accepting the money after hearing Dang's threats, then it is difficult to understand why he was not an attempted robber on count 2, if, on the brothers' evidence, but contrary to Dang's evidence, he continued to stand by Dang when Dang started to make still more aggressive demands for further money and the mobile phone. Nevertheless, the jury acquitted on count 2.
30. So, both because of the serious deficiencies in this summing-up and also because of the whole structure of the case before the jury on the two counts, in the light of the varying evidence before them on those two counts, we cannot accept the Crown's case that this is nevertheless a safe conviction. In effect, the law, evidence and analysis relevant to the appellant's case, which was that he was a mere bystander to robbery, without anything that could amount to joint enterprise, was not explained to the jury. The Crown seek to save the conviction by reference to a fact not mentioned in the summing-up, but if that fact had been available for the jury, it is difficult to understand why they should have acquitted on count 2.
31. In the circumstances this appeal is allowed.