England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Southwark Crown Court
His Honour Judge Lamb
T20137294, T20138075, T20138127

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/10/2014

Lord Justice Fulford :

Introduction

1. This case concerns applications for leave to appeal against conviction advanced by Curtis Esprit (aged 29), Christopher Sorhaindo (aged 46) and Fareed Rasheed (aged 35) and three applications by Her Majesty's Attorney General for leave to refer each of their sentences under section 36 Criminal Justice Act 1988. He submits that they are unduly lenient.
2. For the sake of convenience, we will refer to Esprit, Sorhaindo and Rasheed as the defendants for the purposes of this judgment. They stood trial together at Snaresbrook Crown Court on three charges of robbery. On 11 April 2014, all three defendants were convicted of a robbery at a branch of Corals the bookmakers (count 1) and Esprit was convicted of robberies at two cash and carry establishments called Kingsway and Linx (counts 2 and 3). Sorhaindo and Rasheed were acquitted on these latter counts.
3. Their co-accused were dealt with as follows. Clavern Silcott was tried and acquitted on count 1. Randolph Joseph was acquitted on all three counts. Anthony Campbell was severed from the indictment, and his trial will take place later this year.
4. On 15 May 2014, the trial judge (H.H. Judge Lamb Q.C.) sentenced the three defendants to 2 ½ years' imprisonment for the Corals' robbery (count 1). Esprit was sentenced to two concurrent terms of 5 years' imprisonment for the Kingsway and Linx robberies (counts 2 and 3). They were ordered to be served consecutively to the sentence on count 2, making a total sentence in his case of 7 ½ years' imprisonment.
5. The essence of the allegation against the three defendants is that they "planned and organised" robberies at small businesses in east London.
6. A different division of this Court ordered that the applications for leave to appeal against conviction and the Attorney General's application to refer the defendants' sentences under section 36 Criminal Justice Act 1988 should be heard together.

The Appeals against Conviction

Count 1: The Robbery at Corals on 29 October 2011

7. The robbery at Corals at 32 Broadway, Stratford E15 - which resulted in convictions for all three defendants - occurred on Saturday 29 October 2011. As one of the principal grounds of appeal, it is submitted by the three defendants that the judge should have acceded to a submission of no case to answer on count 1. We have addressed that contention as part of our analysis of the evidence relied on by the prosecution against the defendants as regards that charge. The other grounds of appeal are dealt with as separate issues below.
8. The prosecution's case was that an employee at Corals, Anthony Campbell, was in league with the robbers and that he facilitated the offence, inter alia, by providing the robbers with details of the store's layout and the security arrangements. It is to be noted that the defence submit that in the absence of a conviction in the case of Campbell, there is no sufficient basis for the suggestion that he was involved. However, the prosecution argues that there was a considerable body of evidence justifying this conclusion and in any event the judge directed the jury that this was an issue which they needed to resolve:

"You will need to consider the evidence about Campbell's 806, the Campbell 2, mobile telephone. You will need to consider his actions and his inactions as shown on the CCTV in order to come to a conclusion as to whether Campbell was, in fact, an inside man or a victim. "

9. On 23 October 2011, Campbell used his mobile telephone (number ending 997) to speak with Rasheed (number ending 057) and Sorhaindo (number ending 388). Therefore, 6 days before the robbery, Campbell's telephone was in contact with the telephones belonging to Sorhaindo and Rasheed, and the latter two men also spoke with each other, in all on seven occasions over a period of half an hour. Some of these telephone calls were of considerable length. Also on 23 October 2011, Campbell purchased a pre-paid "dirty" mobile telephone (number ending 806) which was activated three days later; Campbell used this telephone to speak with Rasheed in the period prior to the robbery and it was not used again after the robbery. The prosecution argued that it was a fair conclusion to draw that any relevant information would have been shared between the three accused, given the high level of contact between them. It was the Crown's case that these calls enabled those involved to plan the robbery and to be informed as to the security arrangements at the premises. There is no direct evidence of what was said during these telephone calls and accordingly it is suggested by the prosecution that this is a conclusion that is properly to be inferred.
10. On the day of the robbery, Campbell was outside the rear of Corals smoking a cigarette at about 9.00 pm when a black Audi motorcar with three men inside entered the slip road. The car parked and two of the occupants approached Campbell.  Ms Borges, the other member of staff working at Corals at the time, was in the process of counting the takings before closing. She had opened the safe using the access details (first, by entering a six-digit code into an electronic lock, and this was followed by entering a second six-digit code into a "cash insert"). Campbell and the two men entered the rear of the premises. Campbell called out to Ms Borges to join him, whereupon she was grabbed by one of the intruders and pushed towards the stairs leading to the first floor. Her attacker was wearing a scarf up to the bridge of his nose and he had a hood over his head. Campbell was similarly manhandled by another robber, who aggressively said to him "you know what I showed you". Ms Borges' wrists and feet were bound with tape, and tape was also placed tightly over her mouth. Campbell was ordered to collect the contents of the safe and the gaming machines, and he emptied the contents into a green banking bag which he gave to the robbers. He was then struck on the head, causing him to stagger, and he was ordered onto the ground where his hands were taped behind his back. The men left shortly afterwards with £16,594 (£9,994 from the safe and £6,700 from the gaming machines). The robbers avoided being filmed by the CCTV cameras, revealing that they were aware where they were positioned.
11. The evidence against the defendants was based almost entirely on an analysis of telephone calls they made or received during the period leading up to and following the robbery, together with the cell-site evidence that generally revealed their movements during the events immediately surrounding the incident and a small amount of CCTV footage. Based on the cell-site evidence, it was suggested that the defendants, together with some of the others who were suspected of involvement in this crime, appeared to have been (in various combinations) together in the same place at various relevant stages, and their movements indicated that some of them deliberately met up at particular locations. The prosecution argued that there was significant telephone contact between those alleged to have participated in this offence and these defendants spent part of the evening of 29 October 2011 at Sterling Barbers, Hermit Road E16, a business owned by Sorhaindo.
12. It was the Crown's case that Rasheed and Campbell had spoken and arranged the robbery with Sorhaindo on the 23 October 2011 (calls 478, 486, 489, 494 and 499). On the day of the robbery Rasheed and Campbell were in touch with each other, culminating in a telephone call between them at 20.14 (call 2721). Thereafter Rasheed telephoned Esprit and Sorhaindo. From the telephone records it is established that between 20.15 and 21.38 on the day of the robbery, Rasheed contacted or attempted to contact Sorhaindo 6 times, Rasheed contacted or attempted to contact Esprit 16 times, and Sorhaindo and Esprit were in contact or attempted contact 11 times.
13. Furthermore, Esprit was in contact 10 times during the period preceding the robbery with a mobile telephone (ending 373), which was said to have been used by one of the robbers. This assertion was consistent with the cell-site evidence. At trial, the prosecution's case was that Clavern Silcott was in possession of this telephone and that he was involved in the robbery. There was undoubtedly some extensive telephone contact between Esprit's telephone and the 373 number at about the time of the robbery at Corals (around 20 contacts or attempts at contact) and there was an inference to be drawn on the cell-site evidence that Esprit and the individual in possession of the 373 telephone met up shortly after the robbery. It was on this basis that the prosecution asserted that Esprit was in contact with one of the robbers at a vital stage during these events. Silcott accepted 373 was correctly attributed to him (he made an admission at trial to this effect) but he denied in interview that he was responsible for these mobile telephone calls, an assertion that was relied on by his counsel during the trial (Silcott, along with the other defendants, did not give evidence). As already indicated, Silcott was acquitted, the judge having directed the jury that he was to be acquitted if they were not sure that he was in possession of the 373 telephone at the relevant time.
14. In light of his acquittal, the prosecution (on the Reference by the Attorney General) has suggested there is a persuasive basis for alleging that the robber in possession of this telephone was not Silcott. This is on the basis that a series of three telephone calls made by Esprit during these events was to a telephone for which the number ended 811, which was owned and used by Silcott. The Crown candidly accepts that this proposition runs contrary to its stated case at trial when, as set out above, it suggested the 373 telephone had been in Silcott's possession.
15. Nonetheless, the Crown argues that the person using the 373 telephone was one of the robbers and that he was providing contemporaneous updates about the progress of the robbery to Rasheed and Esprit, who were then communicating with Sorhaindo whilst the events were unfolding.
16. Overall, a detailed analysis of the telephone schedules and the cell site charts provided, in our view, powerful evidence for the prosecution against these defendants, and it is useful to set out the critical calls at the time of the robbery. At 21.06 and 21.08 (calls 2760 and 2762) Esprit rang telephone 373. The latter device was within the cell sites that cover Corals. At 21.10 (call 2766) Esprit called Rasheed. At 21.11 (call 2767) Rasheed, using his landline, called Campbell. This telephone call was made whilst Rasheed's mobile telephone was still connected to Esprit's telephone, and Campbell can be seen on the CCTV footage receiving the call. Thereafter, Esprit immediately called 373 (call 2768), and simultaneously the black Audi carrying the robbers arrived at the rear of Corals. This call only ended shortly before the robbers fled the premises at 21.25. Against this background, the prosecution invited the jury to draw the conclusion that whoever was using telephone 373 (which remained within the cell sites covering Corals) deliberately remained in contact with Esprit whilst the robbery was unfolding.
17. Immediately after the robbery there was a series of telephone calls (or attempted calls) between Sorhaindo and Esprit that was consistent with an urgent exchange of information. Esprit then made a rapid series of calls to 373, and the apparent convergence of the mobile telephones, as demonstrated by the cell-site evidence, indicates that Sorhaindo, Esprit and the robber in possession of telephone number 373 met up.
18. The pattern of these telephone calls was entirely different from what has been characterised as the usual communications between these men (albeit there was some significant contact on other occasions), and it is highly suggestive that something exceptional was taking place. They were apparently in each other's company before and after the robbery, and there is a clear inference to be drawn that they spent part of the evening at Sterling Barbers, the business owned by Sorhaindo on Hermit Road. It is self-evident that it was entirely open to the defendants to assert that all this activity was explicable on the basis that they were known to each other and there were reasons wholly unconnected with a robbery for their presence within the relevant area, as well as simple happenchance (such as work or their social life). However, there was nonetheless a clear case to go to the jury that the explanation by the defendants based on friendship, involvement on their part in events unconnected with the robbery, possible "innocent" visits to addresses within the locality of Sterling barbers and coincidence was to be dismissed, and that they had been fully involved in the robbery. The links with Campbell, his purchase and use of the 806 telephone and the exceptional nature of the sequence of telephone calls rehearsed above – but most particularly calls 2676 and 2678, one at the beginning of the robbery and the other spanning the entire period whilst it was being committed – provided undoubted evidence that the defendants were not only aware of the robbery but they were substantively involved in it. It was open to the jury to conclude that they would only have been acting in this way (before, during and after the robbery) if they were participating in the commission of this crime, even if the prosecution was unable to ascribe a precise role to each defendant. The Crown was entitled to argue that it was inconceivable that individuals who were not fully involved would have been included in this singular convergence of intense telephone contact, movements and meetings (including potentially with one of the robbers) that covered the entirety of the relevant period. This evidence was sufficient to establish participation in, as opposed to mere awareness of, the offence. In reaching this conclusion we have applied Lord Lane's time-honoured statement of the approach to be applied in these circumstances:

"How then should the judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. (R v Galbraith 73 Cr App R 124 at page 126)"

19. We note that Mr Green on behalf of Sorhaindo relied on a passage from Aikens LJ's judgment in R v G [2012] EWCA Crim 1756:

"36. We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the "classic" or "traditional" test set out by Lord Lane CJ in Galbraith . (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury."

20. In R v Wassab Khan and others [2013] EWCA Crim 1345, Hallett LJ (VP) in giving the judgment of the court considered R v G and R v Anthony Darnley [2012] EWCA 1148 and indicated that there is a danger of over analysing the test to be applied on a submission of no case to answer. It is, as the Vice President emphasised, essential to focus on the traditional question whether or not there is evidence (taking the prosecution case at its highest) upon which a reasonable jury, properly directed, could infer guilt. If any elaboration is required – a possibility about which the court in Khan had doubts – the question should be: taking the prosecution case at its highest, was there evidence upon which a reasonable jury, properly directed, could properly infer guilt, having rejected any realistic possibilities that are consistent with innocence (see [16]). We stress, therefore, that a judge would ordinarily only withdraw a case from the jury in circumstances such as these if he or she is satisfied that even on the view of the facts most favourable to the prosecution no reasonable jury could convict (R v Darnley [21]). As Thomas LJ (as he then was) observed in R v P [2007] EWCA Crim 3216 when considering the approach to be applied to a case which involves circumstantial evidence:

"23. […] the correct approach is to look at the circumstantial evidence in the round and […] ask the simple question, looking at all this evidence and treating it with the appropriate care and scrutinising it properly: is there a case on which a jury properly directed could convict? We do not think that anyone is assisted by a more refined test than that."

21. Turning to the present application, for the reasons set out above the strengths and weaknesses of this case were entirely within the province of the jury, and there was a possible view of the facts that justified a conviction as regards each defendant.
22. We have reached that conclusion notwithstanding Mr Green's submissions on behalf of Sorhaindo that the cell site that covers Sterling barbers included a number of other addresses that were of potential exculpatory significance in this case and that it is an area in which Sorhaindo generally spent a good deal of his time. Furthermore, we have accepted that on the available evidence it was impossible for the Crown to contend that it had been proved that he was the financier of this robbery. We have borne in mind a number of authorities relied on by Mr Green and most particularly R v Reece Edwards-Whyte [2012] EWCA Crim 3108, another example of a prosecution case which was largely circumstantial in nature (however, we note in passing that this court decided the case had been properly left to the jury). In any event, the circumstances of that conviction were markedly different to the present facts and inevitably each case must be judged on its own merits. Mr Green is correct to observe that the judge considered "the whole pool of evidence" in determining whether the circumstantial strands pointed to a sure conclusion, and at the stage of his ruling he anticipated directing the jury that the evidence in the case was generally admissible as regards all the counts on the indictment, contrary to the approach he adopted in the summing up (see below). However, as set out above, the evidence concerning the events in October 2011, taken in isolation, provided a powerful case to go to the jury against all three defendants. Contrary to Mr Green's submission, it was open to the jury to decide that the evidence went further than demonstrating, for instance, that the accused were merely involved in events after the robbery, such as disposal of the proceeds. The judge analysed the prosecution's case as set out in the Prosecution Reply to the Submission of No Case to Answer, and correctly concluded that the evidence relied on provided a case to answer.
23. Similarly, we have paid close regard to the submissions by Ms Dempster on behalf of Esprit that the evidence established knowledge of, as opposed to participation in, the robbery in count 1, and that there were many wholly innocent reasons why her lay client's telephone was in the cell site covering Sterling barbers. We have also paid regard to her submission that there was a lack of other evidence that Esprit had committed this offence. For instance, the police did not find the proceeds of the robbery or unusual sums of money at his home, there were no incriminating text or email messages, none of his vehicles were connected to the offences and no incriminating items were found. Finally, we have considered her argument that the telephone evidence in these circumstances was insufficient to found a conviction, particularly because the defendants were not present at the scene and they knew each other well. Notwithstanding those submissions, we have no doubt that this case went beyond a mere suspicion that Esprit had been involved.

Counts 2 and 3: The Robberies at Kingsway and LINX on 21 December 2011

24. The robberies at the cash and carry establishments, Kingsway and Linx, took place on 21 December 2011. Two stolen vehicles which had been fitted with false number plates pulled up on the parking bay of an industrial warehouse in east London. Six masked and armed men got out. Three of the robbers went to the Kingsway premises via the rear entrance, and at least two of them produced handguns which were pointed at various members of staff, who were ordered to get onto the ground. One of the gunmen (Pryce), whilst holding an imitation 4.5mm Beretta pistol at a customer, banged on the glass window to the cash office, aimed the gun at the staff inside and told the cashier to open the door. Unsurprisingly, the staff were terrified.  Money was stolen from the safe and elsewhere, and mobile telephones and cash were taken from some of the victims by one of the robbers (Murray) who was armed with a saw and a sledgehammer. Between £6,500 and £7,500 was stolen.
25. The two of the three other robbers burst into the Linx premises, shouting 'where's the fucking safe' and 'where's the fucking cash'. One of the men (Fairchild) had a handgun (again, an imitation Beretta pistol) and another (Eaton) a sledgehammer. An employee was struck a number of times on the head by Fairchild whilst he demanded to be told the location of the safe. Eaton took £5000 from the table and he removed £2000 from one of the victims.
26. Four of the six robbers (Pryce, Fairchild, Eaton and Murray) were arrested very shortly afterwards at the scene. Fairchild was in possession of a telephone (number ending 938) and Murray dropped a telephone (number ending 336). The two mobile telephones were pre-paid handsets and both had been activated on the day of the robberies. Both handsets had been within the cell site of Sterling barbers when used for the first time during that afternoon. Fairchild's 938 telephone had only been in contact with one other telephone, number ending 442. The telephone 442 was not used again after the robbery, save in a number of failed attempts to contact Fairchild immediately after the robbery (when the 442 telephone was within the cell site covered by Sterling barbers, following Fairchild's arrest). The 442 number had been in contact or attempted contact with Esprit, Fairchild and Eaton during the run up to the offences. Three of the first calls between 442 and Fairchild were when the devices were in the cell site of Sterling barbers. There was a strong basis for the prosecution's assertion that telephone 442 was in possession of someone who was involved in the robberies.
27. Therefore, between the time when the Fairchild and the Murray mobile telephones were activated and the conclusion of these two offences, Esprit's mobile telephone was near Sterling barbers (as shown on the CCTV in Hermit Road). Later, at 17.12, and whilst the robbery was taking place, Esprit was seen on the CCTV outside Stirling Barbers moving from one motorcar to another (his brother's) in a manner consistent, the Crown maintained, with preparing himself to assist those committing the robbery. During this period the 442 number attempted to make contact with Esprit, as well as with Eaton's mobile telephone. It was the prosecution's case that this demonstrated Esprit had been, at the very least, assisting and encouraging the robbers. In our judgment the calls by Esprit to Eaton at 12.04, 12.06, 12.07, 13.26, 13.50 (numbers 1161, 1162, 1163, 1320, 1326) and the attempted call at 15.37 (number 1362) between 442 and Esprit, provided a sufficiently strong basis for the prosecution to establish (to the criminal standard) that the contact between Esprit and those who carried out the robbery was only explicable on the basis that he had been involved, even if his precise role could not be precisely delineated. The jury were entitled to reject coincidence or other potentially innocent explanations for this sequence of telephone calls and his presence at the same time as the user of telephone 442 within the cell site of Sterling barbers. This evidence went further than merely establishing "guilt by association" in the way found objectionable in R v Sirfaz Ahmed [2007] EWCA Crim 1636, an authority relied on by Ms Dempster.
28. Given that one of Sorhaindo's grounds of appeal relates to cross-admissibility, we also observe that although the jury acquitted him on counts 2 and 3, there was in our judgment a prima facie case against him. The cell-site evidence revealed that Fairchild was in vicinity of Sterling barbers during 21 December 2011 at the same time as Rasheed (at a stage not long before the robberies), and there was a complicated series of telephone calls at the time the offences were being committed that involved the three defendants (who were together in the area of the barber's shop) and Murray's sister (the user of the 442 telephone having returned to the barber's shop), and after the robberies had failed there was contact between Sorhaindo and Fairchild's brother, Dean. There was a case to answer against Sorhaindo on the basis that the three defendants who were connected to each other (not least by the Corals' robbery), were demonstrated to have been in contact (or attempted contact) with one or more of the robbers during the crucial period leading up to, during and after the robberies. It was properly open to the jury to conclude that any suggested innocent explanation such has friendship or coincidence could properly be discounted. For Sorhaindo (and Rasheed) the defence successfully submitted that there were credible innocent explanations for the various pieces of evidence on which the prosecution relied against them.
29. It follows that our view is that the decisions of the jury on counts 1, 2 and 3 were based on persuasive circumstantial evidence, and the applications for leave to appeal by the defendants on the basis that the judge should have upheld the submissions of no case to answer fail. Furthermore, this analysis provides a complete answer to Ms Dempster's complaint on the part of Esprit that there was no sustainable basis for the jury to find Esprit guilty on counts 2 and 3 whilst acquitting Sorhaindo and Rasheed. The evidence was not the same as regards each defendant, and there was a clear basis for suggesting that the case against Esprit was stronger than it was against the other two accused.

The Ground of Appeal based on cross-admissibility (all three defendants)

30. Mr Green and Mr Reilly (for Rasheed) argue that the judge erred in his direction to the jury on what is described as "cross-admissibility" and that the jury may have been adversely influenced against Sorhaindo and Rasheed, notwithstanding the jury's acquittal of them on counts 2 and 3. The judge's direction was as follows:

"I will now move on to the heading: Cross Admissibility; evidence on one count in relation to another. So far I've been looking at the evidence as a whole. I have not divided the evidence between October and December, between Corals on the one hand and the cash-and-carries on the other; nor am I going to start doing so no because there is one entire pool of evidence available for you to draw upon. That pool includes the alleged lies in interview, if such you find, and any inferences from silence bearing in mind that I've given you specific directions about your approach to lies and silence.

Ms Dempster summarises the whole billing history of her client's phone – October, November, December – to show the extent of the Esprit/Eaton exchanges throughout the period covering both robberies. You are free to do the same thing. You do not have to compartmentalise events. You do not have to pull the shutters down after the arrival of the police at Corals. Nor should you ignore what happened before and during 29 October when considering the cash-and-carry robberies.

In reaching your conclusions, in drawing inferences, you are entitled to look at the whole picture. The evidence upon one count is capable of supporting the prosecution case on the others. Let me explain: as you know, the defendants deny that they were involved in any of the robberies. It's suggested on their behalf that their association and telephone contact – both between themselves and others – are consistent with innocence or at least insufficient to prove a case against them. The prosecution has argued, on the other hand, that the association and the pattern of telephone contact at the time of the two robberies beyond coincidence. The prosecution invites you to concentrate in the first instance upon the evidence on count 1, the Coral robbery. The intense telephone contact between the defendants and Anthony Campbell in the lead-up to the robbery; the cell site evidence showing the apparent movements of Silcott and Esprit's telephone handsets, both before and after the robbery. The prosecution submits that the evidence implicating the defendants on count 1 is compelling. If you agree, if you are sure that the particular defendant you are considering is guilty on count 1 then the prosecution submits that fact is relevant to counts 2 and 3 in two ways. Firstly, the prosecution suggests that such an approach means that you can balance the coincidences of counts 2 and 3 in their proper context. By that I mean the coincidence that, for example, Sorhaindo was in contact with Esprit and Dean Fairchild, that's page 178, entry 1128. That Esprit was I contact with the 442 number, page 167 entry 1362, and with Leon Eaton on the day of the robbery. That Rasheed was in contact with Joseph, Sorhaindo after the robbery had been foiled and that Joseph was the man Rasheed chose to contact in order to get through to Sorhaindo to pass on the information. We saw that, so that prosecution say, on the CCTV.

Secondly, if you accept that count 1 is proved any particular defendant's guilt may establish that he had criminal skills he was prepared to make available to others to assist them in small commercial robberies. This is a perfectly proper approach to the evidence which you may feel it right to adopt. Step by step it works like this: first, decide whether you are sure that the particular defendant you are considering is guilty on count 1. If you are sure that he is guilty ask yourselves whether that establishes, so that you are sure, that the defendant both could and did materially contribute to the Corals' robbery. If so, it is for you to decide whether and to what extent that type of behaviour or propensity, as we call it in the courts, helps you to resolve the question of whether he's guilty also of counts 2 and 3. When you are considering the last question, remember that a propensity to commit an offence of a certain type does not, by itself, prove that the defendant committed such an offence on this occasion. Propensity, if proved, is only part of the evidence in the case and it's important that it should not be exaggerated.

Ms Dempster foreshadowed the direction which I am about to give you: you can and should look at the evidence in the round. If events in October help you interpret what was going on in December, or vice versa, that's fine. Counts 2 and 3, in this particular case, stand or fall together. You could not convict or acquit on count 2 or count 3 without arriving at the same verdict on the other; do you follow that? There's one cash-and-carry raid. You could convict on count 1 alone, Corals. You should not convict on counts 2 and 3 unless you have convicted on count 1. This is because, in practical terms, guilt on count 1 is a necessary step to a finding of guilt on counts 2 and 3. I spoke earlier about the principle of separate consideration but, in this case, because of the way the evidence has played out, if you're not sure on count 1, I'm telling you that you can't be sure on counts 2 and 3." (emphasis added)

31. This argument is unsustainable. Not only did the jury acquit Sorhaindo and Rasheed on counts 2 and 3 but the judge directed them that they should not consider the possibility of coincidence or propensity until they had resolved count 1, and it was only if they had decided the defendant under consideration was guilty of count 1 that it was open to them to consider whether the conviction on count 1 assisted them in their decision on counts 2 and 3. It is inconceivable that the jury misused this direction or that Sorhaindo or Rasheed was convicted on count 1 because they relied on evidence concerning charges on which they had acquitted the defendant they were considering.
32. Turning to Esprit, Ms Dempster is right to observe that by using the expression "vice versa" the judge at one stage appeared to indicate that the evidence relating to counts 2 and 3 potentially supported the evidence on count 1. However, looked at overall the judge's directions to the jury were clear: they should consider count 1 first, and the evidence relating to that count only became admissible on counts 2 and 3 if they had convicted the defendant they were considering on count 1. Once the judge had set out the jury's task in that way, it was inconceivable that they would have used the evidence on counts 2 and 3 to support a conviction on count 1.
33. Otherwise, to a large extent the same factors apply to Esprit as to Sorhaindo and Rasheed. The judge was clear that if the jury had decided Esprit was guilty on count 1, they were entitled to consider whether his involvement in the Corals robbery had established coincidence or, alternatively, a level of criminal skills on his part that could be used to assist in other small commercial robberies. Put otherwise, the question was whether his role in count 1 meant that he exhibited the type of behaviour or propensity that tended to indicate he was more likely to have committed the offences in counts 2 and 3. Ms Dempster has outlined certain differences between count 1, on the one hand, and counts 2 and 3, on the other. In our view although there were obvious variations in the way the robberies were carried out (e.g. for counts 2 and 3 there was a sizeable team of robbers, there was no "inside" co-conspirator and a different level of violence and types of weapon were deployed), the Crown were not obliged to demonstrate that the three offences had been committed in strikingly similar ways before a conviction on count 1 became admissible on counts 2 and 3. Moreover, this court has indicated repeatedly that, depending on the circumstances, a single previous conviction for an offence of the same type can establish propensity. In R v Colliard [2008] EWCA Crim 1175 Keene LJ observed:

28. In the case of Hanson this Court specifically emphasised that there is no minimum number of convictions required to demonstrate propensity. In appropriate circumstances a single conviction will suffice. But it will depend upon all those circumstances, and on such factors as to how recent the previous conviction is. The court in Hanson at paragraph 9 deliberately stated that there do not have to be, in the previous common law language, "striking similarities" for a single conviction to have probative force.

29. We agree, as we do with the comments of the court in that case about the role of the Court of Appeal. At paragraph 15 in Hanson, there appears this passage:

"If a judge has directed himself or herself correctly, this Court will be very slow to interfere with a ruling either as to admissibility or as to the consequences of noncompliance with the regulations for the giving of notice of intention to rely on bad character evidence. It will not interfere unless the judge's judgment as to the capacity of prior events to establish propensity is plainly wrong, or discretion has been exercised unreasonably in the Wednesbury sense."

That approach has been subsequently followed: see for example the case of R v Murphy [2006] EWCA Crim 3408 , paragraph 14, where it was emphasised that the trial judge is to be allowed a certain latitude in making the judgment on propensity and the case also of Renda [2006] 1 Cr App R 24 Given the information available to him about the previous conviction, we take the view that the judge's ruling that it showed a propensity within the terms of section 103(1)(a) was one open to him on the facts of this case. It involved Class A drugs; they were intended for others; and it was relatively recent. The ruling was not clearly wrong."

34. On the facts of the present case, there was a clear link between the three offences: they each concerned a violent robbery that was carried out at relatively small businesses, and counts 2 and 3 were committed only a few months after the robbery in count 1.
35. Ms Dempster had taken us to R v Wallace [2007] EWCA Crim 1760; [2007] 2 Cr App R 30 which was referred to by the judge in his short ruling on cross-admissibility, and which ultimately resulted in his direction to the jury that a conviction on count 1 was potentially relevant on counts 2 and 3. Wallace dealt with a somewhat different situation from that confronting this court, because the judge in Wallace admitted the entirety of the evidence relating to four similar counts of robbery as circumstantial evidence potentially demonstrating that the offender had participated in each of the offences. Accordingly, in Wallace the jury needed to consider whether the whole picture proved that the accused was guilty of each of the four offences because they could exclude the possibility of unintended and unrelated coincidences. In contrast, in the present case the evidence on count 1 was only relevant to counts 2 and 3 if the jury was sure Esprit was guilty of the Corals' offence. If the jury reached that conclusion, they needed to consider, first, whether it assisted in resolving whether it was a coincidence that there was telephone contact between the men who carried out the robberies and particular individuals who were not present at the scene, and, second, whether it demonstrated a propensity on the part of Esprit to commit offences of this type. It was for the jury to make that assessment, which in our view was properly left for their consideration.

The Ground of Appeal on inconsistent verdicts (all three defendants)

36. Mr Green, Ms Dempster and Mr Reilly submit that the acquittal of Silcott is logically inconsistent with the conviction of the defendants, and that the jury's verdicts in relation to the defendants are unsafe as a result. We note that Mr Reilly made a passing reference to the suggestion that the acquittal of Joseph was inconsistent, but this submission was not developed.
37. The prosecution's change of stance as regards Silcott is a notable and unattractive feature of this case, and this volte-face does not redound to the Crown's credit. To have argued at trial that Silcott was guilty of robbery, only then to submit on the appeal of three of Silcott's co-accused following his acquittal – on the basis of evidence that was available to the Crown throughout – that he was not involved because the telephone (which was the sole basis of the prosecution's case against Silcott) was probably in the possession of someone else, demonstrates a marked inconsistency in approach. That said, a form of issue estoppel or res judicata does not apply in these circumstances. An incorrect or false assertion by the Crown at an earlier stage in criminal proceedings does not operate to stop this court from considering the proper inferences which are to be drawn from the admissible material, together with the impact of Silcott's acquittal on the safety of the convictions of these defendants. We are wholly persuaded that the schedules relating to the use of the 373 telephone strongly indicate that it was in the possession of one of the robbers, and that conclusion is unaffected by the prosecution's flawed suggestion at trial that this particular robber was Silcott. It follows that Silcott's acquittal does not demonstrate that the convictions of these defendants are unsafe: the misidentification of Silcott is essentially irrelevant to the strength of the case against these defendants.
38. Ms Dempster has argued that if she had known that Silcott was to be acquitted and that the prosecution might later suggest the 373 telephone was in the possession of another person, she would have attempted to demonstrate during the trial that it was in Silcott's possession at all material times. In our view this submission is without substance because our system of criminal justice does not allow defendants to run their cases more than once in order to enable them to present a different case on the basis of the verdicts returned by a jury in a multi-handed trial, whether or not those verdicts were unexpected.

The Ground of Appeal on section 35 Criminal Justice and Public Order Act 1994 (Sorhaindo and Rasheed)

39. The judge directed the jury on the consequences in law of the failure by Sorhaindo and Rasheed to give evidence. His direction was as follows:

"A defendant's silence at trial can give rise to another inference. You must remember that a defendant has a perfect right not to give evidence and to require the prosecution to prove its case. You cannot jump to the conclusion a defendant's silence proves the case against him; it doesn't. The burden – that word again – remains on the prosecution to prove its case so that you are sure. But, a defendant's silence is relevant to your consideration of the case in two respects: first, there is no evidence before you capable of contradicting, undermining or explaining the evidence for the prosecution. Second, a defendant's decision not to give evidence may, depending on your view, add weight to the prosecution case. You will recall I asked defence counsel in your presence whether each defendant understood that if he didn't give evidence in the trial, you, the jury, might draw such inferences as appear to you proper. In other words, it is open to you to conclude that the reason why any one or more of these defendants has remained silent is that he has or they have no answer to the prosecution case or certainly no answer that would stand up to examination.

Mr Maguire came in for a lot of criticism about the way he conducted the investigation. It was suggested that delay in the investigation of these crimes may have made it more difficult for the defendants to deal with questions in interview, to recall particular details of their lives in 2011. You will want to give this suggestion due consideration. But not all the questions in interview were about telephone calls. You may remember, for example, that when Mr Esprit was asked about matters he was asked the question: do you know Stratford at all, and he said "no comment".

I direct you that before you can consider drawing an adverse inference from a defendant's silence you must be satisfied that the prosecution have established a case to answer; a case which is sufficiently cogent to call for an answer. You should only draw an adverse inference if you believe that to be fair and proper in the circumstances."

40. Mr Green and Mr Reilly submit that the judge failed to follow an invitation to direct the jury that they could not convict solely upon an adverse inference based on the failure by these defendants to give evidence. This submission fails to reflect the direction the judge gave to the jury, set out above. He made it clear that a defendant's silence could not, standing alone, establish the case against him and that the jury should only consider taking silence into account if they had already decided that there was a sufficiently cogent case against the defendant to call for an answer – that there was a case for him to answer. That direction was entirely correct and there is no merit in this argument.
41. It follows that we refuse the applications for leave to appeal the convictions of Sorhaindo, Esprit and Rasheed.

The Application by the Attorney General

42. Pryce, Fairchild, Eaton and Murray, having pleaded guilty to offences of conspiracy to rob and possession of an imitation firearm, were sentenced by HHJ Moss QC on 20 July 2012 at the Old Bailey to 7 years' imprisonment on the basis of a starting point of 10 years'. On a reference by the Attorney General, this court ([2012] EWCA Crim 2353) decided that the starting point should have been of the order of 13 ½ years following a trial. Their sentences were increased to 9 years as a result, giving full credit for their guilty pleas.
43. As set out above, for these offences, the defendants' culpability was assessed, in the main, on the analysis of telephone contact and their movements as revealed by cell-site analysis and the relevant CCTV footage.
44. Sorhaindo had 16 previous convictions for 32 offences. These are in the main for offences of dishonesty and, more recently, driving matters. However, in 1990 he was convicted of possessing a firearm and ammunition without a certificate (for which he was sent to prison for 18 months) and in 1998 he was convicted of carrying a loaded shotgun (for which he was sent to prison for 30 months). Esprit had no previous convictions (although at trial he was not advanced as a man of good character and no such direction was sought). Rasheed had one conviction for battery in 2009, for which he received a two-year community order.
45. In addressing the court in advance of passing sentence, Mr Corsellis for the prosecution submitted that the court should approach the robbery at Corals on the basis that no firearms had been taken or used. However, that concession apart, he argued that this was an exceptional raid in that there had been a high degree of planning which meant that it fell outside the guidelines. The professionalism of the operation, it was submitted, was clear from the evidence.
46. We note that during the prosecution's submissions, the judge observed "now, so far as playing a lesser role, I am still very much in the dark about exactly what these defendants did on the telephones and what their role was in the various places".
47. In response, Mr Corsellis suggested that Sorhaindo "was the leading figure" as regards the Coral's robbery "who was answered to and informed as to the developments". It was contended that Rasheed was the point of contact with the insider (Mr Campbell) and Esprit was the "marshal" for the getaway drivers, and that he "perhaps" dealt with the proceeds immediately afterwards. He summarised the Crown's position as follows:

"So the Crown advance the three [defendants] as being organisers and facilitators, Mr Sorhaindo being the ultimate leader of the group of individuals involved in this particular case, who must obviously [have] included the two men who arrived, the getaway driver, obviously Mr Rasheed and Mr Esprit […]. So in terms of role, lesser to the extent of being at the sharp end but pivotal when it came to the exercise taking place."

48. As to the Kingsway and Linx robberies, Mr Corsellis submitted:

"[…] Esprit's role […] is again shrouded by inference only, bearing in mind the jury's conviction must have centred upon his contact with the 442 phone, Mr Eaton and an appreciation of what was about to take place and what was taking place. The CCTV evidence of […] him waiting on hand to deal with the outcome of the robbery, again would suggest bearing in mind his role with respect to [the Coral's robbery], that he was involving himself in a capacity administering, certainly aware of the crime taking place and on hand to administer the events post incident."

49. Miss Dempster, on behalf of Esprit, addressed the judge on the basis that it was impossible to identify his role in any of this offending. It was argued that there were no evidential pointers as to his function. In those circumstances, given he had been convicted, it was suggested the judge should sentence on the basis that he played "the most minimal role". Otherwise, the sentence would be the result of unfair speculation.
50. Miss Dempster accepted that for the Kingsway and Linx robberies the correct starting point was in the region of 13 ½ years but she suggested that the judge needed to discount very considerably from that point to allow for the fact that there was no proof that he knew firearms or violence were to be used and to reflect his personal mitigation. Esprit has a young daughter.
51. Mr Green on behalf of Sorhaindo submitted that in light of this defendant's acquittal on two of the robberies, there was no foundation for the submission that he was the organiser or the financier of the Coral's robbery. Sorhaindo has two young children and he had been running a legitimate business. His partner suffers from arthritis which makes life difficult for her.
52. Mr Reilly on behalf of Rasheed drew attention to his family and business responsibilities.
53. In passing sentence the judge observed:

"The convictions of the three defendants before me were secured by the prosecution on the basis essentially of what is called cell site analysis evidence. At the end of the day though a number of people were involved in each of the robberies […], I am left without any clear evidence about the role played by any one or more of these three defendants in the robberies for which the prosecution have delivered their convictions."

54. In consequence, the judge did not attempt to ascribe roles to any of the defendants and instead he sentenced them on the basis that "they had their fingers variously in these robberies or […] these defendant's fingerprints were on these robberies". He noted that they had been convicted on the basis of joint enterprise.
55. As regards the Corals' robbery the judge concluded that Ms Borges, who had been bound, taped and restrained was left with a sense of shock and what he described as psychological injury for some weeks after the event. On that basis he placed this case within level 2 of the sentencing guideline for robberies of small businesses. This provides a starting point of 4 years with a range of 2 - 7 years. The judge set out the aggravating features: there was more than one offender; the offence was planned; it was committed at night; and Ms Borges was a vulnerable victim who was targeted. On this basis the judge decided that there was a starting point of 5 years for a participant in the Coral's robbery. He then decided that it was necessary to discount from that figure because, as the judge put it "I have in front of me only lesser offenders". He decided that the right course was to deduct 50% on this basis for each defendant on that count. He applied the same approach to Esprit for the other two robberies, leading to a sentence of 6 years 9 months' which he further discounted to 5 years' on the basis of totality. The judge decided that Soraindo's convictions and his positive mitigation weighed equally in the scales as regards sentence.
56. The reference is argued on two bases: first, the judge erred when determining the roles of the offenders and, second, he afforded them an overly generous discount on that basis. It is suggested that the defendants should have been sentenced as organisers and facilitators or, in the alternative, on no lesser basis than that they had been participants in a joint enterprise offence. On the basis of those submissions it is suggested that the sentences were unduly lenient.
57. It seems to us that the evidence on count 1 demonstrated a high degree of involvement by the three defendants. Their clear engagement with the events at Corals before, during and after the robbery is only explicable on the basis that they were intimately concerned with the offence that was being perpetrated. Whether they were organisers, controllers or facilitators of what was happening, their individual roles were substantial rather than peripheral.
58. For all three offences there was a significant degree of planning; there was more than one robber on each occasion; the incidents must have been terrifying given the violence that was threatened and used; and significant quantities of money were taken. For Corals (count 1), the robbers used an employee to facilitate the offence and Ms Borges suffered significantly as result of her ordeal. For the Kingsway and Linx robberies (counts 2 and 3), the robbers used masks and stolen vehicles, and they carried terrifying weapons and used appreciable violence. Those were all aggravating factors of real seriousness.
59. By way of mitigating factors, Esprit and Rasheed had no or few previous convictions; the defendants had some personal mitigation; no lasting injuries were caused to the victims; and there was no evidence that Esprit knew that firearms were to be carried during the Kingsway and Linx robberies, albeit the possibility that weapons would be carried and that violence might occur must have been within his knowledge.
60. We are of the view that the judge was correct to decide that the Corals robbery fell into category 2, which relates to cases in which "a weapon is produced and used to threaten and/or force is used which results in injury to the victim". Having considered the relevant factors and circumstances of this case, the judge sustainably identified 5 years' imprisonment as the correct level of sentence. This was sophisticated offending, it was cleverly planned and it was executed with a real degree of ruthlessness. An employee was persuaded to participate, and violence was threatened and used. It must have been terrifying for Ms Borges. The defendants had little mitigation. In our judgment, the judge erred by deciding that the sentence should be discounted by 50% because he was sentencing "lesser offenders". Although their precise roles were difficult to define, the telephone records and the cell-site evidence established, at the very least, their full and significant involvement and the judge was wrong to afford a discount based on what he described as "lesser contribution". Instead, the sentence for the Corals' robbery, following a trial, should have been the term originally identified by the judge: 5 years' imprisonment.
61. For Esprit, the Kingsway and Linx robberies were serious offences which revealed a pattern of involvement on his part in robberies of this kind. The three offences for which he fell to be sentenced merited consecutive sentences. Mr Glasgow on behalf of the Attorney General candidly accepts that given Esprit fell to be sentenced on the basis that he was unaware that firearms were to be used, it was inappropriate for the judge to adopt the starting point of 13 ½ years' imprisonment identified by this court in the Attorney General's Reference for those who carried out the robbery. Instead, Mr Glasgow submits that in Esprit's case these two offences fell into the same category 2 bracket as count 1. We agree. In our view, whatever precisely were his role and his level of knowledge about weapons or violence, he was clearly a full participant in what was occurring, once again at a distance from the scene of the robbery, but in contact, or attempted contact, with some of those who were involved. Allowing for the principle of totality and the uncertainty as to the precise nature of his role, we accept that his sentence for counts 2 and 3 – which we stress were two separate offences, albeit committed at the same time – was correctly identified as 5 years' imprisonment (albeit we reach that figure by a different route to the judge), to be served concurrently with each other but consecutively with count 1.
62. Therefore, we grant leave. The sentence on the Corals' robbery for all three defendants will be 5 years' imprisonment, and in the case of Esprit the concurrent sentences on the Kingsway and Linx robberies of 5 years' imprisonment will be served consecutively to the sentence on count 1. Rasheed and Sorhaindo will serve a total of 5 years' imprisonment and Esprit will serve a total of 10 years' imprisonment.