England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		4th May 2016

THE LORD CHIEF JUSTICE:

1. There are before the court two renewed applications for leave to appeal against sentence and two appeals against sentence. The points taken are completely different. That involving the appellants relates to the application of the Road Traffic Offenders Act 1988; that involving the applicants relates to the sentences of imprisonment imposed upon them.

2. The two applicants, Bowman and Beech, planned a robbery in July 2013 which was to take place in the well-known Jewellery Quarter of the City of Birmingham. Beech and Kirk (a co-accused) were to carry out the robbery, and Bowman was to sell the stolen jewellery (diamonds).

2. It is heartening to note that the West Midland Police followed the movements of the conspirators with considerable skill with the use of both surveillance and an undercover police officer, for there is no doubt that Bowman and Beech were serious professional criminals.
3. On 30^th July 2013 a Land Cruiser was stolen and hidden in Beech's premises. Two days later, on 1^st August 2013, in pursuance of the conspiracy, Beech and Kirk together with Bowman set off in the Land Cruiser to the Jewellery Quarter. When they arrived they were surrounded by armed by police. The three conspirators were wearing balaclavas and gloves.
4. On 4^th February 2015, following a trial in the Crown Court at Birmingham, Beech and Bowman were convicted of conspiracy to commit robbery.
5. The other matter that is before us relates to conspiracy to steal cash from a cash machine. On 29^th September 2014 an attempt was made by four men to break into a cash machine in a supermarket in Kenilworth. The attempt woke all the neighbours. The police were summoned and gave chase to the men who escaped in an Audi that had been stolen for the purpose as part of the conspiracy in which they were engaged. The speed of the car as it sped away from the police was such that they lost track of it using a conventional land surface pursuit. A helicopter was brought in and the vehicle was eventually traced. Speeds of up to 150mph were recorded in the pursuit.
6. The car was found at an apartment block in Birmingham. It contained equipment which had plainly been used by those who had tried to break into the cash machine. The police raided an apartment and arrested the two appellants, Hadley and Taylor-Powell. Beech was found nearby.
7. On 6^th February 2015 Beech, Taylor-Powell and Hadley pleaded guilty to the offence of conspiracy to steal.
8. On 7^th April 2015, in the Crown Court at Birmingham they were sentenced by His Honour Judge Henderson as follows: Beech, for conspiracy to rob, to ten years' imprisonment; for conspiracy to steal, 18 months' imprisonment; and for aggravated vehicle taking, six months' imprisonment. All those sentences were ordered to be served consecutively to each other, making a total of twelve years' imprisonment.
9. Bowman was sentenced to six years and two months' imprisonment for the offence of conspiracy to rob, which was ordered to run consecutively to a sentence of seven years and seven months' imprisonment that had been passed upon him in January 2015 for contravention of the Customs and Excise Management Act 1979. In respect of that last sentence, Bowman's application for leave to appeal was refused by the single judge.
10. Hadley and Taylor-Powell were each sentenced to three years' imprisonment for the conspiracy to steal and to a concurrent term of six months' imprisonment for the aggravated vehicle taking.
11. Beech (who had been the driver of the car) and Hadley and Taylor-Powell (who had been passengers) were each disqualified for periods of five, two and two years respectively and until an extended driving test was passed. It is the point relating to the extended driving test that arises separately on which the appellants have been given leave by the single judge to pursue.
12. In addition to these matters, in May 2013 Bowman was involved in further serious organised crime. He was concerned in the supply of firearms. He gave a person, who was in fact engaged in the undercover operation, the telephone number of a man called Allen. He told the undercover officer that Allen could supply firearms. He contacted Allen and asked him if he would speak to the undercover officer on the phone. The undercover officer then spoke to Allen. Although there is no evidence that Bowman was further involved, a weapon was supplied and an attempt was made to supply another.
13. On 23 April 2015, in the Crown Court at Birmingham, Bowman, who had pleaded guilty to the offence of encouraging or assisting an offence believing it would be committed, contrary to section 45 of the Serious Crime Act 2007, was sentenced by His Honour Judge Inman to 15 months' imprisonment which was ordered to run consecutively to the sentence he was already serving.
14. The applicants Beech and Bowman renew their applications for leave to appeal against sentence following refusal by the single judge.
15. Beech seeks to renew his application only in respect of the sentence of ten years' imprisonment passed in respect of the planned robbery in the Jewellery Quarter. It is said on his behalf that that sentence was excessive. Four grounds have been argued before us. It is said that the judge failed to take into account the fact that no weapons were found; that the judge did not properly consider the guidelines; and that the judge should have had regard to the fact that an undercover officer had been involved in the issues relating to the planned robbery in the Jewellery Quarter and had in some sense aided and abetted the commission of the crime. Reliance is placed on the undercover officer's indication that he might have contacts in Antwerp who would be able to dispose of the jewellery. Further, reliance is placed (although this point rightly is not put at the forefront of the argument) on the fact that Beech contracted an illness in prison. It is unnecessary for us to set out the details of that. The point is not heavily relied upon, but it has been brought to our attention.
16. In refusing Beech's application the single judge observed:

"Sentences totalling 11½ years for conspiracy to rob a jeweller of diamonds of substantial value and for conspiracy to steal an ATM were not in the least excessive. The first offence, of which you were convicted after a trial, was rightly treated by the judge as a serious professional crime, albeit to be committed without the use of weapons; and you received full credit for your plea of guilty to the second and a further discount to reflect totality. The fact that there were amateurish elements in both offences did not lessen their seriousness."

17. As we have pointed out, nothing is said about the further sentence imposed for the conspiracy to steal the cash machine. The concentration has been on the sentence of ten yeas' imprisonment for the conspiracy to rob a jeweller. In our judgment, despite the arguments that have been advanced before us, this sentence cannot be said to have been either wrong in principle or manifestly excessive. As the single judge rightly pointed out, this was a professional crime intended to be committed against those carrying on business in the Jewellery Quarter. Beech did not have the mitigation of a guilty plea. Although no weapons were carried, we do not see that a sentence of ten years' imprisonment can be in any way criticised. We refuse his renewed application.
18. The single judge refused Bowman's application for leave to appeal, but he also refused an extension of time (18 days) on the basis that there was an insufficient explanation for the delay. That is correct, but we would not dispose of the matter solely on that ground. It seems to us that we have to look at the culpability of Bowman, whose role we have described, from the point of view of his participation in a very serious conspiracy. We have been told that it was not Bowman, but that it was the undercover police officer who introduced Antwerp as the possible destination where Bowman might dispose of the stolen jewellery. For the purposes of this hearing we are prepared to accept that.
19. It seems to us that, before taking into account the earlier sentence passed upon Bowman for the cannabis offences in Essex, the judge was right to take the starting point of ten years. The sentence cannot be said to be manifestly excessive or wrong in principle. The seriousness of the conspiracy is evident from what we have already said. No complaint can be made about that sentence.
20. It is important to observe that in Bowman's case the sentence subsequently passed by Judge Inman (the Recorder of Birmingham) in respect of the firearms offences took significantly into account the earlier two sentences. However, in the light of guidance recently given by this court in Attorney General's Reference Nos 128 to 141 of 2015 and 8, 9 and 10 of 2016 (R v Stephenson & Others) [2016] EWCA Crim 54, a significantly greater sentence would have been called for. Even discounting to take into account totality, the sentence could well have been substantially greater than that which was passed for the firearms offence. This court cannot but emphasise that those who trade in firearms in any way can only expect very substantial sentences of imprisonment. We appreciate that message may not have been communicated sufficiently to the criminal elements in the City of Birmingham because of the timing of the Attorney General's Reference, but we wish to reiterate that the courts will impose sentences of the utmost severity upon those who in any way participate in the use of or trade in guns. Bowman can consider himself very fortunate that the sentence imposed upon him, even allowing for totality, was not one significantly in excess of five years.
21. We turn to the appeals of Hadley and Taylor-Powell. It is accepted in both cases that, even though they were both passengers in the car, under the provisions of the 1988 Road Traffic Offenders Act the judge was entitled to disqualify them. The sole issue relates to the passing by the judge of the disqualification period that is to continue until they each take an extended driving test.
22. It is accepted that, under the legislation, the judge had power to impose a disqualification until an extended test is taken. However, in the submissions that have been advanced on behalf of the appellants, both in writing and orally this morning, it is argued that the court should have taken into account the decision of this court in R v Wiggins [2001] RTR 3 and the earlier decision of R v Bradshaw [2000] RTR 41. On the particular facts of both those cases, which we do not propose to set out, the court indicated that it was not appropriate to pass disqualification until an extended driving test had been taken on persons who were purely passengers.
23. The question for this court is whether the indications given in those cases are such that the court would invariably exercise its discretion never to disqualify someone who is simply a passenger. We are firmly persuaded that those cases turned on their particular facts and were properly decided on those facts. We must examine the facts of this case to see if the imposition of the requirement for an extended test was necessary for the proper protection of the public.
24. We have set out the egregious nature of the driving in this case and the fact that those in the car were speeding away from a jointly-planned serious professional criminal attempt on a cash machine. The speeds at which they were driving and the manner of their driving plainly put the public at risk. Although they may not have quite the level of culpability of the actual driver, nonetheless the level of their culpability was extremely high. There is every reason to believe that they fully participated in the escape at speeds that self-evidently would put the public at significant risk of serious injury, if not loss of life.
25. In those circumstances we consider that the learned judge was correct in the view that he took, and that it was right to order disqualification until an extended driving test is taken. The purpose of an extended driving test is for the authorities to be satisfied that those who have been disqualified from driving are fully competent to be allowed to drive again. Both appellants had previous convictions for dangerous driving. They had been disqualified before. But, above all, they had participated in dangerous driving of the utmost gravity, when escaping from the scene of a crime. In the way in which it is administered, the extended driving test will bring home to the appellants the importance of having regard to the safety of others, and in particular not driving at excessive speeds. It is essential that that is brought home to both appellants. The judge exercised his discretion correctly. In all the circumstances he was absolutely right to impose the requirement of an extended driving test.
26. Accordingly, for those reasons the appeals of the two appellants are dismissed.