England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17th February 2017

MRS JUSTICE SIMLER:

Introduction

1. These applications for permission to appeal and extensions of time, referred to the full court by the single judge and the registrar, are pursued on behalf of three young men against convictions for robbery, count 1, assault occasioning actual bodily harm, count 2, and false imprisonment, count 3, following a trial in the Crown Court at Isleworth before His Honour Judge McDowall and a jury in October 2015. This was a retrial in all three cases.
2. The three Applicants were sentenced for those and other offences on 14 January 2016 before the same court: Ashley Brown to a total of four years' detention in a Young Offenders Institution, Shane McEniry to a total of six years' detention and Rio Samuda to a total of six years' detention.
3. For reasons that will become apparent, we grant extensions of time in each case and give leave to each Applicant in relation to count 1, robbery. For Samuda, we give leave in relation to counts 2 and 3 as well.
4. So far as Brown is concerned, a late application was made today by Mr Wade to amend his grounds to include a challenge to the convictions on counts 2 and 3 as well. We refuse that application. As Mr Wade accepted in the course of argument, counts 2 and 3 are factually distinct and very different from count 1, but he relies on the same points as are relied on to challenge the conviction on count 1 and we regard that as unarguable.

The facts

5. We summarise the facts shortly as follows. On 4 November 2014 the complainant, a young man then aged 17 called Andre Nimblet-Hunt, was attacked by a group of men in an alleyway in Greenford. He was assaulted, forced to strip naked and in the course of the assault, his mobile phone was stolen. He was subjected to various acts of violence and humiliation, which ended with him being taken to a nearby canal and forced in.
6. A passerby, Fiona Smith, was walking down the canal pathway when she saw what she initially perceived to be a group of males mistreating a dog. Upon approaching, she realised that it was, in fact, a naked man being assaulted and she called the police. It was an agreed fact at trial that this call was timed at 18.39.
7. When the police arrived, the complainant initially said that he had been attacked by unknown people, ten, whom he had not seen. Subsequently, he named the Appellants as having been among his assailants. He said he had not wanted to snitch and that is why he had not mentioned names at the outset.
8. The prosecution case at trial was that the Appellants were party to a joint enterprise to rob (count 1), assault (count 2), and falsely imprison (count 3) the complainant, whom they knew. After McEniry lured the complainant to an alleyway near a golf course, he was set upon by five men, including these Appellants. They punched and kicked him, as we have indicated, stole his mobile phone, and forced him to remove his clothes before embarking upon a prolonged episode of violence, including the use of a golf flag and a belt to beat him and humiliation culminating in the complainant being, as we have indicated, taken and forced into a canal. Brown and McEniry were said to have been directly involved in the violence, whilst Samuda was said to have filmed the incident on his mobile phone.
9. The prosecution relied upon the evidence given by the complainant at trial in which he said that he recognised the Appellants, whom he knew, as being his assailants. He described the circumstances of the attack by them.
10. He said that when in the alleyway, McEniry had said, "You displayed your actions today". When the complainant asked what McEniry meant, he was struck from behind to the head by a man he identified as Vinny. He fell to the ground and heard someone say, "Give me your phone". He reached into his pocket and held his phone in the air and someone took it. As he lay facing down, he was kicked in the face, chest and neck. He was able to see that Vinny and Brown were kicking him, McEniry was accusing the complainant of setting them up and Samuda, he said, was recording events on his mobile phone.
11. McEniry then instructed the complainant to take his clothes off, which he did. His clothes were discarded in the bushes and he was taken to the sandpits on the golf course, where Brown and Vinny continued the assault. At one stage, Vinny picked up a golf flag and he and Brown took it in turns to hit the complainant with it. McEniry joined in with the hitting and kicking, whilst Samuda continued to record the incident. The complainant said that he was forced to do a front flip into the sandpit on the golf course, where he was again assaulted with the flag and beaten by Brown with his own belt.
12. He was then led to the bridge over the canal, where he was given his trousers and told to sit on the railing. He was then pushed by Vinny so that he was hanging off the bridge and was beaten and pushed until he lost his grip and fell into the canal. The water was deep, but he managed to get to the bank side where the water was waist height. The males were then waiting for him to emerge. Upon doing so, he was again assaulted by Vinny and Brown. He said that Brown then saw a police car and said, "Oi, police", and the group ran away.
13. Although he did not give the names of his assailants immediately, the complainant later gave the names Ashley, Rio and Shane, that is Ashley Brown, Rio Samuda and Shane McEniry. He gave the name Vinny as well.
14. The complainant's account was supported to some extent by Fiona Smith in that she corroborated the fact and the time of the attack.
15. The prosecution relied, to rebut the defence advanced by Brown of alibi, on inconsistencies between Brown's evidence, his police interview and the alibi evidence given by his father, Kevin Brown. There were differences in the accounts given by Ashley Brown and Kevin Brown about timings and the family meal that night; and in interview Ashley Brown said he left the house at 7.30pm, whereas he said in evidence that he left the house at 6.30pm.
16. The prosecution also relied on the fact that a blue tracksuit was seized from Ashley Brown's address which bore a similarity to the grey tracksuit the complainant said Brown had been wearing during the attack.
17. To prove the case against Samuda, the prosecution relied, in addition to the complainant's and Fiona Smith's evidence, on bad character evidence in connection with Samuda's guilty plea to an earlier offence of false imprisonment. The prosecution said this demonstrated a propensity to commit offences of the type charged and in particular relied on the fact that the offence involved Samuda together with McEniry, forcefully stripping and being violent to a youth called Joel in strikingly similar circumstances to those alleged by the complainant. The similarity was bolstered by the fact that Samuda and McEniry filmed the assault on Joel (though no recording of the complainant's attack was recovered).
18. The jury was also invited to draw an adverse inference from Samuda's failure to mention relevant facts in interview, including a failure to mention his alibi, which was offered at a late stage shortly before the first trial in April 2015.
19. There was also evidence in relation to Samuda relating to count 5, in respect of which there is no appeal, about the fact that on 30 March 2015 he followed the complainant on to a bus and warned him to back off from giving evidence.
20. So far as McEniry is concerned, again, in addition to the evidence of the complainant and Fiona Smith and the bad character evidence relating to the offence committed together with Samuda on Joel, there was also evidence of McEniry's guilty plea to witness intimidation relating to the sending of an Instagram message to the complainant on 7 January 2015 encouraging him to cease cooperating with the police in these proceedings.
21. All three Appellants ran defences of alibi and called, in the case of Brown and Samuda, alibi evidence to support their alibis.
22. They also relied on numerous inconsistencies between the complainant's witness statement, his evidence at the first trial and his evidence at retrial. For example, there was inconsistency as to who struck the first blow, whether it was Brown or Vinny; inconsistencies in relation to whether the complainant handed over his mobile phone or whether it was taken from his clothes after they had been removed; discrepancies as to the depth of the water in the canal that he was forced into,whether his assailants shouted "oi, police", whether he swam in the canal, and also as to the description of clothing said to have been worn by Brown and Samuda. There was also an admission from the complainant that he lied to the police about having been assaulted by ten people when he had not seen ten people.
23. The Appellants also relied on the absence of positive identification by Fiona Smith. Moreover, she described the people involved in the attack as all white men whereas Samuda is a black man. There was no property said to have been stolen in the robbery found in the possession of the Appellants or at their addresses when searched.
24. Submissions of no case to answer were made on behalf of all three Appellants in respect of count 1, robbery. The judge heard those submissions at the close of the Crown's case on 8 October 2016 and ruled that the jury could safely form the view from the evidence that the object of the exercise as a whole included an intention to rob and that the Appellants were present and party to it. The judge said whether this was established was a matter entirely for the jury, subject to careful and proper directions, and rejected the submission of no case.

The Apppeal

25. We deal with the issues raised by all three appeals together. There are seven specific matters identified by the various grounds. In some cases, the point of challenge applies to all Appellants, but where there are points affecting a particular Appellant, we indicate that below.
26. We consider that the issues raised by the three appeals, whether as originally raised by counsel or whether by amendment adopting potential grounds identified by the single judge, can best be summarised in the following way:

(i) whether the judge was wrong to reject the submission of no case to answer in respect of the robbery count at the close of the Crown's case.

(ii) Whether the judge misdirected or failed to direct the jury in his summing-up in relation to any of the following: the definition and ingredients of the offence of robbery, the definition of joint enterprise relating to robbery, the failure to give a full alibi direction, the failure to detail discrepancies in relation to the complainant's evidence and the failure to give a full adverse inference direction in relation to Samuda's case from his failure to comment in interview.

(iii) In relation to the summing-up as a whole, whether it was incoherent to such an extent that in the absence of a written route to verdict to assist the jury, the convictions are unsafe.

(i) The submission of no case

27. As we have indicated, all three Appellants denied being present at the scene and denied involvement in any violent attack on the complainant on 4 November 2014 at all. They denied any role, whether as principal or accessory. The submission of no case was however, directed only at the robbery count (though there was a further application made on behalf of Samuda which is not material to this appeal).
28. We have summarised the prosecution's case and the evidence that the complainant gave. The liability of any of the Appellants who joined with others in a venture to unlawfully assault and falsely imprison the complainant depended on proof that he participated in the crime in one way or another. That required proof, first, that he was in fact a participant because he assisted or encouraged the commission of the crime, assuming he was not a principal. Mere presence at the scene was not enough. However, if an Appellant intended by his presence to encourage or assist by letting the principal offender or offenders know that he was there to provide back up or support in numbers in a violent attack of the kind that took place, then that would be evidence of participation. It also required proof that the Appellant in question intentionally encouraged or assisted the principal offender, whoever he might be, to use deliberate unlawful force against the complainant that caused him actual harm and injuriously imprisoned and detained him against his will.
29. The Crown's case was that the offence of robbery occurred in the course of a joint venture to commit the other offences we have described. In those circumstances, provided there was evidence to establish that when they joined together with one another to falsely imprison and assault the complainant, either by direct acts of participation in the case of Brown and McEniry, who, on the complainant's evidence, used unlawful violence that caused harm and detained him against his will or by intentionally encouraging or assisting false imprisonment and unlawful assault by his presence and by recording the incident on his mobile phone in the case of Samuda, it would be open to the jury to infer that their shared intent included, if the opportunity presented itself, an intention to use force to steal from the complainant as well: see, if necessary, the case of Jogee [2016] UKSC 8 at paragraphs 93 and 94.
30. It would be for the jury to decide whether there was that shared intention. If satisfied that each Appellant must have foreseen that in the course of the joint venture to unlawfully assault and detain the complainant one of more of those involved might well steal from him as well, it would be open to the jury to conclude that each intended that robbery should be committed if the occasion arose, or in other words, that robbery was within the scope of the agreed plan.
31. Although the judge's ruling is not as clear as it perhaps should have been and does not identify in a clear or structured way the matters that had to be proved, or deal in detail with how the evidence at the close of the Crown's case was sufficient to establish a prima facie case on which a properly directed jury could convict, we are nevertheless satisfied that the judge's conclusion that there was sufficient evidence upon which a reasonable jury properly directed could infer that robbery was within the scope of the joint venture to falsely imprison and unlawfully assault the complainant was open to him.
32. While the quality of the complainant's evidence was challenged generally and so far as details about the particular acts done by particular individuals is concerned, we are in no doubt that his and the independent witness' evidence, together with the other matters relied on by the prosecution, was sufficient evidence to go to a jury. This was a small group of five men, including the Appellants. The complainant's account, if accepted, was evidence of a serious and sustained attack on him by a group acting in various ways. It was open to the jury to infer that robbery of his mobile phone, if the occasion arose, was within the scope of the joint venture for a group who were prepared to embark on an attack to punish and humiliate him in the manner stated by the complainant. That, of course, was not by any means an inevitable conclusion for the jury, but it would be for the jury to consider all the evidence and decide if that was so.
33. Furthermore, this is not a case where the submission of no case was rejected on the basis, as argued by Mr Wade, that foresight by one party to a joint enterprise that another party might commit a further offence is sufficient. Rather, as we have explained, this was a case in which it could properly be inferred that all acts committed against the complainant, including the robbery, were within the scope of the joint enterprise. Accordingly, it was not necessary to prove acts of participation or encouragement in relation specifically to the robbery and the judge was, in our judgment, correct to reject the submission of no case. His approach was and remains compliant with Jogee.
34. Further, we do not consider that Article 7 (relied upon in writing by Mr Wade) alters or affects this conclusion in any way. The ambit of liability for a joint enterprise offence is properly defined and requires proof by the prosecution of shared intent. We consider that no issue under Article 7, as advanced by Mr Wade, properly arises.
35. We therefore reject the grounds of appeal directed at the half time ruling.
36. We do, however, observe that it is significant in the context of this appeal that in his ruling rejecting that half time submission the judge concluded that the jury would need "careful direction" on the question of joint enterprise robbery. We agree. Whether that careful direction was, in fact, provided is the second issue on this appeal.

(ii) Failures in the summing up

37. The Appellants submit that the judge's legal directions failed accurately to direct the jury on the legal definition of robbery and failed to provide the jury with an accurate definition of joint enterprise in relation to the robbery count.
38. There is no doubt that the judge did not use the words of the statute when purporting to define robbery for the jury and that his legal definition was, therefore, incomplete. The judge referred to the two elements of robbery, namely theft and the use or threat of force in order to achieve that theft (see 4B), but made no reference to the need for the use of force to have been "at the time or immediately before stealing and in order to steal". A full legal direction should have been given as to each element of robbery, even where some elements were more controversial than others.
39. Nonetheless, on the account given by the complainant, he was struck from behind to the head, fell to the ground and heard somebody say "give me your phone", with kicks to his face, chest and neck as he lay on the ground holding his phone in the air and somebody took it off him. If accepted that meant that the threat of violence and the violence itself was immediately before and at the time of the stealing. In the circumstances we do not consider that the failure to give a full legal direction in relation to all elements of robbery renders these convictions unsafe looked at on its own.
40. We note that it is also accepted that the judge did not provide the jury with a complete definition of the offence of false imprisonment, but again, on the facts of this case, we are satisfied that the judge's brief explanation of that offence was sufficient since the lawfulness of the detention did not arise on the unchallenged evidence of Fiona Smith. We consider, nevertheless, that it would have been better for a full definition to have been provided.
41. We turn then to deal with the judge's direction on joint enterprise robbery. The direction is not a self-contained one. It is dispersed throughout the transcript of the judge's summing-up. We observed in the course of argument that it is one thing to have a written transcript of a summing up that can be read and re-read and includes, when considered as a whole, a direction that identifies just about each element of what is required, but where the direction is given orally and is dispersed throughout a summing-up that is an all together different proposition.
42. The direction starts at 3E, where the judge deals with joint activity and gives the "underpass" analogy involving a group of four people approaching an individual in an underpass at night and demanding that he hand over his wallet. The judge said that the fact that only one does "anything physical like going through your pockets to get your wallet" does not matter if they are all acting together for the purpose of obtaining that wallet (3F-G). We accept the submission of Mr Wade here that this is a false analogy, since the underpass robbery is by definition a robbery, whereas on the facts of this case, there was nothing inherent or explicit that marked out the purpose of this group as being robbery. Rather than shedding light on the issues for the jury, we consider that the use of this analogy tended to confuse.
43. The judge made the further point that mere presence at the scene of a crime does not automatically make a spectator guilty and that events might go further than anything those involved could have expected: see 3H to 4A. That was an important point, but no attempt was made to identify the particular conduct said to constitute acts of support or encouragement going beyond mere presence, nor did the judge deal with the way in which presence might be said by itself to constitute encouragement or support.
44. The judge then went on to deal with robbery and in the course of his direction at 4B to E stated that the "object of the exercise" might have been to inflict violence and theft might have been "opportunism after it was all over". That too was an important point for the judge to make, but having made it and concluded that part of the summing-up with the words "so that is what the first count involves", he went on to indicate that the jury might find theft proved even if they did not find robbery proved. Although it was open to the judge to leave theft as an alternative, on the facts and in the circumstances of this case, we think it amounted to an unnecessary complication, particularly since the stolen property was not said to have been taken by any of the Appellants, nor was it found in any of their possession. Furthermore, there is a danger that it obscured the importance of the earlier point that the judge made in respect of the joint enterprise robbery count.
45. The judge then returned to the question of joint action at 5D, posing the question "what was the object of the exercise?" He went on identify various possible answers, including "to give him a good hiding" or "to get his property" or "to humiliate him". The judge said another alternative was to inflict violence and humiliation on him only. There was, however, no clear explanation provided by the judge about how this point fitted in with what he had said earlier. Nor was there any step by step analysis of or attempt to marshal the evidence by reference to the issues the jury would have to decide.
46. Having dealt with assault and false imprisonment, the judge returned to robbery at 6G to 7A, stating that if the jury thought that the taking of the complainant's property was not a joint enterprise:

i. "Then if you couldn't say who it was, the fact that it would have to be one of the people or more -- one or more of the people involved doesn't enable you to return verdicts against anyone of guilty. You might be put in the rather unhappy position of saying "Someone did it, but we don't know exactly who", in which case you'd be saying "Not guilty"."

47. We cannot see how that sentence could have done anything but confuse a jury.
48. At 14F to G, having summarised (to some extent) the account given by the complainant of the incident as a whole and having referred to his identification of the three Appellants as part of the group, the judge said that if the jury accepted the complainant's account:

i. "it might not be too difficult to reach decisions at least in some of the allegations. But the robbery, as I say, is a separate matter. Because even if you had decided that all three were there and taking a part, you have to decide how far any joint agreement or activity went, and it might only go as far as saying the false imprisonment and the violence, but the theft was an incidental as opposed to part of the plan which as I say - reminding you - robbery is theft and the use or threat of force to achieve that purpose."

49. The first part of this passage describing robbery as a separate matter, was obviously correct. That came as close as the judge did in his summing-up to correctly directing the jury in relation to joint enterprise robbery and the scope of that joint enterprise.
50. But again, the judge undermined the clarity of what he said in the first part of that passage with what he went on to say both by reference to the repeated definition of robbery and by what he said subsequently when he returned to joint enterprise robbery later in his summing-up. For example, at 22D to F the judge said:

i. "What the prosecution say is "Well, that's leading you to at least say - if you accept Mr Nimblet-Hunt's evidence - that puts Ashley Brown at the scene and puts him involved in activity which at least would seem to be unlawful imprisonment and assault, query whether it's full blown robbery or whether it's -- you know, the theft is something else." And Mr Brown can say "Well, what says it was me?" Because again if it's a joint activity there has to be an agreement, not sort of sitting down and sort of signing a contract or anything, but saying "Let's beat someone up. Let's chuck him in the canal. Let's humiliate him. Let's take his mobile" which these days can be something of a punishment."

51. We consider that this cannot have helped the jury. There was no evidence that Brown took the phone and he was not found with any of the complainant's stolen possessions.
52. At 45G to 46A the judge said:

i. "And that is the crux of this case... It's not whether something nasty happened to him or some nasty things happened to him which might give you a limited amount of problem as to whether it's joint robbery. The live issue is saying who is involved..."

53. This undermined all that had gone before. Moreover, it is misleading. The statement that "the live issue is who is involved" appears to suggest that a joint robbery is proved. Further, the point that the judge identified as the crux of the case was not the crux of the case, but merely one of the points that had to be decided.
54. Despite his earlier recognition that a careful direction would be necessary, the judge did not put any of his legal directions in writing and nor did he provide the jury with a written route to verdict. Although we appreciate that this was not a lengthy trial (it took place over the course of five days from 6 to 12 October 2015), we do consider that it gave rise to a degree of complexity by virtue not only of the number of offenders involved, but by virtue of their different roles, the fact that joint enterprise was alleged and the alibi defences. The case warranted the provision of a written route to verdict. Such a document would have focused minds on the issues to be addressed and on what evidence there was of relevance to each of those issues. None was provided.
55. There are, in addition, three further criticisms made of the summing-up. First, all Appellants submit that the judge failed to remind the jury of the evidence of the complainant and the various inconsistencies and discrepancies in his evidence. Secondly, Samuda submits that the judge failed to give a full alibi direction. Thirdly, Samuda submits that the judge failed to direct the jury appropriately in relation to adverse inferences that could be drawn from his failure to comment in his police interview and to provide details of the alibi.
56. We deal with these points briefly. Individually, we do not consider that they are sufficient to render any of the convictions unsafe. However, when taken together with the points we have already identified, we have come to the conclusion that the convictions in respect of the joint enterprise robbery in relation to all three Appellants are unsafe.
57. The judge dealt with the complainant's evidence at 12F to 14E. At 15B he referred to the fact that the complainant had given differing accounts, first at the scene when he told the police what had happened; secondly, in a witness statement available at the previous trial; and thirdly, what he said to the jury in the trial we are concerned with. The judge explained that the significance of those discrepancies was a matter for the jury and that it would be for them to determine the extent to which they felt able to rely on his account in light of those discrepancies and on his identification of those involved in the attack. What the judge did not do, however, is summarise for the jury the differing accounts or identify aspects of those accounts that might or might not be particularly relevant or significant. Instead, he indicated that he would provide such further detail, should the jury require it, if they sent a note to that effect.
58. Although there are matters that could properly have been drawn to the jury's attention (as we have summarised when dealing with the facts) we have concluded that in the context of this case as a whole and in light of the nature of the inconsistencies identified and, given the defence run by each Appellant, the absence of a summary of all of these inconsistencies does not on its own render any of the convictions unsafe.
59. So far as the alibi direction is concerned, the judge summarised the evidence given by each Appellant as to alibi, for Brown at 30A to 31F, for McEniry at 36C to 37C, and for Samuda at 43C to 45E. The judge expressly stated that the burden was on the prosecution to disprove alibi to the criminal standard. What the judge did not do is tell the jury that if they rejected the alibi evidence of Samuda, or indeed any of the three Appellants, it did not necessarily follow that the Appellant whose case the jury was considering was guilty of the offences alleged.
60. Ms Organ for Samuda challenges that failure and submits that taken with the failure in relation to the adverse inferences warning, the convictions on counts 2 and 3, in addition to the conviction on count 1, are also unsafe in her client's case.
61. The Crown submits that it was unnecessary for the judge to give a full alibi direction in the context of this case. Mr Whitley contends that the Crown did not seek to rely upon the allegedly false alibis provided by any of the Appellants as supporting its case and that, in any event, the judge did not suggest that if the jury rejected an Appellant's alibi, that they could take that into account in deciding whether the Appellant was guilty of the offences alleged.
62. We accept that he did not do so. We are persuaded that this is a case where there was a straightforward conflict between the evidence of the complainant and that given by the Appellants, including Samuda. The judge summarised the alibi evidence, as we have said. He summarised the evidence given by the alibi witness on behalf of Samuda. Having done so, he said at 45E to G:

i. "But it must, as I say, be made absolutely clear beyond any doubt whatever that if - as here - anyone raises an alibi, it's not for them to prove that it's true. It's for the prosecution to satisfy you to the criminal standard that it's not true. And that can be either because it's a flat lie, or that it's, if you like, honest but you're getting the date wrong so it doesn't count. As I say, it's for the prosecution to disprove the alibi. And the disproof they have is, is it not, it's contrary to what Mr Nimblet-Hunt has to say about things."

63. The judge had earlier identified reasons why alibi evidence might not be advanced at the first opportunity.
64. In those circumstances and given the particular facts of this case and the earlier directions he had given, we do not consider that there was any risk that the jury would assume Samuda's guilt based upon its rejection of his alibi evidence. There was here a direct and irreconcilable conflict between the complainant's and Samuda's evidence and the judge made clear that resolution of that conflict was a necessary first step for the jury.
65. Thirdly, we turn to the contention on behalf of Samuda that the judge failed to give an adequate direction about adverse inferences that could be drawn from Samuda's failure to mention facts when interviewed but that were later relied upon. Here it is common ground that the judge did not give a full direction. The judge did identify the fact that Samuda failed to mention in interview that he had an alibi or to provide the name and details of his alibi witness. The judge did identify potential reasons for not providing details about the alibi in interview and in particular reminded the jury of the comment made by Samuda in evidence that if he was going to "cook up" a false alibi, he had several days to arrange it before attending voluntarily at the police station.
66. What the judge did not do, however, is direct the jury clearly that if an inference was to be drawn, they should not convict wholly or mainly on the strength of it, nor did he tell the jury that any inference should be drawn only if they thought it fair and proper to do so and in circumstances where, apart from the failure to mention facts later relied on by the Appellant in his defence, the Crown's case was so strong that it clearly called for an answer by him.
67. This is a case where the alibi emerged shortly before the first trial in April 2015, as we have indicated. In the particular circumstances we do not consider that the judge's omission was fatal. It was open to the jury to conclude that the alibi was a late fabrication; however the summing-up as a whole made it clear that this was not a basis on its own on which guilt could be established.
68. We are satisfied in all the circumstances that this failure, together with the alibi direction failure does not begin to render Samuda's convictions on counts 2 and 3 unsafe in light of the strong prosecution case against him.

(iii) Coherence of summing-up as a whole

69. Having dealt with counts 2 and 3 in relation to Samuda, we return to the third issue advanced in relation to count 1 robbery, by all Appellants who contend that the deficiencies in the legal directions, taken with the other failures, render this summing-up incoherent and unfair in the absence of a written route to verdict. Their convictions for robbery are therefore said to be unfair and unsafe.
70. Not every trial requires a written route to verdict. However, where none is provided to assist the jury, it is all the more important that the legal directions given to the jury by the judge orally are well structured and defined, with a clear focus on each issue and the evidence that might be relevant to that issue. In our judgment, this trial cried out for a written route to verdict, for all the reasons we have indicated. It would have been a valuable aide memoire for the jury in their retiring room. Its absence and the unstructured guidance given to the jury by the judge on the legal issues without any marshalling of the facts was a recipe for disaster.
71. We have concluded that the deficiencies in the legal directions, taken together with the absence of a structured route to verdict and the other failures we have identified, when looked at cumulatively, are such as to render these convictions for robbery unsafe. There is in rare cases a tipping point that is reached, when, if the law and the defence cases are not properly addressed in a structured way by a judge, convictions are liable to be unsafe. We regard this as just such a case. Accordingly, the appeals against the convictions for robbery (count 1 only) are allowed in each case and those convictions are set aside.
72. LORD JUSTICE DAVIS: So the appeals are allowed on count 1, which is the robbery count, but otherwise are dismissed.
73. MR WADE: Thank you.
74. MR WHITLEY: My Lord, may I, please, raise two matters at this stage?
75. LORD JUSTICE DAVIS: Yes.
76. MR WHITLEY: The first is to seek an order for a retrial on count 1.
77. LORD JUSTICE DAVIS: Yes.
78. MR WHITLEY: The second that I would raise, as I think I ought to in any event, is, if I can put it this way, the distribution of sentences on the counts that were made by the judge. I have not suggested that the totality of those sentences was unduly lenient or anything of the sort. Rather that as matters stand, and I think it is as well that I raise it in this court now even if a retrial be ordered, the judge had, if I can put it this way, loaded the sentence on to the robbery of 4 years, which is a sentence that, in my submission, would have been appropriate for the robbery on its facts, but then passed rather lesser sentences than would have been otherwise, not so much on the assault occasioning actual bodily harm, but certainly on the false imprisonment in these circumstances. I am looking at the false imprisonment on the --
79. LORD JUSTICE DAVIS: They got 2 years, did they, on that?
80. MR WHITLEY: They got 2 years on that, yes.
81. One might otherwise have expected a sentence in the region of 3 and a half to 4 years or possibly something more, particularly when one considered that it was for two of these.
82. LORD JUSTICE DAVIS: If the convictions are set aside, as they have been, on count 1, the sentence on count 1 falls away.
83. MR WHITLEY: Yes, it does, but it would be a matter for my Lord's and my Ladies' discretion under section 4 of the Criminal Appeal Act to substitute. I can make reference to Archbold if it assists. Section 4 --
84. LORD JUSTICE DAVIS: Page of Archbold, please?
85. MR WHITLEY: In the 2017 edition, page 1244, chapter 7, paragraph 106. (Pause)
86. In my submission, my Lord, this clearly covers this scenario here. The learned trial judge was attempting to pass a totality that was appropriate for the case and did so, in my submission, by effectively reducing the sentence on the false imprisonment from what it otherwise would have been.
87. As I say, I observe that it was a second false imprisonment in almost identical circumstances for these two Appellants. But even for the Appellant who is not touched by that earlier offence, Mr Brown, still one would have expected a substantially greater sentence on the false imprisonment count.
88. LORD JUSTICE DAVIS: How long have they been inside for --
89. MR WHITLEY: They have been --
90. LORD JUSTICE DAVIS: -- including time on remand?
91. MR WHITLEY: Including on time on remand, I do not have a daily count, but Mr McEniry has been in custody since the witness intimidation in January 2015. Mr Brown has been in custody throughout these proceedings, so from about 6 November 2014. Mr Samuda may have had an earlier period of custody, but he was on bail until March 2015 when the witness intimidation matter with him occurred. That was the 30th, so shortly after 30 March.
92. LORD JUSTICE DAVIS: The witness intimidation matter got a consecutive sentence, presumably.
93. MR WHITLEY: It did, yes, my Lord. Yes. It was another year. So it was a year consecutive in respect of each of the witness intimidations, one each for McEniry and Samuda, and a year in addition for the Joel false imprisonment that was not on the indictment, but was before the jury.
94. LORD JUSTICE DAVIS: So you want a retrial.
95. MR WHITLEY: Yes, my Lord.
96. LORD JUSTICE DAVIS: Alternatively, you want an increased sentence on the other counts.
97. MR WHITLEY: In my submission, I make both applications because, in my submission, even if the sentence is adjusted, as would be appropriate in these circumstances, there is still the matter of marking this additional conduct, the robbery, by a separate conviction.
98. My Lord, those are my submissions.
99. LORD JUSTICE DAVIS: Thank you.
100. Mr Wade.
101. MR WADE: My Lord, in respect of the question of retrial first, that would be the third trial of these matters.
102. LORD JUSTICE DAVIS: Yes, but it is not as if the jury actually reached a verdict in the first one.
103. MR WADE: No, but as a matter of course, it was a Crown Court discharging. This would be the third trial.
104. LORD JUSTICE DAVIS: Yes, right.
105. MR WADE: The case on the robbery, of course, is not perhaps the case, on the face of it, that demands adjudication because the false imprisonment and ABH demand it. It is a different case and, in my submission, a weaker case evidentially or vexed in terms of the evidence.
106. In respect of Mr Brown, you have heard that he was in custody from 6 November, so it is right that he is now on licence. He has served the entirety of the sentence, which on any understanding of where the sentence or how they ought to be apportioned, it has been and gone for him. It would effect, of course, his licence period, but not, indeed, his time in custody. It goes to the public interest here where the witness is perhaps, in my view, over the video link.
107. The other issue is the pragmatic issue of a retrial on just the robbery where, of course, the defence advanced by each defendant is that they were not there. It is alibi. In this case, the jury would be bound to hear that there was no issue because, of course, they have been convicted of the false imprisonment and the ABH. It is hard to conceive how to then finesse that so that there can indeed be a fair trial. It is a difficult question of how the interplay of presence, alibi and joint enterprise is going to be explained to them in a way that is going to do justice to the Defendants.
108. HER HONOUR JUDGE MUNRO: You are saying they could not have a fair trial in the light of their defence, which would be, "We were not there", to which the prosecution response would be, "Well, you have been convicted of being there".
109. MR WADE: Indeed.
110. Then in respect of the section 4 sentence, I make these observations. The sentences passed in respect of Mr Brown, and indeed all of the Defendants, on counts 1, 2 and 3 were concurrent. So it was open to the judge to mark each of them, looking at the totality of it, with what he, having sat on the trial twice, heard the facts, felt the appropriate sentence was in respect of each.
111. LORD JUSTICE DAVIS: Yes, but it is not unknown in practice for a judge to load the custodial term on to the lead offence.
112. MR WADE: It happens. Of course, it is presumably open to me invite you to revisit it and say, "Well, having read the summary and heard about it, perhaps there ought to be some adjustment because perhaps the judge had in his mind that kind of apportionment to put the totality on the robbery". But it is not, in fact --
113. LORD JUSTICE DAVIS: I say the judge must have thought about it, because he did not say "no separate penalty" or anything like that.
114. MR WADE: No.
115. LORD JUSTICE DAVIS: He gave 2 years on the false imprisonment and 1 year on the ABH.
116. MR WADE: I do not say any more than that. I think I press harder on the question --
117. LORD JUSTICE DAVIS: Is 2 years an appropriate sentence for this false imprisonment?
118. MR WADE: It is, I think it is fair to say, at the lower end and perhaps even a little beyond the lower end, taken on its own.
119. LORD JUSTICE DAVIS: We are talking about someone who was 19 at the time, are we?
120. MR WADE: In fact, I think at the time he was 19. I cannot immediately recall, but he was a young man with some previous. There was little mitigation to put forward --
121. LORD JUSTICE DAVIS: Right. Anything else, Mr Wade?
122. MR WADE: No.
123. LORD JUSTICE DAVIS: Mr Cockroft?
124. MR COCKROFT: My Lord, nothing to add.
125. LORD JUSTICE DAVIS: Same as Mr Wade.
126. MS ORGAN: Only to adopt Mr Wade and to stress he was a young man, of course.
127. LORD JUSTICE DAVIS: Yes. He has got a relevant previous conviction, has he not?
128. MS ORGAN: Yes, which he was sentenced for, of course, at that hearing and got a consecutive 1 year for that on a late guilty plea. There must have been some consideration of his role in both of those matters.
129. LORD JUSTICE DAVIS: Anything, Mr Whitley?
130. MR WHITLEY: No. Thank you, my Lord.
131. (Pause)
132. LORD JUSTICE DAVIS: Mr Whitley, we refuse to order a retrial and we refuse to adjust the sentence.
133. MR WHITLEY: My Lord.
134. LORD JUSTICE DAVIS: Thank you all very much indeed.