England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8 June 2017

1. MR JUSTICE HOLROYDE: On 22nd August 2016 in the Crown Court at Reading, this applicant Jason Humphrey was convicted of an offence of attempted robbery. On the following day he was sentenced by Her Honour Judge Durran to imprisonment for five-and-a-half years. His applications for leave to appeal against conviction and sentence were refused by the single judge. They are now renewed to the full court. In relation to the application for leave to appeal against conviction, a short extension of time is requested, for reason which we accept do not show any fault on the part of the applicant. We are grateful to Mr Molloy who represented the applicant at trial for appearing today pro bono to assist the court.
2. The facts in brief summary were these. For a number of years the applicant was employed as the manager of a public house in Newbury. He left that position in April 2014. Shortly before his departure a new deputy manager, Mr Colicott, took up post and he resided on the premises. After the applicant's departure, in January 2015, a Mr Kemp was appointed as the new manager.
3. In April 2015 a substantial sum of money went missing from the safe of the public house. It appears that the applicant believed that Mr Colicott had been spreading rumours that he (the applicant) had stolen this money. The applicant for his part suspected Mr Colicott of having stolen the money. It does not appear that there was any objective evidence which supported either of those beliefs. They did however cause the two men to have an angry exchange of words when they chanced to meet one another.
4. Then on a Monday morning in May 2015, at a time when the applicant's experience of running the public house would lead him to expect that few staff would be present and that the weekend's takings would be in the safe, the applicant went to the public house. He wore a large jacket with the hood pulled up, a scarf around the lower part of his face and a pair of sunglasses. Inside the premises he encountered Mr Kemp. So much was common ground at the trial.
5. The prosecution case as to what happened thereafter was that the applicant held out, in a braced position, an item which Mr Kemp initially feared was a gun, saying words to the effect that a car was watching Mr Kemp's wife and children and that Mr Kemp needed to get upstairs to the safe. Mr Kemp then grabbed at what he thought was a gun and found that it was in fact a folded umbrella in a case. There was a scuffle, in the course of which the applicant struck Mr Kemp on the head with the umbrella before fleeing empty-handed.
6. The defence case in stark contrast was that the applicant had gone to the public house planning to intimidate Mr Colicott with a view to stopping him spreading the rumours. The applicant's case was that having carried out that purpose he would then reveal his true identity to Mr Colicott and leave. He denied that he had any intention to steal. He said he had no expectation of encountering Mr Kemp. When he did so Mr Kemp had picked up a knife, whereupon the applicant had punched him. The applicant said he had no umbrella with him. The only object in his hand was an asthma inhaler. He ran because he panicked but later handed himself in to the police.
7. Those being the divergent cases presented to the jury, the learned judge gave directions as to the law which it is accepted were clear and correct. She identified the principal issues in these terms at page 6G of the transcript:

"So before you could convict Mr Humphrey you must be sure of two things: first, he intended to commit the offence of robbery, so theft using the threat of force immediately before or at the time; and, second, with the intention of committing that robbery he did something that went beyond mere preparation."

8. The learned judge went on to give what is accepted to have been an entirely fair summary of the evidence on both sides. No complaint is or could be made about the summing-up.
9. The jury retired to consider their verdict on a Friday. In the course of that afternoon they sent a note in the following terms:

"We are having difficulty reaching a unanimous decision. We have discussed it at length and it looks like we will not come to an unanimous decision on this case. Please could you explain the differences between (1) robbery (2) burglary (3) aggravated burglary? Thank you."

Having heard submissions from counsel, the learned judge gave a clear direction to the jury, to the effect that under our system it is for the prosecution to decide what charge or charges they seek to prove. In this case the only charge which the prosecution had sought to prove was one of attempted robbery. She told the jury in very clear terms that if they were not sure that all the legal ingredients of that offence were proved they must acquit.

10. The jury continued their deliberations that Friday afternoon. A majority verdict was given. They were sent home at the end of the day. On the next sitting day they returned a unanimous verdict of guilty.
11. The sole ground of appeal against conviction is that the conviction is unsafe because the timing and content of the note makes it likely that the jury were not in fact agreed that the prosecution had proved all the ingredients of attempted robbery, but had nevertheless agreed that the applicant should not get away scot-free. It is argued by Mr Molloy that the applicant's own evidence shows him to have behaved in a reprehensible manner. He suggests that the jury, faced with the stark choice between conviction of attempted robbery and outright acquittal, may have decided that the only way of ensuring the applicant did not get away with that reprehensible conduct was to return a guilty verdict.
12. In support of that argument Mr Molloy relies on a passage in the judgment of the Court of Appeal in Maxwell (1989) 88 Cr.App.R 173. In that case the defendant was charged with robbery. The jury had sent a note asking if there was a lesser charge of which they could convict. The judge answered that question in the negative, saying that burglary was not an alternative. The defendant appealed on the ground that that was a misdirection. At page 178 of the judgment of the court, Mustill LJ said:

"To interfere with the verdict would require us to identify solid grounds for suspecting that the members of the jury had foresworn their oaths by deliberately returning a verdict of guilty when they were not sure of it, simply to avoid an unwanted outcome."

The Court of Appeal concluded that in Maxwell no such grounds had been shown and dismissed the appeal.

13. Relying on the words of Mustill LJ which we have quoted, Mr Molloy submits that in the present case the terms of the jury's note do provide solid grounds for doubting the safety of the conviction.
14. There are in our judgment three reasons why that submission cannot be accepted. First, it must be noted that Maxwell pursued his appeal to the House of Lords (1990) 91 Cr.App.R 61. Although the House of Lords upheld the decision of the Court of Appeal, the passage on which Mr Molloy specifically relies was not approved. At page 68, Lord Ackner (with whom the other Law Lords agreed) said:

"What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct."

15. That different formulation of the appropriate test would not in itself be fatal to Mr Molloy's submissions, since the points he argued before us could perhaps be brought within its terms.
16. Secondly, it must be noted that Maxwell was a case in which the judge should have left an alternative verdict to the jury. On the facts of that case, the jury would have been entitled in law to find Maxwell not guilty of robbery but guilty of theft. For that reason, the correctness of the decision on the facts of Maxwell was doubted by the House of Lords in Coutts [2006] 1 WLR 2154. That case established the modern test that a trial judge should leave to the jury any alternative verdict which is obviously raised by the evidence. Here, however, there was no obvious or sensible alternative verdict. Neither the prosecution evidence nor the defence evidence raised any realistic possibility of a verdict of attempted theft or any other offence. Mr Molloy realistically acknowledges that no submissions were made at any stage before or during the trial inviting the judge to leave any alternative verdict to the jury, and no criticism can be made of her for failing to do so when directing the jury after receiving their note.
17. It follows that the jury were limited to considering a single count. They were properly directed to the effect that the only verdicts open to them were either guilty or not guilty of attempted robbery. There was evidence to support the charge and the jury were entitled to conclude on that evidence that the charge was proved.
18. That brings us to the third reason, which in our view is conclusive. The note, in our judgment, provides no foundation for suspecting that the jury had deliberately acted in breach of their oaths. It provides no basis for thinking that they did not obey the judge's clear directions as to the law. It is by no means uncommon for a jury to send a note indicating difficulty reaching a unanimous verdict but later to return such a verdict. Nor is it uncommon for a jury, or a member of the jury, prompted by some general knowledge or perhaps knowledge of another case, to ask a legal question to which the only proper judicial response is that that question does not arise on the evidence before the jury.
19. The ground of appeal is, in our judgment, based on nothing more than speculation and we do not regard it as arguable.
20. Mr Molloy did suggest to us that although no criticism could be made of the way the judge directed the jury at trial, nonetheless this court should consider quashing the verdict and substituting an alternative verdict. We see no basis on which we would be entitled to do so.
21. Had we thought there was any merit in the ground of appeal against conviction, we would have granted the necessary extension of time. No purpose however would be served by our doing so because, for the reasons we have indicated, the appeal against conviction is unarguable.
22. As to sentence, the learned judge considered the Sentencing Council's Definitive Guideline on sentencing in robbery cases. She assessed the case as being of high culpability because of "production of a ... imitation firearm to threaten violence." She assessed the harm caused by the offence as falling into Category 2. The guideline for such offending indicates a starting point of five years' custody and a range of four to eight years. She treated the applicant very fairly as being of effective good character for sentencing purposes and she took account of his good record of work and caring for his family. She made some reduction in the sentence to reflect the fact that this was an offence of attempted robbery, rather than robbery itself. She also however took into account quite properly the aggravating features of the offence, namely the obvious planning which went into it, the obvious reliance upon inside knowledge as to the operation of the public house and the use of a disguise. Balancing those aggravating and mitigating features, the judge concluded that the appropriate sentence was one of five-and-a-half years' imprisonment. We should note that she reached that conclusion without finding it necessary to adjourn for a pre-sentence report. We agree that no such report was necessary either then or now.
23. Mr Molloy submits that the sentence was manifestly excessive because the learned judge should have found this to be a case of medium culpability rather than high culpability. He argues that the judge should not have found the appellant to have used an imitation firearm to threaten Mr Kemp. In the alternative, he submits that even if the offence was correctly categorised, it was a short-lived incident by a man of effective good character and so should only have attracted a sentence below the guideline starting point.
24. We are unable to accept that those submissions are arguable. There was clear evidence from Mr Kemp, which the judge was fully entitled to accept, that he initially thought that he was facing a robber armed with a gun. Mr Molloy argues that the terms of his initial 999 call should have led the judge to a contrary conclusion, but Mr Kemp's evidence at trial provided a sound foundation for her decision. Moreover, it is apparent from her sentencing remarks that the recording of the 999 call which was played to the jury during the trial showed Mr Kemp to have been evidently distressed at that time.
25. The judge was therefore entitled to conclude that this was a case of high culpability. She was also entitled to conclude that the aggravating features somewhat outweighed the mitigating features and that therefore a sentence somewhat above the guideline starting point was necessary.
26. We recognise of course that from the applicant's point of view, and from the point of view of his family, this was a stiff sentence which will have a heavy impact upon them. There is however no ground for arguing that it was manifestly excessive in length. These renewed applications for leave are accordingly refused.