Howard, R v [2003] EWCA Crim 3927

Case No 03/803/C1[2003] EWCA Crim 3927
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 11 December 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE KAY
MR JUSTICE DOUGLAS BROWN
SIR MICHAEL WRIGHT
Between
R E G I N ACrown
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION UNDER SECTION 9 CRIMINAL APPEAL ACT 1995
-v-
Between
ANDREW HOWARD
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR STEVEN D EVANS appeared for APPELLANTMR STEPHEN WM CROUCH appeared for CROWN
J U D G M E N T

LORD JUSTICE KAY:

[1]On 13th June 2001 in the Crown Court at Northampton before His Honour Judge Francis Allen and a jury the appellant was convicted by a majority of eleven to one of an offence of robbery. He was subsequently sentenced to four years' detention in a young offender institution. He did not appeal against his conviction at the time. That was in accordance with advice that he had been given by those who advised him. Subsequently he complained to the Criminal Cases Review Commission about his conviction and sought their making of a reference to this court. Having considered the case, the Criminal Cases Review Commission concluded that this was a case in which the Court of Appeal might conclude that an appeal ought to be allowed and accordingly they referred the matter to this court.[2]On 23rd December 2000, the victim of the robbery, Martin Mayes, was walking home from an afternoon of Christmas shopping carrying two plastic bags containing a computer game and various cards. He was on the 'Hayway' in Rushden, Northampton. He noticed a car stop on the opposite side of the road. He gave evidence that four men got out of the car, crossed to his side of the road and walked past him. They turned and started to run. He ran to the end of the Hayway and on to Northampton Road, but as he ran he felt someone jump on to his back. He went to the ground and he had a male person sitting astride him. It was the prosecution case that that male person was the appellant. The complainant later identified him on an identification parade. He did not actually take the item, but a second male took the bag containing the game. The complainant spotted a third male, some distance away. He later identified him as a man called Alan Campbell, who pleaded guilty to robbery. The first male (the one alleged to be the appellant) took the other bag and they made off. Some hours later the police stopped a car being driven by a girl called Louise Elford, with the appellant, Campbell and two other male passengers in it. The appellant was arrested.[3]The appellant's case was a denial that he had been involved in the admitted robbery that had taken place. He said that he had had nothing to do with it. He said that he did not get within a quarter of a mile of the actual location where the robbery took place. He admitted that he had got out of the car from which the robbers had emerged, but he said his sole purpose in getting out was to urinate. He said that the robbery took place "down the way", with two people whom he realised were likely to have robbed the complainant. He did nothing about it, but throughout he had steered clear of the whole matter.[4]Clearly the way in which the case was conducted was such that if the prosecution were right in their assertion that the appellant could be identified as the man who jumped on the victim's back, he was as clearly guilty of robbery as anyone could be. Equally it was abundantly clear -- and the jury must have appreciated -- that if they accepted that the appellant's own account might be true then he was not guilty of the offence because he had done nothing to participate and indeed had gone nowhere near the actual robbery, staying up the road, well away from it. There was always the third possibility that would have to addressed by the jury, and that is the possibility that the victim was right in saying the appellant had approached the robbery but not necessarily right in saying that he was the one who had jumped on his back. Therefore any summing-up needed to cater for all those three possibilities and to give the jury a clear understanding of what their duty was in each such case.[5]The judge when he summed the case up did so very shortly indeed. This court is always reluctant to be critical of judges who are economical in the way that they sum up, but nonetheless it has to be recognised that a proper summing-up must have a number of important ingredients, and one is that it gives adequate directions to the jury on the law so that they can deal with any finding of fact that they make. When the judge came to deal with the question of robbery, he dealt with both robbery and joint enterprise very briefly indeed; he said:
"As to robbery, somebody committed robbery that night. What the defendants say is 'not us'. If you are involved in a joint enterprise, you know perfectly well what is afoot and if somebody else does it then you are equally guilty. That is common sense and good law. But as to the robbery, somebody committed the robbery that night. Robbery is simply taking something which does not belong to you with violence in order to achieve the objective and either immediately before or at the time of the taking there is violence by you or by somebody else, you knowing perfectly well what that person is about."
That direction on the law, whilst perfectly adequate in the circumstances to explain to the jury what an offence of robbery was, was in our judgment wholly inadequate to explain to them the somewhat difficult concept of joint enterprise. The judge referred to joint enterprise without explaining exactly what it meant. In doing so he said that "if a person knew what was afoot and somebody else did it then a person would be equally guilty". That, in simple terms, was a clear misdirection. It is not sufficient that a person knows another is going to commit an offence and that they are simply present; there needs to be participation, whether by way of encouragement or availability to take part in the enterprise, if appropriate, or in some other way. None of that was explained at that stage to the jury.[6]The only other guidance that the judge gave in his summing-up was when he dealt with the defendant's case. He dealt with his case in a single paragraph and it read:
"Dealing with him, he says 'I had nothing to do with the robbery. I didn't get within a quarter of a mile of where the robbery in fact took place. It took place down the way with two people who I realised were likely to have robbed this young fellow, but I did nothing about it and I steered clear of the whole matter.' If that might be right he is entitled to a verdict of not guilty."
[7]That expression as to the position if the jury accepted as a possibility the defendant's case was entirely right, but it again did nothing whatsoever to tell them exactly what they needed to find if they were sure that the appellant did venture down the road at the time when the robbery took place. In those circumstances, if the jury thought that that was a realistic possibility and wanted to consider the matter, they had been given no guidance. Clearly at least some of the members of the jury found themselves in that position and sensibly they asked the judge a written question seeking guidance in relation to the matter. The question read:
"Can the defendant be found guilty of robbery when he knowingly went with the others and he knew they were going to commit the offence?"
The judge told counsel that he proposed to answer that simply "yes". Both counsel sought to persuade him that that was not a sufficient answer and took him to the relevant passages in Archbold to suggest the proper approach to the question. Unfortunately the judge does not seem to have been persuaded by their helpful intervention. When the jury came back he said to them:
"I have got a question from you: 'Can the defendant be found guilty of robbery when he knowingly went with the others, he knew where they were going - he knew were going to commit the offence?'"
In fact the question as he posed it back to the jury was different from the one that they had asked, but that may not matter in the end. He then continued:
"The answer to that is 'Yes'."
And he added:
"Even if he is on the corner and he encourages them that will do, but the answer to the question is purely 'Yes'."
He then invited them to retire again. Five minutes later they returned with their majority verdict of guilty.[8]The point taken on behalf of the appellant and the point that found favour with the Criminal Cases Review Commission was that the direction given by the judge in answer to the specific question asked of them by the jury was simply wrong. It is submitted that the judge was wrong to answer the question "yes" and to go on and describe it after his additional remarks as being "purely yes". The simple position was that it was not sufficient simply to find that he went with the others and that he knew that they were going to commit the offence: he had in some way to be shown to have been involved in the commission of the offence. Albeit that he may not have had an active role, nonetheless he had to have been a participant in the offence. That, it was submitted, was not clear to the jury. It is recognised that the judge was right when he said "even if he is on the corner and he encourages them that will do". But that was simply to take one possible finding that the jury might make and then explain to them what the position would be there but not to answer accurately and properly their question. In those circumstances, Mr Evans submits that the resulting conviction has to be seen to be unsafe.[9]On behalf of the Crown, Mr Crouch accepts the complaints that are made in relation to the direction, but invites the court to consider whether in all the circumstances the court cannot be satisfied that the jury was bound, if they found that he went down the road, to conclude that he was doing so because he had an intention to assist in what was going on, should assistance necessarily be required.[10]Our reaction to that submission is that it is perfectly possible that if the matter had been properly left to the jury that those considerations would have been the ones that the jury would have accepted. But we cannot uphold the safety of this conviction if there remains a possibility that on a wrong basis they may have convicted. Unlikely though it seems to us that it was, it was a real possibility that the jury were able to say that they were sure he went down the road but really could go no further than that. If that was so, they needed to be told clearly that they must acquit the appellant. In those circumstances, we cannot accede to the submissions made on behalf of the respondent to us. It seems that there was a defect. There remains a possibility, albeit we would have thought a relatively remote one, that the jury, if they had been properly directed, might have reached a different verdict. In those circumstances, this conviction has to be seen to be unsafe, and we set it aside and allow the appeal.