Mitchell, R. v [2008] EWCA Crim 850

Case Nos. 0605389 D5, 0701611 D5[2008] EWCA Crim 850
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Crown Court - Basildon
Mr Recorder Yearwood
Venue Royal Courts of JusticeDate Tuesday, 8th April 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE DAVID CLARKE
HIS HONOUR JUDGE STEWART QC
(Sitting as a judge of the CACD)
Between
R E G I N ACrownv
Between
WALTER JOBY MITCHELL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Kelly appeared for AppellantMr A R Jackson for Crown
J U D G M E N T
[1]On 25 September 2006 in the Crown Court at Basildon before Mr Recorder Yearwood, the Appellant Walter Joby Mitchell was convicted by the unanimous verdict of a jury of eleven of robbery and on 3 November 2006 in the same court before the same judge was sentenced to four years' imprisonment. He now appeals against conviction by leave of the single judge.[2]This appeal and the trial arise out of an incident late on 22 February 2005 when Mrs Davis, who was sitting in her husband's BMW motorcar in a country lane in Essex, was set upon and thrown out of the car which was then driven off by her assailants. The Crown's case was that the Appellant was one of four men who had done this which the Crown alleged amounted to robbery.[3]The Crown said that the four men came from a crashed Subaru vehicle and seeing the parked BMW approached that vehicle. They found it locked and occupied. They smashed its windows, dragged Mrs Davis out, left her in the middle of the road and made off in the BMW. The Appellant was traced by two smears of his blood left on the back seat of the BMW. The Crown say it was blood from injuries caused either by the Subaru crashing or by the broken glass from the BMW. The Appellant agreed that he had been one of, he said, five persons in the Subaru which crashed, but he had rolled from that vehicle into a ditch and then left the scene crossing the fields and it was only later and by chance that he ended up in another road, School Road, where he was picked up by the other four with whom he had been earlier now in the BMW. He denied being present at or participating in any way or encouraging the taking of the BMW. It was simply that by the time he got into that vehicle where his blood was found it had already been taken.[4]For the purposes of the two issues which arise upon this appeal, which are essentially whether the evidence before the trial amounted to a case of robbery and whether in those circumstances the judge summed up the ingredients of robbery correctly to the jury in his summing-up, it is sufficient if we state the facts (which are otherwise more complicated in as much as they deal with a dispute about whether the Appellant was one of Mrs Davis' assailants) in the manner in which the prosecution put its case which was essentially the case accepted by the jury.[5]It is sufficient to say that on 22 February 2005 police were on patrol in a marked vehicle when they received information that a white estate car, the Subaru, had been involved in thefts from telephone kiosks in their area. The police observed the Subaru travelling along the road at speed and indeed colliding with a vehicle which had paused at a junction, but failing to stop and continuing on its way, despite a nearside flat tyre. The car was speeding in a 30mph zone. The police gave pursuit. The Subaru turned into a minor road which ended up in a bridle path where the passageway became narrow and precarious. The police at that point gave up their pursuit and had to reverse back up the route that they had taken. By the time, some 30 minutes later, that the police by the circuitous route got round to the other end of the bridle path they found the Subaru abandoned where it had been driven into concrete bollards which had closed off the bridle path from the road which it ultimately led into.[6]It was in the meantime that Mrs Davis, driving, as we have said, her husband's seven series BMW, had her unfortunate and distressing meeting with the occupants of the Subaru. She was not entirely familiar with her husband's car. She was at this time, about 11.00pm that night, parked in a layby at the far end of the bridle path making a mobile telephone call to a girlfriend – indeed she was deep and long into a conversation with her friend at the critical time. Whilst still on the telephone she became aware of vehicle headlights approaching from behind her which surprised her because she regarded the bridle path as a footpath and not a road. She began to get anxious and tried to start the car to leave but because she was unfamiliar with it she was unable to do what she wanted to do, which was to leave, before the Subaru had crashed into the bollards behind her and its occupants decanted quickly and running towards her had essentially surrounded the BMW. She gave some descriptions and there was some dispute at trial about the number of men that she spoke of in her first report to the police and her interview, but we are not concerned with those details.[7]Essentially, Mrs Davis was surrounded by the men from the Subaru who, having tried the doors and found them locked, used a metal bar or bars to break in three windows of the car, gain entry in that way and drag her bodily out of the car and throw her into the road. This was bad violence subject to some evidence that the man who had been sitting in the passenger seat and who had dragged her across the passenger seat from the driver's seat into the road had attempted to put her on her feet when she had fallen into the roadside. She made her way in a distressed condition to a neighbouring house where she saw some lights on. She roused the owner and awaited the police there.[8]In the meantime the BMW drove off with a screech of its tyres. It was subsequently that night, about an hour-and-three-quarters later, discovered by the police where it had been abandoned only a few miles away with its hazard lights flashing. It was otherwise established in evidence at the trial that at least some of the men concerned had then taken a red Fiesta from nearby where they had abandoned the BMW, they had then abandoned the red Fiesta and taken a Vauxhall Cavalier which met an unhappier fate in that that was set on fire.[9]In the end the Appellant, because of his blood on the back seat of the BMW and the use of that to identify his DNA, was the only Defendant to stand trial as a result of these events.[10]His defence, as we have mentioned, was that he had not participated in any way in the taking of the BMW. His conviction shows that the jury were satisfied that he was involved but what we are concerned with is not so much the question of his involvement but the separate question, assuming his involvement, of whether the facts of this case properly established, in a way sufficient to go to the jury, a case of robbery.[11]It goes without saying that robbery involves, and we are not giving the statutory definition at this point, the use of violence in the course of and for the purpose of a theft (see s 8(1) of the Theft Act 1968: “if he steals, and immediately before or at the time of doing so, and in order to do so”) Theft involves s.1 Theft Act 1968 an intention permanently to deprive the owner of the property concerned. The question in this case was whether the facts laid by the prosecution established a case to go before the jury of violence in the pursuit of theft. Had there been an intention permanently to deprive Mr or Mrs Davis of ownership of the BMW?[12]There is a further section in the Theft Act upon which the prosecution relied for these purposes and that is s 6(1) which provides as follows:
“A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.”
We are concerned essentially in this case with the section down to the semicolon. We will also, however, read s 6(2) because its provisions are also discussed in the jurisprudence of s 6 to which we will have to make mention. Section 6(2) provides:
“Without prejudice to the generality of sub-section (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights.”
[13]There has been some discussion in cases, as will be seen, as to whether s 6 waters down or extends or only exemplifies the underlying requirement for theft of an intention permanently to deprive. Taking the wording of s 6(1) by itself without regard to authority it would seem that there is the possibility of a s 6 intention, that is to say an intention to treat the thing as his own to dispose of regardless of the other's rights, as somewhat extending the intention permanently to deprive, because the section begins with the hypothesis that property belonging to another has been taken “without meaning the other permanently to lose the thing itself”. Although those words carefully avoid the word “intention”, since the word “meaning” is used instead, or the word “deprived” since the word “lose” is used instead, nevertheless it would appear that the purpose of the section is to render a Defendant to be regarded or deemed as having the necessary s 1 intention of permanently depriving the owner of his property if the s 6(1) intention is established. Having said that, we observe that the jurisprudence discusses the extent to which s 6 goes beyond the essential underlying intention of permanently depriving the owner of his property.[14]A number of relevant authorities have been helpfully cited to us. We begin with R v Warner 55 Cr App Rep 93, [1971] Crim LR 114. That was a case in which one worker had been seen making off with the tools of a colleague which were very shortly thereafter found hidden under some scarves. It was only at trial that his real defence emerged; there had been a dispute between that Defendant and his colleague about a right of way affecting their properties which had got into the hands of solicitors and the Defendant was reacting to that dispute by removing his colleague's tools for what he insisted was only intended to be a short time, but the police had almost immediately become involved and he had lost his nerve about owning up.[15]The Crown had invoked s 6(1) of the Theft Act and the Defendant had been convicted. His appeal was allowed. Edmund Davies LJ referred to the Theft Act as “aspiring to remove legal subtleties devoid of merit”. He referred to s 1 declaring that the intention of permanently depriving another of his property was an essential ingredient and said that nothing was to be found elsewhere in the Act which justified a conviction for theft in its absence. Turning then to s 6, which he considered had unfortunately confused the trial, Edmund Davies LJ said this (at 97):
“Its object is, in no way wise to cut down the definition of 'theft' contained in section 1. It is always dangerous to paraphrase a statutory enactment, but its apparent aim is to prevent specious pleas of a kind which have succeeded in the past by providing in effect, that it is no excuse for an accused person to plead absence of the necessary intention if it is clear that he appropriated another's property intending to treat it as his own, regardless of the owner's rights. Section 6 thus gives illustrations, as it were, of what can amount to the dishonest intention demanded by section 1(1). But it is a misconception to interpret it as watering down section 1.”
[16]The matter was revisited in R v Lloyd and others[1985] QB 829. That case involved a conspiracy to defraud the owners of the copyright of films by removing the film reels being shown in a cinema for as short a period as made it possible to have them copied onto a video master tape before having them returned surreptitiously back to the cinema from which they had been taken. The Defendants were charged with conspiracy to steal. Section 6 was relied on to make good the intention necessary to theft in circumstances where it had been plain that the whole point of the exercise was to get the film reels back to the cinema as soon as could be done. That was another case where use of s 6 had led to a conviction but where this court had to allow an appeal.[17]In a wide-ranging judgment, Lord Lane, CJ, considered the background of s 6 both in the common law and since the enactment of the Theft Act. He cited JR Spencer in an article in [1977] Criminal Law Review 653 for describing s 6 as a provision which “sprouts obscurities at every phrase” and observed: “We are inclined to agree with him” 834B. He then referred to the passage in Warner (which we have cited). Next he referred to R v Duru [1974] 1 WLR 2, a case involving cheques which had been stolen, paid out to the thieves and then returned in the normal course of processing to their owners. It was submitted that the return of the cheques, albeit devoid of value to their owners once they had been paid, indicated the lack of the necessary intention under the Theft Act. But Megaw LJ at p 8 explained that although as a piece of paper the cheque remained, subject to a rubber stamp on it, the same as before, it had entirely ceased to be a thing in action, as it had been before it had been paid, had ceased to be in substance the same thing as it was before and had become worthless. In those circumstances if it had been necessary to look to s 6, said Megaw LJ, that could have been applied since it was plain “that the Defendants each had the intention of causing the cheque to be treated as the property of the person by whom it was to be obtained, to dispose of, regardless of the rights of the true owner”.[18]Lord Lane then referred to further academic scholarship, that of Professor Griew, to the effect that s 6 should be referred to in exceptional cases only, since in the vast majority of cases it need not be referred to or considered at all at 835H. A third distinguished academic, Professor Glanville Williams, was then cited with approval at 836B for this observation:
“. . . a trial judge would be well advised not to introduce it to the jury unless he reaches the conclusion that it will assist them, and even then (it may be suggested) the question he leaves to the jury should not be worded in terms of the generalities of the subsection but should reflect those generalities as applied to the alleged facts.”
[19]Lord Lane then referred to the law as it had been before the Theft Act. He said this (at 836C) “. . . we would try to interpret the section in such a way as to ensure that nothing is construed as an intention permanently to deprive which would not prior to the 1968 Act have been so construed.” In that connection he said that the section seemed to be aimed at the sort of case where a Defendant takes things and then offers them back to the owner for the owner to buy if he wishes. He referred to the 19th century case of R v Hall 2 Car & Kir 947n, 1 Den 381. He also referred to the early case of R v Beecham (1851) 5 Cox CC 181, where railway tickets had been stolen with the intention that they should be returned to the railway company in the usual way only after the journeys had been completed. Another example given was the taking of a torch battery with the intention of returning it only when its power was exhausted.[20]Turning in the light of those examples to the case of the films, Lord Lane concluded thus (836H – 837B):
“That being the case, we turn to inquire whether the feature films in this case can fall within that category. Our view is that they cannot. The goodness, the virtue, the practical value of the films to the owners has not gone out of the article. The film could still be projected to paying audiences, and, had everything gone according to the conspirators' plans, would have been projected in the ordinary way to audiences at the Odeon Cinema, Barking, who had paid for their seats. Our view is that those particular films which were the subject of this alleged conspiracy had not themselves diminished in value at all. What had happened was that the borrowed film had been used or was going to be used to perpetrate a copyright swindle on the owners whereby their commercial interests were grossly and adversely affected in the way that we have endeavoured to describe at the outset of this judgment. That borrowing, it seems to us, was not for a period, or in such circumstances, as made it equivalent to an outright taking or disposal. There was still virtue in the film.”
[21]The next case is R v Coffey [1987] Crim LR 498. That concerned the obtaining of machinery by a worthless cheque. The Defendant had obtained the machinery in order to put pressure upon someone with whom he had a dispute. The appeal was again allowed because the summing-up was defective but in the course of this court's judgment it was observed that this was one of those rare cases where s 6(1) could usefully be deployed before the jury, but the jury should have been invited to consider whether the taking of the machinery in the circumstances obtaining in that case was equivalent to an outright taking or disposal.[22]In R v Cahill [1993] Crim LR 141 a package of newspapers had been taken by the Defendant and, he said, put outside the front door of a friend of his as a joke. Section 6(1) had been brought into play at the trial but in summing up the matter to the jury the recorder in that case had dropped from his directions the statutory words in their place “to dispose of”. That was held to be a misdirection because this court approved what Professor Smith had said of those words in his book on The Law of Theft as follows:
“The attribution of an ordinary meaning to the language of section 6 presents some difficulties. It is submitted, however, that an intention merely to use the thing as one's own is not enough and that 'dispose of' is not used in the sense in which a general might 'dispose of' his forces but rather in the meaning given by the Shorter Oxford dictionary: To deal with definitely; to get rid of; to get done with, finish. To make over by way of sale or bargain, sell.”
So that appeal was allowed as well. A note by Professor Smith followed the extract of that report by way of commentary. Professor Smith pointed out that that case could have been dealt with without mentioning s 6 at all since the question was “Did the Defendant intend the package of newspapers to be lost to the newsagent forever?” – as might well have been the case where that package had disappeared to some strange doorstep. If, however, s 6 was to be invoked at all, the question would be whether the virtue had gone out of the thing, even if the Defendant had believed that the newsagent would get his papers back the following day, but at a time when they would be quite useless to him. So upon that basis s 6 might have been correctly deployed.[23]Finally, in R v Fernandes [1996] 1 Cr App Rep 175 this jurisprudence was revisited in the context of a case where a solicitor had invested client's money at his disposal in his colleague's back street money-lending business where it was lost. It was argued that s 6 should not have been deployed in that case. But in his judgment Auld LJ accepted that this was a case of proper use of it, saying at 188E:
“We consider that section 6 may apply to a person in possession or control of another's property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss. In the circumstances alleged here, an alleged dishonest disposal of someone else's money on an obviously insecure investment, we consider that the judge was justified in referring to section 6. His direction, looked at as a whole, did not water down the requirement that the jury should be sure of an intention permanently to deprive as illustrated by that provision.”
[24]It is in the light of that jurisprudence that we have to consider the ruling of the judge on the application of no case to answer. What was said to the judge was that in the circumstances of this case there was no intention permanently to deprive Mr or Mrs Davis of their BMW, nor was there an intention within s 6, which the prosecution also relied upon, to treat the thing as the Defendant's own to dispose of regardless of the owner's rights. The car had only been driven for a few miles before being abandoned. The fact of abandonment showed that there was no intention permanently to deprive the owners of it or to dispose of it irrespective of the owner's rights. The judge, however, considered that there was either in the taking or in the use or in the abandonment of the vehicle evidence capable of amounting to a disposal under s 6(1). Of those three matters – the taking, the use and the abandonment – the judge in particular had emphasised the abandonment where he said “It appears to me that abandonment in those circumstances might amount to a disposal. That is a matter which in my judgment should be decided by a jury.”[25]In our judgment the judge erred in these considerations. So far as the abandonment itself of the car was concerned, a matter which on this appeal Mr Jackson on behalf of the Crown has not relied upon, that of course operated as a factor in favour of the defence. Moreover, the fact that its hazard lights were left on emphasized that there was no intention to avoid drawing attention to the car. So far as the use of the vehicle is concerned, again a matter not relied upon on this appeal by Mr Jackson, its use amounted to being driven just a few miles before its abandonment. So far as the taking is concerned, that was the one matter which Mr Jackson stressed in his submissions to the court. Those submissions proceeded in this way. When he was asked whether the red Fiesta, which was the car into which Mrs Davis' assailants had decamped from the BMW later that night, had been stolen Mr Jackson answered that question with the answer “No”. He was then asked to state what the difference was between the taking of the Fiesta and the taking of the BMW. His first response was to say that the difference was the removal of Mrs Davis by force from the BMW and also the breaking of its windows. Subsequently in his submissions he abandoned the breaking of the windows as being a critical difference. Ultimately he took his stand upon the removal of Mrs Davis by force. This for him was the critical and distinguishing feature. This was the feature which showed that her assailants intended to treat the car as their own to dispose of regardless of the other's rights.[26]At some point during his submissions Mr Jackson, before being reminded of the words “to dispose of”, which Professor Smith had emphasised in his Law of Theft (see above) and which this court similarly picked up in Cahill, omitted those words and emphasised, as we can well understand him saying, that the treatment of Mrs Davis showed an intention to treat the BMW as the Defendant's own regardless of the other's rights (but omitting the words “to dispose of”). Of course, everything about the taking and use of the BMW, like any car taken away without the owner's authority, indicates an intention to treat such a car regardless of the owner's rights. That is the test of conversion in the civil law. But not every conversion is a theft. Theft requires the additional intention of permanently depriving the owner or the substituted intention under s 6(1). The fact that the taking becomes more violent, thereby setting up a case of robbery, if there is an underlying case of theft, does not in itself turn what would be a robbery, if there was a theft, into a case of robbery without theft. The theft has to be there without the violence which would turn the theft into robbery.[27]Turning to the Vauxhall Cavalier which was destroyed at the end of the day because it was set on fire, Mr Jackson accepted that even there was nothing about the circumstances of that case which would entitle the case of theft of the Cavalier to be left to a jury. We are not so sure of that. If it were the case that a car was taken for the purposes of destroying it, that would be a case of theft, and where another's car has been set on fire that may be some evidence on which an intention permanently to deprive or a s 6(1) intention may be inferred. It seems to us, however, that in considering that the cases of both the Fiesta and the Cavalier could not support, and indeed, as he told us, would not be prosecuted, as a case of theft, Mr Jackson was going far to demonstrate that the case of the taking of the BMW cannot be regarded as a case of theft (or therefore robbery) either. In effect, subject to Mr Jackson's necessary concession regarding the Fiesta, Mr Jackson's submissions would run the danger of turning every case of taking and driving away without authority under s 12 of the Theft Act into a case of theft, whereas of course the whole point of s 12 is to get round the problem that a car which is taken and driven away for a ride, only to be abandoned, is not easily found to be a case of theft.[28]In our judgment the facts of this case simply do not support a case to go before a jury of theft and therefore robbery of the BMW. The BMW was plainly taken for the purposes of a getaway. There was nothing about its use or subsequent abandonment to suggest otherwise. Indeed, its brief use and subsequent abandonment show very clearly what was the obvious prima facie inference to be drawn from its taking which was that the occupants of the Subaru needed another conveyance that evening. We therefore consider that the judge erred in being beguiled by s 6 into leaving this count of robbery to the jury.[29]In those circumstances, we need spend little time on ground 2 of this appeal, which was a complaint about the circumstances in which the ingredients of robbery were summed up in the judge's directions to the jury. We think that the factors for the jury to consider were put before the jury but of course the recorder never directed them, for the purposes of s 6(1) and the jurisprudence which we have considered, to ask themselves whether those factors amounted to such an outright taking or disposal or an intention within the words of s 6(1) as to amount to the equivalence of an intention permanently to deprive. We consider that the authorities which we have reviewed in this judgment show that the purpose of s 6 is not greatly to widen the requirement of s 1's intention permanently to deprive. A slightly broader definition of that intention is there provided in order to deal with a small number of difficult cases which had either arisen in the past under the common law or might arise in the future where, although it might be hard to put the matter strictly in terms of an intention permanently to deprive, in the sense of meaning the owner permanently to lose the thing itself, nevertheless something equivalent to that could be obtained through the intention to treat the thing as his own to dispose of, regardless of the other's rights, remembering Professor Smith's Oxford English dictionary use of the words “to dispose of”. Thus, the newspaper taken but only returned on the next day when it is out of date, or a ticket which had been used, or a cheque which is paid, or something which has been substantially used up or destroyed, or something which would only be returned to its owner subject to a condition, all these are the sorts of examples to be found in the jurisprudence which discusses s 6. All of these cases are of ready equivalence to an intention permanently to deprive. None of them go any way towards extending the scope of s 6 to a case, however violent, of the taking of a car for the purposes of its brief use before being abandoned with its lights on. It must be remembered of course that a car with its licence plates on, left on the road, is utterly unlike a bundle of newspapers which have disappeared from a newsagents shop to a place where they would not be found.[30]For these reasons this appeal must be allowed. Given the overall criminality displayed in this case, we regret the conclusion to which we have felt constrained to come. However, the prosecution could have laid other charges against the Defendant – charges such as affray or malicious damage, of course assault, possibly even assault occasioning actual bodily harm. It may be that if a prosecution on that basis had arrived at a conviction, the gravamen of what was charged under the offence of robbery could have been adequately dealt with in the sentencing of the court. As it is, by charging the wrong offence this prosecution could not succeed and ought not to have succeeded. We therefore allow this appeal. Mr Kelly, your referred application against sentence does not arise. Appeal allowed.

Cited in 3 later judgments