Archer, R. v [2011] EWCA Crim 2252

[2011] EWCA Crim 2252Case No 2011/1117/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 27 September 2011
Between
R E G I N ACrown
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE CALVERT SMITH
MR JUSTICE UNDERHILL
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v
Between
THOMAS ARCHER- - -- - - - -- - - - - - - - - - - - ­Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)- - -- - - - -- - - - - - - - - - - - ­Mr L Walker appeared for AppellantMr S Wilshire appeared for Crown- - -- - - - -- - - - - - - - - - - - ­J U D G M E N T

LORD JUSTICE RICHARDS:

[1]The appellant, Thomas Archer, is a young man aged 22. On 31st January 2011 in Luton Crown Court, after a trial before Her Honour Judge Mensah and a jury, he was convicted unanimously of kidnapping (count 1) and was convicted by a majority of 10 to 2 of robbery (count 3). He had previously pleaded guilty to common assault (count 4). His convictions placed him in breach of earlier suspended sentences. The total sentence imposed on him on the present occasion was three years and seven months' imprisonment. He now appeals with leave of the single judge against the robbery conviction on count 3. He also makes a renewed application, following refusal by the single judge, for leave to appeal against the conviction of kidnapping on count 1.[2]A co-accused, William Holmes, was jointly charged with the appellant on counts 1 and 3. He pleaded guilty to count 3 prior to trial and was convicted by the jury on count 1. His application for leave to appeal against conviction was refused by the single judge and has not been renewed.[3]The offences relate to events on 14th September 2010. At a multi-storey car park in Bishops Stortford the appellant, his co-defendant Holmes and a young woman by the name of Charlotte Alpress got into a black Vauxhall motorcar owned and driven by James White. White then drove them to various locations at their request. During the journey they took cocaine in the back of car, though this was not the subject of any count.[4]The prosecution case against the appellant and Holmes on count 1 was that acting together in a joint enterprise they compelled White to let them into his car and to drive them where they wished to go, by threatening a serious assault on him if he did not do so. The defence case was that White let the appellant and Holmes into his car willingly and drove them around of his own volition. He was not forced or threatened in any way. They both left the vehicle at various times and White had the opportunity to drive off had he wished to do so.[5]There came a point when White's car stopped at another car park, at Cannons Middle Lane. Two other relevant cars were parked at that location. The occupants of one were Glenn Pamphilon and his friends including George Smither and James Paffey. The occupants of the other were Matthew Almond and his girlfriend Emily Daniels. Those two cars were initially parked about 10 feet away from each other and the occupants had been outside their cars chatting to one another. They got back into their cars after the arrival of White's car. There was evidence that the appellant and Holmes knew the two groups and were aware that those two groups knew one another.[6]What happened next was in summary as follows. Holmes got out of White's car, walked across to Pamphilon's car, threatened the occupants and obtained Paffey's mobile phone. This was the subject of count 3, the robbery charge, not only against Holmes but also against the appellant. As we have said, Holmes pleaded guilty to that count. The main issue on the appeal is whether there was evidence on which the jury could convict the appellant on that count on the basis of joint enterprise.[7]There had been, according to the evidence, no relevant discussion between the appellant and Holmes while they were in White's car. The appellant got out of White's car after Holmes had gone across to Pamphilon's car. The appellant did not approach Pamphilon's car but he did approach Almond's car. At that point Almond had been driving off but had stopped, on his evidence, to make sure that Pamphilon was okay. He had wound down his window for that purpose. The appellant approached him, spoke to Almond and then removed the keys from the ignition. Almond, however, grabbed the appellant's arm, pulled it back into the car and recovered the keys. As he put them in the ignition the appellant grabbed him by the throat and raised his fist but Almond succeeded in releasing himself, turning on the ignition and driving off out of the car park, whereupon the appellant returned to White's vehicle.[8]This aspect of the incident was the subject of count 4, a charge of common assault by the appellant on Almond to which, as we have said, the appellant pleaded guilty. In addition, however, the prosecution case was that what the appellant did in relation to Almond also constituted participation in the robbery of Paffey's mobile phone. The appellant's case was that his actions in approaching Almond were not connected whatsoever with what Holmes was doing vis-a-vis Pamphilon's car and Paffey and he had not participated in the robbery.[9]At the trial, evidence for the prosecution was given by White, Smither, Paffey, Pamphilon, Almond and Daniels. There was also evidence of the police interview in which the appellant said he had got out of the car at Cannons Middle Lane car park to urinate; he was unaware that a robbery was taking place or that a mobile phone was taken; he was paying full attention to urinating and nothing like that described in Almond's witness statement had happened.[10]At the close of the prosecution evidence, the judge acceded to submissions of no case to answer in relation to count 2, which was a charge of blackmail in relation to which it has been unnecessary for us to say anything further. But she rejected submissions of no case to answer on counts 1 and 3.[11]The appellant and Holmes then gave evidence in line with the defence cases we have already summarised. The appellant admitted in his evidence that he had lied in his police interview but he maintained that there had been no discussion or planning in relation to the robbery on Paffey and that he was not involved in any way with it. He said that coincidentally and independently he left White's car to commit an offence against Almond. It seems that in the course of his evidence he sought to give the impression that he did not usually behave in the way alleged, which led to the admission into evidence of the fact that he had previous convictions, including convictions for robbery.[12]Following the defendant's evidence, Almond was recalled for further cross-examination, either because it was thought that certain questions put by the prosecution to the appellant in the course of cross-examination required further questioning of Almond or at any event because there was no clear or agreed recollection of what Almond had said in the course of his evidence-in-chief.[13]In his further cross-examination after recall, Almond agreed that he had thought that the appellant was trying to steal his car and he said that the appellant had not restrained him from going anywhere apart from taking his keys "to sort of stop me moving anywhere". His concern was to get his girlfriend away. He said he was not trying to drive towards Pamphilon's car at the time when the appellant approached and attacked him, nor was he trying to get out of his own car and go over towards Pamphilon. He was not stopped from doing anything apart from getting his girlfriend away. He was trying to leave the scene. In further re-examination he confirmed that his car was stationary when the appellant approached it and that he had stopped to check that Pamphilon was okay.[14]After that evidence, the submission of no case to answer on count 3 was renewed on the appellant's behalf but was again rejected by the judge.[15]We turn to the appeal in relation to count 3. In her ruling on the submission of no case at the end of the prosecution evidence, the judge proceeded on the basis that if the jury were satisfied that the appellant was assisting the robbery by preventing Almond's vehicle from leaving, that would satisfy count 3. In her further ruling after Almond had been recalled for further cross-examination, she dealt with the matter in this way:
"It is also open to the jury to say 'Well no, we look at all the facts in this case, we can draw inferences, it is not just what the victim says, what does he know about what is in Mr Archer's mind, we have heard Mr Archer, we choose to disbelieve him or believe him on parts and our view is that he saw his mate going to rob the others, he saw Mr Almond about to leave the car park and he thought to himself "
Let me go and assist him by blocking Mr Almond or delaying him or doing something to prevent him leaving the premises, or assist in some way".' If they come to the conclusion that Mr Archer was assisting in some way, and you can assist in many different ways ... If they come to the conclusion that he participated with the intention of committing that offence then they can find the defendant guilty."[16]Mr Walker on behalf of the appellant submits that the judge was in error in declining to withdraw count 3 from the jury. The first submission he makes is that the criminality accepted as constituting the common assault on Almond (count 4) cannot at the same time found a basis for finding the appellant guilty of the robbery of Paffey (count 3). In our view there is nothing in that point. There is no reason why the circumstances of the admitted count 4 offence should not also be relied upon in support of the case on count 3 and in an appropriate case constitute evidence of participation in the count 3 robbery.[17]The second and main submission advanced by Mr Walker is that there was simply no evidence to support a finding of participation by the appellant in the robbery. He makes a complaint that the prosecution case changed during the course of the trial. He says that in opening the matter was put in terms of direct involvement by the appellant in the robbery, whereas by the time the case closed it had moved to one of participation through acting in some way to stop Almond intervening or getting away. We are not satisfied that there was actually a change in the way in which the Crown put its case, but in any event this point does not seem to be a material one. What matters is how the case evolved and was left at the end of the evidence.[18]As to that, Mr Walker submits that Almond's further evidence following his recall simply did not support any contention that the appellant was acting to stop Almond from intervening in the count 3 robbery. Almond accepted in terms that he did not intend to intervene and he was not stopped from intervening. There was no other respect in which the appellant can be said to have interacted with the parties concerned in the robbery. There simply was no proper basis upon which the jury could infer on the evidence that he was participating.[19]We reject those submissions. We are not persuaded that the evidence against the appellant on count 3 was so tenuous that it was wrong for the judge to leave that count to the jury. In our judgment it was open to the jury on the evidence before them to infer that the appellant's actions towards Almond, who on his own evidence had stopped to check that Pamphilon was okay, were directed at supporting Holmes and assisting him in relation to what he was doing by Pamphilon's car and in particular in relation to the robbery of Paffey's phone, rather than being altogether unconnected with what Holmes was doing. The appellant knew that Almond was acquainted with Pamphilon's group. He saw that Almond's car had stopped not far away from Pamphilon's car. It was a safe inference for the jury to draw that he was acting in some way to assist in relation to the robbery, whether by preventing Almond from intervening or by preventing him from leaving the scene. Accordingly, we conclude that the judge was right to reject the submission of no case to answer.[20]A separate argument advanced in relation to count 3 concerns the judge's directions to the jury in her summing-up. In the course of her general directions about joint enterprise the judge explained that offences can be committed by two or more people each playing a different part but each equally in it together as part of a joint plan or agreement. She gave an example by reference to an unrelated case of armed robbery and went on:
"... that is what the prosecution say is the case here; that these two have agreed to act together, and when we say 'agreed' it doesn't mean that there has got to be some formal contract about it, it doesn't even mean that they have to have said so in words, it may be as the result of planning or it may be some tacit understanding reached on the spur of the moment; in those circumstances at that time two people decide 'Well let's go and commit this offence'."
[21]It is submitted that this amounted to a direction to the jury on the basis of a conspiracy concerning count 3 and that it erroneously picked up something which prosecution counsel had said in closing submissions to the effect that if the appellant, having agreed with Holmes, got out of the car and went to rob Almond, he was guilty of robbery, there being however no evidence of any such agreement.[22]We cannot accept that line of argument. What the judge said to the jury about agreement was said in the context of her overall direction on joint enterprise and was not in itself open to objection. Moreover at the end of her general direction on that topic she said this on the question of participation:
"Finally on that point about jointly participating, just being at the scene, so merely being present at the scene of an offence is not enough to prove guilt and that must be obvious because if a bank robbery is taking [place] most people will happen to be going there innocently taking their own money out of the bank when it goes on and not therefore guilty of the robbery just because they happen to be there, but if you find that a particular defendant was on the scene and intended and did, by the fact that he was on the scene, encourage or assist the other person in that offence then he is guilty, so if you conclude that Mr Archer was doing something else in relation to Matt Almond, nothing to do with Mr Holmes or Mr Paffey, or that Mr Archer was hanging around not doing anything in particular at that time but not assisting in any way, not encouraging in any way and not intending in any way to assist, then that mere presence wouldn't allow you to find him guilty of that offence so bear that in mind when you consider their joint participation."
A little later, when dealing specifically with the elements of the offence under count 3, she referred to the fact that Holmes had admitted the robbery and said that what the jury needed to consider was whether the appellant was also involved in the robbery. She continued at 16A:
"If you conclude that he was ... It must be on the basis that he was a joint participant in the examples that I have already given you. If you think that he was merely standing by uninvolved or was committing his own offences against Mr Almond, completely independently of Mr Holmes and Mr Paffey, then he could not be guilty of this robbery."
[23]Then a little later, after referring more fully to the nature of the prosecution case, she said:
"There is no discussion of a robbery. Mr Holmes goes towards the vehicle in which Mr Paffey is and subsequently takes his mobile phone, so Mr Holmes has left the vehicle. Seconds later Mr Archer leaves that same vehicle and he decides - this is his evidence - to do the same in respect of another vehicle, Mr Almond's vehicle. The prosecution say ... that he must have gone over in order to help Mr Holmes to rob Mr Paffey by playing another role, for example preventing Mr Almond getting away, possibly to go and raise the alarm. You need to consider that carefully."
[24]Looking at those directions as a whole, we see no problem with them. We are satisfied that the judge, having properly decided to leave count 3 to the jury, directed them correctly in relation to it and that the verdict on count 3 is safe.[25]We turn to the application for leave to appeal against conviction on count 1 which is renewed on the following basis. It is submitted that the judge erred in leaving the count to the jury.[26]The essential elements of the offence of kidnapping as set out in R v D 1984 AC 778 at 800G are:(1) the taking or carrying away of one person by another;(2) by force or by fraud;(3) without the consent of the person so taken or carried out away;(4) without lawful excuse.[27]The facts of the present case, it is said, did not support the existence of two of those elements, namely the use of force or fraud or the taking or carrying away of the complainant. The complainant White was not subjected to any force and he drove himself and the applicant away. It is submitted that what is alleged to have occurred here, involving a restraint on White's freedom of movement by deliberate intimidation, might have constituted the offence of false imprisonment but did not constitute kidnapping.[28]In her ruling on the submission of no case the judge said that she was satisfied that kidnapping by force or fraud included circumstances where there was no actual physical force and she gave the example of the threat of force by pointing a knife or gun at a person while saying "do this or else".[29]The single judge considered that the judge was correct to conclude that the requirement of force includes a threat of physical force, it being common ground that in either case there must consequently be an absence of consent by the victim. He also considered that the judge was correct to conclude that taking or carrying away can effected by the victim walking or driving away himself, that is pursuant to force or the threat of force and against his will.[30]We agree. It seems to us that if a person acts under threat of serious violence against him to allow two people into his car and to drive them around under their instructions, there is plainly a sufficient element of force and of taking or carrying away for the offence of kidnapping.[31]The renewed application in relation to count 1 is therefore refused, and for the reasons we have given in relation to count 3 the appeal is dismissed.