Mohammed, R v [2011] EWCA Crim 2255

Case No 201103089 D3[2011] EWCA Crim 2255
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 23 September 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE EADY
MR JUSTICE MACDUFF
Between
R E G I N ACrownv
Between
TARIQ BOOTA MOHAMMED
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 7404 1424(Official Shorthand Writers to the Court)
Mr C Geeson appeared for AppellantMiss L Pitman appeared for Crown
Judgment

LORD JUSTICE ELIAS:

[1]On 18 March 2011, following a retrial at the Crown Court at Derby before HHJ Gosling, the appellant was convicted of two counts of robbery (counts 1 and 2). He was acquitted of one count of having a bladed article, which was in fact a knife, and that was count 3. He was sentenced to 2 years' imprisonment with time spent in custody to count towards sentence. 2 years for each count was to run concurrently. There was a co-accused, Daani, who pleaded guilty to the two counts of robbery and also to having a bladed article, and he was sentenced also to 2 years' imprisonment.[2]Mohammed now appeals against conviction by leave of the single judge. Because it is agreed by both counsel that this appeal should succeed, and because we think that is the proper disposal in this appeal, it is only necessary to set out the facts in very brief detail. The circumstances were these. The two appellants went into the Arboretum Park in Derby, where there were a number of youths and a girl. There was some discussion between the two groups. At one stage, Daani took out a knife and he approached the group. He went along a row of five people, demanding from each of them their mobile telephone.[3]The case against the appellant was that he was party to a joint enterprise, because although he did not himself take part in requiring these individuals to hand over their telephones, it was said that when Daani began to do that, the appellant himself took out a knife. That, it was said by the prosecution, lent support to the action of Daani and established a joint enterprise.[4]The appellant's case was that he had indeed gone to the park with Daani, that they had been drinking and that they had seen this group. In fact he had restrained Daani, he said, from pushing a girl around. One of the complainants, in fact, confirmed that. He saw Daani commit the robbery. He was there, but he did not participate in any way. He did not have a knife and he did not take a knife out of his pocket.[5]The single ground of appeal is this: it is said that the verdict of the jury in respect of count 3 when they acquitted him of having the bladed article is simply inconsistent with the convictions on the two counts of robbery, counts 1 and 2. The prosecution case, as we have said, at all times was that the appellant was a party to a joint enterprise. But the only evidence to support that joint enterprise, and the only evidence upon which the prosecution relied, was the fact that he had taken this knife and waved it at the time of these robberies.[6]The judge summed up to the jury and made it plain at a number of points in the summing-up that that was the only question for the jury in relation to counts 1 and 2. For example, he said this when he sent the jury out:
"I think I can encapsulate the question you have got to answer in a single sentence really. It is this: are you sure that this defendant produced a knife or knives in the course of what Mr Daani was doing? If you are sure of that, he is guilty; if you're not sure of it, then he is not guilty. Really, that is what it comes down to."
[7]So, says counsel, plainly verdicts 1 and 2 cannot stand. They must be based on the premise that he had a knife; there is no other basis in which to establish this joint enterprise. Yet the verdict on count 3 is wholly inconsistent with that. Prosecuting counsel concedes that that is indeed the position, and we agree that these verdicts cannot stand.[8]Plainly, a defendant could in principle participate in a robbery as a party to a joint enterprise without having a knife. But in the light of the evidence, there was no other way to convict the appellant in this particular case than by establishing he did have a knife. The verdict on count 3 establishes that the jury thought that he did not, and therefore there is an inconsistency with the verdicts in counts 1 and 2. A different way of explaining it perhaps is to say that, once the jury were not satisfied that the defendant had a knife at the material time, as was implicit in their verdict on count 3, then there was simply no evidence on which they could properly convict on counts 1 and 2.[9]So this is one of those relatively rare cases where the jury's verdicts cannot be satisfactorily explained. There is an illogicality in the form of an inconsistency in the factual premise underlying their conclusions, and therefore the two convictions have to be quashed.