Smith & Ors, R v [2011] EWCA Crim 66

No. 2010/01650/C3, 2010/05686/C3, 2010/05344/C32010/01915/C3, 2010/02229/C3[2011] EWCA Crim 66
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 18 January 2011
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE EADY
and
MR JUSTICE SIMON
R E G I N A
- v -
MICHAEL ANDREW SMITH
ANDREW WILLIAM PLUMMER
JAMES JOHN HAINES
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Mr J D Whitley appeared on behalf of the Appellant Smith
Miss K Mansfield appeared on behalf of the Applicant Plummer
Miss S Nwosu appeared on behalf of the Appellant Haines
Mr C Ward-Jackson appeared on behalf of the Crown
J U D G M E N T
Tuesday 18 January 2011
THE LORD CHIEF JUSTICE:
Between
Smith & OrsDefendantRCrown
[1]This is an appeal by Michael Smith against his conviction for robbery at Reading Crown Court on 21 January 2010 before His Honour Judge Risius and a jury. James Haines and Andrew Plummer seek leave to appeal against conviction (out of time) on the single ground on which Smith was granted leave to appeal by the single judge. On 5 March 2010 all three were sentenced to eight years' imprisonment. They appeal against sentence with leave of the single judge.[2]The facts which give rise to the appeal against conviction can be summarised shortly. The prosecution alleged that on 7 March 2009 the complainant, Chesterfield Jordan, supplied Smith with heroin in exchange for a camera. That evening Smith contacted Jordan and asked for a further £50 worth of heroin from him. Jordan agreed to meet him. When he reached the agreed meeting point he saw Smith standing beside a car with another man in the driver's seat. The applicants emerged from an alleyway where they had been hiding. Plummer seized Jordan, put a hand around his neck and held a knife to his throat. Haines punched him in the face and dragged him to the ground. Both demanded to know where the drugs were. To avoid a further beating, Jordan handed over the heroin. As he lay on the ground the appellant and the two applicants kicked and stamped upon him. Various injuries were inflicted, including the loss of several teeth.[3]In interview Smith denied presence at the scene and alleged that the complaint against him was fabricated. Haines accepted that he had been present, but denied involvement in any violence. Plummer also accepted that he was present. He, too, denied any involvement, saying that others had attacked Jordan. Neither the appellant nor the applicants gave evidence at trial.[4]The single ground of appeal on which leave was given is that the appellant Smith (and this would have extended to Haines and Plummer) was convicted of an offence which was not know to law. The indictment initially alleged that Jordan had been robbed of cash to the value of £50. It was subsequently amended so that the words "cash to the value of £50" were replaced with "drugs to the value of £50". The application to amend was opposed on the basis that this count would be unlawful because a person cannot be guilty of stealing something which it is unlawful for anyone to possess. The argument was developed on the basis that prohibited drugs unlawfully in the complainant's possession did not constitute property for the purposes of the Theft Act 1968; and that if the alleged owner had no proprietary rights over the drugs, there could be no appropriation for the purposes of the statute. In short, therefore, the person who owns or is in unlawful possession of drugs has no rights in the drugs which are capable of being assumed by the person who deprives him of them; there was no infringement of Jordan's proprietary rights.[5]This submission was, unsurprisingly, rejected by Judge Risius. It is renewed before us in argument on appeal.[6]Theft is defined in section 1 of the Theft Act 1968. It involves the dishonest appropriation of property belonging to another. The elements are amplified, although not fully defined, in sections 2-6. Section 4 provides that property "includes money and all other property, real or personal, including things in action and otherwise intangible property". The section goes on to identify a number of items which might otherwise appear to be property which cannot be stolen. Thus, unless a number of other conditions are fulfilled, land cannot be stolen; nor for that matter can wild mushrooms, nor wild creatures. The exclusions do not extend to property of which someone is in prohibited or unlawful possession. Save where expressly excluded, therefore, the definition of "property" covers all property. That is what drugs are. Section 5 amplifies the concept of property belonging to another. It shall be regarded "as belonging to any person having possession or control of it, or having in it any proprietary right or interest...."[7]Having examined these provisions, we consider that nothing in them suggests that what would otherwise constitute or be regarded as "property" for the purposes of the Theft Act ceases to be so because its possession or control is, for whatever reason, unlawful or illegal or prohibited.[8]This construction of the legislation was recognised soon after the Theft Act came into force. In R v Turner (No 2) (1971) 2 All ER 441, [1971] 1 WLR 901, the appellant was charged with theft from a man called Brown of a car which was subject to a hire purchase agreement. For the purposes of this appeal the facts are immaterial. It was argued that Brown, although in possession or control of the car as a matter of fact, did not have sufficient possession or control for the purposes of section 5(1) of the Theft Act. The submission was rejected in unequivocal terms as follows:
"This Court is quite satisfied that there is no ground whatever for qualifying the words 'possession or control' in any way. It is sufficient if it is found that the person from whom the property is taken, or to use the words of the Act, appropriated, was at the time in fact in possession or control. At the trial there was a long argument as to whether that possession or control must be lawful. .... The only question was: was Brown in fact in possession or control?" 9. "
In expressing the view that no other word such as 'lawful' was to be read into section 5(1), by reference to possession, that court [that is, the court in Turner] was construing section 5 entirely consonantly with the construction which we now put upon it ...."[9]With respect to the argument developed before us, this is not an appropriate context in which to consider the impact of civil law concepts on the law of theft. The question of how litigation in the civil courts between a person seeking damages for wrongful deprivation of drugs unlawfully in his possession from the person who removed the drugs from him is utterly irrelevant. If civil proceedings were taken, the judge would immediately refer the papers to the Director of Public Prosecutions with a view to the prosecution of both parties to the litigation. Fortunately for them, unlike the highwaymen who took civil litigation against each other in, we believe, the eighteenth century, they would not be, as those two highwaymen were, liable to be, as indeed they were, hanged. We are untroubled, too, by an appeal to the broad public interest (the "integrity principle" as it was suggested in argument). Carried to its logical conclusion, the argument would suggest that the drug-misusing community is permitted to conduct itself in the context of what would otherwise be theft from each other with impunity. The public interest would hardly be secured by the inevitable public warfare which would ensue.[10]In the ninth edition of Smith's Law of Theft, at page 80, it is suggested that "public policy which prevents the wrongdoer from enforcing a property right should have no application to criminal proceedings brought in the name of the Crown. The criminal law is concerned with keeping the Queen's peace, not vindicating individual property rights". That observation articulates the principle to be applied in the present appeal.[11]Accordingly, notwithstanding that Jordan (the complainant in this case) was in unlawful possession of prohibited Class A drugs which were taken from him, the appropriation of the drugs by those who attacked him constituted theft. The circumstances in which the appropriation took place amounted to robbery.[12]In those circumstances this ground of appeal fails. The applications for an extension of time by Haines and Plummer for leave to appeal against conviction are therefore entirely without merit. They are refused.[13]Smith renews his application for leave to appeal on remaining grounds on which the single judge refused leave. A submission was made to the judge that there was no case for Smith to answer on the basis that the evidence of Jordan was wholly undermined by the fact that he told a number of deliberate lies in circumstances which would, if they had been properly analysed, have amounted to criminal offences, in the form of statements made in contravention of the prohibition against making false statements.[14]The credibility or otherwise of a witness, and in this case the credibility or otherwise of Jordan, was a matter for the jury. It is plain to us from a study of the analysis made by Mr Whitley of his evidence and the contradictions and lies to be found in it, that he tried at the outset, and for some time into the process, to distance himself from any connection with drugs, but nevertheless to ensure that the case should proceed to court. All those matters were before the jury. There was no reason in the case of Smith for the judge to abandon the principle that the issue of the creditworthiness of Jordan, when he identified Smith as one of those who attacked him, was for the decision of the jury.[15]The judge did, however, accede to a submission that there was no case to answer on behalf of a fourth defendant (Crick) because there was no direct or sufficient evidence that he was either involved personally in the attack, and no or no sufficient evidence that he was party to the joint enterprise to rob Jordan. Crick had been interviewed by the police. Although he had made no admissions which suggested his involvement in the robbery, he asserted that he and Smith had been together during the evening when the robbery took place.[16]After a verdict of not guilty had been entered in the case of Crick, an application was made on Smith's behalf for the discharge of the jury on the basis that the inadmissible material contained in Crick's police interview was prejudicial to Smith; the jury had heard it; and Crick was no longer present in the trial.[17]The judge refused the application. He ordered that the transcript of Crick's interview should be withdrawn from the jury. He gave the jury clear, unequivocal directions about the correct way to treat the contents of that interview: they should be ignored. This decision was a matter for the trial judge. It was entirely dependent on his judgment of the case. We can see no ground whatever for criticising Judge Risius, let alone for interfering with his conclusion.[18]Finally, we are asked to consider whether the conviction of Smith should be quashed on "lurking doubt" grounds: a principle which arises from the well-known decision of this court in R v Cooper [1969] 1 QB 267. The reality is that this was pre-eminently a case for the decision of the jury. At the end of the evidence and the closing speeches by counsel, the judge was required to sum up the case. No criticism is directed at his summing-up. We can see none. There are, in our judgment, no grounds to conclude that the "lurking doubt" principle is engaged in this case.[19]Accordingly, the renewed grounds of appeal are refused. The appeal against conviction is dismissed and the renewed applications for leave to appeal out of time against conviction are all refused.[20]We turn to the appeals against sentence. In essence the argument on behalf of each of the appellants is that the judge took too high a starting point in arriving at his sentence of eight years' imprisonment, that he did not sufficiently address the Definitive Guideline on Offences of Robbery issued by the Sentencing Guidelines Council, and that he did not accept the submission, which is renewed, that this case should be regarded as a level 2 robbery, albeit a serious one of its kind.[21]Smith is 25 years old. He has 13 previous convictions, mainly for theft and similar offences. Haines is aged 29. He has 21 convictions for similar offences. Plummer is aged 42. He has 31 previous convictions mainly for similar offences of dishonesty, but also drug related offences.[22]The pre-sentence reports noted that the pattern of offending for all three appellants was dominated by acquisitive behaviour intended to provide funds for the purchase of the drugs to which they were addicted. It is clear on the evidence that this offence of robbery represented an escalation in the seriousness of their offending and in that sense was beyond the pattern of their previous offending.[23]There was much argument about where, in the context of the Definitive Guideline on Robbery, this offence fell. In his sentencing remarks the judge reminded himself of the facts, as we remind ourselves of them. A man -- a street dealer in drugs, we were reminded -- was attacked in the street as he arrived with heroin which Smith, albeit the youngest of the three appellants, had asked him to supply. Smith must have known what was about to happen to him. Jordan was confronted by three men. A knife was held to his throat. He was attacked and forced to hand over the heroin. He was punched, kicked and stamped on as he lay on the ground. He suffered the loss of three teeth. He suffered a number of other injuries but, unpleasant though they were, this was not long-term serious physical injury, although their effect on the victim, as the judge noted, was profound. The judge was rightly concerned at a street robbery which involved the use of a knife and the use by the three appellants of their shod feet while kicking the victim on the ground. He acknowledged the aggravation of the offence by the obvious planning. It culminated in three men attacking one. The judge did not accept that it was a mitigating feature of the offence that the amount of the drugs involved in the robbery was relatively small; nor that the offence was minimised because the victim was supplying drugs and that the theft was of a substance unlawfully in his possession. We agree with this approach by the judge. The fact that the victim was not an innocent man walking down the street, attacked by three man, does not mitigate the offences committed by the three appellants.[24]Having re-examined the Sentencing Guidelines Council's guideline on robbery, we have concluded that the submission that this should be approached as if it were an offence within the second level of offending, shown on page 11 of the guidelines, with significant aggravating features, rather than a case which falls within the higher level of the guideline, is well made.[25]In those circumstances, although in one sense to reduce the sentence by the amount that we have in mind could be seen as tinkering with the sentence, we work on the basis of our conclusion that this is a case in which the range of sentence is that indicated by the Sentencing Guidelines Council: that a seven year custodial sentence represents the top end of that sentencing range. So although the sentence which we shall now order is reduced by only one year, it brings the sentence within what we regard as the top end of the appropriate bracket for this offence.[26]For these reasons the sentences on each of the three appellants will be reduced from eight years to seven years' imprisonment. To that extent the appeal against sentence is allowed. ____________________________

Cited in 1 later judgment