Waters, R. v [2015] EWCA Crim 402

[2015] EWCA Crim 402Case No 2014/2262/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 6 February 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE MITTING
MR JUSTICE JAY
Between
R E G I N ACrownv
Between
SIAN WATERS
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 J Arsenio appeared for AppellantMiss A Arnold appeared for Crown
J U D G M E N T

LORD JUSTICE JACKSON:

[1]This judgment is in four parts, namely: Part 1. Introduction; Part 2. The facts; Part 3. The criminal proceedings; Part 4. The appeal to the Court of Appeal. Part 1. Introduction[2]This is an appeal against conviction in a robbery case. The grounds of appeal are essentially twofold. First, it is said that the judge erred in the exercise of his discretion under sections 76 and 78 of the Police and Criminal Evidence Act 1984 in failing to exclude evidence of a confession made by the appellant. Secondly, it is said that in the circumstances of this case the judge gave an incorrect direction to the jury in relation to the ingredients of the offence of theft.[3]We have come to the conclusion that there is merit in the second ground of appeal, having heard full argument on that ground. In those circumstances it will not be necessary for us to deal with the first ground of appeal.[4]After those introductory remarks we must now turn to the facts. Part 2. The facts[5]On 12th August 2013 a group of young people met up at Poulters Park in Mitcham. Saskia Voigt went there with her boyfriend Rhys Faoud. The other young people who arrived were Sian Waters, his sister Sharma Waters and Sian Waters' friend Kareem Wasiu. Matthew Greenbrook was also there. He was Saskia Voigt's boyfriend.[6]There was some animosity between the Waters group on the one hand and Saskia Voigt and Rhys Faoud on the other hand. Saskia Voigt and Sharma Waters had formerly been friends but had fallen out. One purpose of the meeting was for Saskia to return certain items, including hair straighteners, to Sharma, which she duly did. Before doing so, Saskia entrusted her mobile phone and some cigarettes to Rhys Faoud, her boyfriend. There was then a confrontation between three of the young men. Sian Waters and Kareem Wasiu, in circumstances which have been disputed, took or received the mobile phone and a few cigarettes which were in Faoud's hands. After that, Sian waters and Kareem Wasiu asked what the password for the phone was and Saskia Voigt told them.[7]There is a dispute about the degree of compulsion which Sharma Waters and Kareem Wasiu used. Both Saskia Voigt and Rhys Faoud say that they were frightened of Sian Waters and Kareem Wasiu, therefore they allowed the items to be taken. There is evidence that Sian Waters said that the phone would be returned if a young person called Dale Holloway was persuaded to come and talk to them.[8]The police were alerted to this incident. They investigated. They took two statements from Saskia Voigt. The first statement was, as she admits, untruthful. The second statement broadly accorded with the evidence which she was later to give in court.[9]The police arrested and interviewed Sian Waters and Kareem Wasiu. Sian Waters made a number of admissions in the course of his interview. Criminal proceedings followed. Part 3. The criminal proceedings[10]Sian Waters and Kareem Wasiu were charged on an indictment containing a single count, namely robbing Rhys Faoud of a mobile telephone and some cigarettes. Both men pleaded not guilty. They stood trial at Kingston-upon-Thames Crown Court in April 2014 before His Honour Judge Hunter, the Vice Judge Advocate General, and a jury.[11]The principal prosecution witnesses were Saskia Voigt, Rhys Faoud and two police officers, TDC Oseni and DC Barnham. There was an application to exclude the interview of Waters on the grounds that he should have had an appropriate adult with him and there was no compliance with Code of Practice C. The judge rejected that application. He also in due course rejected a submission of no case.[12]When it came to the turn of the defence, Wasiu chose to give evidence. He denied that there had been any robbery and maintained that Faoud handed over the phone voluntarily. Waters chose not to give evidence.[13]The judge duly summed up and we shall return to one aspect of that summing-up later. The jury, after retiring, found Waters guilty and Wasiu not guilty. The judge sentenced Waters to 18 months' detention in a young offender institution, but he suspended that sentence for two years. He also made a supervision order and a compensation order.[14]Waters is aggrieved by his conviction. Accordingly he appeals to the Court of Appeal. Part 4. The appeal to the Court of Appeal[15]There are, as mentioned in Part 1 of this judgment, two grounds of appeal. First, the wrongful admission of the evidence of the appellant's confession, and secondly, an erroneous direction in relation to section 6 of the Theft Act 1968. It seemed to us that there may be merit in the second ground. Accordingly we invited counsel to address that ground first, which most helpfully they did.[16]The judge in his summing-up gave the following direction in respect of the element of the offence of theft, intention permanently to deprive. The judge said this:
"And, at the same time, the person taking the property has to intend that the person who the property belongs to shall permanently lose the item, or will only get it back if it is paid for in some way, either in money or by the performance of some action in return."
The judge referred back to that direction of law when he was summarising the evidence given by Miss Saskia Voigt. He said:
"It was put to her that the phone was taken because Simon wanted to talk to Dale Holloway and she accepted that that was the case and that if that happened she would get it back. But you will recall what I said about the definition of theft."
It is clear that the judge was directing the jury that if the appellant made it plain to Saskia Voigt and Rhys Faoud that the phone would be returned if he was able to talk to Dale Holloway, that would still constitute the element of the offence of theft: intention permanently to deprive. In our view that is not a correct direction of law.[17]Miss Arnold, who appears for the prosecution, the respondent in this court, very fairly accepts that this was not a correct statement of the law. She has very helpfully pointed out to us that it may well be that Dale would have been reluctant to talk to Waters, that the condition being attached to the taking of the phone was one which could not be fulfilled. It may very well be that in the circumstances of this case the element of intention permanently to deprive the owner of the property was established. But counsel has drawn our attention to the case of Coffey [1987] Crim.L.R 498. In that case the appellant was convicted of obtaining property by deception. He had obtained some machinery using a worthless cheque. At trial he gave evidence that he had been in dispute with the victim who refused to negotiate about the dispute. He had decided to exert pressure on the victim by obtaining and keeping the machinery until he got what he wanted. It was not clear from the evidence quite what it was that the appellant wanted. The judge directed the jury in brief terms on the effects of section 6 of the Theft Act. The judge's direction unfortunately is not set out in full in the brief report in the Criminal Law Review. However, the Court of Appeal’s decision is set out as follows:
"Held, allowing the appeal, the summing-up was defective. The jury might reasonably have concluded that the appellant intended to keep the machinery until the victim had done what he wanted, no matter how long that might take, and if he did not comply the goods would never be returned. They should have received guidance as to the criteria to apply. There were three possible views of the law to be applied ... "
The Court of Appeal then sets out alternative scenarios. Taking it briefly, if the condition attached to the return of the item is one which would not be fulfilled or not be fulfilled in the foreseeable future, then the circumstances may well amount to an intention permanently to deprive. On the other hand if the condition can readily be fulfilled and may be fulfilled in the near future, the jury may well conclude that intention to deprive has not been made out.[19]Returning to the present appeal, unfortunately the judge did not deal in satisfactory detail with the impact of section 6 of the Theft Act 1968 on the circumstances of this case. In view of the direction which was given, as my Lord, Mitting J pointed out in argument with counsel, the jury might have thought that even if Dale Holloway could be found in the near future and therefore it was likely that the phone would rapidly be returned to its owner, nevertheless there was an intention to permanently to deprive the owner of the phone. That would not be a correct conclusion.[20]Although Miss Arnold suggested respects in which a verdict might be safe in any event, we do not think that that conclusion is open to us in the circumstances of this case. It seems to us that on this occasion the experienced judge fell into error in that he did not give the jury proper guidance as to the operation of section 6 of the Theft Act 1968. There is a real possibility that if the jury had been properly directed on this matter, they would have acquitted. Accordingly, we allow the appeal and we quash the conviction on the second ground.[21]We do not need to deal with the first ground of appeal. We have reached no view as to whether or not it is well founded. It is not necessary for us to do so in the circumstances of this case.[22]We are grateful to counsel on both sides for their assistance. The appeal is allowed and the appellant's conviction is quashed.