Wilkinson, R. v [2018] EWCA Crim 2154

Neutral Citation Number:[2018] EWCA 2154 (Crim)Case No 2017/05317/B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 13 th September 2018
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE FLAUX
MRS JUSTICE CHEEMA-GRUBB DBE
and
Between
R E G I N ACrown- v -
Between
JAMES WILKINSON
Computer Aided Transcript of Epiq Europe Ltd,165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk(Official Shorthand Writers to the Court)
Miss S Sivakumaran appeared on behalf of AppellantMr R Job appeared for Crown

J U D G M E N T(Approved)

[1]On 3rd November 2017 in the Crown Court at Blackfriars, following a trial before His Honour Judge Richardson and a jury, the appellant (now aged 58) was convicted of false imprisonment and dangerous driving. On the same day he was sentenced on each count to concurrent terms of four months' imprisonment suspended for twelve months, with a 210 hour unpaid work requirement, and he was disqualified from driving for two years.[2]He now appeals, with the leave of the single judge, against the conviction on the count of false imprisonment only.[3]The facts may be summarised as follows. The appellant is a London taxi driver. On 22nd March 2017 the complainant, Helia Ebrahimi, hailed his black cab outside her workplace, ITN, on Gray's Inn Road and asked to travel to Notting Hill – a journey which normally took about 30 minutes and cost her between £18 and £24. She was talking on her mobile phone to her boyfriend. It was cold in the cab so she asked the appellant to turn on the heating. He told her that she could turn it on. She pressed the button, but the heater blew out cold air. She complained and a dispute ensued. This was about five minutes into the journey, when the cab was on Hunter Street, north of the Brunswick Square Shopping Centre.[4]The complainant's evidence was that the appellant said that she could get out of the cab if she was going to complain. She said that if he was going to drop her there she would not be paying the fare, which was then about £5. She asked to get out. He said that he would not let her out but would return her to where he had picked her up. Her evidence was also that he then said that he would take her to the police station, which she invited him to do. She tried to get out, but the door was locked. She then started to film the incident on her mobile phone. She asked to be let out of the cab some thirteen times, but he refused. He drove back to Roger Street, close to the ITN building, and stopped. She got out and took a photograph of the identification plate on the taxi door. She left the door open. The appellant then drove the cab in a manner so that the door knocked her over. That was the offence of dangerous driving, which is not the subject of an appeal.[5]The prosecution case was that the appellant had falsely imprisoned the complainant in his cab. She had asked to get out on numerous occasions but he had prevented her from doing so. When he had stopped and she had got out, he had knocked her over with the open door. The prosecution relied upon the complainant's evidence and also the video recording which she had made.[6]The appellant denied false imprisonment. In his evidence he accepted that the complainant had complained that the heater did not work. He had apologised and said that it was going to be repaired in a couple of days. She had said that she would not pay the fare, which at that point was about £6.50, and he said that he would take her back to the pick-up point. He may have said that he would take her to the police station, but they would have been too busy to deal with the matter. He drove back and stopped where it was well-lit so that she would be safe and could not make any further allegations.[7]Miss Sivakumaran, who appeared for him at trial as she does before us today, relied upon the defence of lawful excuse, under section 3 of the Criminal Law Act 1967, to the charge of false imprisonment in respect of a taxi driver taking a passenger who refused to pay the fare back to the starting point.[8]In his summing-up, the judge dealt with the elements of the charge of false imprisonment, which he told the jury the prosecution had to prove, one of which was that the appellant had prevented the complainant from leaving the taxi without lawful excuse. He then said this:
"Generally speaking, of course there is no lawful excuse for preventing a passenger from leaving a taxi when the passenger tells the driver she wishes to do so. If the passenger of a taxi says she wishes to leave the taxi, the taxi driver's duty is to stop and let her out as soon as he lawfully can. By 'as soon as he lawfully can' I mean that he does not have to stop in the middle of the road and obstruct it, or commit a traffic offence, but he is expected to stop and let the passenger off. The [appellant] says he honestly believed that Miss Ebrahimi was a thief. Even if he did, or may have done, he had no right to take Miss Ebrahimi back to the start of the journey, or to drop her at a place which he deemed would provide him with better protection against a complaint, or to drop her at a place which he deemed better lit. There are sometimes lawful excuses for preventing people from leaving a particular vehicle or place. The best known is making a lawful arrest. None of those lawful excuses apply here. The [appellant] was not making a lawful arrest."
[9]What is now said on behalf of the appellant by Miss Sivakumaran is that in his directions the judge erred and misdirected the jury in not informing them of a possible defence under section 3 of the Criminal Law Act 1967 that the appellant had used reasonable force to prevent the complainant from committing a crime. She submits that the appellant was providing a service and that when the complainant refused to pay, she was depriving him of an income from that service. He was of the view that she had stolen from him, trying to have a free ride. She submits that there may be theft or fraud if the complainant refused to pay the fare, regardless of the fact that the appellant returned her to the start of her journey. In her written submissions, Miss Sivakumaran relied on a passage in R v Aziz [1993] Crim LR 708 where, giving the judgment of this court, Beldam LJ said:
"The fact that [the taxi driver] then drove off either to the police station, or somewhere else, locking the door, does not, in the view of the court, mean that when subsequently the appellant ran off from the taxi when it stopped he could not be making off without having paid, dishonestly intending to avoid payment."
[10]Miss Sivakumaran's second ground of appeal is that the judge did not properly inform the jury of the prosecution's duty to show that the appellant had acted unlawfully and that, in consequence, he withdrew issues of fact which should properly have been left to the jury.[11]Although these submissions have been presented attractively and with ingenuity, we consider that they face a number of insuperable difficulties. First, there is the issue of what crime on the part of Miss Ebrahimi was being committed. Only three possibilities have been put forward by Miss Sivakumaran: that she was attempting to steal a free taxi ride without paying, contrary to section 11 of the Fraud Act 2006; that she was making off without payment for a service, contrary to section 3 of the Theft Act 1978; or that she was committing an offence under section 1 of the London Cab Act 1896.[12]The first of these offences, which would essentially involve fraud or deception of the appellant, would require on the facts of this case that, at the time that the complainant hailed his cab and asked him to drive her to Notting Hill, she had no intention of paying when they reached the destination. However, there was absolutely no evidence to support that suggestion, which was never put to the complainant in cross-examination. There is nothing to suggest that this was not a perfectly standard cab journey of the kind she undertook regularly, for which she intended to pay the destination fare.[13]The second offence of making off without payment on the spot for a service done, contrary to section 3 of the Theft Act 1978, would only have been committed if the appellant had driven Miss Ebrahimi to her destination in Notting Hill and then she had failed to pay. The service to be performed was the cab journey to her requested destination. That service was not performed and so there is no question of this offence having been committed at the time when the appellant indicated that, if she continued to complain, he would not drive her further. Miss Ebrahimi indicated that, in those circumstances, she would not pay the fare on the meter. There was no suggestion that she ever said that if he did drive her to Notting Hill she would not pay at all – and it would only be then that this offence would be committed. Nor is this a case where she asked him to stop the cab short of the destination, thereby changing the destination, and then refused to pay.[14]Miss Sivakumaran's reliance on the London Cab Act 1896 does not add anything. The offences enumerated essentially correspond to those under the Fraud Act 2006 and the Theft Act 1978. The fare cannot be lawfully due unless and until the driver has taken the passenger to the requested destination, or to the point where the passenger asks to be let out of the cab, thereby varying the destination. As we have said, neither of those situations arose on the facts of this case.[15]The taxi fare cases of R v Aziz and R v Morris [2013] EWCA Crim 436, [2014] 1 WLR 16, on which Miss Sivakumaran relied, are both cases where the passengers had been taken to their destination and then made off without payment, or the driver mistakenly believed that they were doing so. They are, therefore, clearly distinguishable. In particular, the passage from Aziz upon which reliance is placed, has been taken out of context. As is clear from the passage immediately before that relied upon, this Court was talking about a case where the driver had performed the service requested and had driven the passengers to their destination. They had then refused to pay. The Court said that it makes no difference if, thereafter, the driver drives elsewhere in the light of that refusal. In other words, the case is not authority for the proposition that an offence would be committed if the driver has only taken the passenger a short distance and not to the destination and the passenger then refuses to pay, as in the present case.[16]In the circumstances, we do not consider that Miss Ebrahimi committed any crime or threatened to commit any crime which the appellant could be said to have sought to prevent. It is no answer to say that he may have mistakenly thought she was committing a crime, when she was not. That would be a mistake not of fact, but of law. A mistake of law cannot found a defence under section 3(1) of the Criminal Law Act 1967: see per Lord Bingham of Cornhill in R v Jones [2006] UKHL 16, [2017] AC 137 at [24].[17]The second difficulty with this supposed defence is that, even if Miss Ebrahimi had been committing a crime, it is difficult to see how the appellant could have been said to have been preventing it by stopping her from getting out of the cab and driving her back to the starting point of the journey, where he did let her out of the cab. In her submissions to us Miss Sivakumaran argued that, on the basis of the appellant's evidence, Miss Ebrahimi had refused to pay because the heating did not work and he had then turned the cab around. She submitted that, even if the offence had been committed at that stage, it was a continuing offence right the way through until the time when he took her back to back to the pick-up point.[18]It seems to us that there are two answers to that submission. The first is that, by its verdict, the jury clearly accepted Miss Ebrahimi's version of what had occurred. Secondly, even if that were the case, and even if it could be said that on the basis of the appellant's evidence she had committed an offence at the moment where he turned the cab around and continued to commit an offence thereafter, it does not seem to us that to drive her back to the original starting point could be said to have been the prevention of the crime at all. It might have been different if the appellant had driven her to the police station, but he did not. In the circumstances, we consider that this supposed defence is entirely fanciful. There is no question of any misdirection in not leaving it to the jury.[19]Nor is there anything in the second ground of appeal. We agree with the written submissions contained in the Respondent's Notice, prepared by Mr Job on behalf of the prosecution, that it adds nothing to the first ground. The judge directed the jury repeatedly that the burden of proof was on the prosecution, including in relation to there being no lawful excuse. He also properly directed them that issues of fact were matters for them. There is no question of the judge having withdrawn issues of fact from the jury. To the extent that reliance is placed upon a defence which, as we have said, is fanciful, it is no part of a judge's duty to leave to the jury entirely speculative and fanciful defences.[20]The conviction was safe. The appeal is dismissed. ___________________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk _____________________________________

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