Eletu & Anor, R. v [2018] EWCA Crim 599

[2018] EWCA Crim 599Case No 201700942 B4/201701087/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 7 March 2018
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TREACY
MRS JUSTICE YIP DBE
THE RECORDER OF GREENWICH - HIS HONOUR JUDGE KINCH QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
SHOLA ELETUJEROME MARLOW WHITE
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
Mr P Marshall appeared for AppellantsMr D Robinson appeared for Crown
J U D G M E N T (Approved)
[1]This is an appeal against conviction brought by leave of the single judge. These two appellants were convicted of aggravated burglary on 9 February 2017 at Inner London Crown Court. They were sentenced to 11 years' imprisonment. The charge on the indictment alleged that they, together with others, on 2 September 2016, having entered a building as trespassers, attempted to steal therein cash and cigarettes and at the time of committing that burglary had with them weapons of offence, namely knives and a crowbar. The appellants admitted the lesser offence of simple burglary but this plea was not accepted by the Crown.[2]The facts show that late on the evening of 2 September 2016 staff were re-stocking shelves at the Co-op store in Lordship Lane, London SE22. A group of males gained entry to the upstairs rear stock area via the roof and a hole in the wall. There was CCTV footage covering some of what happened thereafter. Three members of staff were confronted by the gang and ushered to the chiller room. They were ordered to hand over the contents of their pockets, including mobile phones. The intruders were described as black, wearing dark clothing and hooded tops. Some or all of them were carrying items described as a knife or knives, also apparently referred to at the trial as some type of hacksaw; a crowbar and possibly also a hammer.[3]Police arrived at the scene following an anonymous call. They saw five suspects, who then fled. White was detained and a balaclava and a pair of gloves were found in his possession. Eletu was found hiding in a small space between a wall and a toilet cubicle inside the building. Upon arrest he said, "I have no weapons". Later he made no comment in interview beyond saying, "Wrong place, wrong time and wrong people". White also made no comment in interview.[4]The Crown's case was that White and Eletu and a man called Lucas who was acquitted were jointly involved with others in entering the store and attempting to steal. Neither White nor Eletu had been seen on the CCTV footage carrying any weapon. However, at least two of the gang were carrying weapons and the group had acted as a team with one man guarding the staff whilst others searched the premises.[5]White gave evidence. His case was that he had been with Eletu, on the way to buy some drugs. His drug dealer had spoken to him on the phone and said he had an "inside job". He wanted to know if White would assist in moving alcohol and cigarettes. He, White, had discussed it with Eletu and the pair had agreed to take part. They went to the rear of the Co-op and saw that others had already entered. White said he had not seen anyone with anything in their hands when they entered the premises and that had he been given no instructions or directions. He accepted that a knife and a crowbar were being carried because he had seen them on CCTV but he had not known this before he entered. In cross-examination, he accepted that at some point while he was on the premises he had seen the crowbar but at that stage it was not being used as a weapon nor was it being brandished.[6]Eletu did not give evidence. His defence statement accepted that he had followed others into the premises in order to steal. He said he was not carrying a knife or any other weapon nor was he aware prior to or during the burglary that any other person was caring a knife or a weapon. His case was conducted consistently with that which was set out in his defence statement.[7]The members of staff all gave evidence and they gave differing descriptions of the number and types of weapon involved. One of them was hit on the head with something which caused bruising and swelling. In cross-examination, he said that no-one had used a crowbar or knife as a weapon, and the CCTV had shown the crowbar being used in an attempt to open a cash till.[8]The central issue in the case was whether these appellants at the time of committing the burglary were part of a joint enterprise involving weapons of offence. Accordingly, the judge's directions as to what were weapons of offence were important.[9]The grounds of appeal on behalf of both appellants submit in essence that the directions given by the judge on the issue of weapons of offence were unclear and confusing. The initial direction was wrong in law. After the matter had been raised by counsel, the judge gave a further direction which lacked clarity and added an unnecessary element by referring to "articles made or adapted for use". It also appeared to make a distinction between the necessary intention depending upon whether a person had an article in his possession or whether it was in the possession of another. The direction also failed to include a direction that having an article with an intention only to frighten a person at the premises was insufficient to found a conviction; see R v Kelly [1993] 97 Cr App R 245.[10]In addition, a further direction after a question from the jury was asserted to have confused the approach still further. It did not identify properly for the jury the intent that was required to be shown on the part of these appellants. This was a case which had required clear directions, particularly in the light of the jury's question and the jury had not received the necessary assistance. Accordingly, it was argued that these convictions were unsafe.

The judge initially directed the jury on the issue of weapons in the following way:

"You are concerned with whether it was aggravated. A burglary is aggravated if when committing it a person has with him any firearm, any imitation firearm or any weapon of offence. So at the time of committing the said burglary it is alleged here that the defendants had with them weapons of offence, namely knives and a crow bar. This is what you have to be sure of that they had with them: one or more weapons."
[12]He then continued:
"Now both of these defendants admit that they entered The Co-op as trespassers but both deny having any weapon of offence or knowing that any other person involved in the burglary had a weapon of offence although Mr White did admit to seeing later on the crow bar, but he said he did not consider a crow bar to be a weapon but a tool. Before you could convict either of these defendants of this offence of aggravated burglary the prosecution must have proved in relation to each separate defendant, because you consider them separately, whose case you are considering, must prove so that you are sure of it that he took part in the burglary and either had a weapon of offence with him or knew that one of the others had a weapon of offence with him and intended that that other person should have a weapon of offence with him. He does not have to intend that it should be used. All he has to intend is knowing that the other has it and intending for the other to have it, even if it is not used."
[13]It is accepted that the judge's initial direction was flawed. The direction should have explained what was meant by "weapon of offence". It did not do so. Consistent with section 10(1)(b) of the Theft Act 1968, the direction should have contained a reference to the weapons being intended for use in causing injury to or incapacitation of another person.[14]Section 10(1)(b) provides:
"'weapon of offence' means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use."
[15]In this case, where the items described included, according to descriptions, a hammer, a crowbar and one or two knives or other bladed articles: none of them came within the category of items made or adapted for causing injury or incapacitation. The real issue was whether these articles were intended for such use by these appellants, even if that was only on a conditional basis (ie if necessary).[16]At the end of the summing-up, counsel drew the matter to the judge's attention and the judge agreed to deal with it having observed that prior to summing-up he had sought the assistance of counsel. The judge then called the jury back and gave them the following further direction:
"Members of the jury, I just want to make it clear to you what a weapon of offence is. The law says a weapon of offence means any article made or adapted for use for causing injury to or incapacitating a person or intended by the person having it with him for such use. So certain things like a hammer or a crow bar, as opposed to a knife are not necessarily made for use for causing injury. So you have to be sure that not only, so with any item that you are sure somebody had with them, as of course I have said it does not have to be a defendant, providing a defendant knew that somebody else had with them something that was made or adapted for use for causing injury or incapacitating a person, and that the person who had it intended that it should be used in that way. So there has to be an intention not only to have it but if necessary to use it. Let me just tell you this further matter. In the case of articles made or adapted for use for causing injury or incapacitating a person the prosecution need prove no more than the article was so made or adapted. In the case of another article, so that is something like a crow bar, the prosecution must prove that the person had it with him intending to use it or he did not have it with him he must know that the other person intended to use it for the purpose of causing injury or incapacitating a person. It would be wholly I relevant that the defendant hopes or the other person hopes he will not have to use the article at all. If he intends to use it for either of the stated purports, that is to injure or incapacitate if the need arises that is sufficient. So you have to be satisfied so you are sure that the person who had it intended if necessary to use it and that the defendant, if he did not have a weapon, had the same intention that the person who did have it intended to use it if necessary."
[17]Very shortly afterwards,

the judge received a note from the jury in the following terms:

"Regarding the aggravated burglary, at what point do the defendants need to have found out about the weapons and the intent of use, to be guilty? ie if they entered without knowledge of the weapons then would that satisfy the aggravated case if later they found out about them."

The judge dealt with the jury's question as follows:

"The answer is they do not have to know at the beginning when they enter about the weapons to be guilty, but they have to have a continuing intention. If when they become aware of the weapons and the others, the intention of the person in possession, they continue to intend that the others sure have that intention, while the attempted theft is carried out then they would be guilty. The best way of thinking about it, members of the jury, is a continuing intention once they found out. If you are sure of that then it would be guilty. If you are unsure of that they would be not guilty."
[19]The jury's question was a pertinent one. In R v Kelly, the court held that the relevant time for consideration of an appellant's intent to use the weapon for causing injury was at the time he actually stole the goods as opposed to the time at which he had entered the premises. This arose from the fact that the way in which aggravated burglary was charged related to a burglary committed under section 9(1)(b) rather than under section 9(1)(a) of the Theft Act. In the present case, therefore, the intention of these appellants in relation to the items alleged to be weapons of offence had to be determined by reference to the point in time at which the attempt to steal was made.[20]On behalf of the Crown, Mr Robinson accepted that the initial direction to the jury was flawed. However, he submitted that the subsequent directions were correct and that they were made in a form which was sufficiently clear to show that the jury had understood the position, in particular he placed emphasis upon the question which the jury had asked.[21]We have been asked to listen to the passage containing the initial correction which the judge made, as part of the appellant's submissions asserted the way in which that passage was delivered tended to obscure its meaning. Having listened to the recording, it seems to us that the direction was delivered at a moderate and audible pace, although it speeded up a little at the passage beginning with the words "So certain things".[22]It seems to us that the essential question arising from the directions overall is whether they were delivered to the jury in a manner which provided sufficient clarity(a) as to define as what is meant by "weapon of offence" in the context of this case and(b) the time at which the necessary intention for use to cause injury or incapacitation must be had.[23]We cannot avoid making the comment that had the judge set these matters out in a route to verdict, we doubt whether any of the present difficulties would have arisen. It would have brought a degree of focus and clarity and would have enabled the jury to see set out in a clear form the issues which they had to decide. Sadly, that did not occur in this case and that failure lies at the root of the situation confronting this court.[24]Looking at the judge's initial directions, which in any event were acknowledged by the Crown to be inadequate, the judge appears to have equated knives and a crowbar with weapons of offence. That failed to draw the necessary distinction between an article made or adapted for use in causing injury or incapacitation, which is a weapon of offence per se, and an article intended for such use, which is not automatically a weapon of offence.[25]When the judge sought to clarify the position, he unhelpfully introduced into the definition of a weapon of offence articles made or adapted for causing injury or incapacitation in circumstances where none of the items fell into that category. He did point out that a hammer or a crowbar did not fall into that category but contrasted that with the position of a knife. In doing so, he fell into an error which was never corrected. That distinction was a false one since knives do not necessarily fall into the category of having been made or adapted for use in causing injury.[26]The passage that then followed that unfortunate contrast, beginning with the words "So you have to be sure" was an attempt to elucidate, which in our view failed both in terms of syntax and what was said to clarify the position. This passage was delivered at a slightly greater speed than other parts of the direction, thus in our view contributing further to a loss of clarity.[27]That passage was immediately followed by further reference to articles made or adapted for use in causing injury, which was irrelevant and which had been introduced when the judge should have been focusing on articles intended for use in causing injury or incapacitation. The judge went on to refer to an article described as "something like a crowbar" when he should have said that it was of general application. In doing so, he missed out from the passage the crucial word "if", thus obscuring the distinction between the person who had such an article and the person who did not have it but who was required to share the intention of the person who did have the article for the purpose of causing injury.[28]It is true that at the end of the correcting passage the judge states clearly enough that a defendant who did not have a weapon must be shown to have had the same intention as the person who did have one, namely to use it to injure or incapacitate if necessary. However, whilst it is possible for the trained legal mind to see what the judge was getting at, the matter has to be approached from the viewpoint of the jury, who require the matter to be explained to them with a degree of clarity and precision. In our view, there was a failure to do that in this case.[29]We next turn to the judge's response to the jury's question. Again we have to say that although it is possible to see what the judge intended to say, he failed to express it with any great clarity. In a short passage there are two references to "continuing intention", which are unhelpful. Following the first such reference there is sentence which reads in a confusing manner, even with the deletion of the word "sure", which is very hard to understand in that context. Despite the opportunities for the judge to correct his initial mistake, we regret to say that he failed to take advantage of them and that what resulted was a confused and unsatisfactory direction on a central point in this case.[30]In the course of argument today, Mr Robinson at times had to resort to the device of inviting the court to ignore certain words or to bracket them, or in one instance to insert a word in order to begin to make sense of the passages which were drawn to his attention. Bearing in mind that this summing-up was delivered to the jury orally without the benefit of any written route to verdict, we regard it as wholly unsatisfactory that they should have been presented with material in this form. The forensic efforts of Mr Robinson, deriving as they do from his informed standpoint, cannot be a substitute for the position of the uninformed juror.[31]Our conclusion is that the failure to give clear directions on what was not a difficult point is, most unfortunately, a failure which renders these verdicts unsafe. In those circumstances, these appeals must be allowed and the convictions quashed.[32]For the sake of completeness, we record that we were not impressed by the argument that the judge should have directed the jury that an intention only to frighten would be insufficient. No counsel at the trial had urged upon the judge that such a direction was necessary and no evidence or submission to the jury had been made that the intention with respect to any weapon was confined to an intention to frighten. In R v Kelly, there was evidence from the victims in that case that to frighten was the apparent intention of the burglar. Such an intention was not a live issue at the present trial and had the judge's directions been clear as to the requisite intention of causing injury or incapacitation, a separate direction along the lines referred to in R v Kelly would not have been necessary.[33]We record that in the case of Eletu there were additional grounds before the court of his own devising. Some of those had been before the single judge and he had rejected them as unarguable, others were new grounds put forward more recently. In very board terms, those grounds represented complaints about the conduct of the police, Eletu's legal team and matters of disclosure amongst other items.[34]We share the view of the single judge that the matters originally raised by Eletu were unarguable. As to the later raised matters, we take a similar view. Had it been necessary, we would have refused leave to appeal on each and every one of Eletu's own grounds. (A short pause)

LORD JUSTICE TREACY: We will make the following directions. The appeal is allowed in each case. The convictions in each case are quashed. We order a retrial to take place on the count of aggravated burglary. The indictment probably should also contain, should it not, the alternative of burglary? Pleas were tendered but not accepted by the Crown. So we will say there will be a retrial on both the aggravated burglary with the indictment to contain the alternative offence of burglary. We direct that a fresh indictment be served and that there be re-arraignment on that fresh indictment within 2 months. We direct that the case be tried on the South-eastern circuit at a venue to be determined by a presiding judge of that circuit. It will in the circumstances be desirable that the case is tried by a different judge from the judge who conducted the original trial. In the particular circumstances of this case we do not consider it necessary to make any order under section 4(2) of the Contempt of Court Act 1981.

[36]I would be minded to direct that any bail application be made to the Crown Court, by which time you would be a position, if you wish to make an application, to put forward some form of package for consideration. In so saying, I give no indication whatsoever as to whether it would or would not be appropriate in a case of this gravity to grant bail.[37]I am just unclear for the moment as to whether the pleas to burglary survive the rejection by the Crown and the trial on aggravated burglary. There is no doubt some learning on that but in order to be safe I will order that it is a two-count indictment with aggravated burglary and burglary on it. If further research on your part shows that the original pleas stand, then you probably will not need that second count but you would want to be sure everybody accepts that position before getting to that state. WordWave International Ltd trading as DTI 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

Cited in 1 later judgment