Practice and Procedure


PUBLISHED September 5, 2003

Appeals by young offenders against conviction and sentence for murder and conspiracy to rob. The second appellant's conviction for murder was unsafe and was therefore quashed.Appeals against conviction and sentence for murder and conspiracy to rob. In August 1999 the victim ('V') was stabbed with a kitchen knife by S during an attempted robbery and died. All four appellants ('P', 'D', 'H', and 'S') were aged 15 or 16 years at the time of the offence. All four were convicted of conspiracy to rob and D, H and S were also found guilty of murder. D, H and S were sentenced to be detained during Her Majesty's pleasure pursuant to s.53(1) Children and Young Persons Act 1933. On the conspiracy to rob, all four appellants received sentences of detention for seven years and six months under s.53(3) of the 1933 Act. Leave was granted to all appellants to appeal against sentence. The prosecution case against H, P and D on the count of murder was that, with S, they planned to rob V and knew or realised that a knife might be used with intent to kill or to cause really serious injury during the course of the robbery. D appealed his convictions of murder and conspiracy to rob. The first ground of D's appeal was that there was no sufficient evidence that he knew the other appellants had a knife or knives. The Crown submitted that the jury could infer such knowledge based on the fact that the appellants were good friends, had been together for several hours prior to the attack and that the size of the two knives held by members of the group could not easily be concealed. D denied seeing the knife used for the stabbing in the vicinity of crime scene. In sentencing the judge stated he was satisfied that all four appellants knew that there were two knives. D's second ground of appeal against his conviction for murder was that the judge had failed to include a direction to the jury, under s.34 Criminal Justice and Public Order Act 1994, that before drawing an inference against D for his failure to mention a matter in interview, it must be sure that the prosecution's case was so strong that it clearly called for an answer. It had been an important part of the prosecution case that D had failed to mention in interview that the reason he hung back from the group was that he did not want to go to Macdonalds, where he thought they were headed. The prosecution said this was a lie and he lagged because he did not want to be involved in the robbery.HELD: (1) In relation to D's first ground of appeal, the facts relied on by the Crown were not matters from which an inference of knowledge on D's part could safely be drawn to the criminal standard of proof. As to concealment, all the appellants were wearing coats and had spent most of their time in public where they would have kept the knives concealed. It would have been strange if D had not seen the knife used in the attack, but it was produced very briefly and that was not a sufficient basis to found a conviction of murder. (2) D's second ground of appeal was made out. In circumstances where there was no evidence, or the evidence was weak, it was the more important that the limited function of an omission to state something in interview was spelt out to the jury. The evidence did not entitle the jury to infer that D knew the group was in possession of a knife or knives. The evidence was equally consistent with D knowing that there was to be an unarmed robbery. (3) On these two grounds, D's conviction for murder was unsafe and should be set aside. (4) D's appeal against his conviction of conspiracy to rob was dismissed. There was evidence on which the jury was entitled to conclude that there was a conspiracy to rob and that D was party to it. The conviction was not made unsafe by any omission in the judge's direction to the jury in relation to s.34 of the 1994 Act. (5) With regard to D's appeal against sentence, the appropriate sentence was detention for four and a half years. (6) Regarding the appeals of S, H and P against sentence for conspiracy to rob, the appropriate sentences were detention for six years. (7) S and H's appeals against their sentences of detention at Her Majesty's pleasure were dismissed. Such sentences could not amount to violations of Art.3 and Art.5 of the European Convention on Human Rights (R v Pyrah : R v Lichniak (2002) UKHL 47).Judgment accordingly.

[2003] EWCA Crim 2428