Raphael & Anor, R v

For section 6(1) of the Theft Act 1968, a person who takes property and will return it only if its owner pays money may be treated as intending permanently to deprive the owner of it. The condition treats the property as the taker’s own to dispose of regardless of the owner’s rights. Later abandonment does not alter that conclusion where the taking was to obtain payment for the property’s return.

Evidence of separate offences may be mutually supportive where there is independent evidence linking an accused to each event and their similarities bear on disputed participation or presence.

Raphael and Johnson appealed convictions at the Central Criminal Court before Judge Morris QC. Both had been convicted of two conspiracies to rob after two car sellers were lured to arranged meetings and attacked. Johnson was also convicted of the murder of the second seller, who was fatally stabbed during the second robbery.

The appeals challenged the sufficiency of the evidence on the first conspiracy, the use of evidence from each robbery as support for the other, directions on silence, cell-site and DNA evidence, and the non-admission of material from an absent witness. Both appellants also renewed applications for leave to appeal their sentences. The central issue was whether any alleged error rendered the convictions unsafe.

1. The appeals against conviction were dismissed and leave to appeal sentence was refused. There was no basis to conclude that any conviction was unsafe or that the sentences were excessive.
2. On the first conspiracy, the court held that the evidence was capable of establishing robbery. Under section 6(1) of the Theft Act 1968, an intention to return a stolen car only if the owner paid for its return amounted to treating it as the takers’ own to dispose of regardless of the owner’s rights. It therefore permitted a finding of the required intention permanently to deprive. The later abandonment of the car, after the plan had been frustrated, did not assist the appellants. The case was not comparable either to a temporary taking or to a conditional intention to take only property found worth keeping.
3. The judge’s direction on that issue correctly reflected the statutory test and the explanation in Lloyd [1985] 1 QB 829. There was ample evidence for the jury to consider whether the appellants had agreed to rob the first victim.
4. The evidence on the two robberies was properly treated as mutually supportive. Each victim had been lured to a purported car sale, and there was independent evidence linking Raphael and Johnson to the respective offences. The similarities, coupled with the differing issues raised by each defence, made the evidence relevant to participation and presence rather than merely propensity.
5. The directions concerning the defendants’ decisions not to give evidence were sufficient. The cell-site challenge disclosed no realistic disadvantage capable of affecting the verdicts. The judge’s approach to the absent witness’s statement caused no prejudice to Johnson, particularly because introducing selected hearsay would have required admission of the statement as a whole and would have affected the co-defendant’s defence. No failure to comply with safeguards for the Low Copy Number DNA evidence was shown.
6. The planned robberies were serious. The sentencing judge was entitled to regard Raphael as an organiser who had recruited others and to take account of Johnson’s use of a crowbar during the fatal robbery. There was no proper basis to interfere with either sentence.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and refused renewed applications for leave to appeal sentence: [2008] EWCA Crim 1014.
• Central Criminal Court: on 30 October 2006, Judge Morris QC and a jury convicted both appellants of two conspiracies to rob and convicted Johnson of murder. The judge imposed custodial sentences, including life imprisonment for Johnson’s murder conviction.