Wells & Anor, R. v

Where conspiracy to rob and conspiracy to steal are in issue, the jury must be directed that a defendant is guilty of conspiracy to rob only if the prosecution makes them sure that the defendant agreed that force or the threat of immediate force would be used, if necessary, to effect the theft.

The addition of a conspiracy-to-steal count does not itself make a robbery conviction unsafe. The directions must clearly distinguish the prosecution case of a single robbery agreement from a defence case that a later and separate agreement introduced force.

In sentencing a planned conspiracy to rob, sustained preparation, a group operation and a leading role may justify a substantial sentence despite the intervention of police before the robbery. Differences in culpability and guilty-plea credit may properly explain disparities between co-defendants.

Wells and Ozer were convicted at the Crown Court at St Albans of conspiracy to rob. The intended victim was a business owner believed to be taking weekly cash receipts home. Police arrested two conspirators as they lay in wait, while Ozer was involved in the operation elsewhere and Wells had participated in the preceding surveillance and preparation.

A count of conspiracy to steal was added shortly before trial after Ozer and another defendant contended that they had agreed only to steal unattended money, and that two others had separately agreed to use force. Wells appealed his conviction, contending that the directions allowed the jury to convert a theft conspiracy into a robbery conspiracy. Ozer appealed his sentence of six and a half years’ imprisonment as excessive and disparate.

1. Both appeals were dismissed. Wells’s conviction was safe. The prosecution’s case was consistently that there was one agreement, namely an agreement to rob. The defence case, available also to Wells, was that any agreement involving force was a separate agreement to which the defendants were not parties.

2. The directions correctly required the jury first to consider whether there was a plan to steal cash and whether the individual defendant was party to it. To convict of conspiracy to rob, they then had to be sure that the defendant intended and agreed that force or the threat of immediate force would be used, if necessary, to obtain the cash.

3. Barnard [1980] 70 Cr App R 28 concerned a materially different situation. In that case, evidence of acts under a robbery agreement risked confusing the jury about a separate theft agreement. Here, no evidence had been admitted to blur the prosecution’s case of a single agreement. The judge had clearly explained the defence contention that two others might privately have extended the original plan by agreeing to use force. There was therefore no risk that the jury would wrongly attribute that extension to Wells.

4. Ozer’s sentence was not manifestly excessive. The trial judge was entitled to find that he was the prime mover in a carefully planned, multi-person operation. Although the judge did not refer expressly to the guidelines, the offence could properly be treated as a level 2 robbery. The sentencing approach in Attorney General’s Reference No 147 of 2006 [2007] EWCA Crim 961 confirmed that a sentence of six and a half years after trial was within scale for a ringleader.

5. There was no unjustified disparity. The co-defendants who received lower sentences had pleaded guilty, or had materially less involvement in the planned robbery.

• Court of Appeal (Criminal Division): Wells’s appeal against conviction and Ozer’s appeal against sentence were dismissed in [2010] EWCA Crim 1564.
• Crown Court at St Albans: Wells and Ozer were convicted of conspiracy to rob. Wells received 30 months’ detention in a young offenders institution and Ozer received 78 months’ imprisonment.