Yohannes, R. v

A robbery conviction founded on a joint enterprise allegation of threatening with an imitation firearm is unsafe where an acquittal on the related firearm count necessarily negatives the sole alleged threat of force. An appellate court will intervene for inconsistent verdicts only where no reasonable jury, properly applying its mind to the evidence, could have reached the challenged verdict.

An alternative factual basis cannot sustain the conviction where it was neither advanced by the prosecution nor left to the jury. Where the jury necessarily accepted participation in the taking, the court may substitute theft after quashing robbery and must resentence for the substituted offence under Theft Act 1968.

The appellant was convicted at the Crown Court at Isleworth of robbery and sentenced to 12 months’ detention in a young offender institution. He was acquitted of possessing an imitation firearm with intent to commit an indictable offence.

The prosecution alleged that, during an agreed sale of a watch, an associate produced what appeared to be a revolver and the appellant and his associates left with the watch and its box. The defence denied that a weapon was produced. The robbery case was put on the basis that the apparent firearm supplied the necessary threat of force.

By leave of the single judge, the appellant appealed on the ground that the robbery conviction was inconsistent with the firearm acquittal.

1. Appeal allowed. The conviction for robbery was unsafe. It was quashed and replaced with a conviction for theft.
2. The prosecution had put robbery solely on the basis that an associate’s production of an imitation firearm was an implied threat of force for the purposes of section 8 of the Theft Act 1968. The judge had directed the jury on that basis and on joint enterprise.
3. The Crown could not uphold the conviction by relying on the alleged snatching of the watch box as a different form of force. Although R v Clouden [1987] Crim LR 56 had been cited on whether snatching could amount to robbery, the court did not decide that question. That alternative had neither been advanced at trial nor left to the jury, and the defence had had no opportunity to meet it.
4. On the basis actually left, a robbery verdict required the jury to be sure that the appellant knew that Mr X had the imitation firearm and that there was a joint plan to use it to threaten. Those findings necessarily entailed joint possession of the imitation firearm with intent to commit an indictable offence. The acquittal on that count therefore negatived the only alleged threat of force. Applying the appellate safety threshold discussed in R v Dhillon [2010] EWCA Crim 1577, no reasonable jury properly applying its mind to the facts could have returned the robbery verdict.
5. The jury must nevertheless have accepted that the appellant was party to the theft. The court accordingly substituted theft, granted leave to appeal sentence, quashed the 12-month custodial sentence, and imposed a conditional discharge for 12 months.

• Court of Appeal (Criminal Division) — in [2011] EWCA Crim 1362, allowed the appeal, quashed the robbery conviction, substituted theft, and replaced the custodial sentence with a conditional discharge.
• Crown Court at Isleworth — convicted the appellant of robbery on 7 February 2011 and sentenced him on 11 March 2011 to 12 months’ detention in a young offender institution. The jury acquitted him of possessing an imitation firearm with intent to commit an indictable offence.