Smith & Ors, R v

For theft under the Theft Act 1968, an item does not cease to be property because its possession is unlawful. Factual possession or control is sufficient for property to belong to another; no requirement of lawful possession is implied. Accordingly, taking prohibited drugs from their unlawful possessor may constitute theft and, where force is used, robbery.

In sentencing for robbery, the court must identify the guideline category that properly reflects the offence and sentence within the applicable range, notwithstanding serious aggravating features.

The defendants were convicted at Reading Crown Court of robbing Chesterfield Jordan of heroin after a planned street attack involving a knife, punches, kicks and stamping. Smith appealed against conviction. Haines and Plummer sought, out of time, leave to appeal against conviction. All three appealed their sentences of eight years’ imprisonment.

The principal conviction issue was whether heroin unlawfully possessed by the complainant could be property belonging to another for the purposes of the Theft Act 1968. Smith also challenged the safety of his conviction by reference to the complainant’s credibility, the handling of material from a co-defendant’s police interview, and alleged lurking doubt. The common sentencing issue was the proper robbery guideline category.

1. The court dismissed Smith’s appeal against conviction and refused Haines’s and Plummer’s out-of-time applications for leave to appeal against conviction. It allowed each appeal against sentence, reducing the term from eight years to seven years’ imprisonment.

2. Under sections 1, 4 and 5 of the Theft Act 1968, drugs are property. The statutory exclusions from property do not include property held unlawfully. Property belongs to a person who has factual possession or control, whether or not that possession is lawful.

3. The court applied the construction of section 5(1) recognised in R v Turner (No 2) [1971] 1 WLR 901 and accepted the later confirmation in R v Kelly [1998] 3 All ER 741. The complainant’s unlawful possession of Class A drugs therefore did not prevent their appropriation from amounting to theft. The violence used to obtain them made the offence robbery. Civil-law questions about enforcing property rights in unlawfully held drugs did not alter that criminal-law conclusion.

4. The remaining conviction grounds disclosed no basis for intervention. The complainant’s credibility, including his lies and inconsistencies, was for the jury. The trial judge was entitled to direct the jury to disregard the withdrawn transcript of Crick’s interview rather than discharge them. The court found no basis for the lurking-doubt jurisdiction identified in R v Cooper [1969] 1 QB 267.

5. On sentence, the robbery was serious: it was planned, involved three offenders, a knife and sustained violence, and caused significant injury. The victim’s drug dealing and the small value of the heroin did not mitigate the offending. Nevertheless, the offence fell within level 2 of the robbery guideline with significant aggravating features. Seven years was the top of the appropriate range.

• Court of Appeal (Criminal Division) In [2011] EWCA Crim 66, Smith’s conviction appeal was dismissed; Haines’s and Plummer’s out-of-time applications for leave to appeal against conviction were refused; and all three sentence appeals were allowed to the extent of reducing each sentence from eight to seven years.

• Reading Crown Court The defendants were convicted of robbery on 21 January 2010 and sentenced on 5 March 2010 to eight years’ imprisonment each.