Abbas & Anor, R. v

For conviction of possession of an imitation firearm in a joint-enterprise robbery, the prosecution must prove both participation in the robbery and knowledge that an imitation firearm was being carried. Where knowledge and joint possession depend on inference, the judge must identify the primary facts from which the jury may draw that inference.

Evidence of a significant preparatory role and travel to the robbery vicinity, without more, may not provide a firm basis for inferring knowledge of the imitation firearm. A disparity challenge to sentence requires a meaningful comparison that accounts for each offender’s role, convictions and the operation of totality.

At the Crown Court at Inner London, Abbas was convicted of two robberies and possession of an imitation firearm during one robbery. Asafu-Adjaye was convicted of that robbery alone. Abbas received 11 years’ imprisonment and Asafu-Adjaye received four and a half years.

Abbas appealed his firearm conviction. Although the jury had ultimately been directed that a joint-enterprise participant must know that an imitation firearm was being used, the court raised whether the evidence supported that inference and whether the summing-up adequately identified it. Abbas also sought leave, out of time, to appeal sentence. Asafu-Adjaye renewed his application for leave to appeal sentence, alleging an excessive starting point and unjustified disparity.

1. Abbas’s conviction appeal succeeded. The jury’s later direction correctly required proof that Abbas was party to the robbery joint enterprise and knew that an imitation firearm was being carried. That direction cured the earlier omission to refer to knowledge.

2. However, the conviction for possession of the imitation firearm was unsafe. Where knowledge and joint possession rest on inference, the trial judge must identify the primary evidence which, if accepted, could permit the jury to infer knowledge and possession. The prosecution could identify only evidence linking Abbas to the car and cell-site evidence placing him near the robbery. Those matters supported a significant preparatory role, but did not provide a clear and firm basis for inferring knowledge that an imitation firearm was being carried. The summing-up did not identify any adequate evidential basis for that inference.

3. Abbas’s sentence appeal succeeded in part. The court granted the necessary extension of time and leave to appeal. Although no separate penalty had been imposed for the firearm offence, it had aggravated the robbery sentence. Serious violence or its threat remained a feature of the robbery. A one-year reduction on count 1 was appropriate, reducing Abbas’s total sentence from 11 years to 10 years.

4. Asafu-Adjaye’s application was dismissed. His four-and-a-half-year sentence was not manifestly excessive. A meaningful disparity comparison with Abbas was not possible because Abbas had played a leading role and was sentenced for a second robbery. Nor did the sentence imposed on Okeny establish objectionable disparity, given the uncertainty and differing assessment of their respective roles.

• Court of Appeal (Criminal Division). In [2012] EWCA Crim 2517, Abbas’s conviction for possession of an imitation firearm was held unsafe. His sentence appeal was allowed only to reduce the total sentence to 10 years. Asafu-Adjaye’s renewed application for leave to appeal sentence was dismissed.
• Crown Court at Inner London. On 16 December 2011, Abbas was convicted of two robberies and possession of an imitation firearm, and sentenced to 11 years’ imprisonment. Asafu-Adjaye was convicted of one robbery and sentenced to four and a half years’ imprisonment.