Esprit & Ors, v R

The traditional no-case-to-answer test requires the judge to ask whether, taking the prosecution case at its highest, a properly directed jury could properly infer guilt. In a circumstantial case, the evidence must be assessed as a whole. Its strengths, weaknesses and innocent explanations are ordinarily matters for the jury where a reasonable jury could reject realistic possibilities consistent with innocence.

Evidence of a proved count may assist on later counts as contextual or propensity evidence, provided the jury receives clear directions and does not treat propensity as conclusive. Silence may add weight only after the prosecution has established a cogent case calling for an answer. An acquittal of a co-accused does not itself make other convictions unsafe. Sentencing must reflect full and significant participation despite uncertainty as to precise roles.

The defendants were convicted after a joint trial, described in the judgment as having taken place at Snaresbrook Crown Court, of a robbery at Corals bookmakers. Esprit was also convicted of two simultaneous robberies at Kingsway and Linx cash-and-carry premises. The prosecution case depended principally on telephone-call records, cell-site evidence and limited CCTV evidence.

They sought leave to appeal their convictions. They contended, among other matters, that there was no case to answer, that the judge wrongly directed the jury on cross-admissibility, that the verdicts were inconsistent with the acquittal of a co-accused, and that the directions on silence were defective.

The Attorney General separately referred the sentences under Criminal Justice Act 1988, contending that the sentences were unduly lenient. The common issues were the sufficiency and proper use of circumstantial evidence, and the defendants’ culpability for sentence.

1. The court refused the defendants’ applications for leave to appeal against conviction. The telephone, cell-site and CCTV evidence provided a sufficiently strong circumstantial case for the jury. Applying R v Galbraith, 73 Cr App R 124, the judge was required to leave the case to the jury because a properly directed jury could properly infer full participation in the robberies, even though the evidence did not identify each defendant’s precise role.

2. The court reaffirmed that a judge should not over-refine the no-case test. In a circumstantial case the question is whether, taking the prosecution evidence at its highest and considering it in the round, a reasonable jury could properly infer guilt after rejecting realistic innocent explanations. The strength of the competing inferences in this case was for the jury.

3. The cross-admissibility direction caused no unfairness. The jury were directed to decide count 1 first. Only after being sure of a defendant’s guilt on that count could they use it as context for the telephone evidence on counts 2 and 3, or consider whether it established relevant propensity. The differing mechanics of the robberies did not prevent the earlier conviction from having probative force, and a single conviction may establish propensity depending on all the circumstances.

4. Silcott’s acquittal did not render the other convictions unsafe. No issue estoppel or res judicata prevented the court from assessing the proper inferences from the admissible evidence. The Crown’s erroneous attribution of a telephone to Silcott was unattractive but did not undermine the evidence that its user was one of the robbers. The direction under section 35 of the Criminal Justice and Public Order Act 1994 was also correct: silence could not prove guilt alone and could be considered only after a cogent case calling for an answer had been established.

5. The court granted the Attorney General’s sentence references. The defendants’ substantial and full involvement in the Corals robbery made a 50 per cent reduction for supposedly lesser contribution erroneous. Each sentence for that robbery was increased to five years. Esprit’s concurrent five-year sentences for the Kingsway and Linx robberies were properly consecutive to that sentence, producing a total of ten years; Sorhaindo and Rasheed each received five years.

• Court of Appeal (Criminal Division): Refused leave to appeal against conviction and allowed the Attorney General’s sentence references, varying the sentences: [2014] EWCA Crim 1918.
• Crown Court: Following the joint trial described as having taken place at Snaresbrook Crown Court, the defendants were convicted on 11 April 2014. HHJ Lamb QC sentenced them on 15 May 2014. The cover sheet records an appeal from Southwark Crown Court. No lower-court citation is stated.