Ashiq, R v

For blackmail under Theft Act 1968, a direction on the defendant’s belief that a demand and the use of menaces were proper is required only where the evidence raises a live issue about that subjective belief. Once such an issue is raised, the Crown must disprove the belief; but a defendant need not receive that direction where no evidence supports it.

A summing-up must be assessed as a whole. An isolated misstatement will not render a conviction unsafe where the jury were otherwise correctly and repeatedly directed on the burden of proof and the issue was not live. A telephone call may be evidence both of participation in a conspiracy to blackmail and of an overt act in furtherance of it.

The appellant was convicted at the Crown Court at St Albans of conspiracy to blackmail and sentenced to seven years’ imprisonment. The prosecution relied principally on a recorded telephone call made by the appellant after another caller had demanded that the complainant surrender a Lamborghini or its value. The call contained veiled threats and was said to have been made pursuant to a conspiracy to recover money lost in a failed car transaction.

With leave of the single judge, the appellant challenged his conviction on the judge’s direction concerning whether a demand with menaces was unwarranted under section 21(1) of the Theft Act 1968. He sought to renew other grounds concerning mens rea, the summing-up and the effect of his co-accused’s acquittal. He also appealed his sentence. The central issue was whether the misdirection made the conviction unsafe.

1. Appeals dismissed. The conviction was safe and the seven-year sentence was neither manifestly excessive nor wrong in principle.

2. Section 21(1) of the Theft Act 1968 requires an unwarranted demand with menaces. A defendant must first raise, by evidence, a live issue that he genuinely believed both that he had reasonable grounds for the demand and that menaces were a proper means of reinforcing it. Only then must the Crown disprove that belief. The court applied the approach in R v Harvey and Others (1981) 72 Cr App R 139.

3. The trial judge’s isolated wording could have suggested that the appellant bore the burden of proving those beliefs. That misdirection did not make the conviction unsafe. The appellant had made no positive case, in interview, his defence statement or evidence, about his subjective belief. The issue was therefore not live. Moreover, the summing-up repeatedly and correctly placed the burden of proving the live issues on the prosecution.

4. The jury received an adequate conventional direction on conspiracy. They could infer from the appellant’s recorded call, made immediately after the call by “Lex”, that he had joined an agreement to blackmail and that his call was an act in furtherance of it. The prosecution did not have to prove that the agreement specifically required him to make that telephone call.

5. The co-accused’s acquittal did not prevent the jury from being sure that the appellant had conspired with persons unknown. The evidence permitted the conclusion that the appellant’s call was made pursuant to such an agreement.

6. In sentencing, the judge was entitled to give substantial aggravating weight to the appellant’s previous convictions, together with the serious and threatening nature of the call. Although severe, the sentence was within the proper range.

• Court of Appeal (Criminal Division). The appellant’s appeals against conviction and sentence were dismissed. Leave granted by the single judge was confined to the ground concerning section 21(1) of the Theft Act 1968; the renewed grounds were rejected as unarguable.
• Crown Court at St Albans. Following a jury trial before Judge Plumstead, the appellant was convicted of conspiracy to blackmail and sentenced to seven years’ imprisonment.