Brown & Ors, R. v

Secondary liability for robbery in a joint enterprise requires proof that robbery was within the scope of the participants’ shared plan. Foresight that another participant might steal is not, by itself, sufficient, although it may support an inference of shared intent.

In a complex multi-defendant trial, directions must clearly distinguish robbery from an opportunistic theft and explain the separate issue of whether robbery formed part of the agreed venture. Where oral directions are dispersed, incomplete or misleading, the cumulative effect of those errors and the absence of a written route to verdict may render robbery convictions unsafe.

The appellants were convicted, after a retrial in the Crown Court at Isleworth, of robbery, assault occasioning actual bodily harm and false imprisonment arising from a sustained group attack on the complainant. The prosecution alleged that they acted together, with two appellants directly participating in violence and the third recording events.

All advanced alibis. They challenged the complainant’s identification evidence and submitted that there was no case to answer on robbery. They also alleged deficiencies in the summing-up, particularly on robbery, joint enterprise, alibi and adverse inferences.

The central issue was whether the robbery conviction was safe where the jury had not been clearly directed on the scope of any joint enterprise to rob.

1. The appeals against the robbery convictions were allowed. The convictions on count 1 were set aside. The court refused a retrial and refused to alter the sentences on the remaining counts. The appeals otherwise failed.

2. Liability for the robbery depended on proof that each appellant participated in the underlying unlawful venture by committing, assisting or intentionally encouraging it. Mere presence was insufficient, although presence intended to provide support or reinforcement could amount to encouragement or assistance. The jury could infer from the evidence of a sustained group assault and detention that robbery, if an opportunity arose, was within the parties’ shared plan.

   That inquiry required proof of shared intent, not merely foresight that a participant might commit a further offence. The judge was therefore entitled to reject the half-time submission: on the prosecution evidence, a properly directed jury could find that robbery fell within the agreed joint enterprise. That approach was compliant with Jogee [2016] UKSC 8.

3. The summing-up nevertheless failed adequately to direct the jury. The legal definition of robbery was incomplete. The judge did not explain that force or its threat must be used at the time of, or immediately before, stealing and in order to steal. His analogy assumed a group whose common purpose was robbery, whereas the live issue was whether this group’s agreement extended beyond violence and humiliation to robbery.

   The directions on joint enterprise were dispersed and at points confusing. They did not clearly identify the evidence capable of showing encouragement or support, nor structure the questions of the agreed purpose and the possible distinction between robbery and opportunistic theft. Given the different alleged roles, joint-enterprise case and alibi defences, a written route to verdict was warranted.

4. The individual omissions concerning the complainant’s inconsistencies, alibi and adverse inferences did not separately make the convictions unsafe. In particular, the remaining convictions against Samuda were safe in the context of the evidence and directions as a whole. However, the cumulative deficiencies concerning count 1 crossed the threshold at which the robbery convictions were unsafe.

• Court of Appeal (Criminal Division). In [2017] EWCA Crim 167, the court allowed the appeals against the robbery convictions, set those convictions aside, and otherwise dismissed the appeals. It refused a retrial and refused to adjust the remaining sentences.
• Crown Court at Isleworth. Following a retrial before His Honour Judge McDowall and a jury in October 2015, the appellants were convicted of robbery, assault occasioning actual bodily harm and false imprisonment. They were sentenced on 14 January 2016.