Ahmed & Ors, R. v

An adverse-inference direction under section 34 of the Criminal Justice and Public Order Act 1994 may properly address facts first relied on at trial where the defendant had a fair opportunity to explain the earlier silence. The direction must allow for the defendant’s age, legal advice and any other good reason for not mentioning the facts.

For robbery sentencing, whether harm is serious under the adult guideline requires an objective assessment of its severity. Unpleasant injuries, transient loss of consciousness and limited psychological symptoms do not necessarily establish serious harm. When sentencing children, custody remains a last resort. The court must consider non-custodial options first and may use the adult guideline only after deciding that custody is necessary.

Seven young men were charged with a group robbery in which the victim was surrounded, assaulted and deprived of property. Four appellants challenged sentence, and R also appealed his conviction. R had given a no-comment interview but at trial said that he had carried plastic tubing for defence and had approached the group because he believed they were confronting a paedophile.

Following a jury trial at Isleworth Crown Court before Judge Ferris, R, Ahmed, Bahdon and G were convicted of robbery. R was acquitted of possessing an offensive weapon. The central issues were the safety of R’s conviction, the proper categorisation of harm under the robbery guideline, the application of the youth sentencing guideline, and credit for time spent on remand or subject to curfew.

1. R’s conviction appeal was dismissed. The judge’s section 34 direction was appropriate. R’s late account of the plastic tubing and his reason for remaining with the group were facts on which he relied at trial. The jury were properly directed to consider whether, given his age, the no-comment legal advice and the circumstances of interview, there was a good reason for his silence. R had an adequate opportunity in evidence to explain that silence, and any absence of further specific questioning did not create a material defect.

2. The court rejected the complaint that R’s cross-examination had denied him effective participation. The Advocate’s Gateway Toolkit was sensibly available, but no Ground Rules Hearing, intermediary assessment or other adjustment had been sought or was required. The transcript showed that R understood and answered the short questions put to him. The judge’s occasional intemperate interventions did not materially prejudice the defence or render the conviction unsafe.

3. The guilty verdict for robbery was not inconsistent with R’s acquittal of the offensive-weapon count. The jury could conclude that he held plastic rather than a metal pole, yet intended to use what he held to threaten or encourage violence in support of the robbery.

4. The sentence appeals were allowed. The judge was wrong to classify the robbery as category 1A. Although culpability was high, the victim’s injuries and psychological effects did not amount to serious harm for the adult robbery guideline. The correct category was 2A, with a five-year starting point.

5. The court confirmed that the youth guideline required individualised sentencing, consideration of welfare and rehabilitation, and custody only after non-custodial options had been considered. Custody was nevertheless justified for R and G. The substituted sentences were: Ahmed, six years’ detention; Bahdon, five and a half years’ detention; R, two years, 11 months and 12 days’ detention; and G, two and a half years’ detention. The disparity with Hagi’s suspended sentence did not independently justify further reduction.

6. Applying R v A [2019] EWCA Crim 106 and R v D and H [2016] EWCA Crim 1807, the court gave R an 18-day deduction for remand in local-authority accommodation subject to monitored curfew, and directed the applicable automatic credits for other remand and qualifying-curfew periods.

• Court of Appeal (Criminal Division): R’s appeal against conviction was dismissed. The appeals of R, Ahmed, Bahdon and G against sentence were allowed, with substituted sentences.
• Crown Court at Isleworth: Following a jury trial before Judge Ferris, the appellants were convicted of robbery and received custodial sentences.