CO/7878/2011 
Neutral Citation Number: [2012] EWHC 1657 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 25 May 2012
 
B e f o r e: 

MR JUSTICE MITTING 
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Between: 
RP
GP
RW 
Appellants

v 

DIRECTOR OF PUBLIC PROSECUTIONS 
Respondents 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Ms R Zeutler‑Munro (instructed by Powell, Spencer & Partners) appeared on behalf of the Appellants
Mr L Chinweze (instructed by CPS) appeared on behalf of the Respondents
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J U D G M E N T
1.	MR JUSTICE MITTING:  This appeal raises a narrow and far from straightforward question.  On 31 January 2011, Highbury Corner Magistrates' Court found all three appellants, then juveniles, guilty of robbery, and two of them, who I shall call RP and GP, guilty of racially aggravated assault.  The second convictions arose from an incident which took place after that which was charged as robbery and has no bearing upon it.  All three appellants appealed by case stated against their conviction for robbery only.  It is accepted that if I allow this appeal that I should substitute convictions for theft and leave the sentence imposed by the magistrates, which has been served, undisturbed.  
2.	The relevant facts as found by the Magistrates' Court are clearly set out in the stated case: 
"(i)  On 11 August 2010 RP snatched a cigarette from Mayura Gill's hand.
(ii) The snatch amounted to the use of force by RP and force was used in order to steal the cigarette... 
(iv)  There was a prearranged plan by all three appellants to rob Mrs Gill."
3.	In their summary of the evidence, the court, which plainly accepted the evidence of Mrs Gill as truthful and accurate, set out a little more of what she had said.  She said that she had become aware of the three appellants, who walked past her and her husband and another man.  They asked Mrs Gill for a cigarette, to which she replied she did not have a spare one.  She explained that when asked for a cigarette she genuinely thought that the young woman asking was asking for a cigarette and at that time no violence was used or threatened.  It seems that immediately after she said that she did not have a spare one, one of the appellants, RP, snatched the cigarette that she had in her hand.  It was obviously lit because the cigarette was then passed around and smoked by the appellants.  She described asking for the cigarette back, stated that one of the appellants had shoved her and the others were talking about her to her face in insulting terms.  
4.	The prosecution put its case on the basis that the snatch of the cigarette alone amounted to the use of force on Mrs Gill and did so whether or not there was any direct contact between the hand of RP and the hand of Mrs Gill.  The prosecution did not suggest that this was a continuing incident so that the shoving which Mrs Gill described immediately after the cigarette had been taken from her and the three appellants standing around insulting her themselves amounted to the use or threat of force upon her.  The case raised, therefore, a single and very narrow issue: does the snatching of a cigarette from between the fingers of a person smoking it, without physical contact between the snatcher and the person smoking it, amount to robbery, provided, of course, that the elements of theft are present?  Later on in the case the court stated that:
"The complainant's use of the word 'snatch' suggested that force was used."
The simple question posed by the case is: 
"Were we correct to refuse a submission of no case to answer in respect of the allegation of robbery, on the basis that the act of snatching the cigarette from the complainant's hand, in the circumstances described, was sufficient to constitute 'force' for the purposes of Section 8 of the Theft Act 1968?"
5.	Under the law as it existed before the enactment of the Theft Act, the answer would unquestionably have been no.  What the old law required was that greater force than was merely required to take an object was required to be applied before the offence became an offence of robbery.  Section 8 of the Theft Act provides:
"(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force." 
6.	As a matter of language, it is important to note that the statute requires the use of "force on any person" or putting "any person in fear of being then and there subjected to force".  Although the old distinctions under the Larceny Act have gone, there remains a basic requirement for the commission of the offence that force is used on a person.
7.	Ms Zeutler‑Munro, for the appellants, accepts that the snatching of a handbag from a woman holding it on her shoulder or in her hand will ordinarily amount to robbery because by the very act of pulling on the handbag force will inevitably be applied to the person of the woman from whom the handbag is snatched.  Her concession is a proper and inevitable one in the light of the case law as it has developed since the enactment of the Theft Act.
8.	The starting point is Dawson & James [1977] 64 Cr App R 170.  The facts were that at Liverpool Pier Head a sailor on shore leave waiting for the ferry was surrounded by two men, one standing on either side of him, who nudged him on the shoulder, causing him to lose his balance.  While trying to keep his balance, a third man got his hand into the sailor's pocket and took his wallet.  It was contended before the trial court that that did not amount to the offence of robbery.  The judge left the offence to the jury, who convicted him.  In giving the judgment of the court, Lawson LJ said the following: 
"The choice of the word 'force' is not without interest because under the Larceny Act 1916 the word 'violence' had been used, but Parliament deliberately on the advice of the Criminal Law Revision Committee changed that word 'force'.  Whether there is any difference between 'violence' or 'force' is not relevant for the purposes of this case; but the word is 'force'.  It is a word in ordinary use. It is a word which juries understand. The learned judge left it to the jury to say whether jostling a man in the way which the victim described to such an extent that he had difficulty in keeping his balance could be said to be the use of force. The learned judge, because of the argument put forward by Mr Locke, went out of his way to explain to the jury that force in these sort of circumstances must be substantial to justify a verdict.
Whether it was right for him to put that adjective before the word ‘force’ when Parliament had not done so we will not discuss for the purposes of this case. It was a matter for the jury. They were there to use their common sense and knowledge of the world. We cannot say that their decision as to whether force was used was wrong. They were entitled to the view that force was used."
The force there used, although not substantial on one view, was nonetheless direct force applied to the person of the sailor.  
9.	The next case in point is R v Clouden, only reported, as far as I know, in the Criminal Law Review for 1987 page 56.  The appellant approached a woman who was carrying a shopping basket in her left hand from behind and wrenched it down and out of her grasp with both hands and ran off with it.  He was convicted of robbery.  In dismissing his appeal, the court observed that:
"The old cases distinguished between force on the actual person and force on the property which in fact causes force on the person but, following Dawson and James, the court should direct attention to the words of the statute without referring to the old authorities.  The old distinctions have gone.  Whether the defendant used force on any person in order to steal is an issue that should be left to the jury.  The judge's direction to the jury was adequate.  He told the jury quite clearly at the outset what the statutory definition was, though thereafter he merely used the word 'force' and did not use the expression 'on the person'."
10.	It seems to me from that brief report of the decision that the court in Clouden had in mind the need for the prosecution to prove the use of "force on any person" and not merely "force" but concluded that despite the lack of repeated reference to "force on any person" in the summing‑up, it was nonetheless adequate because the judge had drawn attention to the statutory definition at some part of his summing‑up.  That decision attracted an interesting commentary from Professor Smith, the author of the Theft Act:
"Robbery at common law and under the Larceny Acts was governed by the principle stated by Garrow B in Gnosil [1824] 1 C&P 304: 'The mere act of taking being forcible will not make this offence highway robbery; to constitute the crime of highway robbery the force used must be either before or at the time of taking and must be of such a nature to show it was intended to overpower the party robbed and prevent his resisting, and not merely to get possession of the property stolen...' According to this statement, it would appear there was no evidence in the present case of robbery, as it was before the Theft Act 1968 came into effect. 
  As the present court was aware, the Criminal Law Revision Committee did not intend that the draft bill which became the Theft Act 1968 should affect this rule.  In their Eighth Report (Cmnd. 2997) para.~65, the Committee stated: 'We should not regard mere snatching of property such as a handbag, from an unresisting owner as using force for the purpose of the definition, though it might be so if the owner resisted.'  The present decision and Dawson and James, which foreshadowed it, show that the Committee would have been wise to state the principle in Gnosil in order to preserve it because the wording of the section left open the construction now put upon it.  It is a warning to the codifier that, if he intends the refinements of the law he is codifying to be observed, he should state them.  Opinions will of course differ on where lines should be drawn; but it may well be thought that conduct such as that in the present case is more akin to that of the pickpocket than the bank robber and is quite adequately dealt with by the offence of theft which is, after all, punishable with a maximum of ten years imprisonment."
The force of those comments is not reduced by the fact that the maximum sentence has now been reduced to 7 years.  
11.	Other more recent authorities have been cited to me but they do no more than make passing observations and do not contain statements forming part of the decision of the court which bind me.
12.	I refer finally to an extract from a work bearing Professor Smith's name but in fact now written by Professor Ormerod.  If it is not Professor Ormerod's words that I am quoting it shows that Professor Smith must have changed his mind.  In paragraph 7.08 of Smith's Law of Theft Ninth Edition, the author observes:
"Force 
The term 'force' was preferred by the CLRC to 'violence', which was used in the Larceny Act 1916 to designated an aggravated form of robbery.  Though the difference, if any, between the words is an elusive one, it is probable that 'force' is a slightly wider term.  Thus it might be argued that simply to hold a person down is not violence but it certainly involves the use of force against the person.  Force denotes any exercise of physical strength against another whereas violence seems to signify a dynamic exercise of strength as by striking a blow.  In Dawson, it was held that, where D nudges V so as to cause him to lose his balance and enable D to steal, it is a question of fact for the jury whether the nudge amounts to 'force'.  It is submitted that it would be better if the law gave an answer to the question ‑ preferably in the affirmative.  It is submitted that no jury could reasonably find that the slight physical contact that might be involved where D picks V's pocket would amount to a use of force."
13.	I agree with those observations.  This case sits neatly in between the two paradigm examples given by the author.  There was, on the facts found by the court, no physical contact between the hand of RP and the hand of Mrs Gill.  The court was invited to consider the case on the basis that the mere snatching of a cigarette from between the fingers of Mrs Gill was sufficient to amount to the use of force on her person.  I remind myself that borderline questions, such as a question of what amounts to the use of force on a person when the force used is minimal, are questions for the court at first instance and that it is not for an appellate court to put a gloss on the words in Section 8 of the Theft Act.  
14.	However, in the stated case, the court did not find as a fact that RP used force on Mrs Gill.  What the court found clearly was that a cigarette was snatched, on the prosecution case, without there being contact with Mrs Gill, that that amounted to the use of force by RP and that the force was used in order to steal the cigarette.  Those findings were clearly all open to the court but they do not amount to a finding that force was used on the person of Mrs Gill, unless the mere removal of a cigarette from between her fingers itself is capable of amounting to the use of force upon her person.  
15.	In my judgment, it is not.  This case falls squarely on the side of pickpocketing and such like, in which there is no direct physical contact between thief and victim.  It cannot be said that the minimal use of force required to remove a cigarette from between the fingers of a person suffices to amount to the use of force on that person.  It cannot cause any pain unless, perhaps, the person resists strongly, in which case one would expect inevitably that there would be direct physical contact between the thief and victim as well.  The unexpected removal of a cigarette from between the fingers of a person is no more the use of force on that person than would be the removal of an item from her pocket.  This offence is properly categorised as simple theft.  
16.	I therefore allow the appeal of the three appellants against their conviction for robbery, substitute convictions for theft and leave the sentence undisturbed.  
17.	Are there any applications? 
18.	MS ZEUTLER-MUNRO:  No, my Lord.  
19.	MR JUSTICE MITTING:  Can you confirm, Ms Zeutler‑Munro, as your appear to be accurately informed about all matters relating to appeals by way of case stated in criminal cases, but which many of your brethren are not, that where you have a representation order, as you do, you do not need any order from this court?
20.	MS ZEUTLER-MUNRO:  That has been my understanding of it. 
21.	MR JUSTICE MITTING:  I am glad to have it confirmed.  Thank you both for the interesting arguments.