APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Bomony	[2009] HCJAC 16 Appeal No: XC114/09 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by RORY CONNELL MORRISON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Nicolson; Wardlaw Stephenson & Allan, Edinburgh

Respondent: Cherry, Q.C., A.D.; Crown Agent

12 February 2010

The background circumstances

[1] The appellant faced an indictment in Edinburgh Sheriff Court containing four charges. He was convicted on charges (1) and (2). Only his conviction on charge (1) is in issue in this appeal. The terms of charge (1) as it went before the jury were as follows:

"(1) on 28 September 2008 at Johnstone's Close, Galashiels you RORY CONNELL MORRISON did assault John Alexander Moffat ... and did trip him and force him to the ground, repeatedly kick and repeatedly strike him on the head with your hands to his injury and did rob him of a quantity of money and a mobile phone."

In their verdict on charge (1) the jury made certain deletions, as a result of which his conviction was in the following terms:

"(1) on 28 September 2008 at Johnstone's Close, Galashiels you RORY CONNELL MORRISON did rob John Alexander Moffat ... of a quantity of money and a mobile phone."

The appellant was also convicted on charge (2) in the indictment, a charge of assault. Following his convictions the sheriff made an order in terms of section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of sentences on another indictment, ordering that the appellant be returned to prison for a period of four months in respect of that matter. As regards charge (1) in the present indictment, the appellant was sentenced to two years and six months imprisonment; on charge (2) he was sentenced to eight months imprisonment. These sentences were ordered to run consecutively as between themselves and also to run consecutively to the period specified in the order under section 16 of the 1993 Act.

The grounds of appeal

[2] The appellant has lodged a note of appeal under section 110 of the Criminal Procedure (Scotland) Act 1995, "the 1995 Act", appealing against his conviction and sentence in relation to charge (1) in the indictment. The grounds of appeal which he has tabled are in the following terms:

"1. The charge the jury convicted the appellant of reads:

'On 28 September 2008 at Johnstone's Close, Galashiels you RORY CONNELL MORRISON did rob John Alexander Moffat, c/o Lothian and Borders Police, Galashiels of a quantity of money and mobile phone.'

The jury deleted the word 'assault' and also deleted all reference to the narrative as to how the alleged assault was perpetrated ie. the words 'and did trip him and force him to the ground, repeatedly kick and repeatedly strike him on the head with your hands to his injury and did rob him.' The sheriff has defined robbery to the jury as 'theft accomplished by means of personal violence or intimidation. Any violence used to affect (sic.) a theft converts theft into robbery' [charge to the jury page 24, lines 16 to 19]. In deleting all reference to assault, and in the absence of any other evidence of violence or intimidation, the jury ought to have convicted the appellant of theft only. Esto the conviction of the appellant for robbery is upheld, the sentence of two years and six months imprisonment is excessive and represents a miscarriage of justice. The appellant was not convicted of perpetrating the robbery in conjunction with any violence. In those circumstances, such a conviction is at the lower end of the spectrum, and a sentence of two years six months imprisonment is excessive. Whilst it is accepted that that a custodial sentence would be appropriate, the length of the period is excessive."

Submissions for the appellant

[3] Counsel for the appellant explained that the appeal related only to the conviction on charge (1) on the indictment. The point to be made was that, because of the deletions made by the jury in that charge, there was removed all reference to an assault. In that context, he submitted that the proper verdict would have been one of theft of the property concerned. Robbery was theft accomplished by either personal violence or intimidation. Here there had been averments of an assault, which were the notice given by the Crown of the means by which the robbery had been accomplished. However the jury, in their verdict, had rejected the use of violence.

[4] The point raised had previously been ventilated in Flynn v HMA 1995 S.C.C.R. 590. In that case the Court held that a jury had not been entitled to find the appellant guilty of robbery having negatived any proposition that the appellant had been responsible actor or art and part for any violence; the appeal was allowed and a verdict of robbery set aside with a verdict of guilty of theft substituted therefor. The Court observed that a relevant charge of robbery might be made without specifying the violence used but, in that case, the Crown had specified the violence alleged to have been used and the jury, by their verdict, had negatived the use of any such violence. Counsel accepted that it was the law that a charge of robbery might relevantly be formulated without reference to the violence used, as appeared from the second example in Schedule 2 to the 1995 Act and the associated section 64(2). Counsel observed that, in the circumstances of the present case, as appeared from the procedure at the time when the verdict was returned, it might be that the jury had not intended to delete all reference to violence, but that was in fact what had been done and recorded as their verdict.

[5] Counsel went on to draw our attention to Mackay v HMA 1997 S.C.C.R. 743. In that case, the appellant had been charged that: "....you did assault [the complainer] and did seize hold of him, pull him into [a] lane, threaten to stab him, repeatedly punch him ... and rob him of a ring." The complainer gave evidence of the assaults and threat and that his ring had been removed, and there was evidence that the appellant was later in possession of the ring, but the only corroboration of what happened at the locus came from witnesses who saw the complainer and the appellant go into the lane, heard shouting and saw them emerge from the lane, at which time the complainer was in a distressed state and was making a pleading gesture, saying, "Give me it back". The appellant was convicted under deletion of the words "you did assault....". This verdict was read over and was assented to by the jury in those terms. It was later recorded subject to certain grammatical corrections. The appellant appealed upon the basis that the reference to an assault having been deleted by the jury, the conviction should have been one of theft. The Court held that there had been sufficient evidence that the ring had been taken by violence or intimidation and therefore sufficient evidence of robbery, and that the evidence of the complainer as to what precisely had happened was merely narrative and did not require corroboration. The appeal was refused. In that case the complainer had himself given evidence of an assault.

[6] Counsel for the appellant went on to draw our attention O'Neill v HMA 1934 J.C. 98, particularly the observations of Lord Justice Clerk Aitchison at page 101. In that case the Court held that, although the specific acts of assault libelled in the indictment had been negatived by the verdict of the jury, there was sufficient evidence of violence to entitle the jury to find that an act of robbery had been committed. It had to be acknowledged that that case had not been cited to the Court in either Flynn v HMA or Mackay v HMA.

[7] Counsel also referred to Fegen v HMA (1838) 2 Swin. 25. In that case, a pannel having obtained possession of a watch by a sudden snatch which broke the guard chain and the party assaulted having at the same moment fallen, either from being tripped or accidentally, the Court held that there had been a sufficient amount of violence to constitute the crime of robbery.

[8] Summarising his position in the present case, counsel argued that the Crown had nailed their colours to the mast of averring an assault as specified in charge (1). However, the jury had negatived that part of the charge. That having been done, the jury could not properly go on to convict of robbery. In these circumstances the verdict of the jury should be quashed and there should be substituted for it a conviction for theft of the specified items.

The submissions of the Crown

[9] The Advocate depute moved the Court to refuse the appeal. She submitted that the jury's verdict could be justified by the recognition that some violence had been used in the incident by the appellant, notwithstanding that the jury had made the deletions that they did. It was erroneous to suggest, as had been done in the grounds of appeal, that deletion of all of the violence libelled meant that a verdict of robbery was not open to the jury. In developing that submission, the Advocate depute referred to certain further authorities. The first of these was Cromar v HMA 1987 S.C.C.R. 635. In that case the appellant had been convicted of robbery. The evidence had been that he had come up behind the complainer and pulled at a bag the latter was holding. The complainer tried to hold on to the bag, but its handle snapped and the appellant made off with it. He appealed against his conviction for robbery on the ground that the crime committed had been theft and not robbery. The Court held that the circumstances showed that there had been a robbery; the appeal was refused. Reference was made to the Opinion of the Court, delivered by the Lord Justice Clerk at page 637. In that case, during the course of the trial, the Crown had deleted the allegation of assault made in the charge on which the appellant had been convicted of robbery.

[10] The Advocate depute went on to rely on the definition of robbery given by Hume in his Commentaries I, 104 where robbery was defined as "forcible theft ... committed by invasion of the person". She went on to refer to the definition of robbery in the Stair Memorial Encyclopaedia, Volume 7, paragraph 357, part of an article compiled by Sheriff Stoddart. It was there said that robbery was the crime of taking the property of another from him forcibly, either by personal violence or intimidation. In paragraph 358 the author opined that any degree of force preceding the theft, or any sort of threat or intimidation, which compelled the victim to comply with the will of the robber would be sufficient. However, if the force used was so minor as to be regarded as de minimis and not used to overcome the will of the victim, then a charge of simple theft might be more appropriate. The form of the violence was irrelevant; it mattered not whether it was by punching, kicking or jostling, or an attack or threat with a weapon.

[11] The Advocate depute then turned to the circumstances of the present case, as disclosed in the sheriff's report to this court and in his charge to the jury. At page 26 of the charge, the sheriff had summarised the evidence of the complainer. Mr Moffat had been extremely drunk; he was not the best witness because of that. He said that he could have been "blew over"; he was paralytic, but he used the word "assault" and he used the word "mugged". He had ended up on the ground, although he gave no evidence of being tripped, indeed he had said that he had fallen. There was a more detailed account of the incident in the sheriff's report to this court. There at page 2 and following the sheriff narrated that the complainer had gone to Galashiels on 28 September 2008 and, during his time there, had visited a number of public houses and got himself into a state of intoxication which he himself described as "paralytic". He had suffered a serious accident in 2001, in consequence of which he had sustained certain injuries which caused difficulties in recollection. He described how the appellant, who had been known vaguely to him, had assisted him from the pub where he had last been drinking and had led him into an alley where he was, in his word "mugged" and his money, around £300 in cash, and a mobile phone, had been taken from his pockets and removed, leaving him lying there. The Crown allegation had been that the complainer had been "tripped and forced to the ground and then kicked and repeatedly struck on the head to injury" before the robbery occurred. However the sheriff narrates that the evidence of Mr Moffat was vague and uncertain on any view, but it included a recollection of being in the close with the appellant, an indication that he was so drunk that the appellant could have "blown him over" and of his refusal of the appellant's request for a loan of money. The sheriff says that he had noted that the complainer had said that he had been standing at first and had then fallen over. He had explained that he had fallen over as he was trying to "retaliate" against actions which he did not and could not specify, but he had been too drunk to do anything about this retaliation. He had scraped his face on the ground in a scuffle and items were taken from his pockets. There was confirmation of the fact that his pockets had been emptied by the fact that certain of the contents were strewn around the close where they were later seen by the police. There was no dispute that money and the mobile telephone had been removed from him. However, he was unable to say exactly what had happened to him. The sheriff had recorded the exact words used by the complainer, which did suggest personal violence, but the complainer had not spoken to any of the physical acts which were narrated in the charge, except to possibly being "forced to the ground".

[12] After the incident, the complainer had run to the police station where he had been seen to be injured and dishevelled. He led police officers to the locus where they were able to find a number of items of the property that had been strewn around. Accordingly the sheriff observes that there was little dispute that something consistent with his account had happened at that spot. The complainer had made a clear allegation that he had been mugged and that his wallet had been taken from him forcibly. In cross-examination, the complainer had reiterated his position, the sheriff having noted him as saying, "he led me up the alley and mugged me". "Maybe he never assaulted me but he took my wallet, phone and other things. He ran off, I was lying down." On the basis of the material furnished by the sheriff concerning the evidence, the Advocate depute submitted that it was clear that there had been evidence of personal violence being used at the time when the complainer's property was removed from him. For that reason, Flynn v HMA could be distinguished from the circumstances of this case, because there was nothing in that case to suggest that the appellant there, who was one of two involved with the complainer, had been responsible for any violence. In the light of the circumstances described by the sheriff here, it was evident that the suggestion in the note of appeal that all reference to the assault having been deleted and there being no other evidence of violence or intimidation, the jury's verdict should have been one of theft, was unsound. In support of her submissions the Advocate depute also relied on Gordon's Criminal Law, 2^nd Ed. Chapter 16, paragraph 16.01. Although the point had not been raised in the present case, it was evident that there was corroboration of the complainer's evidence of the use against him of personal violence, taking the form of evidence of his being dishevelled and injured when seen by the police, the evidence of the police that his property had been strewn round in the close and the fact that his face had been scraped.

[13] Reverting to a consideration of Mackay v HMA, the Advocate depute pointed out that the appellant's argument in that case, which had been unsuccessful, was identical to the argument advanced on behalf of the appellant here. That argument was narrated at page 745. A feature of both Flynn v HMA and Mackay v HMA, which was unsatisfactory, was that in neither of those cases had O'Neill v His Majesty's Advocate been cited. The observations of Lord Justice Clerk Aitchison in O'Neill v His Majesty's Advocate were cogent. It might be that, as recognised in the passage from the Stair Memorial Encyclopaedia, if the violence involved was de minimis, the crime might be theft rather than robbery. However, in the present case there was no doubt that the violence spoken to by the complainer went beyond anything that could be described as de minimis. One of the difficulties was that the violence spoken to by the complainer had not been the subject of averments in the relevant charge.

The decision

[14] It is appropriate at the outset to consider the legal definition of the crime of robbery. The earliest of the cases cited to us was Fegen v HMA. The circumstances there were that the pannel had come up to the complainer, seized his watch chain, and pulled the watch out of his pocket. The complainer fell, whether accidentally or from being tripped he could not say; but he stated that he would not have fallen if he had not been laid hold of. The guard chain attached to his watch was broken by a second tug while he was falling. He fell on his knee and was slightly hurt. The watch was gone in a moment and the complainer had had no time to resist. Against that background the Court held that the degree of violence proved was sufficient to establish the charge of robbery of which the pannel had been found guilty. In O'Neill v His Majesty's Advocate the appellant had been charged that:

"on 20 February 1934, in a close in High Street, Perth, while acting in concert with Daniel Brookes ... you did assault Catherine McIntyre Livingston Kennedy ... and did knock her head and face against the wall of said close to the effusion of her blood and did rob her of a handbag containing some money and other articles".

The jury returned a verdict in the following terms: "The jury unanimously find the panel guilty of robbery and unanimously find the charge of assault against the panel not proven". There followed an appeal against conviction upon the basis that the verdict of the jury had been perverse, in respect that, having found it not proved that the appellant assaulted the complainer, their verdict should have been one of guilty of theft. The appeal was refused. At page 101 Lord Justice Clerk Aitchison explained the law relating to robbery in this way:

"The answer to the question thus raised depends upon what is the true legal definition of robbery. It is well settled that in robbery there must be violence. On the other hand, it is not necessary to robbery that there should be actual physical assault. It is enough if the degree of force used can reasonably be described as violence. I think the law upon this matter is as laid down by Baron Hume in his work on Crimes in words which have never been disputed. In Volume i (at page 106, paragraph 5), what Hume says is this:

'It is another and an indispensable circumstance that the thing be taken by violence; for herein lies the distinctive character of the crime. But as to this article a great latitude of construction has been received. There may be a robbery without any wounding or beating of the person (and when such violence is used it may therefore be libelled as an aggravation, as it was in the case of James Andrew); and without any forcible wresting or tearing of the thing from the person; or even any sort of endeavour on the part of the sufferer to detain it. The law means only to oppose this sort of taking, as against the will of the owner; to that which happens privately, or by surprise, and without any application to his will or his fears; and it is understood therefore to be violence if the thing is taken by means of such behaviour, as justly alarms for the personal and immediate consequences of resistance or refusal.'

Now, that being the law, the distinction between theft and robbery may be very difficult of exact legal definition, and, in the particular case, it may not be easy to say whether the facts amount to robbery or amount to theft only. The question is really one of degree. But, in the present case, I think that there can be no doubt that this woman sustained an injury to her head and also suffered from concussion. We must, of course, take it that these were not the result of assault, because the jury has found assault not proven; but I think it is very clear upon the evidence that the injury which the woman sustained would not have been caused unless substantial force had been used in snatching her bag. Accordingly, I think it is plain that the injury which she suffered was the direct consequence of the snatching of her bag. That seems to me to indicate a degree of violence that places the crime here in the category rather of robbery than of theft.

The case seems to me to be substantially on all fours with the case of HMA v Fegen to which we were referred."

[15] As we understand it, in the Lord Justice Clerk Aitchison's observations, the distinction is drawn between the personal violence necessary as an ingredient in the crime of robbery and that which might be categorised as an assault, being an attack upon the person of the complainer carried out with evil intent related to that end. That approach appears to us to be consistent with the view taken by the court in Cromar v HMA, where, during the course of the trial the Crown had deleted the allegation of assault. There the evidence was that the complainer had been walking along a footpath. He said that someone had pulled a bag containing money out of his hand. The person had come from behind the complainer and pulled the bag down. There was a tug at the bag. The complainer had said that he tried to hold on but the plastic handles of the bag snapped and the assailant made off with the bag containing the money. In that case Lord Justice Clerk Ross said at page 637:

"In our opinion, there was in that description of the events sufficient to entitle the jury to reach the conclusion that the theft had been accomplished by means of personal violence and that, accordingly, this was robbery and not theft."

[16] In Flynn v HMA the appellant and the other person involved had been charged with assaulting the complainer and robbing him of his watch and wallet. The jury's verdict in relation to the appellant was that the assault part of the charge was found not proven, but there was a conviction for robbery. The court's decision was that the jury had not been entitled to find the appellant guilty of robbery, since the jury, by their verdict, had negatived the proposition that the appellant had been responsible either as actor or art and part for any violence perpetrated upon the complainer. In that situation we conclude that that case materially differs from the circumstances of the present case and the other cases to which we have just referred. Further, we consider that there is no tension between that case and Mackay v HMA where there was a conviction for robbery but under deletion of the libel of assault. There the court rejected an appeal that the jury had not been entitled to convict the appellant of robbery upon the basis that there had been sufficient evidence that the ring had been taken by violence or intimidation and therefore sufficient evidence of robbery.

[17] Coming now to the circumstances of the present case, it is undoubtedly true that the jury rejected the allegation that the appellant assaulted the complainer "and did trip him and force him to the ground, repeatedly kick and repeatedly strike him on the head with your hands to his injury". Standing that decision, in our view the question for us is whether, leaving aside those actions which the jury held not to be proved, there was sufficient evidence of personal violence used for the purpose of appropriation of the property of the complainer. To resolve that question it is necessary to consider the facts of the case, as they were described by the sheriff in his report. The sheriff states at page 3 and the following pages that the complainer had fallen over as he was trying to "retaliate" against actions which he did not and could not specify. He had scraped his face on the ground in the scuffle which followed during which items were taken from his pockets. The sheriff quotes the complainer's evidence:

"I can't say there was too much violence but there was a lot of scuffling. He was trying to empty my pockets while I was lying down. I tried to kick him but he just kept going. I was down, I had my hands on my pockets but he still got my wallet out."

The complainer's position had been reiterated in cross-examination when he said: "He led me up the alley and mugged me". In our view, these descriptions of the incident, found in the complainer's evidence, demonstrate violence on the part of the appellant which cannot be seen as de minimis. Plainly it involved scuffling between the appellant and the complainer, as the latter lay on the ground, and was used for the purpose of appropriating his property. The complainer endeavoured to resist the appellant's actions in seeking to withdraw his property from his pockets, but was unsuccessful in that. In these circumstances we conclude that violence was used by the appellant to obtain control of the complainer's property. Whether that violence did or did not amount to an assault was never an issue in the case, because the Crown, in its averments of assault, did not libel those particular actions as such. Since we conclude that that violence was sufficient as an ingredient in the crime of robbery, we see nothing inconsistent in the jury's verdict to convict of robbery at the same time as acquitting of the allegation made in the particular averments of violence libelled by the Crown. For all these reasons we refuse the appeal against conviction.

The appeal against sentence

[18] The appeal against sentence proceeds upon the premise that the appellant's conviction for robbery is sound. Against that background it is contended that the sentence imposed on charge (1) of two years and six months imprisonment is excessive. It is claimed in the ground of appeal that the appellant was not convicted of perpetrating the robbery in conjunction with any violence. We must reject that contention. While it is true that the particular acts of violence averred by the Crown in charge (1) were rejected by the jury, it is not true that no violence was involved in the perpetration of the robbery; the violence which we have just described was associated with the robbery. While the violence spoken to as part of the robbery was not as grave as that libelled by the Crown and rejected by the jury, nevertheless there was significant violence involved in the offence. Furthermore the other circumstances of the offence persuade us that the robbery concerned was a mean and reprehensible exploitation of a drunk man by the appellant. We also have to take into account the appellant's record of previous convictions, which the sheriff properly describes as appalling for a person as young as the appellant; his record is unenviable. It involves an analogous conviction for assault and robbery, along with other offences, on 16 October 2006 in respect of which detention in a Young Offender's Institute for a period of forty two months was imposed. Against that background and the other circumstances of the case, we are quite unable to conclude that the sentence selected by the sheriff was excessive. Accordingly the appeal against sentence is also refused.