Robbery: force or fear of force

On 18 February 2021, the Court of Appeal handed down its judgment in R v Martins [2021] EWCA Crim 223.

The appellant and his co-accused were charged with robbery, contrary to s 8 of the Theft Act (TA) 1968, having been alleged to have stolen keys and a smartphone from the victim by use of force. In particular, the victim alleged that the appellant had taken the keys and phone from his hands, the co-accused later pushing the victim, and then the appellant caused the victim to fall and suffer a broken leg. The appellant claimed that he did not steal the phone or keys; it was his co-accused that stole such property. 

At trial, defence counsel for the appellant and his co-accused made submissions of no case to answer against the prosecution’s case. Their submissions were that force had not been used ‘in order to steal’ – on account of the time difference between the taking of the keys/phone and the force applied. The learned Recorder accepted this submission, identifying to the Crown that he would not permit the Crown to present its case on the basis that the theft involved a continuing act and that force was applied at some point during that continuing act. In response, the prosecution sought to change the basis upon which the charge was brought: instead of arguing that there was a continuing act, the prosecution would bring the charge ‘on the basis that [the initial taking of the keys and phone] did constitute some sort of force by taking it from his hands’.

Defence counsel objected to this change of course on account that: (i) her case had been presented on the basis of a continuing act; and (ii) that there remained insufficient evidence to prove that force had been applied when the keys and phone were snatched. The learned Recorder found no favour with the first submission, ruling that the victim could be further cross-examined if necessary. In respect of the second submission, the learned Recorder ruled (at [9]):

It seems to me, here, that it would be open to the jury to find that the use of the word ‘snatch’, bearing in mind the items involved are a mobile phone and a set of keys, each being held in one or other of the hands of the victim – it would be open to the jury to find on the evidence that force was used to the person, and I decline the submission.

The appellant was subsequently convicted of robbery; his co-accused was acquitted.

On appeal, the appellant alleged that there was no evidence that force had been applied to the victim when the keys and phone were taken from his hands. The appellant had a particular issue with the victim’s use of the word ‘snatching’ in his evidence and alleged that the mere word ‘snatching’ was not sufficient to convert a theft into a robbery. The appellant alleged that there was no evidence to demonstrate how the victim was holding the property in question, and how it was taken from him: it was inappropriate, therefore, for the jury to speculate how the property came to be removed from his hands.

Counsel for the respondent, on the other hand, submitted that the learned Recorder was correct in his conclusion. The respondent submitted that ‘as a matter of logic and common-sense’ there was sufficient evidence for the jury to find that force was applied given ‘the nature, size and shape of the mobile phone and a bunch of keys’ (at [13]).

Lord Justice Holroyde provided the sole and unanimous judgment of the Court of Appeal. His Lordship took the opportunity, between [15]-[19], to examine the various authorities submitted to the Court as part of the appeal. His Lordship first noted that no definition exists of ‘uses force on any person’ in s 8 of the TA 1968. His Lordship then proceeded to discuss such cases as P v DPP (cited in Martins as DPP v RP, GP and RW) [2012] EWHC 1657 (Admin), [2013] 1 WLR 2337, R v Dawson and James (1977) 64 Cr App R 170 and R v Clouden [1987] Crim LR 56. In summary, his Lordship identified that it will be for the judge in all cases to identify whether the evidence, taken at its highest, is such that a jury could properly find that the defendant had used force on the victim. The Court ruled (at [21]):

On the evidence as it stood at the conclusion of the prosecution case, although not at that point a strong case of robbery, it was in our view properly open to a jury to find that Mr Dewan, when carrying his phone and keys, was gripping them so that they would not fall or slip from his hands, that his description of the appellant ‘grabbing’ or ‘snatching’ the items connoted that the appellant had pulled the items free from that grip and that the action of pulling the items from his grasp amounted to the use of force on Mr Dewan.  

The jury were thus permitted to infer that force had been applied to the victim and that a robbery took place. As a result, the Court of Appeal dismissed the appeal, finding the conviction to be safe (at [23]).


Martins is a helpful reminder that it is for the trial judge to assess whether there is sufficient evidence to prove that force has been used which can be left to the jury. If the judge is satisfied of this, the decision is one of fact for the jury. Martins confirms that the use of a word such as ‘snatch’ or ‘grab’ ‘will not necessarily and in all circumstances connote the use of force of any person’. (at [21]) Martins also clarifies that the jury are capable of drawing appropriate inferences from the facts to establish whether force has been applied in the circumstances. In totality, whether force is applied depends on the circumstances of the case, and this is a matter of fact to be determined by the jury.

5.3 Conspiracy

On 14 January 2021, the Court of Appeal handed down its judgment in R v Gates [2021] EWCA Crim 66.

This case concerned an appeal against conviction brought by Darren Gates. The appellant had been convicted in the Crown Court of conspiracy to supply drugs of Class A (cocaine). The appeal concerned so-called ‘open’ and ‘closed’ conspiracies and the extent to which a defendant could be convicted in circumstances where his co-conspirators were unknown. 

In summary, the appellant had been charged, alongside other named defendants, with conspiring to supply Class A drugs ‘together with others unknown’. At trial, the appellant was the other defendant to be found guilty by the jury; three conspirators had previously pleaded guilty prior to trial; five defendants were found not guilty by the jury; and the jury were unable to reach a verdict in respect of two other defendants. In totality, therefore, the appellant claimed that ‘the effect that the appellant was guilty of conspiracy, was illogical and inconsistent, and should be set aside’ (at [5]). The Crown’s case was that this was an open conspiracy (ie one in which the appellant conspired with named co-defendants and/or with persons unknown), and that the jury must have returned their verdict on the basis that he had conspired with persons unknown (which they were entitled to do). 

Providing the sole judgment of the Court, Green LJ dismissed the appeal with relative swiftness (at [28]). His Lordship would approve of the approach adopted by the prosecution and would affirm that (at [29]):

‘where an open conspiracy is alleged, and the Prosecution case includes the possibility that a defendant conspired with persons unknown, the mere fact that there is no clear evidence that a defendant conspired with another indicted but acquitted defendant, does not render the conviction of a defendant inconsistent. Provided the possibility is put to the jury that the defendant in issue conspired with another defendant or with a person unknown, it remains proper for a jury to be sure that the conspiracy was with that person or persons unknown.’

This, it was ruled, was the basis upon which the case for the prosecution was presented from the outset. His Lordship proceeded to quote at length the summing up of the trial judge, who directed the jury that the appellant must have conspired (at [31]) ‘with at least one other defendant or person unknown’ (original emphasis).

Lord Justice Green quickly thereafter disposed of the appeal. By way of postscript, his Lordship identified that the evidence against the appellant was such that (at [35]) ‘a jury could be sure that the appellant conspired with “someone”’ (original emphasis).

The appeal was thus dismissed, and the appellant’s conviction was safe.


Gates is a welcome addition to the case law concerning conspiracies, and where parties to that conspiracy are acquitted. This case is slightly different from the likes of DPP v Shannon [1975] AC 717 or the principles underlying s 5(8) of the Criminal Law Act (CLA) 1977 (acquittal of co-defendants not a ground for appealing conviction unless the conviction is inconsistent with the acquittal or other defendants). This case dealt with the relatively common circumstance in which the defendant may have conspired with persons unknown to the court (in the sense that these individuals have not been brought before the court with criminal charges against them). There is no requirement in the law that co-conspirators are identified; it is simply the case that the jury must be sure that a defendant ‘agrees with any other person or persons’ (CLA 1977), s 1(1)). Lord Justice Green makes this final point with certainty: the jury must simply be sure that the defendant conspired with someone

8.5.1 Unlawful Act Manslaughter

On 21 January 2021, the Court of Appeal handed down its judgment in R v Dawson [2021] EWCA Crim 40.

This case concerned applications for leave to appeal against the conviction and sentence of Carol and Scott Dawson, for the murder of Gary Dean. 

In summary, the victim was an evident annoyance to the applicants, often acting in an antisocial manner, including the alleged harassment of, and causing damage to property belonging to, Scott Dawson. The Crown’s case was that the applicants had acted together in killing the victim out of revenge for the trouble he had caused to them (both mentally and financially). The Crown’s case was based entirely on circumstantial evidence; there being no direct evidence to demonstrate that either applicant had been involved in the killing. The defence case was that neither Carol nor Scott Dawson had been involved in the killing. Whilst neither applicant gave evidence at trial, the argument made by the defence was that the prosecution had failed to prove their guilt due to their reliance on circumstantial evidence. The jury convicted the pair unanimously. 

The applicants sought leave to appeal to the Court of Appeal on several bases, namely: (i) that the defence of loss of self-control ought to have been left to the jury (in respect of Scott Dawson); (ii) that the judge was wrong to admit a balaclava matching the DNA of Carol Dawson into evidence; and (iii) that the sentences imposed were manifestly excessive. 

The Court of Appeal, led by the Vice President, Fulford LJ, dismissed the applications for leave in respect of the first two grounds, but granted leave to appeal against sentence. This update shall focus entirely on the first ground of appeal: loss of self-control.

At [15]–[29], Fulford LJ dealt with the application for leave to appeal against conviction brought by Scott Dawson. In summary, the applicant contended that the trial judge (HHJ Richardson QC) ought to have left the partial defence of loss of self-control to the jury. This ground was raised despite the fact that the applicant’s case at trial was that he had no involvement in the killing; nor did the applicant attempt to dispute the jury’s finding that he was so involved in the killing. 

At trial, evidence was provided that Scott Dawson had a ‘quick and volatile temper’ (at [16]) and that this, in combination with the provocative conduct of the deceased, was sufficient for a jury to have been reasonably satisfied that the applicant may have lost his self-control. In his ruling, the trial judge rejected the defence of loss of control, finding that whilst the applicant may have been ‘extremely irritated’ by the deceased, ‘it does not cross, in my judgment, the threshold into the defence of loss of control’ (at [18]). HHJ Richardson QC made particular reference to the judgment of Lord Judge CJ in R v Dawes [2014] 1 WLR 947, who explained (at [60] of Dawes):

‘For the individual with normal capacity of self-restraint and tolerance, unless the circumstances are extremely grave, normal irritation, and even serious anger do not often cross the threshold into loss of control.’

The learned trial judge also made reference to s 54(4) of the Coroners and Justice Act (CJA) 2009, identifying that this killing could have been viewed as being pursued as a ‘considered desire for revenge’ on the part of the applicants.

In the Court of Appeal, Fulford LJ approached each element of the partial defence in turn. First, his Lordship dealt with the issue of whether the applicant had lost his self-control. Whilst the learned trial judge had accepted that this was a possibility, Fulford LJ rejected any notion that the applicant could have lost his self-control. Fulford LJ explained his reasoning as such: ‘In our judgment, the evidence was either entirely neutral on this issue or it tended instead to indicate this was a deliberate and calculated assault, motivated by a desire for revenge.’ (at [22]) His Lordship emphasised at [23] that particularly brutal or ‘sustained and gratuitously violent’ assaults did not, by default, give rise to an inference that there has been a loss of self-control. Relying on the judgment of Davis LJ in R v Goodwin [2018] EWCA Crim 2287, Fulford LJ explained that the possibility of there being a loss of self-control ‘will often depend on the other evidence in the trial’ (at [23]). In this case, the Court was unconvinced that any evidence existed to demonstrate that the applicant had lost his control.

In light of this, Fulford LJ quickly dealt with the second and third condition for a loss of self-control to be made out. In respect of the second condition (the qualifying trigger), Fulford LJ agreed with the trial judge that whilst the deceased’s conduct was ‘highly irritating’ and often cumulative in nature, there was insufficient evidence to prove a qualifying trigger. In particular, Fulford LJ explained (at [26]):

‘But even viewed cumulatively, they do not come close to providing circumstances of an extremely grave character that would give rise to a justifiable sense of being seriously wronged.’ (original emphasis)

The third condition (whether a person might have reacted in the same or similar way) was dealt with speedily (at [28]): ‘Given our conclusions as to the absence of evidence as regards loss of control and a qualifying trigger, this consideration falls away.’

At [29], Fulford LJ concluded that there was an insufficient evidential basis for leaving loss of self-control to the jury. As a result of that conclusion, Fulford LJ refused the application for leave to appeal against conviction.


The case of Dawson offers no new, or additional, commentary on the law of loss of self-control. Dawson does, however, act as a useful reaffirmation of the principles behind the defence. Some particular matters are worth highlighting here. First, at numerous points in his judgment, Fulford LJ identifies that the loss of self-control requires a ‘much more rigorous evaluation of the evidence before the defence can be left to the jury than was required under the former law of provocation’ (at [21]). Second, Fulford LJ sought to highlight the particularly stringent threshold to be applied in respect of loss of self-control, choosing to add emphasis to the word ‘extremely’ in his judgment, in the context of ‘extremely grave character’ (at [26]). Finally, his Lordship made a point to dispel belief that a particularly brutal or violent attack could provide sufficient evidence for a loss of self-control, without further evidence. In his Lordship’s words, there may be a ’wide range of reasons’ for such brutal and prolonged attacks that do not involve a loss of self-control. Dawson provides a helpful reminder to counsel as to the particularly high threshold applied to loss of self-control and the need for the judge to undertake a thorough and detailed review of the evidence. Conspiracy to defraud

On 9 December 2020, the Court of Appeal handed down its judgment in R v Bermingham [2020] EWCA Crim 1662.The applicants sought permission to appeal against their convictions for conspiracy to defraud. In brief summary, the prosecution alleged that the applicants had manipulated the Euro Interbank Offered Rate (‘Euribor’) in order to benefit the trading positions of interest rate derivative traders. The pair were convicted following a re-trial (by a majority of 10 to 2) and applied for leave to appeal against their conviction in the Court of Appeal. 

The appeal concerned three separate grounds. The first two are not of relevance to this case update; the focus here is on the third ground. 

In summary, the applicants argued that the charge of conspiracy to defraud brought against them lacked legal certainty in accordance with common law principles and Article 7 of the European Convention on Human Rights (ECHR). At [94] of the judgment, the Vice President of the Court of Appeal (Criminal Division), Fulford LJ, identified that the Court was ‘satisfied that the requirements of legal certainty were fully met in this case by both the indictment and the agreed legal directions on the elements of the offence given by the trial judge’. His Lordship would quote heavily from the directions of the trial judge, identifying such directions as ‘clear and comprehensive’ (at [100]). Relying on the Court’s earlier judgment of R v Barton; R v Booth [2020] EWCA Crim 575, Fulford LJ concluded that the offence of conspiracy to defraud did not lack legal certainty, and thus did not fall foul of Article 7 (at [101]). So long as the applicants were able to identify the case they had to meet, and the indictment revealed the offence on which the jury were entitled to convict, there was legal certainty. 

Lord Justice Fulford took the opportunity to confirm Ivey (Ivey v Genting Casinos (UK) Ltd [2018] AC 391) and Bartonto be correct statements of law (referring to Barton as ‘undoubtably correct’ at [103]). His Lordship had previously explained that the applicants were not ‘disadvantaged’ (at [102]) by the change in the standard of dishonesty. In fact, as observed in Barton, the Ivey test remains a test as to the state of mind of the defendant – it is to his knowledge or belief that the jury are to apply their standards of ordinary decent people. According to Fulford LJ, this subjective element of the test proffers ‘a substantial measure of protection’ to defendants (at [102]). In respect of dishonesty, Fulford LJ would conclude (at [104]): ‘In these circumstances there is simply no basis for a submission that the applicants were unfairly convicted because they did not realise at the relevant time that what they were doing was wrong and the conduct made them criminally liable.’

The final element raised under this ground of appeal concerned the trial judge’s direction to the jury which, in the arguments of the applicants, suggested that mere recklessness was sufficient to found an offence of conspiracy to defraud. The trial judge directed the jury that they had to be sure that the defendants intended ‘that the economic interests of others may be prejudiced’. The use of ‘may’, it was argued, raised a question as to whether recklessness was sufficient. Conspiracy to defraud, as with statutory conspiracy, requires an intention to carry out the offence. The Court of Appeal was satisfied that the jury were clearly directed that they had to find intention on the part of the applicants and nothing less. By way of postscript, Fulford LJ explained that: ‘For the avoidance of doubt, indictments in the future would be better framed in this context using, for instance, the expression “thereby intending to prejudice the economic interests of others” rather than “thereby intending that the economic interests of others may be prejudiced”.’

As such, the ground of appeal was unarguable and application for leave to appeal was refused.

8.5.1 Unlawful Act Manslaughter

On 16 December 2020, the Court of Appeal handed down its judgment in R v Long & Ors [2020] EWCA Crim 1729. This concerned several applications for leave to appeal relating to the convictions of, and sentences imposed on, Henry Long, Albert Bowers and Jessie Cole, three individuals convicted for the manslaughter of PC Andrew Harper (Long having pleaded guilty and all three having been acquitted of murder). At the same time, the Attorney General (who appeared in person) applied for leave to refer the sentences of Long, Bowers and Cole to the Court as being unduly lenient. Numerous commentaries have already been made regarding the applications relating to sentence; this update will relate to the application for leave to appeal against conviction.

The facts of this case are likely well-known to readers and a brief summary only shall be provided. On 15 August 2019, Long, Bowers and Cole conspired to steal a quadbike. The trio tied a long strap to the back of their car and attached the quadbike to it. The trio now intended to return home with the quadbike but were stopped by police, including PC Harper. The quadbike was detached with the intention of abandoning it and escaping. Unfortunately, PC Harper’s feet were caught up in the strap and he was dragged along by the car. PC Harper unfortunately died as a result of injuries suffered from being dragged by the car.  

At trial, the main issue was that of murder: in order to prove that Long, Bowers and Cole were guilty of murder, it had to be proven that Long (who drove the car) knew that a person was being dragged by the car and, if so, that he intended to cause that person really serious harm. It was accepted that Bowers and Cole could not be guilty of murder unless Long was convicted of that offence (due to the nature of secondary liability). The jury returned a verdict of not guilty on the murder charge, clearly being unsure that Long had the requisite knowledge. In the alternative, the jury found Bowers and Cole guilty of manslaughter (Long having already pleaded guilty to manslaughter). At first instance, the trial judge provided the jury with a route to verdict, part of which included the following question (at [23]): 

3. [Are we sure that] A reasonable person sharing D’s knowledge of the circumstances would have realized that the unlawful act might cause a risk of some physical harm to any person on the road at that time, that is to say the unlawful act was a dangerous one which carried an obvious risk of injury. If No, Not Guilty. If Yes, go to question 4.

This question also gives rise to the principal ground raised by Bowers and Cole. The applicants contended that theft (and therein conspiracy to steal), whilst unlawful, was not an objectively dangerous act which could form the base offence for unlawful act manslaughter. Furthermore, and in any event, the act of appropriation was complete at the time the quadbike was detached from the car; the act of escape in of itself was not unlawful. The applicants contended that the only unlawful basis that could have been relied upon was that of the driving itself. Driving is normally a lawful act, unless it is rendered unlawful by the manner of its commission (Andrews v DPP [1937] AC 576). The trial judge, and the Court of Appeal, rejected this submission on account that Lord Atkin in Andrews was concerned with manslaughter by negligence; this was not a case of gross negligence manslaughter (at [34]). 

Dame Victoria Sharp P provided the sole judgment of the Court. Her Ladyship identified that the real issue before the Court was whether theft (and therein conspiracy to steal) could be considered an objectively dangerous act such to form the base offence for unlawful act manslaughter. At first instance, the trial judge relied upon R v JF [2015] EWCA Crim 351, [2015] 2 Cr App R 64 for the proposition that the base offence need not, in general, be a particularly dangerous or serious offence. The circumstances in which the offence was committed may make the base offence objectively dangerous. Indeed, Dame Sharp P agreed with this approach and (at [36]) cited R v Bristow [2013] EWCA Crim 1540 with approval. In Bristow, Treacy LJ explained that:

Whilst burglary of itself is not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission. We consider that the features identified by the Crown … were capable of making this burglary dangerous when coupled with foresight of the risk of intervention to prevent escape.”

At [38], her Ladyship adopted the same reasoning to the instant case. In particular, Bowers and Cole had accepted that if they were ever chased by the police, they would drive away very fast and understood that driving at speed was dangerous and somebody might get hurt (at [9]). Her Ladyship would explain that (at [43]) ‘[t]he escape and the dangerous manner in which it was carried out were part and parcel of the conspiracy to steal’ and the terms of the agreement between Bowers and Cole made the theft, and the circumstances in which it was committed, a dangerous act. 

Finally, at [44], her Ladyship refused the application for leave to appeal against conviction identifying that the applications were ‘wholly unarguable’.


The application for leave to appeal against sentence, and the personal appearance of the Attorney General in the Court of Appeal, has been the forefront of public commentary. Indeed, the question of whether the sentences imposed on these individuals were lenient or excessive is of vital importance and it is right that the sentencing aspect of this judgment is in the public domain. A relatively untouched aspect of the judgment, however, is that of the application for leave against conviction. The judgment of the President of the QBD is a helpful reaffirmation of the principle in Bristow, in that an unlawful act which, in general, may not be objectively dangerous can be categorised as such according to the circumstances in which it was committed. This provides a clear statement of law that when considering the base offence, one must not only consider the inherent dangerousness of the offence, but also the manner and circumstances in which it is committed.

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