Lemon & Anor, R. v

On 26 September 2017 in the Crown Court at Isleworth, following a trial before His Honour Judge Robin Johnson and a jury, these appellants, now both aged 19, were convicted of attempted robbery. On 6 November 2017, Lemon was sentenced to 12 months in a young offender institution suspended for 18 months, with 200 hours' unpaid work. Effer was sentenced to 15 months in a young offender institution suspended for 18 months, with 250 hours' unpaid work. They each appeal against conviction on one ground for which leave was given by the single judge. That ground is that the judge erred in failing to leave to the jury in the case of Effer an alternative count to robbery of assault, thereby rendering the convictions unsafe. Other grounds for which leave was

The essential circumstances of these offences were as follows. On the evening of 1 December 2016, Mr Pranay Sharma was walking home from work at about 11.30 at night when he was involved in an incident with a group of men which included the appellants. Mr Sharma called the police and gave an account of being punched by the appellants and of an attempt having been made to demand his property. He accepted that he had thrown punches during the incident.

The prosecution case was that the appellants had been part of a group of men who had surrounded Mr Sharma and attempted to rob him. They relied upon the evidence of Mr Sharma, CCTV footage which showed some of the incident, the fact that it was Mr Sharma who called the police and, in the case of Effer, his failure to mention in

The case for both appellants was that having walked into Effer, Mr Sharma had refused to apologise and become aggressive. Effer accepted that he had struck Mr Sharma but said

The issues for the jury were thus whether there had been any attempt to rob Mr Sharma

The key aspects of Mr Sharma's evidence were as follows. On his way home from work he had heard a number of men running after him. He stopped and they asked him for weed. He said he did not have any, at which point they asked for his wallet, headphones and phone. One man was short and black with dreadlocks and the other tall and white with a white shirt. Initially he pushed them away but the black man became angry and punched him. He was surrounded and fell to the ground. He stood up and then the white man hit him. Another man told him to go home, which he tried to do, running to the other side of the road where the fight began again. One man had tried to befriend him but also tried to take his property. He pushed and punched both men. He said the men were bullying him. He told them that he had nothing valuable. He had not thought they were going to steal from him. There had been no shouting or arguing before the white man hit him. He had hit them in self-defence. They tried to grab his bag and his phone. He then ran into the closest shop and made a 999 call to the police. The men

In cross-examination, he said that there was no question that he had collided with the man in the white shirt. There had not been an argument about this. He had only arrived in the United Kingdom four months earlier. He had been afraid during the incident and wanted to run away. He said he had been hit by the black man first. It was put to him

PC Daby who attended the shop gave evidence of arresting the appellants initially for assault. Lemon said his friend had been assaulted by an Asian man who was in the shop. Effer confirmed this. He appeared intoxicated. Mr Sharma gave an account of the officer of men running behind him and asking for weed. Effer had punched him to the

Both appellants gave evidence. Lemon was now an undergraduate and he came from a respectable family. He had been out at a late 18th birthday party for Effer who was a close friend. He was not drunk and they had left at about 11.30. Effer was walking slightly ahead and suddenly turned round and approached Sharma. He was clearly angry. Lemon ran over to check everything was all right and heard Effer demanding an apology. Sharma said he had done nothing wrong and had been running for a bus. Lemon tried to tell him to go home but he seemed confused and the exchange became heated. The only reference to drugs had been Lemon telling Sharma he smelt of weed. Nothing physical had happened. He had said: "Don't mind my friend he's drunk." But Sharma had become aggressive and pushed him. He did not react. A man had appeared who was not in their group and frog-marched Sharma to the corner of the road. Sharma had punched both Effer and himself. They ended up on the floor and had been helped up by their friends. Sharma had run off. Lemon had given a prepared statement in interview but he had been advised thereafter to go no comment.

In cross-examination, he said he was the peacemaker. His group had not surrounded Mr Sharma, or asked him for drugs or his property and he had had plenty of opportunity to run for his bus or to walk off.

In evidence Effer said that he had been a bit tipsy at the time of the incident. Sharma had walked straight into him. He had wanted an apology and he lost his temper a little. He said the CCTV began immediately after the collision. Sharma had been aggressive. Cannabis had not been mentioned. No one had patted down Sharma, demanded his phone or tried to take it. He also described the man who was not part of their group taking Sharma into the corner of the road. The incident had continued over the road. Sharma had punched him in the face. His friends told Sharma to stop and asked him to go. When he was arrested he asked what property but he had not answered questions in interview on the advice of his solicitor. The group had not pushed Sharma against the wall or surrounded him. Others had been trying to diffuse the situation. Sharma had pushed him and he (Effer) had punched him but had not done so again despite Sharma punching both the appellants.

On behalf of Effer, Ms Clegg, who was not trial counsel, submitted that Effer had admitted assault at an early stage and been prepared to plead to common assault, but this had been rejected by the CPS. She submitted that Effer had also admitted assault during his evidence. Mr Sharma's evidence also supported this being no more than an assault, in that he had said it did not feel like an assault, it felt like a robbery. The CCTV footage was also consistent, she said, with assault. She submitted that in these circumstances the judge should have left an alternative count of assault to the jury. She relied upon the decision of the House of Lords in R v Coutts [2007] 1 Cr.App.R 6, particularly the passage in Lord Hutton's speech at [61] and [62]. She submitted that the alternative count here was clearly suggested by the evidence so should have been left to the jury and that, in circumstances where that was not done, the conviction was rendered unsafe.

Similar submissions were made by Ms Smart on behalf of Lemon. She submitted that

Coutts was considered by this Court in R v Foster [2008] 1 Cr.App.R 38, upon which Mr Partridge on behalf of the prosecution relies. Perhaps of more assistance in that context is the decision of this Court in R v Hodson [2009] EWCA Crim. 1590. Keene LJ giving

It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise. For example, if a man is shot at point-blank range in the head and the defence is simply that the defendant was not present, there is no requirement on the judge then to leave the alternative of manslaughter by way of killing without the necessary intent for murder. However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice."

That passage was applied and followed by this Court in R v Johnson [2013] EWCA Crim. 2001, and more recently in R v Robinson [2018] EWCA Crim. 149. In our judgment, the passage is particularly apposite in the present case. An alternative verdict of common assault, in effect no more than some pushing and shoving and punching in the street, following some accidental contact between Mr Sharma and Effer, is not borne out by the prolonged incident which can be seen on the CCTV footage which we have viewed. On any view the punch which Effer would have admitted amounted to assault took place some minutes after the commencement of the incident, at the stage when the group of men had moved closer to the edge of the road. Common assault as an alternative verdict would not only not have reflected what can be seen on the CCTV, but would not properly have reflected the facts of the case or done justice to the gravity of the case which was alleged to have been a joint attempt at street robbery by the appellants acting together, demanding Mr Sharma's property from the outset. In the circumstances of this case, we do not consider that the judge was obliged to leave the alternative count of common

We also note that although both appellants now complain that the alternative count was not left to the jury, neither counsel raised this issue with the judge before or during his summing-up or submitted that he should leave an alternative count. As this court

The fact that counsel did not raise this alternative count with the judge suggests either a tactical decision not to do so or that it did not occur to counsel that it was a realistic

Of course there may be cases where in the light of questions from the jury the judge may have to revisit his or her decision not to leave an alternative count - a point made by Sir Igor Judge P in giving the judgment of this Court in Foster at [61]:

However, this is not such a case. As Mr Partridge rightly points out, there were no questions from the jury here which could be interpreted as demonstrating that they were struggling with a "stark choice" between convicting of attempted robbery and acquittal, such as that they were considering some middle ground which more accurately reflected the appellant's perceived criminality. They delivered timely and unanimous verdicts. In our judgment, there was simply no such stark choice here, and no question of fairness requiring that this alternative count, which did not reflect the gravity of the case and the totality of the evidence, be left to the jury. The summing-up was fair and balanced. The legal directions were correct and the convictions were safe. These appeals against