R v Andrew Thomas

LORD JUSTICE DOVE: On 5 June 2024 in the Crown Court at Nottingham the appellant pleaded guilty to count 3 on an indictment, being a charge of dangerous driving. He was subsequently tried on counts 1 and 2 of the same indictment. Count 1 was a count of aggravated burglary of which he was acquitted by the jury. Count 2, a count added at the start of the trial, was a count of conspiracy to commit robbery and that led to conviction by the jury.

Subsequently, on 18 July 2025 before the same Crown Court the appellant was sentenced to three years six months' imprisonment on count 2 and a concurrent sentence of six months' imprisonment on count 3. He appeals against conviction with leave of the single judge and we place on record our thanks to Mr Robinson and Mr Lody for their helpful submissions both in writing and also orally this morning.

The facts related to a break-in to a domestic cannabis factory at 42 Birding Street, Mansfield in Nottinghamshire in the early hours of 6 May 2024. The property contained 259 cannabis plants which were ready to be harvested.

Prior to 6 May 2024 the appellant's co-accused (we use their surnames but mean no disrespect by doing so) Quarry, Elmi and Yackobi had communicated with one another via Snapchat with a view to stealing the cannabis plants in 42 Birding Street. The Snapchat messages showed the organising of the burglary together with timings, vehicles, drivers, location and information about the cannabis crop. Cell site evidence demonstrated that the appellant, along with these co-accused, travelled to Mansfield from London in the early hours of the morning of 6 May 2024 in multiple vehicles. These arrangements formed the foundation of count 2 on the indictment.

Count 1 on the indictment related to the break-in at 42 Birding Street itself. When the property was broken into in the early hours of 6 May 2024, a Mr Nguyen was asleep downstairs and having been woken he made his way to the first floor where he encountered a black male with his face covered leaving the bathroom carrying a knife. This male held the knife to Mr Nguyen's neck and led him downstairs, following which he was told to sit down whilst a number of other males carrying knives and a metal stick entered the property. One of the males stayed with Mr Nguyen while the others went to the first floor and stole the cannabis plants. A neighbour called the police and officers arrived whereupon Quarry exited the rear door of the property and officers chased him down and tasered him. Notwithstanding being tasered, he was able to make good his escape by getting into a white Vauxhall Zafira parked outside 42 Birding Street which drove off at speed with him in it.

At around 14:25 on 6 May 2024 the Vauxhall Zafira car was seen by police travelling south on the A5. The police followed the vehicle and deployed a stinger to attempt to stop it but the vehicle made no attempt to slow down and drove through a red light at a busy junction. Ultimately the police were able to bring the vehicle to a stop, whereupon the appellant, who was driving the car, and Quarry (the passenger) were arrested.

The appellant's mobile phone was seized but he told the police it belonged to his girlfriend. Quarry threw a small black bag from the vehicle which when recovered contained a black jacket and Balaclava, together with a small amount of cannabis. A cannabis leaf and a taser barb with copper wiring were recovered from the vehicle which was demonstrated to have been stolen and was displaying false number plates. The appellant's driving in the afternoon of 6 May 2024 was the foundation of count 3 on the indictment.

The prosecution case in relation to count 1, the count of aggravated burglary, was that the appellant was the driver of the Vauxhall Zafira and assisted, encouraged or participated in the offence in his role as a getaway driver. The prosecution alleged that while he remained outside 42 Birding Street he knew that his co-accused had entered that address and that they were carrying weapons in order to carry out a burglary. He was therefore a participant in the aggravated burglary of those premises.

In relation to count 2, the count of conspiracy to commit robbery, the prosecution case was that the appellant was a party to the conspiracy to enter the property on Birding Street and steal the cannabis plants and that it had been agreed that he would be the getaway driver. The appellant knew what the plan was and he knew that it involved stealing the cannabis plants with the use or the threat of the use of force.

The prosecution relied upon the guilty pleas to count 2 from Quarry, Elmi, Yackobi and a further co-accused Omar. They also relied upon the appellant's guilty plea to dangerous driving as evidence of his mindset. The prosecution relied upon the Snapchat evidence and messages as evidence of the conspiracy and the evidence of Mr Nguyen in relation to the nature of the burglary and the fact that some intruders were carrying weapons.

They relied upon the evidence of the neighbour who had called the police and the evidence of the police officers who having arrived at 42 Birding Street saw a male wearing a Balaclava exiting the property, as well as the body-worn video footage from the officers who stopped the Vauxhall Zafira. They relied upon the plotting of the movements of the Vauxhall Zafira and other motor vehicles using ANPR cameras and cell site analysis. They further relied upon doorbell footage of individuals wearing face coverings walking towards 42 Birding Street. Finally they relied upon the appellant's silence in interview.

This material was also relied upon by the prosecution in relation to count 2.

The defendant gave evidence and he explained that at the time of these events he was homeless and living in the Vauxhall Zafira. He had no knowledge that the car was stolen or that it bore false number plates. He knew Quarry from school and Quarry had asked him to drive to Mansfield for £500 and he agreed. He drove to Birding Street but did not see anyone carrying a weapon. He made off from the police because Quarry instructed him to do so. He was told to drive to an address where a second male got into his car and he was given a series of postcodes and told to drive to various locations. The appellant said that the two people in his car did not tell him what they were going to do and he did not ask them any questions. His defence in relation to count 1 was that he had no idea why he had been asked to drive to 42 Birding Street having been recruited by Quarry and did not ask any questions. He did not see anyone with their face covered or carrying a weapon and he did not get out of the car or enter the address. He simply drove as instructed to a number of locations.

In relation to count 2, his defence was that he had no knowledge of any agreement to enter the property on Birding Street in order to steal cannabis plants, nor was he party to any agreement to do so. He was not involved in the Snapchat messaging in which the agreement was discussed.

At the close of the evidence the judge provided the jury with written legal instructions in relation to the directions which the jury had to follow in order to reach lawful verdicts in the case. These directions covered a wide range of topics, many of which are irrelevant for the purposes of this appeal. What is however of central importance is the route to verdict which the judge provided, helpfully setting out the questions which the jury needed to address in respect of the appellant's case in order to establish whether or not they could be sure that he was guilty in respect of counts 1 and 2, considering those counts separately.

These routes to verdict reflected the accurate description of the offences comprised in both counts 1 and 2 which the judge had set out fully in her written legal directions, which were also reflected in her oral presentation of her legal instructions to the jury.

The written route to verdict in respect of the appellant provided as follows:

As has already been set out, the outcome of the jury's deliberations was that the appellant was acquitted of count 1 but convicted on count 2. The essence of the appellant's case in this appeal is that the jury returned perverse verdicts in acquitting on count 1 but convicting on count 2. It is submitted that the acquittal on count 1 undermines the safety of the conviction on count 2 since it is submitted that the logical conclusion to be drawn from the acquittal on count 1 is that the jury concluded they could not be sure that the appellant entered 42 Birding Street and did not know of the particulars of the plan. If that is correct, then it is submitted that it must follow that the jury rejected the prosecution's invitation to conclude that the appellant knew that there were weapons involved in the burglary and that they would be produced in order to steal.

As an additional development of this submission, it is submitted that there is no evidence from which the jury could properly conclude that force was going to be used and that the appellant knew of the use or threat of violence at the time. This could in the appellant's mind have been a burglary and the use of force and the evidence to support any agreement as to the use of force was entirely speculative in a way in which it was inappropriate for the jury to conclude that he was guilty.

Having considered the submissions made in support of this appeal, we are unable to accept them. It does not follow logically that because the jury acquitted on count 1 they could not safely infer that the appellant was involved in a conspiracy to rob at 42 Birding Street. As the route to verdict ably demonstrates, the allegations in relation to count 1 and count 2 whilst linked to the same event have very different ingredients which are mutually inconsistent. The differences between the questions posed in relation to these two separate counts draw the distinctions between them into sharp focus. It was obviously open to the jury on the basis of the evidence that they had received to conclude that they could not be sure that the appellant was aware of the weapons which were produced inside 42 Birding Street but could be sure that the appellant knew that force or violence was to be used or threatened in order to undertake the theft of the cannabis plants. As the grounds acknowledge and as is clear from the route to verdict, the critical distinction between count 1 and count 2 is that in relation to count 1 the jury had to be sure that the appellant was aware that the participants in the criminal enterprise in which he was participating by intentionally assisting and encouraging them were in possession of weapons of offence. That is distinct from the requirements in relation to robbery under count 2 which require the jury to be sure that he had agreed with the others who entered the property that they would use force to steal the cannabis.

As already noted, it is additionally submitted that notwithstanding the accuracy of the route to verdict provided by the judge, it would have been pure speculation, having concluded as they did on count 1, that this appellant had knowledge of the use or threat of violence and that that speculation was illegitimate and could not lead properly to the jury being sure.

We disagree. In our judgment the jury could quite legitimately infer from the facts that have been set out already that the appellant knew what was taking place and, moreover, that what was involved in the activity in which he was engaged was a robbery which would include the use of force or the threat of force and that that was intended by those who he was accompanying and facilitating by driving the getaway car.

In our judgment it was well within the spectrum of legitimate inferences which could be drawn by the jury that the appellant had the requisite knowledge to lead to a positive answer to the question posed in respect of count 2. As already noted, for instance, he drove the car between London and the scene of these events with the passengers who participated in the attempt to steal the cannabis plants and they were communicating throughout the course of that journey. That and the other facts and circumstances which have already been set out provided the jury with ample material upon the basis of which a proper inference could be drawn by them.

It follows that on analysis therefore there is no inconsistency in the verdicts that the jury returned, nor was the verdict on either count perverse or inexplicable. In fact the verdicts are easily explicable by the jury faithfully following the legal instructions which they had been given, considering each of the counts separately and answering the questions posed in the route to verdict separately.

For all of these reasons, we are quite unable to accept that there is any substance in the appellant's complaint and therefore this appeal must be dismissed.