R v Maxwell
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Ackner,Lord Goff of Chieveley,Lord Jauncey of Tullichettle |
| Judgment Date | 08 March 1990 |
| Judgment citation (vLex) | [1990] UKHL J0308-1 |
| Date | 08 March 1990 |
| Court | House of Lords |
[1990] UKHL J0308-1
House of Lords
Lord Keith of Kinkel
Lord Templeman
Lord Ackner
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Ackner. I agree with it, and for the reasons he gives would dismiss this appeal.
My Lords,
For the reasons to be given by my noble and learned friend, Lord Ackner, I would dismiss this appeal.
My Lords,
This appeal is concerned with alternative verdicts and arises in the following circumstances.
The facts. The appellant, Andrew Robert Maxwell and Alan Lewis, had for some two years been partners in a small business packaging sweets, bypassing the retail trade and selling them door-to-door through agents. Among the first of those agents were Kelly and Richardson, the latter becoming a full-time employee in May 1986. Kelly left the business to set up on his own account, conduct which the appellant viewed as a betrayal. As the business developed and prospered, Lewis, who was interested in computers, designed and wrote the software for a computer programme. This diversification of the business subsequently gave rise to friction, the appellant taking the view that Lewis was spending far too much time on his computers and Lewis taking the view that the appellant was not paying sufficient attention to the sweets business. It all came to a head on 1 November 1986, when apparently the appellant lost his temper and there was a scuffle between him, Lewis and Richardson. Subsequently the partnership was determined and Lewis left the business premises taking with him the computer and some 40 discs. The appellant was incensed by this and having failed to recover the discs by legitimate means decided to achieve his purpose by resorting to criminal activity.
On Friday, 19 December 1986, a serious robbery took place at the house of Richardson where Lewis was living. At 5 p.m. there was a ring at the front door of the house and when this was answered by Mrs. Richardson, three men wearing balaclava masks and gloves, carrying baseball bats and an imitation gun, pushed past her and entered the living room where Mr. Richardson, their two young sons and a baby, were sitting. Mrs. Richardson was pushed into the living room while the gun, which she thought looked like a sawn-off shotgun, was thrust in her face and she was told to get on the floor. One of the men said they were paid to do this and struck her with the baseball bat. All were made to lie down, while one of the men went upstairs and collected £400 in cash from a holdall and the discs. They then left after ripping out the telephone connection. Two of these men were Lee Simmonds and Peter Webster who subsequently pleaded guilty to the offence of robbery. It was undisputed that during the evening prior to the robbery the appellant had made an arrangement with Webster and Simmonds and some members of the Coles family that a group of men would enter the Richardsons' house and retake the discs and would be paid £1,500 for their trouble.
The appellant, together with Webster, Simmonds, Robert King Coles and his son, Lyndon Coles, were indicted with robbery contrary to section 8 of the Theft Act 1968. The trial proceeded against the appellant and the two Coles. The case against the appellant was that he was the man who masterminded the operation, that Robert Coles assisted in the planning of the robbery, although he was not actually present, and that his son was the third of the robbers who entered the Richardsons' home and was a party to the violence, threats and the theft of the property. On 26 June 1987 all three men were convicted of robbery and sentenced to substantial terms of imprisonment. All three appealed and on 20 May 1988 the appeal of Robert Coles was allowed and his conviction quashed. The appeals of the appellant and Lyndon Coles were dismissed. Lyndon Coles did not seek further leave to appeal.
The basis of the appeal. Throughout the trial the appellant's defence was that, although he conceded that in making arrangements to obtain the money and the discs from the Richardsons' home he had committed a criminal offence, it was not the crime of robbery. As the summing up clearly records, the appellant's contention was that if he had been in the dock facing a charge of burglary, he would have pleaded guilty to it. At no stage, so he contended, had he ever intended that violence should have been used upon the Richardson family. Indeed, at the end of the case for the prosecution, in the absence of the jury, there was a submission made by Mr. Stevenson on behalf of the appellant that if a count of burglary were to be added to the indictment, his client would plead guilty to it. However, the prosecution were not prepared to apply for leave so to amend the indictment because they viewed the offence as a carefully planned robbery and not as a burglary that went wrong. In the view of the prosecution on the facts which they had established, it would be quite inappropriate to leave to the jury the option to convict of the lesser crime.
It is apparent that the trial judge, who had the considerable advantage denied to an appellate court of having heard the prosecution's case, approved of the attitude adopted by the prosecution. At an early stage in his summing up having emphasised that the crime of robbery involved the use, or the threat of the use, of force, he said:
"Burglary, of course, is a serious offence. We are all conscious of the risk to all our houses from burglars, of people entering our houses as trespassers, without any right to be there, with the dishonest intent of stealing when they get in, and that is the nature of the offence that Andrew Maxwell says he should be facing. It, of course, lacks the element of force, or threat of force, and is in a very different league to robbery."
Mr. Holland Q.C., who appeared before your Lordships on behalf of the appellant, and to whose able argument I should like to pay special tribute, very frankly conceded that there was ample evidence against his client to justify the verdict that he was guilty of robbery. The prosecution had led evidence that the appellant had threatened the previous employee, Kelly, with violence, that he had behaved violently to Lewis and Richardson immediately prior to the termination of the partnership and that the appellant wanted not only to obtain cash and the discs from the Richardsons' house but also to have his revenge on Lewis. It was significant that he had provided the robbers with photographs of Lewis and Richardson which would have little relevance to assisting them in obtaining the property which he, the appellant, desired, but of considerable significance if he wished violence to be inflicted. In addition there was the violence that occurred on 1 November, when the appellant lost his temper, to which I have referred earlier.
Mr. Stevenson in his final speech to the jury on behalf of the appellant, as was to be expected, re-emphasised his client's contention that while conceding he had committed the serious offence of burglary, he had intended no violence to be used upon the Richardson family and was accordingly not guilty of the only offence with which he was being tried, namely, that of robbery. It was thus in no way surprising that about an hour after the jury had retired, they returned with the following question:
"We would like to know if there is a lesser charge that we can bring against Maxwell and [Robert] King Coles other than robbery?"
In view of the much repeated theme that the appellant conceded that he was guilty of burglary, the trial judge understandably took this question as being directed to whether the jury were entitled to substitute a conviction of burglary for the only offence charged against the appellant, namely, robbery. The jury at no stage had heard of any suggestion that on the indictment as laid, they were entitled to bring in a verdict of guilty of the even lesser offence of theft. Accordingly, the judge answered the jury's...
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