R v Osbourne

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLORD JUSTICE LAWTON
Judgment Date08 Dec 1972
Judgment citation (vLex)[1972] EWCA Crim J1208-2
Docket NumberNo. 3265/C/71

[1972] EWCA Crim J1208-2

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:-

Lord Justice Lawton

Mr. Justice Melford Stevenson

and

Mr. Justice Brabin

No. 3265/C/71

No. 3267/C/71

Regina
and
Colin Osbourne
and
John Graham Virtue

MR. H.J. LEONARD, Q.C., and MR. M. SHERBORNE appeared on behalf of the Appellant Osbourne.

MR. J. HAZAN, Q.C., and MR. I. LAWRENCE appeared on behalf of the Appellant Virtue.

MR. B. WATLING appeared on behalf of the Crown.

LORD JUSTICE LAWTON
1

On the 9th July, 1971 at the Central Criminal Court, after a trial before the learned Recorder of London and a Jury which lasted a month, these Appellants were convicted of taking a conveyance without authority (Count 1), robbery (Count 2), having a firearm with intent (Count 3), wounding with intent (Count 4), and assault occasioning actual bodily harm (Count 5). In addition, the Appellant Osbourne pleaded guilty to handling stolen goods (Count 11), and Virtue was convicted of having an offensive weapon, namely, a flick knife (Count 8). There were two other counts in the indictment against Osbourne, but they were not proceeded with.

2

Osbourne was sentenced to seven years' imprisonment on Counts 2, 3 and 4, to twelve months' imprisonment on Counts 1 and 5 and six months' imprisonment on Count 11. All the sentences were ordered to run concurrently. Virtue was sentenced to seven years' imprisonment on Counts 2, 3 and 4-, twelve months' imprisonment on Counts 1 and and six months' imprisonment on Count 8, and again all the sentences were ordered to run concurrently.

3

The Appellants had been indicted with two other men. One was named Lloyd and the other Baldessare. These two men were acquitted on all the counts against them and discharged.

4

These two Appellants by leave of the full Court now appeal against conviction. They do not appeal against sentence.

5

The events out of which the Appellants' convictions arise can be stated shortly because the points which arise in the appeal are only on the fringes of the main facts of the case.

6

On Monday, 16th November, 1970 at about 9.30 in the morning a gang of at least four men (I say 'at least' because there may have been a fifth) entered the South Suburban Co-operative Society's shop in Penge High Street in South London. Some of these men wore masks; others wore hats. One of them is said by witnesses to have worn a bowler hat.

7

They went into the general office and one or more of the gang told the staff to lie on the floor. When that had been done, they went through the counter drawers and took a total of £858 in cash. Having got this money, the gang then ran from the office and some of the staff courageously tried to intercept them. One of them was a Mr. Reader, who was struck with some object and knocked to the ground with a cut over his right eye. The manager, a Mr. Aikman, hit one of the men with a mirror with sufficient force to break it over the man. Thereupon one of the gang shouted out "Shoot him". A gun was produced and at fairly close range Mr. Aikman was shot. Fortunately for him, and perhaps fortunately for these two Appellants, the shots went into Mr. Aikman's leg and did not do him serious damage.

8

Mr. Aikman having been shot down, the men ran out into the road and got into a Triumph motor car which had been stolen on the 14-th November from the Hyde Park underground car park.

9

It is relevant at this stage to say that one of the employees in that store, a Mrs. Head, was standing close to Mr. Aikman when he was shot. That must have been a terrifying experience for her, and it seems, as I shall be recounting later in this judgment, to have affected her emotionally to a considerable extent.

10

As so frequently happens in this kind of gang robbery, the robbers got away from the scene of the crime. Fortunately for justice the Police had some reason to think that they knew who at least four of the robbers were and they got to know by the early hours of Friday, 20th November. What information they had which led them to think that they knew who the robbers were was not put in evidence at the trial. It may have been information from an informer. It may have been nothing more than a hunch.

11

When the Police are dealing with suspected gunmen they must act quickly and they must act with resolution; and on this occasion the Police did act quickly and they did act with resolution. They took the very wise tactical step of trying to arrest them all at the same time.

12

At 6.30 in the morning of the 20th November, 1970 two Police Officers went to the house where the Appellant Osbourne was living with a woman. They found him in bed. They asked him questions and ultimately took him into custody. The questions which they asked him at the place of arrest play an important part in this case and it is convenient, therefore, that I should here and now deal shortly with them.

13

The details of the questioning are set out in the learned Judge's summing-up from which I shall quote, and no criticism was made before this Court that the learned Judge had in any way in this passage in the summing-up or in other passages to which I shall be referring made any material omission.

14

The interview with Osbourne started in this way. One of the Officers said: "I told him who we were, showed him a search warrant to search the premises for stolen money and Osbourne said 'Well, you've come early enough. I can' stop you. What's it all about?'". One of the Officers said to him: "Get up. We want to talk to you". Thereupon Osbourne did get out of bed and dressed. They went into the front room and they looked round and found a watch which was later identified as stolen property. That was the watch mentioned in Count 11 of the indictment, a count to which Osbourne pleaded guilty.

15

Shortly after they found the watch Osbourne said to the Police Officers: "All right, you've got yourself a capture. I'll get my coat and off we go". That comment could be related to the finding by the Police Officers of a watch subsequently proved to have been stolen to the knowledge of Osbourne and could have been intended to get the Officers out of the house before they found anything else.

16

Osbourne not unnaturally wanted more information as to why they were there and he was told: "Well, as you have seen on the warrant, we are looking for stolen cash which in fact I can tell you was from a robbery". Osbourne's reply to that was: "I've got no cash here. I'm skint. Which blagging are you interested in? There's been so many lately". The Police Officer replied: "The one we believe you are involved in was last Monday at the Co-op. in Penge High Street". Osbourne said: "I haven' heard about that one. Where's Penge?".

17

After that the Police Officers started searching for money and in the end they found £265 in £10 and £5 notes. When that money was found one of the Police Officers said to Osbourne: "I thought you said you didn' have any money here. What about this lot? Where does it come from?" to which Osbourne replied words to the effect of "I had a nice few quid. That's what's left".

18

The Senior Officer present said: "Well, who was holding it for you?" to which Osbourne replied: "It wasn' the bloody bank manager, I can tell you. You are wasting your time". The Officer then said: "Have you been working lately?", to which Osbourne said: "You mean 'legit'-like? No, not since the beginning of the year. I've done a bit of gambling to keep going".

19

That answer is of some importance in this case because the Police knew that Osbourne for some months had been trying to earn his living as a professional gambler and they appreciated that he might have acquired a substantial sum of money by gambling and that even if he had not, that negative would be impossible to prove.

20

The search went on and in the course of it one of the Officers found a black homburg hat in a cupboard. When it was shown to Osbourne he came out with an expletive and said: "I can see you mean business". The Sergeant said: "Is it yours?" and Osbourne made an answer which amounted to an admission that it was.

21

What does all that come to in terms of material upon which to base a prosecution? The most that can be said about it is this, that the Appellant had told lies to the Police when they told him that they were going to search his premises for money which they believed to have been stolen in the course of a robbery at Penge. When he had been told where it was believed the money had come from, he said he knew nothing about any such robbery at all. Again when the money was found, he put up an explanation which could have been true. Beyond that the Police got nothing out of that interview. So much for the arrest of Osbourne.

22

Virtue was arrested in the following circumstances. The Police knew that he was serving a sentence at Pentonville Prison and that he was to be released at 7 a.m. or thereabouts on the 20th November. They were waiting for him and arrested him at the prison gates. To most members of the public the reaction would be "Well, he could not have taken part, could he, in the robbery because he was in prison on the 16th November?", but that is not modern life. This man, for some six months or so before the 16th November, had been on a release scheme from the prison and, therefore, he would have been able to carry out this armed robbery on the 16th November if he had the inclination.

23

When he was searched on arrest he was found only to be in possession of a very small sum of money to which no significance can be attached.

24

These two men were then taken off to a Police Station in South London. There the Officer in charge of the case, Chief Inspector Gittus, started to interrogate them and one of the...

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