No: 2012/5042/B5 
Neutral Citation Number: [2013] EWCA Crim 1461
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 11 July 2013
 
B e f o r e:

LADY JUSTICE RAFFERTY DBE 

MR JUSTICE SIMON 
 
MRS JUSTICE CARR DBE 
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R E G I N A 

v 

MARK ROYLE
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr M George QC appeared on behalf of the Appellant

Mr P Wright QC appeared on behalf of the Crown
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J U D G M E N T
1.	LADY JUSTICE RAFERTY:  On 6th June 2012 in the Crown Court sitting at Manchester Mark Royle, 38, pleaded guilty to robbery and on 2nd August 2012 was convicted of murder and of a different robbery.  On that day he was sentenced for murder to life imprisonment with a minimum term of 28 years and for each robbery no separate penalty was imposed.  By leave of the single judge he appeals against conviction and sentence.
2.	Mrs Nellie Geraghty when she died was 79 and four feet 10 inches tall.  On Thursday 24th November 2011 as she walked down an alleyway in Greater Manchester she was robbed and her handbag stolen.  She was found at seven minutes before noon that day, prone and unconscious, clutching its handle.  She died on 26th November 2011 from a heart attack as a result of the assault.  The appellant was arrested on 9th December 2011.  On 9th February 2012 Mrs Geraghty's bag and some contents were found.  
3.	The Crown's case was that he attacked and robbed Mrs Geraghty who died in consequence and that he intended her really serious injury.  His was that the Crown could not prove him the robber.  Even if it did, the jury could not be satisfied he had intended really serious harm.  He portrayed himself as a persistent thief and handler, which accounted for his possession of cash on the day.  The issue for the jury was whether it were sure he robbed Mrs Geraghty and in doing so committed murder or manslaughter.  Were it sure he intended her really serious harm, it would convict of murder.  Were it sure he intended her some harm, it would convict of manslaughter.
4.	Mr and Mr Whyke, on foot near the alleyway on the day of Mrs Geraghty's death, saw a man on a bicycle go through the alley then pass them again, circling them and looking back before leaving.  He was cruising, not riding furiously.  He wore a red jacket with a hood and black jogging trousers.  
5.	Jodie Hogan saw two 18‑year‑old males run from nearby Elizabeth Grove to Chamber Road.  She spotted Mrs Geraghty and summoned help. Her 999 call was timed at 11.53
6.	CCTV footage showed the appellant riding a little red bicycle into Chamber Road at about 11.44, emerging from the alley at 11.50 and passing the Whykes at 11.50, but not circling them.  
7.	The appellant contacted Nico his drug dealer, at 11.57, at noon and at two minutes past noon.
8.	Jason Barker on Wednesday 23rd November had seen the appellant in a red Sprayway or Regatta jacket with black tracksuit bottoms and white trainers.  Mr Barker saw the clothing later at the address of the witnesses Kelly and McConky which was where, later, the police found it.  
9.	Christopher Alderson, on the morning of 24th November saw the appellant in a red jacket, bobble hat and jeans.  
10.	Sean Kelly told the jury he used heroin, Methadone, crack cocaine and alcohol.  He lived with McConky and another.  On 22nd November the appellant seemed to Kelly desperate and he wanted to borrow money.  He wore a red Regatta jacket with black under the arms and white Reebok trainers.
11.	On the day of Mrs Geraghty's death the appellant was at Kelly's flat at 11.00 or earlier desperate for money.  He left at approximately 11.00 on a mountain bicycle.  At about 12.30 Kelly saw him agitated and anxious to buy drugs.  He had with him a mountain bicycle and three apparently fresh £20 notes. To explain the money he told Kelly he had stolen a laptop from a vehicle and sold it The appellant changed his clothing, left Kelly's flat and said he wanted to dispose of his red jacket and bicycle lest he had been seen.  
12.	Billy Davies told the jury that toward the end of November or early December the appellant told him that he was wanted and had done "a bit of graft ... which ... had gone a bit naughty".  
13.	Two witnesses on the other hand thought that on the day in question the appellant had been wearing grey clothing.  
The science: 
14.	The force needed to have broken the strap on Mrs Geraghty's handbag would have been significant.  Mrs Geraghty had an injury above her right eyebrow and cuts to her nose, consistent with impact injury when she hit the ground (the most likely explanation) or from a kick or a stamp from a shod foot. A punch could not be excluded but was a less likely explanation.  The pathologist could not estimate the level of force used, but the three injuries were separate impacts and could not all have been caused by one simple fall.  Those to Mrs Geraghty's forehead and left of her head could have been caused by her falling and then being turned bodily and her head again falling against the ground.  There had been substantial force and a strong twisting of her head.  The injury arose from an assault, most likely from kicking, stamping or a powerful punch causing her head to twist.  It could also have been caused by Mrs Geraghty having been pushed and her head, or she, twisting as she fell.  Even so, severe or substantial force was required.
15.	In interview the appellant said he could not at first remember where he had been on the day.  Having seen footage he accepted the man in the red coat could be he.  He denied robbing Mrs Geraghty.  His movements, captured on CCTV, had been whilst he was waiting for his dealer.  
16.	To the jury he denied that he had robbed Mrs Geraghty.  He was addicted to heroin which he took daily and he used crack cocaine, Methadone and cannabis.  He was homeless and either stayed with friends or slept rough.  He supplemented his income from state benefits by commercial burglary or thefts from motor vehicles or from sheds.  When first arrested he had not remembered where he had been on 24th November, but pieced it together from the statements and from the imagery.  He gave a detailed account of his movements.  He denied telling Billy Davies that one of his undertakings had gone "a bit naughty".  He denied he had three fresh £20 notes shortly after the robbery.
17.	In Grounds of Appeal against conviction the complaint is that the judge's directions on intent were inadequate and a misdirection in the circumstances of this case which was primarily a robbery, where there was no direct evidence as to how Mrs Geraghty came by her injuries and where the judge had warned of the care needed before convicting on the basis that the appellant had either kicked or stamped on her. The jury, it is said, should have been directed in accordance with Nedrick (1986) 83 Cr.App.R 267 and Woollin [1999] 1 AC 82 that it was not entitled to find the necessary intention for murder unless sure that death or serious bodily harm was a virtual certainty, barring some unforeseen intervention, as a result of the defendant's actions and that he appreciated that such was the case.  
18.	The submission is that on from the circumstantial evidence the jury would not be entitled to find the necessary intention unless sure that death or serious bodily harm was a virtual certainty and that the defendant appreciated that to be the case.  Indeed, the judge was invited to give such a direction and the complaint is that he was wrong to decline.  
19.	Further, the error is criticised as compounded when, after the jury sent a note, he declined once again.  The note read, in relevant part: 
i.	"We believe that you said that if we are satisfied that he kicked or punched her, that is sufficient for us to infer that he intended to cause her really serious harm.  However, 4.15 of the written summing‑up says that we must be sure that he acted on the basis that the attack would cause really serious harm.  Can you please clarify whether satisfaction that he kicked or stamped on her is sufficient to infer intent to cause really serious harm?"  
20.	 4.15 of the written directions, an exact echo of page 15G of the summing‑up, read as follows:  
i.	"I must emphasise one matter.  If, when you have deliberated on these matters, you are sure that he knew that he could cause her really serious harm while attacking her, but not more than that, that is not enough to establish the necessary intent.  You must be sure that he did not just realise that it could happen but acted on the basis that it would, or that he intended that it would."  
21.	The argued significance of what for shorthand purposes we shall call a Woollin/Nedrick direction as advanced by the appellant is that since this case involved a robbery, it may be inferred that the intention of the robber was to steal the handbag.  Snatching the bag and struggling with an elderly lady can, it is conceded, properly be described as manifestly dangerous.  But the primary desire, or motive, was to steal and consequently, it is argued, may not have been to cause serious harm.  Were the robber to intend really serious harm, then that intention must have been formed during the robbery in a matter of seconds.  Since there was no direct evidence of what the robber did to get the bag or of what force he used, the argument is that it could not safely be inferred that he must have been aware that really serious harm would, as opposed to could, be caused.  Consequently, the further "virtual certainty" direction was required.
22.	The point is underlined in reliance on the jury question.  The judge had warned it to think long and hard before it accepted that Mrs Geraghty's injuries were caused in part by a kick or a stamp.  
23.	The note is described as indicating that the jury must have been reflecting on whether it could safely accept that allegation.  If, so the submission continues, the judge did misdirect the jury, then the importance of intent was such that the conviction cannot be said nonetheless to be safe.  It should be quashed and for it a verdict of manslaughter substituted.
24.	The judge returned to the topic of intent in his summing‑up when he said this:  
i.	"If, when you have deliberated on all these matters, you're sure that [Royle] knew that he could cause her really serious harm while attacking her but not more than that, that's not enough to establish the necessary intent.  You must be sure that he did not just realise that it could happen but acted on the basis that it would or that he intended that it would.  That's the question you're addressing." 
25.	The judge reminded the jury of Mrs Geraghty's age and physical condition.  He dealt with the injuries and briefly with the evidence of the neuropathologist, which supported and slightly enlarged upon the conclusions of the pathologist.
26.	When latterly he returned to the topic, he said: 
i.	"You must be sure that he did not just realise that it could happen but acted on the basis that it would or that he intended that it would.  That's the question you're addressing." 
27.	That direction arguably set a hurdle higher than that in Woollin and Nedrick. It contemplates not virtual certainty but certainty.  We find it difficult to see how it can be a misdirection since it is to the benefit of the appellant.  In any event, the appellant's case was not that this was a robbery that went wrong.  That was a phrase used by the judge in sentencing once the jury had convicted.  The appellant's case was complete denial.  Consequently the direction upon intent avoided unnecessary elaboration and there was no need for further assistance or amplification in the Nedrick/Woollin tradition.   
28.	The jury's note was fact‑specific.  The Judge said:  
i.	"Right.  The direction of law I gave you, you have recited accurately.  What I said to you in the oral part of my summing‑up, as I actually have my words here, was this: 
ii.	'The issues.  The issue is whether you can infer from the injuries she received that her assailant intended to cause her really serious harm.  If you are sure that her assailant kicked her in the head or stamped on her then you could conclude that the intention is shown.  It is a matter for you.'  
iii.	So, you consider the circumstances.  If you are sure that there was a kick or stamp, it is a matter you must take into account when considering what the intention was.  But whatever conclusion you reach, you cannot convict of murder unless you are sure that he intended to cause really serious harm.  
iv.	Whether you find that there was or wasn't a kick, you still have to answer that question."
29.	The direction could hardly be clearer.  It was unambiguous, pared down, and directed to the note.  Grateful as we are to Mr George this appeal against conviction is dismissed.  

30.	Imposing sentence, the judge said that the appellant had been addicted to hard drugs, desperate for money and cycled round Greater Manchester looking for an opportunity.  Mrs Geraghty at four feet 10 and aged 79 made a ready victim for a bag snatch.  She clung on to her bag and the appellant had used considerable force.  She had sustained various minor injuries to her arms and three injuries to her head from at least three impacts.  The judge could not say any of the injuries was caused by a kick or a punch, but the jury's verdict concluded that the appellant had used substantial force intending really serious harm so as to take the bag.  He had emptied the bag of money and dumped its contents in the river.  He had snuffed out Mrs Geraghty's life for the price of a fix or two.  It was of little comfort that she had not suffered pain for more than a short time.  
31.	The second robbery in Rochdale was a bag snatch carried out with some little force.
32.	This was murder for gain and the starting point 30 years.  The most significant aggravating factor was the age and vulnerability of Mrs Geraghty.  The appellant had not intended to kill but formed the intention really to hurt her in a matter of seconds.  This was an opportunistic robbery that went wrong.  The appellant had a long criminal record, which included convictions for robbery and for causing grievous bodily harm.  He had lived many years a parasite on society.  He had admitted the Rochdale robbery at the earliest opportunity and denied the Greater Manchester offences.  Whilst there would be no separate penalties for the two robberies, they were taken into consideration when the judge fixed the minimum term.
33.	Born on 14th November 1974, Royle had 28 convictions comprising 111 offences between 1987 and 2011.  They included numerous of acquisitive dishonesty, in general prompted by his drug addiction, public order offences, fraud and their like, offences against property and 13 offences against persons.  He had previously lost his liberty.
34.	Grounds of Appeal are that the minimum term of 28 years was manifestly excessive.  The judge failed to distinguish the facts of this case sufficiently from others falling within the bracket of a 30‑year starting point and failed to give sufficient discount for the absence of premeditation since he had accepted that the intention was formed in a matter of seconds.
35.	It is not in contention that the starting point was 30 years.  The aggravating feature identified from those listed in paragraph 10 of schedule 21 of the Criminal Justice Act 2003 was the age and the vulnerability of Mrs Geraghty as the judge set out.  It is conceded that the appellant's dreadful record also had relevance.  
36.	This was a murder for gain ‑ paragraph 5(1)(a) and 5(2)(c) of schedule 21- and aggravated as we have set out.  It was however mitigated since the intention was to cause really serious harm rather than to kill and the absence of premeditation.  
37.	This aspect of the appeal has caused us a little anxiety.  It was a dreadful case and a terrible tragedy.  That said, the judge himself identified matters which have, after some thought, prompted us to accede to the appeal against sentence.  The trigger was robbery and within seconds the intention the jury found proved had been formed.  In our view, the interests of justice could be served by a minimum term of 25 years.  To that limited extent, this appeal against sentence succeeds.