Ndila [2019] EWCA Crim 793

Ndila [2019] EWCA Crim 793 was an application by Mr Jonathan Ndila to the Court of Appeal (Criminal Division) seeking leave to appeal against his conviction for false imprisonment at Stafford Crown Court on 27 April 2018, for which he had been sentenced to three years’ imprisonment. Mr Ndila had also been acquitted of assault by beating but convicted of unauthorised possession in prison of a knife or offensive weapon. The court comprised Lord Justice Haddon-Cave, Mr Justice Goss and His Honour Judge Kinch QC sitting as Recorder of Greenwich.

The convictions arose from an incident on 31 March 2017 at HMP Brinsford. When attending a consultation room in the healthcare wing to see Dr Malik, Mr Ndila was alleged to have punched the doctor without warning, forcing him to back into a corner and hold a chair in front of himself for protection. Mr Ndila then produced a toothbrush with a razor attached, held it to his own throat and demanded to see the governor. Dr Malik gave evidence that Mr Ndila made unsuccessful attempts to barricade the door and stood by the door whilst holding the weapon to his own throat.

Mr Ndila denied throwing any punches. He accepted that he stood by the door holding the knife to his own throat in the hope of persuading the governor to come and speak to him about problems he was having. He maintained that the door was open and that he did nothing to prevent the doctor from leaving. The jury acquitted him of assault but convicted him of false imprisonment on the basis that he had used force or the threat of force to prevent Dr Malik from leaving the room. He had no defence to the offensive weapon charge, having admitted in his evidence that he held the improvised knife to his neck.

At trial, counsel had made a submission of no case to answer on the false imprisonment count under the second limb of R v Galbraith, focusing on inconsistencies in the details of the accounts given by various members of staff at the scene. The judge rejected the submission on the basis that, although there were inconsistencies, it was open to the jury to find that the complainant was falsely imprisoned in a situation where he was at one end of the room and Mr Ndila, a much larger man, was standing between the complainant and the only exit from the room.

Mr Ndila advanced two grounds of appeal. First, he contended that the judge had erred in rejecting the submission of no case to answer on the count of false imprisonment, which had been made on the basis of the inconsistent evidence given by the witnesses. Secondly, he argued that the guilty verdict on the false imprisonment count and the acquittal on the common assault count were inconsistent.

The court noted that the single judge, when refusing leave, had observed that the trial judge’s approach to the inconsistencies in the evidence of the prosecution witnesses was correct. They were matters to be considered by the jury. It was open to the jury to find that Dr Malik was falsely imprisoned.

In his written directions to the jury, the trial judge had made clear that the prosecution must make the jury sure that Mr Ndila used force or the threat of force to prevent Dr Malik from leaving the room to find him guilty of false imprisonment. In relation to their verdicts, he directed them that the evidence in relation to the three counts was different and their verdicts did not need to be the same. He went on, correctly, to direct them that, even if they found Mr Ndila not guilty of assault by punching, they still had to consider the context in which the alleged false imprisonment took place, because assault includes not just the direct use of force by punching somebody but also the threat of force, thereby preventing the doctor from leaving the room.

The court held that by its verdicts the jury was not sure Mr Ndila threw punches but was sure he unlawfully used the threat of force to prevent Dr Malik from leaving the room. There was no inconsistency in the verdicts. The court emphasised that there was no arguable basis for the conviction for false imprisonment being unsafe. In short, the application for leave to appeal was refused as there was no merit in any appeal.

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