McNeill, R. v [2007] EWCA Crim 2927

No: 200605038/D4[2007] EWCA Crim 2927
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 6th November 2007
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE HENRIQUES
MRS JUSTICE SWIFT DBE
Between
R E G I N ACrownv
Between
TRACEY MCNEILL
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Mackinnon appeared for ApplicantMr K Volz appeared for Crown
J U D G M E N T

LORD JUSTICE RIX:

On

[1]8th September 2006 in the Crown Court at Snaresbrook before Mr Recorder Walker QC, after a three days trial, the appellant, Tracy McNeill, was convicted of making threats to kill. That was count 1 of the indictment. She had previously pleaded guilty, on a change of plea, to malicious damage, count 2. Thereafter, on 26th June 2007 she was sentenced to concurrent terms of 36 weeks' imprisonment suspended for 18 months and ordered to undertake alcohol treatment for 60 days. She now appeals against conviction by leave of the Single Judge.[2]The overall prosecution case was an allegation that the appellant, believing that her upstairs neighbour, Mr Jess Clements, had stolen half a bottle of brandy from her, went to his flat demanding its return. When he refused to open the door, she kicked it and smashed a hole in it with a hammer. That was the content of count 2, malicious damage. Then, through the hole made in the door, she uttered threats to kill her neighbour, that being the content of count 1. The appellant denied those offences.[3]The neighbour, Jess Clements, gave evidence that at about 11.30 pm on 28th November 2005 he was preparing for bed when he heard her shouting and knocking on his front door. He recognised the appellant's voice and she was shouting that her bottle of brandy had been stolen and demanded he open the door. When he refused to do so she attacked it with a hammer. As the door started to split, she continued to shout abuse at him and ended up threatening to stab him and cut him into little pieces. The words alleged were:
"I will cut you up, cut you into little pieces, I will kill you. I know the way out of your flat. I will burn you and kill you all."
She looked through the hole she had made in the door, called him abusive names, and repeated her threats to burn the flat. He had taken those threats seriously and called the police.[4]Police Constable Beveridge, who attended the scene at about midnight, also gave evidence at trial. He said that the appellant was found in an agitated state, swearing and cursing. She told him:
"I've had enough, I will bloody kill them."
She said that when she could not get a reply from the Clements' flat she smashed the door to try to speak to its occupants. She accused them of being drug dealers, theives and prostitutes. Police Constable Beveridge also said that Mr Clements appeared shaken and distressed.[5]Miss Maddie Cooper, a local council housing officer, gave evidence about an incident that had occurred at the Camden Housing Office two days later, on 30th November. The appellant had come to the Housing Office seeking temporary accommodation. She was upset and indeed distraught, all the more so when told that the Housing Office could not help her. She then threatened to go home and burn the Clements' flat down, declaring:
"They'll come out in body bags."
[6]The appellant gave evidence. She said that she was 33 and only 4 feet 9 inches in height. After a game of bingo she had returned to her flat, left a half bottle of brandy which she had bought just outside the front entrance of her flat, which she had gone into to use the toilet. When she emerged outside she found that the bottle of brandy had disappeared. She heard a door slamming and that led her to believe that someone in the neighbouring flat upstairs had come out and stolen the brandy. So she went up to her neighbour's door, knocked on it, but no one answered. She became agitated, she said, f-ing and blinding, and started to kick the door. She just snapped and became mad and abusive when someone in the flat called her a derogatory name. She smashed a hole in the door with a mallet. She continued to abuse the occupants, calling them whores and drug dealers. Her original intention had been merely to seek reimbursement for her brandy. However, whilst admitting all that, she denied having threatened to kill Mr Clements or to cut him up or to burn his flat down. She could not remember threatening anyone. She accepted, however, that she had used the words to the police which Police Constable Beveridge had given evidence about, namely:
"I'll bloody kill them"
. Otherwise, however, she had never made a threat to kill to Mr Clements and in any event nobody took her seriously, she was just a little woman with a big mouth. As for the event two days later at the Camden Housing Office, her actual words to Miss Cooper had been:
"What do you want me to fucking do? Do you want me to burn it down? Do you want them to come out in body bags?"
[7]In cross-examination, she accepted that her intention had been to scare her neighbour, Mr Clements. She had acted aggressively towards him but what she had said had been said in anger.[8]The appellant also called, as part of her defence, her friend, Miss Baillie, with whom she had been out playing bingo that evening, and Miss Baillie said that while she had heard what was going on, she had not heard any threats to kill.[9]It was in the context of that trial that a question arose as to whether the evidence of Miss Cooper, the Camden Housing Officer, was admissible. The prosecution had originally prepared a notice for the purposes of section 101(1)(d) of the Criminal Justice Act 2003, seeking admission of that evidence of Miss Cooper as evidence of bad character, namely as evidence of a propensity to utter threats to kill of that nature. Ultimately, however, Mr Volz, who appeared for the Crown at trial as he does again on this appeal, preferred to put his application (and his opposition to a counter- application to exclude the evidence of Miss Cooper under section 78 of the Police and Criminal Evidence Act 1984), not as bad character material under section 101 of the 2003 Act, but as facts more directly relevant to the alleged offence.

(a) of the 2003 Act, which reads:

"References in this Chapter to evidence of a person’s 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence."
We should also refer briefly to section 112(1) of the 2003 Act, which provides that "bad character is to be read in accordance with section 98."[10]So the issue for the judge, and now again on this appeal, was whether the evidence of Miss Cooper was evidence which "has to do with" the alleged facts of the offence charged.[11]On this appeal Mr Mackinnon, who appeared at trial below on behalf of Miss McNeill, submitted as he had done before the judge, that such evidence was not within section 98(a) and in any event should not be admitted by reason of section 101(3) or should be excluded under section 78 of the 1984 Act. The judge, however, firstly ruled that the relevant evidence was not that of bad character but was within the exception to section 98(a), and secondly, refused to exclude it as being unfair or, in the terms of section 78, likely to have "such an adverse effect on the fairness of the proceedings that the court ought not to admit it".[12]On this appeal Mr Mackinnon has repeated the submissions that he made to the judge. He submits that this evidence of Miss Cooper was either evidence of bad character or it was nothing. If it was going to be admitted, then a bad character direction would have to be given, which it was not, and that in any event the judge should have excluded it under section 78.[13]In support of his submission that this evidence lay outside the exception to section 98(a), he contended that it was evidence of a separate offence, on a separate occasion, in a different location, made to a different person. He suggested that, if such evidence was to be admitted at all, then a separate charge of threats to kill should have been laid in relation to that separate occasion on 30th September. He subsequently accepted that that last submission might have some difficulties given that there was no ready likelihood of there being an intent to put Miss Cooper in fear of a threat to her life by reference to what was said about the appellant's intentions towards her neighbour, Mr Clements. Mr Mackinnon resiled from his suggestion that a separate offence of threat to kill could have been laid in relation to the event of 30th September. Nevertheless, he said it was a separate occasion and therefore could not come within the words of section 98(a), however broad the prima facie content of those words might appear to be. He directed our attention to the text of paragraph 13-6 of Archbold 2007, where those words are discussed as relating to conduct which is a precondition of some other offence, like a disqualification from driving in relation to an offence of driving whilst disqualified, or as relating to a conspiracy or joint enterprise allegations, cases where other offending conduct, or bad character conduct, is a necessary and inherent part of some offence charged.[14]In our judgment, however, the words of the statute "has to deal with" are words of prima facie broad application, albeit constituting a phrase that has to be construed in the overall context of the bad character provisions of the 2003 Act. Thus the breadth of the words are clearly limited by the context for instance of section 101(1)(c)'s reference to important explanatory evidence, and gateway (d)'s more general reference to important matter in issue, which taken together with section 103 relates to propensity and previous convictions. In our judgment, it would be a sufficient working model of these words if one said that they either clearly encompass evidence relating to the alleged facts of an offence which would have been admissible under the common law outside the context of bad character or propensity, even before the Act, or alternatively as embracing anything directly relevant to the offence charged, provided at any rate they were reasonably contemporaneous with and closely associated with its alleged facts (see for instance the reference to R v Machado noted towards the end of Archbold 13 - 6).[15]One possible analogy which has been discussed in the course of the appeal is evidence relating to intention, where a question of mens rea and intention is before a jury. In such circumstances a jury is typically directed in terms of how are they to enter into the question of what went on in the defendant's mind, and they are typically told to have regard to all matters said or done at the time of the offence, or before it, or after it. Mr Mackinnon accepted that if a passerby had overheard Miss McNeill muttering to herself as she walked down the street about how much she hated her neighbour and how she wanted to kill him, a couple of days before a threat to kill her neighbour, then that would have been directly admissible as relevant to the alleged facts of the offence and would have been within the exception to section 98(a). Mr Mackinnon demurred somewhat when asked an equivalent question in relation to what a bystander might have overheard said two days after an alleged offence of that kind, nevertheless we consider that that would be encompassed at the same rationale.[16]In his summing-up the judge dealt with this evidence from Miss Cooper in the following way. After relating Miss Cooper's evidence, he said this:
"Again the Crown relies upon this as evidential support to threats having been made and as to what was said on the evening of 28th to Mr Clements. Again ladies and gentlemen, of course it is entirely a matter for you, whether or not you consider that her evidence does in any way support the Crown's case, either in relation as to whether threats uttered or in relation to whether or not the defendant intended that Mr Clements would fear that the threats would be carried out."
We think that was an entirely appropriate direction, and by itself indicates just how this material directly related to the offence charged and was properly probative of it, if the jury so considered. The jury, of course, had also Miss McNeill's version of her conversation with Miss Cooper, namely: "What do you want me to fucking do? Do you want me to burn it down? Do you want them to come out in body bags?", which although put in the form of an interrogative, does not seem to us to have been materially different from what Miss Cooper said the appellant had said to her on that occasion. We therefore accept that the judge was right to regard this material as evidence within the exception of section 98(a), and therefore not as being bad character within the bad character provisions of the 2003 Act, and we go on to consider whether nevertheless the judge should have excluded this evidence under section 78.[17]The submission here, as we understand it, is that Miss McNeill was in such a distraught state on 30th September, when she visited the Housing Office, that it would be unfair to put against her, as it were, out of mind remarks on that occasion. The background was that, having been arrested and released on conditional bail, the condition being that she should reside at a certain address, probably that of a friend, she then found that she could not reside there and she had nowhere to stay. She visited the Housing Office in an attempt to get alternative accommodation and in her difficulties and in her distress, she may have spoken either the words which she accepted that she spoke, or the words which Miss Cooper said she spoke, but in any event it would be unfair to take that into account in relation to the offence charged.[18]Of course most evidence which the prosecution seek to bring at trial against a defendant is prejudicial to the defendant's case. That is in the nature of most prosecution evidence, but that does not mean that it falls within the rationale of the power to exclude under section 78. In effect the admission of the evidence in question has to be unfair to the conduct of the trial in all its circumstances. These words are sometimes glossed by saying: the evidence in question has to be unduly or unfairly prejudicial. However, we see nothing at all, or at least unduly or unfairly, prejudicial in the evidence in question. It is true the jury may well have seen in Miss McNeill's words to Miss Cooper material probative of the Crown's case that she had uttered threats to kill, threats that she had denied at trial, particularly given the repeated references to burning. Nevertheless the fact that those words were said to Miss Cooper without intending to frighten her with a threat to kill, and were said in that condition of extreme distress upon which the defence relied on that occasion, may -- it was a matter for the jury -- have even assisted the appellant in her defence at trial; that whatever she may have said on the critical occasion through her neighbour's door, it was just the words of a loud-mouth who had lost control of herself; and that, given her small size, those words could never have been thought of as amounting to an intentional threat to kill or thought of as capable of putting anyone in fear. That of course was a matter for the jury.[19]For these reasons, we reject the submission that the judge should have excluded this evidence under section 78. It follows that this appeal must fail. We dismiss it.

Cited in 5 later judgments