Lambert, R. v [2009] EWCA Crim 2860

Case No 200901765/D2[2009] EWCA Crim 2860
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 15th October 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE OPENSHAW
HIS HONOUR JUDGE ROOK QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
LEWIS LAMBERT
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr S Parish appeared for AppellantMr M Forster appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an application for permission to appeal against a conviction of blackmail. It was referred to the Full Court by the Registrar.[2]It raises the question as to whether the alleged blackmailer is guilty of the offence within the meaning of section 21 of the Theft Act 1968, when he poses as a victim as opposed to the one who is going to be the aggressor or who will arrange for aggression to occur.[3]The applicant was convicted in March 2009 at Southampton Crown Court of blackmail. The allegation was that on the 12th October 2008 he had rung someone's grandmother, pretending to be a victim and asking for money because, he said, he was tied up. The caller, who made two phone calls, was speaking about a grandson who had clearly got into financial difficulties.[4]The prosecution case was that this applicant was the person who had made the phone calls. The prosecution case was that he was owed money by the grandson and had used the device we are about to relate in order to impose the pressure of menaces on the young man's grandmother. He was alleged to have said, and the jury found that he did:
"Nana, this is Aaron [the name of the grandson]. They've got me tied up. They want £5,000, Nana."
To the grandmother's ears the person sounded distressed, as though he was crying. Fortunately she was of a robust disposition and said to the caller:
"You've got a cheek to ask for £5,000. I don't have £5 let alone £5,000." "
Well [said the caller] they want £5,000" and still appeared to be crying. "I bloody haven't got it" she said. So the caller hung up. She believed it was her grandson and she was scared. The person made a second call and asked for money again. She responded that the best thing for him was to call his mother. The caller then asked for the mother's telephone number - an odd request if it was in fact the grandson. The grandmother sensibly got in touch with her son, the father of the apparent caller and the police were called. They managed to trace the call to this applicant who has throughout denied that he was the caller. The jury found to the contrary.[5]Mr Parish, on behalf of this applicant, took the point at the close of the prosecution case that no offence had been committed within the scope of section 21. Section 21 of Theft Act 1968 provides:
"(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a)that he has reasonable grounds for making the demand; and (b)that the use of the menaces is a proper means of reinforcing the demand. (2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand."
[6]Mr Parish submitted that the demand was not unwarranted and furthermore that, since the caller was not pretending either to carry out action against the man, Aaron, nor had it in his power to do so, he could not be guilty of blackmail. Blackmail required, so he submitted, either that the person attempting the blackmail was proposing to carry out the menace identified with the demand, or had it in his power to carry out that which was menaced.[7]We do not agree. We think it makes absolutely no difference whether the person pretending that someone has been tied up and will be hurt if money is not handed over is pretending to be the victim, or pretending to be the aggressor or pretending that he has it within his power to see that harm comes to the fictitious victim.[8]The essence of the offence which the prosecution must prove is, first of all, that there was an unwarranted demand. Mr Parish submits that there was no unwarranted demand in this case. But it is by now well established that the demand does not have to be made in terms of a demand or requirement or obligation. It can be couched in terms which are by no means aggressive or forceful. Indeed, the more suave and gentle the request, the more sinister in the circumstances it might be. If one needs authority for so obvious a proposition, one can find it in the decision of this court in R v Collister [1955] 39 Cr App R 100 and in particular in the approval by the court of the terms of Pilcher J's summing-up at page 102.[9]In our view, there was clearly a demand in this case and it was unwarranted. No justification was offered for imposing pressure upon the grandmother to hand over money to her grandson so that this defendant could be paid what the grandson owed him.[10]The next question is whether it was accompanied by menaces. Mr Parish again submits that it was not, since what was threatened by the caller was not that he would do something or allow others to do something but rather that he would suffer violence from others. That, as we have already indicated, is wholly irrelevant. What the caller was seeking to do was to impose upon the grandmother the pressure that were she not to hand over the money, her grandson would suffer violence. It is the essence of the offence that the offender intends and does impose what is described at paragraph 15 of this court's judgment in R v Jheeta [2007] EWCA Crim 1699 as "menacing pressures." That case has an extraordinary series of facts which it is not necessary to summarise in this case. The court dismissed an application to argue that the applicant was not guilty of blackmail because he had merely pretended that others required security fees on the false basis that his victim was under threat. But the matter was clearly not argued in full. It did not need it to be. In those circumstances, we agree with Mr Parish that it is not authority which disposes of his argument.[11]But what does dispose of his argument is the very language of the statutory offence under section 21. There was, in this case, an unwarranted demand with menaces. It avails Mr Parish nothing to draw attention to cases where a hostage himself or herself reports the threat under which she suffers. In such a case there clearly is no unwarranted demand and the statutory requirements of section 21(1) are not fulfilled. An innocent agent, who merely reports that someone else is under threat cannot be guilty of an offence of blackmail because that innocent agent in making that report is not himself or herself making any unwarranted demand.[12]For those reasons we do not think that there is anything in the argument advanced by Mr Parish and the judge, His Honour Judge Boggis, was correct in declining to withdraw the case from the jury. In his ruling he said:
"... there is no basis in law for Mr Parish's submission that the demander must be instrumental in authorising the action to be taken. That is contrary to the very heart of the offence, an unwarranted demand accompanied by menaces. It being irrelevant whether the menaces relate to action taken by the demander or somebody else, and it also being irrelevant whether the demander is in any position to effect menace. It is how the demand and menace affects the victim that matters."
[13]We agree. This is only an application for permission to appeal. But we think it right, so as to scotch any attempts in the future to raise this point, to grant permission to appeal. But having given permission, we dismiss the appeal for the reasons we have given.