ZN, R v [2013] EWCA Crim 989

Case No 2011/06912/C3[2013] EWCA Crim 989
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/06/2013
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISIONLORD JUSTICE LEVESONLADY JUSTICE RAFFERTYMR JUSTICE FOSKETTMR JUSTICE HICKINBOTTOM
Between
ReginaRespondentZNAppellant
Arash Abzarian for AppellantNicholas Alexander for RespondentHearing Hearing date: 16 May 2013
JudgmentThe President of the Queen’s Bench Division:Introduction
[1]This appeal, brought with the leave of the Full Court, raised the question as to whether it was correct that, in an offence of witness intimidation contrary to s.51(1) of the Criminal Justice and Public Order Act 1994, it was not necessary for the Crown to prove that the witness had actually been intimidated; this court had so indicated in R v Patrascu [2004] EWCA Crim 2417, [2005] 1 WLR 3344. We allowed the appeal for reasons to be given later and quashed the conviction for witness intimidation, but exercised our power under s.3 of the Criminal Appeal Act 1968 (as amended) to substitute a conviction for the offence of attempted witness intimidation. These are our reasons for our decision.[2]The factual background can be briefly summarised. The factual background[3]On the evening of 25 June 2011, the appellant, then aged 15, went with several friends to a party at the flat of LFG in London. Attempts were made by phone to persuade CF (the complainant), then 15, to go to the flat. She did not do so. At about 7 a.m. the following morning two of the appellant’s friends CM and JC visited her and persuaded her to go round to the flat. The complainant’s evidence was that at the flat she was assaulted and prevented from leaving and her mobile phone was taken. She was eventually allowed to leave at about 10 a.m. and went home. Her father called the police. CM, JC and others at the flat were charged with assault, false imprisonment and theft.[4]Later that day the appellant sent two message to the complainant’s Facebook inbox: i) One at 11.36 read:
“How you gonna get every I shift wtf [C] bmt I beg you drop all da charges ova wise you know every 1z gona be calin ppl afta u n ur family n dat bmt I dnt want dat we didn’t even do nutin to you I try stop it 4 fuk sake please on a bmt level just drop every charge.” ii) One at 18.36 read: “FIND A WAY 2 PHONE ME ASAP [079--------] BMT I NEED 2 TALK 2 U COZ DERZ KNO WAY IM GOIN PRISON 4 DIZ WEN I DIDN’T EVEN FUKIN DO NUTHIN I TRYD TO STOP IT 4 FUK SAKE.”
[5]On 28 June 2011, the appellant was arrested and subsequently charged with false imprisonment and, on the basis of the messages sent to the complainant, witness intimidation. He was tried with LFG, JC, CM and others at the Crown Court at Blackfriars before HH Judge Richardson and a jury between 24 October 2011 and 14 November 2011. The appellant’s evidence was that he had sent the messages as he wanted to try and prevent “other stuff happening”; he had intended the messages as a warning; he denied that the messages were intended as a threat or that he wanted to intimidate the victim.[6]On 14 November 2011 some of the co-defendants were convicted of false imprisonment, theft or assault; some were acquitted. The appellant was acquitted of false imprisonment, but convicted of witness intimidation contrary to s.51(1). He was subsequently sentenced to a 12 month youth rehabilitation order with requirements for intensive supervision and curfew.

(a) The decision in Patrascu

[7]S.51 (1) provides:
"(1) A person commits an offence if – (a) he does an act which intimidates, and is intended to intimidate, another person (the victim), (b) he does the act knowing or believing that the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, and (c) he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with. ….. (4) The harm that may be done or threatened may be financial as well as physical (whether to the person or a person's property) and similarly as respects an intimidatory act which consists of threats. ….

(c) of that subsection "

[8]In Patrascu the defendant was on trial for begging. He asked the victim who was to be called as a witness to give evidence that he knew the defendant when he did not. When the victim refused the defendant put his hand firmly on his shoulder and shouted at him. At the defendant’s trial for witness intimidation under s.51(1) of the 1994 Act, the victim gave evidence that he was nervous as he did not know if the defendant was going to be violent. Although he found the behaviour intimidating, he was not in fact intimidated. The behaviour annoyed him and it made him concerned about meeting the defendant in court. The judge in the course of the trial ruled that the definition of intimidation was wide; it did not have to amount to putting the victim in fear. It was sufficient that it had a material effect on him; it would be enough that the conduct was so irritating and annoying that it unsettled the witness. He expressly directed the jury that if the victim was not intimidated, then they must acquit the defendant. Intimidation did not require the other person to be frightened or put in fear, but could include being pressurised to change his evidence. The defendant appealed on the basis that to intimidate meant putting someone in fear and that the act had in fact to put the victim in fear. The victim’s evidence had established he was not in fear.[9]In dismissing the appeal, this court said at paragraphs 16-18: “16. “Intimidation" and "to intimidate" are ordinary English words with a normally understood primary meaning of putting someone in fear. Fear is part of the Latin derivation. As with most words, there are shades of possible meaning, such that to attempt a definition which is intended to be comprehensive is unnecessary and undesirable. An intention by the defendant to intimidate is not alone enough, for that is the other limb of the relevant part of the statutory offence. Accordingly we consider that the appellant was entitled to be acquitted if "an act which intimidates … another person" is limited to circumstances where in consequence the victim is intimidated in the sense that he is put in fear.17. We accept, however, that the Oxford English Dictionary's modern usage of "to intimidate" as including "to force to or deter from some action by threats or violence" is capable of embracing a shade of meaning whereby the intimidator does not in fact succeed in putting the victim in fear. For this meaning, some element of threat or violence is necessary.18. In our judgment, a person does an act which intimidates another person within section 51(1) (a), if he puts the victim in fear. He also does so if he seeks to deter the victim from some relevant action by threat or violence. A threat unaccompanied by violence may be sufficient, and the threat need not necessarily be a threat of violence. The act must be intended to intimidate. The person doing the act has to know or believe that the victim is assisting in the investigation of an offence or is a witness or potential witness or juror or potential juror in proceedings for an offence. He has to do the act intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with. If the other ingredients are established, this intention is presumed unless the contrary is proved (sub-section (7)). The intimidation does not necessarily have to be successful in the sense that the victim does not have actually to be deterred or put in fear. But it will obviously be material evidence if the victim was not in fact deterred or put in fear. A person may intimidate another person without the victim being intimidated.This apparent contradiction arises from different shades of meaning of the active and passive use of the verb. An act may amount to intimidation and thus intimidate, even though the victim is sufficiently steadfast not to be intimidated”.

(b) The trial of the appellant

[10]In the course of the trial of the appellant in this appeal and others, the complainant’s evidence was that the messages from the appellant were read to her, but she was very sleepy and could not recall how she felt.[11]Relying on the terms of the 1994 Act it was submitted on behalf of the appellant at the close of the prosecution case that, although the first message was capable of constituting a threat, as the complainant had not given evidence that the messages had had any effect on her, there was no case to answer. The judge rejected the submission and, relying on the passage in Patrascu which we have set out, the judge held that if the appellant did an act which sought to deter the complainant from assisting the investigation, it was not necessary for the Crown to prove that she was not in fact put in fear. He so directed the jury. He said in applying his view of s.51(1) of the Act to the evidence:
“In this case if [the appellant] sought to deter [the complainant] from assisting in the investigation by means of a threat, it’s no answer for him to say that [the complainant] was not frightened by it. You’ll recall she said she couldn’t remember how she felt when she was told of the message. She was sleepy at the time”
[12]It was contended on behalf of the appellant that the judge was wrong in his ruling and had misdirected the jury as the Crown had to prove that she was in fact intimidated. No possible criticism can attach to the judge; he was properly following what this court had said. The question for us is whether what was said in this court was correct and, if it was not, whether it was an observation not necessary for the decision in that case.

(c) Our conclusion

[13]The ingredients of the offence of witness intimidation are set out in s.51(1). The first is that the defendant “does an act which intimidates…another person.” Although, as s.51(4) makes clear, the other person does not have to be put in fear of physical violence, it is difficult to see, on the ordinary and natural language of the section, why the Crown is not required to prove that the other person be actually intimidated.[14]In Patrascu the issue before the court was whether it was necessary to establish intimidation to put the victim in fear, as opposed to some lesser effect on the victim. The court decided it was not necessary that the victim be put in fear; it was sufficient that he was deterred from some relevant action by an element or threat of violence. That was all that was necessary for the decision, as there was evidence that the conduct of the defendant in threatening the victim had had that relevant material effect on him.[15]When the court went on to say that the section did not require the victim actually to be deterred or put in fear, the court went beyond what was necessary to the decision in that case.[16]In a comment in the Criminal Law Review at [2005] Crim LR 593 Professor David Ormerod noted that the part of the decision in Patrascu where the court stated that a defendant could intimidate the victim without the victim actually being intimidated was “not a natural interpretation of the section.” He added it was not a necessary construction of the section, as the defendant could be charged with an attempt to intimidate.[17]We agree. On its ordinary and natural meaning s.51(1) requires that the Crown prove that the other person whom the defendant intends to intimidate is in fact intimidated. That is because the statute makes clear that the act of intimidation is part of the actus reus of the offence; it must therefore be proved. The observation in Patrascu that the offence could be committed without the victim being intimidated is not correct, as the language of the 1994 Act makes clear that one ingredient of the offence is that the victim is in fact intimidated.[18]If that other person is not in fact intimidated, but the other ingredients are proved, then the defendant may well be guilty of an attempt. That is the position in the present appeal. It is clear from the verdict of the jury that they must have been sure that the appellant did an act intending to intimidate with the necessary belief and further intention. In the circumstances, although the appellant may not in fact have intimidated the complainant, the jury must have been satisfied of the alternative offence of an attempt to intimidate. It therefore follows that, although the conviction for witness intimidation must be quashed as the judge was wrong in his ruling and in his direction to the jury, we should substitute a conviction for attempted witness intimidation. The judge’s interruption of the closing speech made on behalf of the appellant[19]It was contended on behalf of the appellant as a separate and self-standing ground of appeal that the judge had wrongly interrupted the closing speech made on his behalf to the jury. In consequence the trial was unfair and the conviction was unsafe.[20]The background can be briefly explained. During the trial the advocates for JC and LFG had successfully applied to adduce evidence of the bad character of the complainant. They had no doubt decided to do so, as JC was of good character and LFG had pleaded guilty to assault. The evidence of the complainant’s bad character adduced by them comprised a video which appeared to show the complainant attacking a 15 year old girl and an incident where she, her brother and others had gone to LFG’s house and her brother had attacked LFG; she had then made a comment on Facebook about being amused about the second incident. The complainant also accepted when cross examined by the advocate for LFG that she and her friends routinely settled their differences by violence.[21]The appellant had previous convictions. During the course of the trial his counsel did not attack the character of the complainant. No application was made to admit his bad character under the provisions of the Criminal Justice Act 2003, other than a failed application made at the outset of the trial on the basis that the convictions were relevant to an important matter between the parties.[22]As in this straightforward case the trial had taken over eight days to the conclusion of the evidence, the judge told the advocates on 7 November 2011 that he did not imagine that any of the advocates would in their closing speeches take more than 20 minutes, except for the prosecution. If anyone wanted to speak for more than 30 minutes, then that person should ask for leave.[23]Counsel for the appellant began his closing speech at 2.32 p.m. on 8 November 2011. At 3.02 p.m., counsel asked the jury to consider the context of the relationship between the young people. They had heard that the complainant accepted that the way that they solved their problems was through violence; she had accepted that a couple of days before the trial her family had gone to LFG’s house and attacked LFG with a plank of wood and had described the incident on Facebook as funny. This was a reference to the matters we have summarised at paragraph 20 above.[24]The judge then asked counsel how much longer he was going to be. When he replied about 5 minutes, the judge asked the jury to leave court for a moment. The judge then inquired of the appellant’s counsel why an attack was being made on the good character of the complainant, when the appellant was not of good character. He then warned counsel that if he continued the attack, that would be at risk of an application being made by the Crown to adduce the appellant’s bad character. He also reminded counsel he had exceeded the maximum of 30 minutes. Counsel explained the points he had remaining. The jury returned. Those further points were made, but nothing further was said about the character of the complainant.[25]In our view what counsel for the appellant was doing was no more than making a proper and relevant comment on the evidence that had been adduced before the jury by the advocates for JC and LFG, as we have set out at paragraph 20 above. It is clear in our view that an advocate is entitled to deploy on behalf of his client the evidence before the jury in the case, provided he acts properly and the evidence is relevant. It does not matter that the evidence was not adduced on his behalf. In his speech, the appellant’s counsel was in fact going no further than using the evidence adduced by others to make what was a proper and relevant comment on the character of the complainant. He was entitled to do so as he was doing no more than using his speech to assist the appellant by properly relying in the circumstances of this case on the evidence already adduced before the jury; his conduct did not in the circumstances of this case therefore put the appellant at risk of having his bad character adduced.[26]Nonetheless the contention that the judge’s intervention had any material effect on the fairness of the trial or the safety of the conviction was without any merit. First, the point that counsel wished to make had in fact been made by him; there was no more he could say other than by way of repetition. Second, the judge had rightly used his powers under the Criminal Procedure Rules to limit the length of speeches in this straightforward case. Third, advocacy is normally more effective if points are made shortly and without repetition. The point in relation to the complainant’s character had been made; it would not have been improved by repetition. In the result the judge had simply brought an overlong speech to a swifter end. That was far more to the advantage of the appellant than the course that counsel would otherwise have followed.

Conclusion

[27]We therefore allowed the appeal to the extent that we quashed the conviction for witness intimidation and substituted a conviction for attempted witness intimidation. We did not substitute a different sentence, as the sentence imposed reflected the gravity of the offence we substituted.