Venue Royal Courts of JusticeDate Tuesday, 10th February 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE NICOL
RECORDER OF WINCHESTER
(HIS HONOUR JUDGE CUTLER)
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
KENNETH ANKERSONComputer 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 A Storch (Solicitor/Advocate) appeared for AppellantMs U Davies appeared for CrownJ U D G M E N T
[1]"Threats to destroy or damage property[2]A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out—[3](a)to destroy or damage any property belonging to that other or a third person..."[4]commits a relevant offence." The elements of this offence were considered by this court in R v Cakmak [2002] EWCA Crim 500, [2002] 2 Cr App R(S) 10. First there must be words or actions which objectively speaking constitute a threat. Secondly, the threat must be one which, again objectively considered, amounts to a threat to damage any property. It is not relevant that the particular listener perceived it to be a threat if objectively it would not have been so construed. Third, the appellant must intend that the person hearing the threat would fear that the threat would be carried out.[5]"... you can take into account what you have gathered about him as a personality, character and the evidence he has given of his mental problems as well as other evidence when deciding whether you are sure he intended to cause the threat --- that he intended to Lilian Dickinson to fear that he might carry out the threat."
Again, at page 9 he says:
[6]"Now, you can fear that something will happen will happen whether it --- sorry, you can fear something might happen, not only fear things that will definitely will happen, so it not necessary when you are considering what a reasonable person would think, to decide whether they thought that it definitely would happen. If it might have happened, that is enough for the purposes of fear. On can't know when one listens to a threat whether it will be carried out or not. One can only listen and think might it be carried out and if it might, you will fear that it might be carried out. So that is the direction as to how you approach this matter." That passage is not, with all due respect to the judge, as clear as it might have been. But the gist of it is that it is enough that the intention is that the listener is put in fear that the threat might be carried out; it is not necessary that he or she must believe that it will be carried out. The matter was raised with the judge at the end of the summing-up. Counsel for the defendant did not in fact suggest that the person threatened had to fear that the threat definitely would be carried out, but at the same time he submitted that to suggest that it would be sufficient if there was merely a risk that it might was setting the bar too low. Counsel invited the judge to recall the jury and qualify his original direction. Counsel submitted to the judge, and we agree, that the purpose of the offence is to ensure that the defendant does not made threats which he intends to be taken seriously even if he does not actually intend to carry them out. Such threats often cause real harm. The authorities have to act on the assumption that the threat is seriously meant even if in fact it is not; and those whose property is threatened may by put in unnecessary fear. The judge refused to qualify his directions. He said he was not persuaded there was any material distinction between "would be carried" and "might be carried out" in the circumstances of this case. He did not accept that in order to be guilty of the offence the appellant had to intend that the listener would be put in fear that the offence actually would be carried out so he refused to give any further direction to the jury. We agree with the judge that in the context of this offence there is no material difference between a defendant who intends that the listener should fear that the threat will be carried out and one who intends that the listener should fear that it might be carried out. It seems to us that the critical word is "fear". To fear that something will happen is not to be equated with a belief that it will happen. It is to be anxious about the possibility it will happen. That anxiety or fear arises where there is a risk that it might happen. So in our view it is enough if the intention is to create in the mind an objective listener the genuine fear that the threat might be carried out. The listener can have that fear even where he or she is not certain that the threat will be carried out. It is in circumstances where the threat is understood to be serious that the authorities will likely be alerted with all the adverse consequences flowing from that. It will not be enough if the risk, objectively viewed, is merely fanciful because then there would not be a real and genuine fear that the threat would be carried out. The summing-up was not very satisfactory on this point. But in our judgment there was no misdirection as such and it does not render the verdict unsafe. We would, however, suggest that a judge summing-up with respect to this offence in future would be wise simply to use the language of the statute. They are ordinary English words which would be well understood by a jury without further exegesis. For the reason we have given, the appeal fails.