Liverpool v Director of Public Prosecutions [2008] EWHC 2540 (Admin)

Case No CO/2685/2008[2008] EWHC 2540 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 7 October 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MR JUSTICE AIKENS
Between
MR BARRINGTON LIVERPOOLClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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 H Southey (instructed by McMillen Hamilton, London E3 4TN) appeared for Claimant for The Defendant did not appear and was not represented
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]This is an appeal by way of case stated from a decision of the Newham Justices sitting at Stratford on 31 August 2007. On that occasion they convicted the appellant of an offence of using threatening behaviour under section 4 of the Public Order Act 1986.[2]The facts of the case are simplicity itself. The victim, Miss Spaulding, approached the appellant regarding him having given her 14-year-old son a lift and offering him cannabis, and she asked him not to do either of these things. The appellant responded in a prolonged and sustained manner, using foul language in a very loud voice, with personal insults and threats. Miss Spaulding gradually retreated into nearby premises. During the altercation the appellant said that he had in the past chased a person with a knife and a gun. He said he would shoot Miss Spaulding and made a shooting gesture with his fingers. She thought that he had a gun and called the police. The Justices found the following facts:
"The Appellant did make hand gestures as if firing a gun at Ms Spaulding whilst stating 'I will kill you'. Throughout the incident the Appellant's demeanour was aggressive and he was verbally abusive towards Ms Spaulding in a loud and threatening manner. The incident took place in an area overlooked by flats; one of the residents (not known to Ms Spaulding), offered her refuge within their property because of the manner of the incident. It was from this flat that Ms Spaulding called the police and remained until they arrived. We found Ms Spaulding to be a compelling and believable witness who gave a consistent account of events throughout her evidence; however we found the Appellant to be unconvincing and much of his account implausible. We felt his words and behaviour to be threatening, abusive and insulting which was intentional. We are of the view that the evidence satisfied us to the requisite standard that Mr Liverpool used towards Ms Spaulding threatening, abusive or insulting words with intent to cause that person to believe that immediate unlawful violence would be used against her."
[3]The question for the court is whether, on the facts found, the Justices were entitled to convict of an offence under section 4(1) of the Public Order Act 1986. Section 4(1) provides, so far as is material to the present case:
"A person is guilty of an offence if he -- (a) uses towards another person threatening, abusive or insulting words or behaviour, ... ... with intent to cause that person to believe that immediate unlawful violence will be used against him..."
[4]The appellant was convicted on the basis that he had intended Miss Spaulding to believe that immediate unlawful violence would be used. Watkins LJ at page 269D of his judgment in R v Horseferry Road Metropolitan Stipendiary Magistrate, ex-parte Siadatan [1991] 1 QB 260 said: ... 'immediate' does not mean 'instantaneous;' that a relatively short time interval may elapse between the act which is threatening, abusive or insulting and the unlawful violence. 'Immediate' connotes proximity in time and proximity in causation; that it is likely that violence will result within a relatively short period of time and without any other intervening occurrence."[5]The appellant submits that the Justices were not entitled to conclude that the appellant intended Miss Spaulding to believe immediate unlawful violence would be used because he did not do anything that was consistent with his being about to inflict violence on her.[6]In my judgment, the combination of the hand gesture, as if firing the gun, together with his loud and threatening language, amply justified the Justices' conclusion. I would therefore answer the question posed in paragraph 7.1 of the case in the affirmative.

MR JUSTICE AIKENS: I agree.