England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
Mr Recorder Marsh

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2004

Lord Justice May:

1. On 28^th May 2004, in the Crown Court at Birmingham before Mr Recorder Marsh and a jury, the appellant was convicted of intimidating a witness contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. He was sentenced to 6 months imprisonment to run consecutively with a sentence of 12 months imprisonment for an unrelated matter. He appeals against his conviction by leave of the single judge, Morland J, who considered that it was at least reasonably arguable that the Recorder gave too wide an interpretation of intimidation in section 51(1) of the 1994 Act in his direction to the jury.
2. On 28^th August 2003, Philip Chapman, the victim, was at Birmingham Magistrates' Court to give evidence at a trial of the appellant, who was charged with begging money from him in Birmingham City Centre during the previous month. The appellant and Mr Chapman encountered each other at court before the trial started. The appellant said that he had known Mr Chapman for ages. Mr Chapman says that this was not right. The appellant was then encouraged by police officers to sit elsewhere, which he did.
3. The trial was adjourned. Mr Chapman left court. His evidence was that the appellant called after him and came running to catch him up in Corporation Street. It was a busy afternoon. The appellant asked if Mr Chapman was going to say in evidence that he knew him. Mr Chapman said that he would say that he did not. Mr Chapman found the appellant a bit aggressive. The appellant was leaning firmly against his shoulder as they were walking down the street, so that he could only walk in one direction around other pedestrians. There was some pressure on his shoulder, but he could walk in a straight line. When Mr Chapman told the appellant that he was not going to stand up in court and lie, the appellant became a lot more forceful. He was talking more loudly, shouting in his ear. Mr Chapman said he was nervous, because he did not know whether the appellant was going to be violent. The appellant was pleading with him to lie for him. He would do anything for Mr Chapman. He said that the police were trying to ban him from the city centre, and he said he would be "fucked if the police get a banning order". As they reached High Street, the appellant was called over by a plain clothes officer and the incident ended. Mr Chapman went straight to a police station and reported what had happened.
4. The recorder's summing up of further evidence by Mr Chapman was as follows:

"When he was asked further questions about the incident, he said he found it awkward. Not embarrassing; he just found it awkward. He said it went through his mind: Is this man trying to intimidate me? And at one point he said: "I did form the view I was being intimidated", but then, when pressed on that, he said: "No, I was not intimidated." What he said when he was asked again about that was that he said he found the behaviour intimidating, but he was not intimidated by it. He said it annoyed him, and said it made him concerned about meeting Mr Patrascu again in court, but it didn't in fact intimidate him."

5. The appellant did not give evidence. In interview, he said that he knew Mr Chapman. He did have a conversation with him, but he said that he had not intimidated him in any way.
6. Section 51 of the Criminal Justice and Public Order Act 1994 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 jury 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."

It is immaterial that the act is done otherwise than in the presence of the victim, or to a person other than the victim (section 51(3)). By sub-section 4, "an intimidatory act which consists of threats" may threaten financial as well as physical harm. If it is proved that a defendant did an act falling within section 51(1)(a) with the requisite knowledge or belief, he is presumed, unless the contrary is shown, to have done the act with the intention required by sub-section (c) – (section 51(7)). By sub-section (6), a person guilty of an offence under the section is liable on conviction on indictment to imprisonment for a term not exceeding 5 years or a fine or both.

7. Section 51(2) makes it a separate offence intentionally to harm or threaten to harm a person whom the defendant knows or believes has assisted in an investigation into an offence, given evidence in proceedings for an offence, or acted as a juror in proceedings for an offence.
8. The statutory offences in section 51 of the 1994 Act are related to but not, we think, identical with contempt of court and perverting or attempting to pervert the course of justice. For the offence in section 51(1), the defendant has both to intimidate the victim and to intend to do so.
9. The appellant's grounds of appeal are that the recorder was wrong to reject a submission on his behalf that there was no proper case to go to the jury; and that the recorder misdirected the jury as to the meaning of "an act which intimidates" in section 51(1)(a). The main factual case in support of each submission is that Mr Chapman said that he was not intimidated. The broad issue in this appeal is whether an act can intimidate a victim, when the victim himself does not feel intimidated.
10. When the recorder rejected the submission of no case, he identified evidence of Mr Chapman (apart from his evidence that he did not feel intimidated) which was in our judgment capable of supporting a finding by a properly directed jury that the appellant did an act which intimidated Mr Chapman. We have referred to this evidence earlier in this judgment.
11. The recorder considered that, in the absence of a statutory definition of what intimidation is, the definition was wide. It did not need just to be intimidation in the sense of being put in fear. It was "behaviour which does and is intended to have a material effect on the way in which a witness gives their evidence or [on] whether they give that evidence at all." Commonly intimidation would comprise putting a witness in fear. But if a defendant is so irritating and annoying to a witness in a way designed to unsettle the witness, that was capable of amounting to intimidation even though the conduct does not put the witness in fear. The recorder said that he had not yet formulated the direction he would give the jury. But he considered it proper to direct them that Mr Chapman did not need to have been intimidated in the sense that he was put in fear. A wide definition was appropriate and there was sufficient evidence to support a conviction on that basis. The recorder also rejected as being too late an application by the prosecution to add a count to the indictment of attempting to intimidate a witness.
12. As will appear, we consider that the recorder was entitled to conclude that Mr Chapman's evidence was capable of supporting a conviction under section 51(1) of the 1994 Act. We agree with him that "an act which intimidates" does not have to result in the victim being put in fear. We do not consider that the recorder's eventual construction of the section in his summing up was entirely correct. But, since we consider that the evidence was capable of supporting a conviction upon a correct construction of the section, we reject this ground of appeal.
13. The recorder directed the jury to consider whether the appellant told Mr Chapman to change his evidence; whether he tried to persuade him to say that he knew the appellant. The jury also had to be sure that the appellant's actions intimidated Mr Chapman, and that the appellant intended to intimidate Mr Chapman with the intention of obstructing or interfering with the course of justice. He did not direct them as to the statutory presumption in section 51(7), but that omission was favourable to the appellant. He then said this:

"What does the word 'intimidation' mean in this charge? You have to consider both whether Mr Chapman was intimidated and whether Mr Patrascu intended to intimidate him. It is right that you consider the question of intimidation from Mr Chapman's point of view. You have to consider what effect Mr Patrascu's actions actually had on Mr Chapman, and indeed what effect they were intended to have. If Mr Chapman was not intimidated you must acquit this defendant.

Intimidation can mean different things. It can, for example, mean to be made fearful or frightened. That might be the result of actions much more aggressive than those which were alleged against Mr Patrascu in this case – for example, a witness who is threatened with serious harm unless they change their evidence. That is not the case here. But intimidation can be something less than causing someone to be frightened or in fear. It can include being pressurised to change evidence.

When you are considering all the evidence – and, in particular, Mr Chapman's – consider whether it amounts to him being and feeling pressurised by the defendant. If you conclude that [Mr Chapman] felt pressurised by the defendant and the defendant intended to pressurise him with a view to Mr Chapman changing his evidence, you may conclude that the effect on Mr Chapman, and the intended effect, was to intimidate him." (We have added the italics in these paragraphs.)

The Recorder emphasised that the jury should give considerable weight to Mr Chapman's evidence that he did not feel intimidated. But they had to consider the evidence as a whole.

14. Mr Butterfield, on behalf of the appellant, submits that the usual meaning of "to intimidate" is to put someone in fear. It should be so construed in section 51(1). This would not unduly diminish the scope of the section, since a charge of attempting to pervert the course of justice would encompass conduct which did not succeed in intimidating the victim. In the present case, the prosecution had proceeded on the wrong charge. Mr Butterfield conceded that inappropriate approaches to witnesses should be regarded as a serious problem, but it would be illogical and unfair to conclude that evidence of a witness who states that he was not intimidated can support a conviction for intimidation. The appellant may have been intimidating, but Mr Chapman was not intimidated. He submits that the editors of Archbold are correct to submit at 28-148 of the 2004 edition that the requirement in sub-section (1)(a) that the act must actually intimidate would not extend to conduct which was simply likely to intimidate.
15. Mr Ball, for the prosecution, submits that there is more than one meaning of "to intimidate". He accepts that one meaning is to put someone in fear. He points to what the Oxford English Dictionary 2^nd (1989) edition refers to as a "modern use" as "to force to or deter from some action by threats or violence". He submits that the meaning should include behaviour which falls short of actually putting someone in fear. It is sufficient if someone finds themselves coerced, discouraged, cowed, restrained or daunted by the behaviour of another.
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.
19. In the present case, the recorder's directions to the jury did not include this element of threat or violence. He only referred, in the passages we have italicised earlier in this judgment, to the victim being and feeling pressurised. In our judgment pressure to change evidence alone is insufficient. Pressure alone might be unexceptionable and entirely proper, at least if applied in the honest belief, for instance, that what was sought was evidence which would be truthful. Alternatively, pressure might be improper, but lack any element of intimidation, for example a bribe. For a person to intimidate another person, the pressure must put the victim in some fear, or, if it does not, there must nevertheless be an element of threat or violence such that the pressure is improper pressure. Mere pressure is insufficient. The recorder's direction was to this extent insufficient.
20. In the light of this, we have to consider whether the appellant's conviction was safe. We conclude that it was safe. The jury plainly accepted Mr Chapman's evidence, which we have summarised earlier in this judgment. The appellant was plainly seeking to deter Mr Chapman from giving true evidence. The appellant was aggressive and Mr Chapman was nervous because he did not know whether the appellant was going to be violent. The appellant's actions were to an extent violent. The violence was not great, but probably amounted to an actionable assault. His behaviour was to an extent threatening. We bear well in mind that Mr Chapman, who no doubt had a fair understanding of the meaning of intimidation, said that he was not intimidated. But he also said that the appellant's behaviour was intimidating. He thus recognised the different shades of meaning between the active and passive use of the word. In our judgment, this evidence was entirely sufficient to support a finding by a properly directed jury that the appellant intimidated Mr Chapman. We consider therefore that the appellant's conviction was safe. For these reasons, the appeal against conviction is dismissed.
21. It is not therefore necessary to address Mr Ball's submission that the recorder should have acceded to his application to amend the indictment by adding a count of attempting to intimidate a witness. We only observe that our construction of section 51(1) means that there could only rarely be an offence of attempting to commit this statutory offence.