England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 10th February 2015

LORD JUSTICE ELIAS: On 25th June 2014 in the Crown Court at Reading before Mr Recorder Rubin QC the appellant was convicted of threatening to destroy or damage property, contrary to section 2(a) of the Criminal Justice Act 1971. He was sentenced to a community order with a supervision and mental health requirement by the same judge in September. A restraining order preventing contact with a number of named persons in geographical restrictions was also imposed and he was ordered to pay £500 towards the costs of the prosecution and there was a victim surcharge. He now appeals against conviction by leave of the single judge.

The background is as follows. The appellant had been in a relationship with Kerry Smith for approximately 20 years. They had four children aged 21, 19, 17 and 15. The relationship had irretrievably broken down and since January 2012 the defendant had had no effective contact with the children which caused him considerable distress. On 4th March 2014 he entered Bracknell Forest Council offices. He asked to speak to a senior social worker about contact. He spoke to the children's social workers. During that meeting he acted in an eccentric manner and made threats to burn down the house of his estranged wife regardless of whether or not the children were inside. He said he would could go to the petrol station and get two jerry cans, fill them with petrol and burn it down and then he said he would burn himself at a bandstand in Bracknell town centre. Both workers who heard the threats felt that the threat was real. It was not merely a cry for help. They called the police. After the meeting the appellant stayed around for a short while and rolled a cigarette.

The appellant in evidence said that the only threats he made were to commit suicide by burning himself. He did not threaten to burn the house down and he did not intend that the women should fear that such a threat would be carried out.

The issues before the jury were firstly whether he had in fact made the threat as alleged to burn the house down and, if so, whether he intended that the women would fear that the threat would be carried out.

It is accepted that the jury were entitled to find that the threats had been made as alleged. The single ground of appealed is that the judge erred in directing the jury as to ingredients of the offence. Section 2A of the Criminal Damage Act is as follows:

"Threats to destroy or damage property

A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out—

(a)to destroy or damage any property belonging to that other or a third person..."

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.

In this case there is no complaint about the way in which the judge summed up the offence with respect to the first two requirements. The complaint is about the way he dealt with mens rea, the relevant intention. Although in some parts of the summing-up he repeated the statutory formula that the defendant must have intended that the social worker would fear that the threat would be carried out, in other places he said the test was whether the defendant intended her to fear that he might carry out the threat. In particular there is a passage in the summing-up at page 8 as follows:

"... 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:

"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.