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Cite as: [2000] EWHC Admin 328

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DIRECTOR OF PUBLIC PROSECUTIONS v. MARK THOMAS RAMOS [2000] EWHC Admin 328 (14th April, 2000)

Case No: CO/20/2000

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (QUEEN'S BENCH DIVISION)
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 14th April 2000

B e f o r e :
LORD JUSTICE KENNEDY
and
MR JUSTICE BUTTERFIELD

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	DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	- and -
	MARK THOMAS RAMOS	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Richard Carey-Hughes (instructed by CPS for the appellant)
John Skinner (Solicitor Advocate)(for the respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE KENNEDY:
1. This is an appeal by way of Case Stated from a decision of Mr Nicholas Evans, a Metropolitan Stipendiary Magistrate, who on 22nd October 1999, at Bow Street Magistrates' Court, ruled that the respondent had no case to answer on an information which contained this charge -
"On or before 22nd April 1999 within the jurisdiction of the Central Criminal Court you distributed to another person letters containing writings, signs, or other visible representations which were threatening, abusive or insulting with intent to cause that person to believe that immediate unlawful violence would be used against him or another by any person, or whereby that person was likely to believe that such violence would be used" contrary to section 4(1)(b) of the Public Order Act 1986 and section 31(1)(a) of the Crime and Disorder Act 1998."
As the magistrate has pointed out, the charge should have ended with the words "which offence was racially aggravated" but for present purposes nothing turns on the omission.
2. Facts
The facts were not in dispute, and the magistrate set out the facts which he found in paragraph 6 of the case stated as follows -
(1) the respondent wrote and sent two letters by first class post to the Monitoring Group, an organisation based in Southall which offers advice and assistance to the Asian community in West London.
(2) The letters contained threats of unlawful violence.
(3) The respondent, by what he wrote demonstrated hostility towards members of racial groups so as to racially aggravate any offence (if any committed) against section 4 of the Public Order Act 1986.
(4) The recipient(s) of the letters, and others to whom they were shown, were immediately concerned for their own and other's safety.
(5) It is reasonable to infer, and I was satisfied, that the respondent either intended to cause the recipient(s) of his letters to believe that unlawful violence would be used, or following his distribution of the letters, the recipient(s) of them would be likely to believe that unlawful violence would be used.
(6) The "Brixton nail bomb" exploded on 17th April 1999, five days earlier.
Copies of the letters in question are appended to the Case Stated.
We were told that the body to which the letters were sent was in fact the National Civil Rights Group, whose mail was opened by the Monitoring Group, but nothing turns on that.
3. Statutory Provisions
The Public Order Act 1986, so far as is material for the purposes of this appeal, reads -
4(1) A person is guilty of an offence if he -
(b) distributes ... to another person any writing ..... which is threatening abusive or insulting,
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, ..... or whereby that person is likely to believe that such violence will be used.
6(3) A person is guilty of an offence under section 4 only if he intends his words ... or the writing ..... to be threatening, abusive or insulting or is aware that it may be threatening, abusive or insulting.
7(2) For the purposes of the rules against charging more than one offence in the same count or information, each of sections 1 to 5 creates one offence.
Section 31(1) of the Crime and Disorder Act 1998, so far as relevant, provides -
A person is guilty of an offence under this section if he commits -
(a) an offence under section 4 of the Public Order Act 1986 -
which is racially aggravated for the purposes of this section.
4. The Issue
The issue on which the magistrate was invited to rule is encapsulated in paragraph 11 of the Case Stated which reads -
"I was of the opinion that on the facts found it would not be possible to infer that the respondent had either demonstrated an intention to cause (the recipient(s) of his letters) to believe that immediate unlawful violence would be used, or following his distribution of the letters, the recipient(s) of them would likely to believe immediate unlawful violence would be used."
5. Magistrate's Reasons
In paragraph 12 of the Case Stated the Magistrate set out his reasons for deciding as he did -
"I considered that had the letters said `a bomb will be detonated within 24 hours of receipt of this letter' then that probably would amount to a threat of `immediate unlawful violence'. Whereas, if the letter said ` a bomb will be detonated no sooner than 48 hours following receipt of this letter' then that would probably not amount to such a threat. If, as in this case, the letters are silent as to when a bomb might be detonated then it follows that such detonation might be immediate or at some unspecified time in the future. Some unspecified time in the future lacks the element of immediacy required by the statute. There is no basis for concluding that the recipient of such a letter is likely to believe immediate unlawful violence would be used."

6. The question.
The Case Stated then poses this question for our consideration -
"The question for the opinion of the High Court is, (given that immediate unlawful violence within the meaning of the statute is a question of fact and degree in all the circumstances of the case), whether I was right to conclude that there was no evidence on which I could be satisfied that the Respondent either (by what he wrote) had demonstrated an intention to cause the recipient(s) of his letters to believe that immediate unlawful violence would be used, or following his distribution of the letters, the recipient(s) of them would be likely to believe immediate unlawful violence would be used."

7. Assault.
Section 4 of the 1986 Act created a new offence which adopted from the old offence of assault the concept of a threat causing a victim to fear immediate unlawful violence. In Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 James J at 444D defined assault as "any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence." That definition was adopted by Lord Steyn in R v Ireland [1998] AC 147 at 161. In that case the House of Lords was considering two cases where men made silent telephone calls to targeted women, and pleaded guilty to offences contrary to section 47 and section 20 of the Offences Against the Person Act 1861. At 162B Lord Steyn said that a silent caller may be guilty of an assault, depending on the facts, and continued -
"After all, there is no reason why a telephone caller who says to a woman in a menacing way `I will be at your door in a minute or two' may not be guilty of an assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and in particular on the impact of the caller's potentially menacing call or calls on the victim. Such a prosecution case under section 47 may be fit to leave to the jury. And a trial judge may, depending on the circumstances, put a common-sense consideration before the jury, namely what, if not the possibility of imminent personal violence, was the victim terrified about?"
At 162F Lord Steyn recognised that, from the point of view of the prosecution, there can be problems, saying -
"I nevertheless accept that the concept of an assault involving immediate personal violence as an ingredient of the section 47 offence is a considerable complicating factor in bringing prosecutions under it in respect of silent telephone callers and stalkers."
What seems to me to be of significance for present purposes is that if the impact of the telephone calls on the victim is that she fears the possibility of immediate personal violence that is in law regarded as sufficient for the purposes of section 47.
8. The 1986 Act
I turn now to the words of the statute with which we are concerned. It is accepted that at least prima facie the letters were distributed, that they were threatening, abusive or insulting, and that their content was such as to meet the requirements of section 6(3). That brings me to the ingredient of the offence which is in issue in this case. As was pointed out by Mr Carey-Hughes for the appellant, and by this court in Winn [1992] 156 JP 881 there are four alternatives. Only two of them are relevant in this case. The prosecution must prove that the defendant sent the letters -
(a) with intent to cause the victim to believe that immediate unlawful violence will be used against him or another by any person, or -
(b) whereby the victim is likely to believe that such (immediate unlawful) violence will be used.
On the facts of this case it should be easier for the prosecution to meet the requirements of the second alternative so I propose to focus on that. That the word "such" refers back to the words in brackets is established by the decision of this court in R v Horseferry Road Metropolitan Stipendiary Magistrate ex parte Siadatan [1991] 1QB 260. At 269E Watkins LJ, giving the judgment of the court, said -
"It seems to us that the word `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."
So, in the context of this case, can the prosecution show, at least prima facie, that as a result of receiving the letters the victim was likely to believe that violence would result within a relatively short period of time and without any other intervening cause? Is it sufficient for the purposes of an offence contrary to section 4(1) that the victim, in the words of Lord Steyn "may fear the possibility of immediate personal violence"?
Mr Carey-Hughes invited our attention to two other cases, the first of which was R v Constanza , 6th March 1997 unreported. In that case the appellant had been convicted of assault occasioning actual bodily harm by harassing his female victim. Eventually he delivered a letter to her by hand. As a result of reading it she thought he was going to do something to her, and might do it at any time. At page 4 of the transcript Schiemann LJ said -
"The essential issue to be decided by this court is whether it is enough if the Crown have proved a fear of violence at some time not excluding the immediate future. In our judgment it is."
That, as it seems to me, is consistent with what was later said by Lord Steyn in Ireland.
The only other authority which we were invited to consider was the decision of this court in Valentine v DPP [1997] COD 339. In that case we have a transcript of the judgment. It was an appeal by way of Case Stated, the appellant having been convicted of threatening behaviour contrary to section 4(1)(a) of the 1986 Act. He had verbally threatened a neighbour, saying -
"Next time you go on duty we are going to burn your house. You are all going to fucking die."
It was submitted in the lower court that there was no threat of immediate personal violence, only a threat to carry out violence on some future occasion when the male victim was absent from his home at work. His wife gave evidence that she was "very very scared and frightened that something would happen immediately". The justices observed that her husband could have returned to work to continue his night shift at any time "thereby giving the defendant an opportunity to carry out the threat". Simon Brown LJ at 8D said that the justices could not have convicted unless they accepted that the wife "feared that violence might indeed occur that same night and not, for example, at earliest 24 hours later assuming that Mr Day was then next on night duty."
9. Submissions
Mr Carey-Hughes points out that the wording of the letters was very threatening, and the final threat in particular is indicative of immediate violence if opportunity allows -
"We will arrange a bombing hate campaign .... we will also bomb ... if we see you we will kill you ...."
As the magistrate found, the recipients of the letters "would be likely to believe unlawful violence would be used" and indeed when they saw the letters 5 days after the Brixton nail bomb they "were immediately concerned for their own and others safety". In those circumstances it is submitted by Mr Carey-Hughes that it was certainly open to the magistrate to infer that what the victims feared and were likely to fear, amongst other things, was immediate unlawful violence because there was nothing to exclude the immediate future from the period when violence, it was said, would be used. As he put it in conclusion, if the victims believed and were likely to believe that something could happen at any time then there was a case to answer.
Mr Skinner, for the respondent, submits that although the recipients of the letters were no doubt fearful they were not likely to fear that immediate unlawful violence would be used. The letters were written in Portsmouth and sent to Southall, so the situation is not to be compared with an oral threat by a neighbour, and if there be any doubt about the statutory wording we should bear in mind that this is a penal statute, and interpret it in such a way as to limit the offence.
10. Conclusion
In my judgment Mr Carey-Hughes is right for the reasons which he gives. I appreciate that if, upon receiving the letters a victim were to be asked if he thought violence would erupt within the next 24 hours he might well say "I don't know". But if half an hour later a bomb were to go off he might well then be expected to say "that's precisely what I feared". In other words the receipt of the letter led him to believe that immediate unlawful violence would be used. I appreciate that we are dealing with section 4(1) of the 1986 Act, and not with the meaning of assault in section 47 of the Act of 1861, but I draw some comfort from the fact that the approach which I believe to be correct does seem to correspond with what was said by the House of Lords in Ireland. And it is perhaps worth bearing in mind that in the 1986 Act, as well as in the 1861 Act, it is the state of the mind of the victim which is crucial rather than the statistical risk of violence actually occurring within a very short space of time. I would therefore answer the question posed in the negative, allow the appeal and remit the matter to the magistrate to continue the hearing.
11. Costs
Having regard to what we were told of the respondent's means I would make no order as to costs.
MR JUSTICE BUTTERFIELD: I agree.