Criminal law – Appeal against conviction – Witness intimidation – Charge arising from messages defendant sent to victim through Facebook

R v ZN: Court of Appeal, Criminal Division: 18 June 2013

In June 2011, following a party the night before at a flat, the defendant's friends, CM and JC, visited the victim and invited her to the flat. It was the prosecution's case that the victim was assaulted and prevented from leaving the flat and her mobile phone was taken. The victim was allowed to leave three hours later and she went home. The police were called and CM, JC and others at the flat were charged with assault, false imprisonment and theft.

Later that same day, the defendant sent two messages to the victim's Facebook inbox (see [4] of the judgment). Thereafter, the defendant was arrested and charged with false imprisonment and, on the basis of the messages sent to the victim, witness intimidation. The defendant, JC, CM and others were tried. The defendant's evidence was that he had sent the messages as he wanted to try and prevent 'other stuff happening' and had intended the messages as a warning and not as a threat and had not intended to intimidate the victim.

The victim's evidence at trial had been that the defendant's messages had been read out to her but she had been very sleepy and could not recall how she felt. At the close of the prosecution case, the defence submitted that although the first message had been capable of constituting a threat, as the victim had not given evidence that the messages had had any effect on her, there had been no case to answer.

The judge rejected that submission and relying on R v Patrascu [2004] All ER (D) 167 (Oct), held, amongst other things, that if the defendant had done an act which had sought to deter the victim from assisting the investigation, it had not been necessary for the prosecution to prove that she had not in fact been put in fear. The judge directed the jury accordingly (see [11] of the judgment). In November 2011, the defendant was acquitted of false imprisonment, but convicted of witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. He was sentenced to a 12-month youth rehabilitation order with requirements for intensive supervision and curfew. He appealed against conviction. It fell to be determined whether it was correct that, in an offence of witness intimidation it was not necessary for the prosecution to prove that the witness had actually been intimidated. The appeal would be allowed.

The ordinary and natural meaning of section 51(1) of the act required that the prosecution prove that the other person whom the defendant intended to intimidate was in fact intimidated. That was because the statute made clear that the act of intimidation was part of the actus reus of the offence; it had to be proved (see [17] of the judgment). The position in the present appeal had been that the victim had not in fact been intimidated but the defendant had been guilty of an attempt. It was clear from the verdict of the jury that they had been sure that the defendant had done an act intending to intimidate with the necessary belief and further intention.

In the circumstance, although the defendant might not in fact have intimidated the victim, the jury had to have been satisfied of the alternative offence of an attempt to intimidate (see [18] of the judgment). The conviction for witness intimidation would be quashed and substituted with a conviction for attempted witness intimidation. The sentence would remain the same (see [27] of the judgment). R v Patrascu [2004] All ER (D) 167 (Oct) disapproved.

Arash Abzarian (instructed bythe Registrar of Criminal Appeals) for the defendant; Nicholas Alexander (instructed by the Crown Prosecution Service) for the Crown.