Patrascu v R

For the witness-intimidation offence under section 51(1) of the Criminal Justice and Public Order Act 1994, an act intimidates where it puts the victim in fear, or seeks to deter the victim from relevant action by threat or violence. A threat need not be one of violence. The conduct need not succeed in making the victim afraid or deterred; a steadfast victim may resist an intimidatory act. However, mere pressure to change evidence is insufficient. It must either cause fear or involve threat or violence. Evidence that the victim was not afraid or deterred remains material, but does not preclude conviction.

The appellant was convicted at Birmingham Crown Court of intimidating a witness contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. He had approached a prosecution witness after an adjournment, urged him to say falsely that he knew the appellant, and behaved aggressively while pressing against him.

The witness said that the conduct was intimidating but that he was not himself intimidated. The Recorder rejected a submission of no case and directed the jury that intimidation could include feeling pressurised to change evidence. The appellant appealed against conviction by leave, contending that the evidence could not establish intimidation and that the direction was too wide.

The central issue was whether an act can intimidate a witness within section 51(1)(a) where the witness does not in fact feel intimidated.

1. Appeal dismissed. The Recorder’s direction was deficient, but the conviction was safe on the evidence accepted by the jury.

2. Section 51(1)(a) requires both an act which intimidates and an intention to intimidate. The ordinary primary meaning of intimidation is putting a person in fear. The statutory language also embraces conduct seeking to deter a witness from relevant action by threat or violence, even if the witness is not in fact put in fear or deterred.

3. A threat may suffice without accompanying violence, and need not be a threat of violence. The victim’s failure to be afraid or deterred is material evidence, but it is not conclusive. An act may be intimidatory even though a sufficiently steadfast victim is not intimidated in the passive sense.

4. The Recorder erred by allowing the jury to treat pressure to change evidence, without more, as sufficient. Pressure may be proper, or may be improper without being intimidatory, as where it consists of a bribe. To amount to intimidation, the pressure must cause fear or include threat or violence.

5. On the witness’s evidence, the appellant sought to deter truthful evidence through aggressive, partly violent and threatening behaviour. The witness was nervous because he did not know whether violence would follow. That evidence was capable of proving intimidation on the correct construction of the section, notwithstanding his statement that he was not intimidated. The conviction was therefore safe.

6. The court observed that, on this construction, an offence of attempting to intimidate a witness under section 51(1) could arise only rarely.

• Court of Appeal (Criminal Division): On 14 October 2004, dismissed the appeal against conviction and upheld the conviction.
• Birmingham Crown Court: On 28 May 2004, Mr Recorder Marsh and a jury convicted the appellant of intimidating a witness and imposed six months’ imprisonment, consecutive to an unrelated sentence.