Davies, R v

Under section 116 of the Criminal Justice Act 2003, fear is widely construed. A trial judge may find genuine fear from written material and need not normally require witnesses to give oral or video-link evidence to investigate it. That course may defeat the statutory purpose. Judges must nevertheless scrutinise assertions of fear to avoid unfairness caused by mere reluctance to attend trial.

An object is an offensive weapon only if it was carried with the requisite intention to cause injury before its use. Mere ad hoc use does not establish that intention.

The appellant was convicted of assault occasioning actual bodily harm and possession of an offensive weapon, namely a knife. At trial, the statements of the victim and two eyewitnesses were read after the judge found that they were afraid to give evidence, pursuant to section 116(2)(e) of the Criminal Justice Act 2003.

Her application for leave to appeal was initially refused. She renewed it before the Court of Appeal, contending that there was insufficient evidence of fear and that the judge should have investigated the witnesses' fears through special measures. She also challenged the direction on the intent required for possession of an offensive weapon.

1. The renewed application for leave to appeal was refused. The trial judge was entitled to admit the three witnesses' statements under section 116(2)(e) of the Criminal Justice Act 2003.
2. Fear under section 116 is to be construed widely. The witnesses' written accounts of fear, including their concern about repercussions and their knowledge of the appellant's alleged conduct during the incident, provided ample material on which the judge could find genuine fear.
3. The former approach under section 23 of the Criminal Justice Act 1988, including the approach recorded in R v H, W and M [2001] Crim LR 815, did not govern the new statutory regime. A court should be cautious before requiring a frightened witness to attend, even by video link, merely to test the asserted fear. That could undermine the purpose of section 116. The judge must still scrutinise assertions of fear and guard against a witness relying on a bare wish to avoid the inconvenience or anxiety of trial.
4. For possession of an offensive weapon, the necessary intention to cause injury must exist before the weapon's use; mere ad hoc use is insufficient: R v Humphreys [1977] Crim LR 225. The summing-up accurately directed that the knife would be an offensive weapon if the appellant had it intending to injure another, but not if she lacked that intention. Since the real factual issue was whether she had a knife at all, no further direction was required.

• Court of Appeal (Criminal Division) — the renewed application for leave to appeal against conviction was refused in [2006] EWCA Crim 2643.
• Trial court — the appellant was convicted of assault occasioning actual bodily harm and possession of an offensive weapon. The court and citation were not stated in the judgment.