ZN, R v

For the completed offence under Criminal Justice and Public Order Act 1994, section 51(1) requires proof that the intended victim was in fact intimidated. Intimidation need not involve fear of physical violence, and may arise from a threat, but the victim's actual intimidation is an element of the actus reus.

If the defendant intended to intimidate and the remaining elements are established, absence of actual intimidation may support liability for an attempt rather than the completed offence. A trial judge may properly control the length of closing speeches, provided the accused suffers no material unfairness.

The appellant, aged 15, sent Facebook messages to a complainant after others had been charged following an alleged assault, false imprisonment and theft. He was acquitted of false imprisonment but convicted at the Crown Court at Blackfriars of witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994.

On appeal, he challenged the judge's direction that it was unnecessary for the Crown to prove that the complainant had actually been intimidated. He also contended that the judge's intervention during his counsel's closing speech rendered the trial unfair. The central issue was whether actual intimidation of the victim is an element of the completed statutory offence.

1. Appeal allowed in part. The court quashed the conviction for witness intimidation and, exercising its power under section 3 of the Criminal Appeal Act 1968, substituted a conviction for attempted witness intimidation.
2. On the ordinary and natural meaning of section 51(1) of the Criminal Justice and Public Order Act 1994, the Crown must prove that the person whom the defendant intended to intimidate was in fact intimidated. That result is an element of the actus reus. Section 51(4) confirms that intimidation does not require fear of physical violence, but it does not dispense with proof of actual intimidation.
3. R v Patrascu [2004] EWCA Crim 2417 correctly established that intimidation need not mean putting the victim in fear; deterrence by a relevant threat or violence may suffice. However, its further observation that the victim need not actually be intimidated went beyond what was necessary to decide that case and was incorrect. Where the intended victim is not intimidated, the appropriate offence may be an attempt.
4. The jury's verdict established that the appellant had acted with the necessary intent to intimidate, knowledge or belief, and further intent to interfere with the investigation or course of justice. It therefore supported the substituted attempt conviction. The existing sentence was left unchanged.
5. The judge should not have prevented counsel from making proper, relevant submissions based on evidence already adduced by co-defendants. Nevertheless, the material point had already been made. The judge was entitled to control an overlong closing speech in this straightforward case, and the intervention did not affect fairness or safety.

• Court of Appeal (Criminal Division). Allowed the appeal to the extent of quashing the conviction for witness intimidation and substituted a conviction for attempted witness intimidation.
• Crown Court at Blackfriars. The appellant was acquitted of false imprisonment and convicted of witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994.