R v Damien Daniel Heaven

For an intimidation offence involving interference with a police investigation, the prosecution must adduce evidence capable of making a properly directed jury sure that the defendant knew or believed that the victim had assisted the investigation.

An expression relied on to prove that ingredient may be insufficient where it is equivocal, equally consistent with an alternative explanation, and other evidence points away from the necessary knowledge. Silence in interview, including an adverse inference under the Criminal Justice and Public Order Act 1994, cannot supply the missing proof. A jury cannot convict wholly or mainly on such an inference.

The appellant was charged with intimidation, assault by battery and criminal damage arising from an incident involving Ms Cosson. He pleaded guilty to criminal damage and was convicted of intimidation and assault after trial in the Crown Court at Bournemouth.

He appealed against the intimidation conviction. The central issue was whether the prosecution evidence, including the appellant’s use of an alleged term for a police informant, his silence in interview and the surrounding circumstances, could make a properly directed jury sure that he knew or believed Ms Cosson had assisted the police investigation into an earlier offence.

The Court of Appeal also considered the effect of evidence given after the no-case submission and the appropriate sentence for the battery conviction.

1. Appeal allowed. The intimidation conviction on Count 1 was unsafe and was quashed. The Crown did not seek a retrial.
2. The prosecution evidence, taken at its highest, could not make a properly directed jury sure that the appellant knew or believed that Ms Cosson had assisted the police investigation into the May offence. The word relied on by the prosecution was equivocal. It was equally consistent with a reference to Ms Cosson’s complaints to the landlord and the appellant’s eviction. Other evidence positively pointed away from his knowing or suspecting her involvement in the police investigation.
3. The appellant’s failure to explain the word in interview did not justify leaving the issue to the jury. Any adverse inference under section 34 of the Criminal Justice and Public Order Act 1994 could not provide the essential missing evidence. A jury cannot convict wholly or mainly on the basis of such an inference.
4. The no-case question had to be decided on the evidence available when the Recorder ruled on the submission. The appellant’s later denial that he had used the word could not affect whether the ruling was correct at that time. It was relevant, however, to whether the conviction was safe. The denial did not resolve the evidential difficulty because, if the word had been used, it remained consistent with the alternative explanation relating to the eviction.
5. Under section 4 of the Criminal Appeal Act 1968, the sentence of no separate penalty on Count 2 was quashed and a sentence of three months’ imprisonment was imposed for the battery. It was concurrent with the 12-month sentence imposed for the unrelated ABH offence and had no effect on the appellant’s overall period in custody.

• Court of Appeal (Criminal Division) — the appeal against the intimidation conviction was allowed. The conviction was quashed, and the battery sentence was replaced with three months’ concurrent imprisonment: [2024] EWCA Crim 88.
• Crown Court at Bournemouth — the appellant was convicted of intimidation and assault by battery after trial before a Recorder and jury. He had pleaded guilty to criminal damage.