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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> BA, R v [2012] EWCA Crim 1529 (11 July 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/1529.html Cite as: [2012] EWCA Crim 1529, (2012) 176 JP 615, [2012] 1 WLR 3378, [2012] WLR(D) 199, [2012] 2 Cr App R 34 |
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ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
MR RECORDER MARRIN QC
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE COLLINS
and
MR JUSTICE SINGH
____________________
Regina |
Appellant |
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- and - |
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BA |
Respondent |
____________________
R Cohen for the Respondent
Hearing date : 27 June 2012
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Crown Copyright ©
President of the Queen's Bench Division :
The background circumstances
"A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, -
(a) to destroy or damage any property belonging to that other or a third person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person;
shall be guilty of an offence."
"Statement of offence
Threatening to destroy or damage property, contrary to section 2(a) of the Criminal Damage Act 1971.
Particulars of offence
[The husband] on the 7th day of June 2011, without lawful excuse, made to [the wife] a threat to destroy or damage property, namely her flat ….., intending that [the wife] would fear that the threat would be carried out."
"(2A) In any proceedings the spouse or civil partner or a person charged in the proceedings shall …. be compellable –
…..
(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.
(3) In relation to the spouse or civil partner of a person charged in any proceedings an offence is a specified offence for the purposes of subsection (2A) above if –
(a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above."
The issue
"It is unclear, and as yet undecided, whether the 'involvement' must be legal (as a matter of legal definition the offence charged requires an assault on, or injury or a threat of injury to, one of the types of person described in s.80(3)(a)) or can be factual (as a matter of legal definition the offence charged does not require an assault on or injury or a threat of injury to one of the types of such person but in fact it did involve, or is alleged to have involved, an assault on or injury or a threat of injury to one of the types of such person)."
The authorities
"… an offence which involves an assault on or injury or threat of injury to a person."
"In our judgment, an offence involves a threat of injury within the meaning of section 32(2) if its circumstances are such that injury to a person is a real possibility. It is not necessary, in our view, that the threat of injury to another person referred to in the subsection should be made directly by the offender. It is the consequences of the offender's activity, which viewed objectively, must present the threat. If they do, then the unlawful activity, the commission of the offence, involves a threat of injury within the meaning of the subsection.
On the facts of this case, we are abundantly satisfied that to do what the appellant did, plainly created a threat of injury to Daniel, and the offence, likewise, created that danger. It was the circumstances of the offence which were operative, as opposed to the intention, the mental element of the offender."
"Is the offence of arson being reckless as to whether life is endangered … an offence which involves a threat of injury to a person for the purposes of s.32 …."
It is plain, it seems to us from the nature of the certified question, that the second issue the court must have been considering was whether the offence itself fell within s.32 and not whether the circumstances of the particular offence fell within that section. Our interpretation of the judgment is supported by the helpful note written by Professor Di Birch in [1996] Crim LR 413. She identified the second question in these terms:
"Must the threat or risk be one which is required by the definition of the offence to be proved or is it sufficient that the evidence adduced to prove the offence reveals that a risk of injury was present?"
She thought the court had the former in mind. She concluded her note by saying:
"As the risk of injury may be an element in many offences, including dangerous driving and aggravated vehicle taking, the net would be widely cast even without the variant described above in relation to arson. With it the possibilities are endless."
"In our judgment, the issue in the present case is significantly different from that which arose in Lee and it is not necessary for us to decide whether the offence referred to in section 32(2) means simply the nature of the offence charged in the indictment or whether the Court should also have regard to the evidence supporting the charge in the particular case. We should add, however, that we are strongly inclined to the former view. Each count in the indictment contains Particulars as well as a Statement of the Offence. These should be sufficient to enable the necessary classification to be made. If the offence is properly charged, then the evidence supporting it should reflect its nature rather than some other kind of offence. Moreover, when the offence charged is conspiracy or attempt, the evidence in a particular case may not demonstrate what the specific or completed offence might have been.
The question therefore is whether the offence of child abduction under section 2 of the 1984 Act is an offence of the kind referred to in section 32(2). It is an offence which may be committed without the use of physical force or even the threat of it, for example when the child freely consents to go with the offender. The effect of section 2, and maybe the parliamentary intention also, is to make the taker of the child guilty of a criminal offence whether or not the child did consent and regardless of whether force or the threat of force was involved. Still less does it depend on whether there was a risk of injury, physical or mental, to the child or to the person from whose lawful control the child is taken. But it is equally clear that the offence may involve the use or the threat of force and the risk of injury to the child or some other person. In some cases it does; in others, it may not."
Our conclusion
Postscript