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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Braithwaite, R. v [2012] EWCA Crim 2053 (02 July 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/2053.html Cite as: [2012] EWCA Crim 2053

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2(A 2LL
		2 July 2012

1. LORD JUSTICE MOSES: This is an appeal against a conviction of making threats to kill. The ground on which the appeal is advanced is the unfairness of the summing-up.
2. The conviction was at Blackfriars Crown Court on 14th July 2011. The appellant was convicted of making threats to kill contrary to section 16 of the Offences Against the Person Act 1861. He was also accused of two counts of assault by beating of which it is important to record in this appeal he was acquitted.
3. The alleged victim was the appellant's former girlfriend. Apparently there had been arguments and that had led, so the prosecution say, to the appellant sending threatening text messages from a mobile phone found in his flat which he accepted was his but which was a pay-as-you-go non-contract mobile phone. There can be no dispute that threatening text messages were sent to this lady, that they were sent on the evening of 21st February 2011 and that they did constitute threats to kill. For example: "I fuckin told u earlier I ain't going nowhere now ur taking me 4 a muggy cunt I will do what I said u ur new fellow den me." The second referred to Raoul Moat: "I've warned you babe", it said among other things. The third at 11.14 said: "Next time I c u I'm gonna blast u with my shotty watch."
4. The appellant in interview was advised to make no comment and took that advice and he gave no evidence at trial. It is thus important to emphasise that although Mr Mackinnon who appeared on behalf of this appellant at trial and appears on his behalf before us on appeal sought to give an explanation, namely that someone else might have had access to that pay-as-you-go mobile phone, there was no evidence whatever of that.
5. The ground of appeal arises out of the circumstance that the alleged victim refused to advance the complaint she had originally made. Although she had complained to the police about the violence and about the text messages, she had telephoned the officer in charge trying to withdraw all her allegations against this man. She had written three handwritten letters attempting to do so. In some of them she asserted that the allegations were not true. Finally, she had written a formal section 9 withdrawal statement to the officer in charge. Those statements were before the jury.
6. Apparently, counsel for this appellant had said in those circumstances that none of the allegations were to be believed including the allegations relating to the texts that had been sent undoubtedly to her phone on the night of 21st February 2011. What then were the jury to make of that? We know what the jury made in relation to the allegations of violence because they acquitted. The alleged victim had not turned up at trial but had sent in a medical statement which had been accepted as a ground for not calling her pursuant to section 116 of the Criminal Justice Act 2003, but rather reading her statement. Those statements both of accusation and withdrawal were read to the jury pursuant to section 116(2)(b) of the 2003 Act. That was the context in which the question of her withdrawal was laid before the jury. Apparently Mr Mackinnon had said it was remarkable that the prosecution was going on pursuing the case when she had said not only she did not wish to pursue it but also that the allegations were not true.
7. This prompted a lengthy passage from the judge in which he advanced before the jury possible explanations for her withdrawal other than that the allegations were in fact not true. He gave the jury to understand that from time to time in a domestic relationship allegations would be made and then withdrawn. Indeed assertions that statements were not true were sometimes made because the parties had been reconciled or the lady alleged victim wished to be reconciled with the man whom she had originally accused.
8. Rather than dealing with those possibilities with a light touch, mentioning that there might be other allegations, the judge made, if he will forgive us saying so, a meal of it and went, over the space of some four pages, on to suggest that there might be other explanations in a way which undermined the defence case that the reason that the allegations had been withdrawn, that the reason for the assertion that they were not true was in fact that they were not true or may not have been true.
9. There is force in the submission of Mr Mackinnon. The general thrust of those statements by the judge did undermine the defence case and went much further than was necessary. The judge over-emphasised the possibility of other allegations. In so saying we are not declaring that the judge was wrong to say nothing about the possibility of other explanations. He was entitled to do that. But he was not entitled to do it to the extent that he did in a way which, as Mr Mackinnon said, seemed to be underlining and emphasising the submissions made on behalf of the Crown.
10. But the jury was faced, as the judge was faced, with a puzzle. The fact that those undoubtedly threatening statements had been made could not be gainsaid. The fact that they had been made to someone who had what appears to have been a somewhat up and down relationship with this appellant could not be gainsaid. The possibility therefore that someone else had access to that phone and had bothered on three separate occasions to send those thoroughly unpleasant texts to the lady, may have seemed utterly fanciful to the jury and certainly appeared so to the judge. We repeat, there was no explanation in evidence at all as to how that might have been. It was, so the jury may have thought, utterly ludicrous to think otherwise. That is the context in which we have to consider those passages in which the judge plainly went too far.
11. Though we accept he went too far, we do not accept that it can in any way have had an impact upon the fairness with which the jury viewed this evidence. We repeat, they acquitted of those counts where there was no supporting evidence, but they convicted where there could be no rational explanation other than that this appellant, who chose not to give evidence, had sent those texts. In those circumstances, whilst we accept the criticism, we do not think it affected the safety of the verdict in relation to the sending of those texts that amounted to threats to kill and in those circumstances we dismiss the appeal against conviction.
12. This is an application for permission to appeal against a sentence of four years for the offence we have already identified. This appellant is now 32. He has a large number of previous convictions, although as Mr Mackinnon points out whilst there are offences involving offensive weapons, public disorder and violence, they do not appear to have particularly concerned anyone with whom he had a relationship. The last serious offence was one of robbery to which he pleaded not guilty and was then sentenced to imprisonment in September 2008 for six years, that being a variation of an earlier sentence passed in May 2007.
13. The ground of the application is that the judge artificially raised the ceiling of the offence so as to ensure that he would be punished after his potential release date on licence from the robbery sentence. We do not think there is anything of merit in that argument. Mr Mackinnon is quite right that the judge was required to pass a sentence appropriate for this offence and not artificially extend it, but in our view the gravity of those threats and the terms in which they were issued, amply justified on his plea of not guilty with a hopeless defence the sentence that was passed. There was not one word of explanation, let alone apology or contrition, in respect of accusations to which he plainly had no answer whatever. In those circumstances, the sentence was justified and we refuse this application.