"(1) A person who does to another person (a) an act which intimidates, and is intended to intimidate, that other person; (b) knowing or believing that the other person is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence; and (c) intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with, commits an offence."

The Reference under S 36 of the Criminal Justice Act 1972.

"Whether the offence of witness intimidation contrary to section 51(1) of the Criminal Justice and Public Order Act 1994 is committed in circumstances where a person makes a threat to a witness via a third party, intending that the third party will pass on the threat to the witness and intending that the witness will be intimidated by the threat."

The Law

The court, said that the acquitted defendant and his son worked at a London market. At 11pm a night shift worker came on duty. Half an hour later the defendant's son attacked him with an iron bar, causing serious injuries.

The attack was witnessed by A. The defendant approached B, A's stepfather, later that night and told him that if the defendant's son was arrested B would be burying A the next week.

A saw that as a threat to his life and was put in fear. However, commendably, he gave a witness statement to the police.

The son's plea to an offence of unlawful wounding was accepted. The defendant was charged with an offence under section 51(1) of the 1994 Act.

A submission was made on his behalf at the beginning of the trial that on the facts of the case that offence had not been committed. The recorder accepted that submission.

If the recorder had been right, the effect would be that if the intimidator himself threatened a witness he would be liable but if he employed others to deliver the threat he himself would not be liable.

Happily that was not the law. The 1994 statute was designed to protect those involved in criminal investigations and those who were likely to be witnesses or jurors.

Threats which were caught by the section included those made to witnesses or jurors directly, those made to witnesses or jurors, albeit communicated indirectly, and those made to a third person which would have the same effect on the witness or juror as if the threat had been made to him directly.

The recorder's ruling was wrong and the Attorney-General's question would be answered in the affirmative.

The Decision

A person could be guilty of an offence of intimidation of a witness if he made a threat to a witness via an agent or messenger with the intention that the threat would be conveyed to the witness, provided the other statutory ingredients of the offence were there.

The Court of Appeal, so held on a reference by the Attorney-General under section 36 of the Criminal Justice Act 1972:

Comment

According to the Home Secretary (Hansard, Commons, 11 January 1994, col.29):

"We need to make it clear that intimidating those who assist the criminal justice process will not be tolerated. The law already takes a serious view of such behaviour, but there is scope to do more, particularly in relation to activity before and after the period when a trial is in progress. That is why the Bill creates new offences which will make it easier to bring to justice those who intimidate or take revenge on people for assisting the police or acting as witnesses or jurors in a criminal trial."

These offences are designed to exist alongside the common-law offence of

perverting the course of justice and there will be circumstances which may fall under the both statutory and the common law offences. Such behaviour may also be punishable as a contempt of court.

CONTEMPT OF COURT

Nature of Contempt.

Criminal contempt of court is a broadly based offence, and can take a number of different forms. At common law, it has been defined as behaviour ‘involving an interference with the due administration of justice, either in a particular case or more generally as a continuing process’ Attorney-General v Leveller Magazine Ltd [1979] AC 440, It is not possible to provide an exhaustive list of the ways in which the offence can be committed. Donaldson MR said in Attorney-General v Newspaper Publishing plc [1988] Ch 333:

"The law of contempt is based on the broadest of principles, namely that the courts cannot and will not permit interference with the due administration of justice. Its application is universal. The fact that it is applied in novel circumstances . . . is not a case of widening its application. It is merely a new example of its application."

Broadly based though it is, criminal contempt can nevertheless be categorised according to whether it is committed ‘in the face of the court’ or committed indirectly (i.e. a ‘constructive’ contempt, such as the publication of a book or article prejudicing a forthcoming trial in a way which may influence potential jurors or witnesses). Only the superior courts have jurisdiction to punish for constructive contempts Lefroy (1873) LR 8 QB 134, whereas any court of record (including county courts and coroners’ courts) may punish contempt in the face of the court. It does not follow that constructive contempt of an inferior court must go unpunished; jurisdiction to commit for such contempt may be exercised by the Divisional Court of the Queen’s Bench Division under Rules of the Supreme Court 1965, ord.

Magistrates’ Courts

Since magistrates’ courts are generally assumed not to be courts of record, they have no inherent jurisdiction to deal with contempts. They do, however, have statutory powers. Apart from their powers to commit a person to prison for default in paying a fine or an order under the Legal Aid Act 1988, s. 63(3) of the Magistrates’ Courts Act 1980 empowers them to fine or commit to custody for default in respect of other orders. This is a power primarily directed at civil defaults, and exercisable either of the court’s own motion or by order on complaint (Contempt of Court Act 1981, s. 17). The maximum fine is £50 per day or £5,000; the maximum period of custody is two months.

Contempt in the face of the court is partly (but not entirely) dealt with in the Contempt of Court Act 1981, s. 12 and the Magistrates’ Courts Act 1980, s. 97(4).

Magistrates’ Courts Act 1980, s. 97

(4) If any person attending or brought before a magistrates’ court refuses without just excuse to be sworn or give evidence, or to produce any document or thing, the court may commit him to custody until the expiration of such period not exceeding one month as maybe specified in the warrant or until he sooner gives evidence or produces the document or thing or impose on him a fine not exceeding £2,500 or both.

Contempt of Court Act 1981, s. 12

(1) A magistrates’ court has jurisdiction under this section to deal with any person who–

(a) wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court; or

(b) wilfully interrupts the proceedings of the court or otherwise misbehaves in court.

(2) In any such case the court may order any officer of the court, or any constable, to take the offender into custody and detain him until the rising of the court; and the court may, if it thinks fit, commit the offender to custody for a specified period not exceeding one month or impose on him a fine not exceeding £2,500, or both.

(2A) A fine imposed under subsection (2) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.

(4) A magistrates’ court may at any time revoke an order of committal made under subsection (2) and, if the offender is in custody, order his discharge.

LINKS

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