Witness intimidation is a serious offence and a conviction for the offence will, unless the offence is fleeting and in the heat of the moment, there is a high likelihood that any convicted defendant will end up with a sentence of imprisonment unless handled with the utmost skill and judgement.
As the offence almost inevitably involves the word of one person against another it is vitally important that someone accused of such an offence is skilfully and ably represented. It is also important that all surrounding circumstances of the alleged intimidation are thoroughly investigated- often the offence does not occur in a vacuum and investigation of extraneous evidence such as text messages, CCTV and other potential evidential background should be undertaken.
What is witness intimidation?
The law in relation to witness intimidation is set out in s51(1) of the Criminal Justice and Public Order Act 1994. It states that a person commits an offence if he ‘does an act which intimidates, and is intended to intimidate another person and he does the act knowing or believing that the victim 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 he does it intending thereby to cause the investigation or the course of justice to be obstructed, perverted or interfered with.’
The person complaining against the defendant must actually be intimidated, the offence cannot be committed if they were not (R v N(Z) 2013)- there is no judicial definition of intimidation but the dictionary definition is ‘to frighten or threaten someone, usually in order to persuade that person to do something that you want them to do’.
Other relevant parts of the Act are:
Subsection 3 of the Act states that it is immaterial that the act is or would be done or that the threat is made –
- Otherwise than in the presence of the victim or
- To a person other than the victim
So in short the threat does not have to be either realistic or direct – indirect threats are as much capable of being witness intimidation as a direct threat to the person intended to be intimidated. So for example an unrealistic threat that ‘I’ll drop a nuclear bomb on your house’ can still be a qualifying threat as can a threat made to a 3rd party that is then communicated to the victim.
Subsection 4 states that the harm that is threatened may be financial as well as physical – to a person or their property. This means that the threat need not just be ‘I’ll beat you up’ it could equally be ‘I’ll ruin your businesses.
Subsection 5 states that the intention and motive required need not be the only or the predominating intention or motive with which the act is done or threatened. So if a subsidiary benefit of the intimidation is their not giving evidence (for example) but the main benefit or motive is something else then the offence is still made out.
Subsection 9 defines an offence as including an alleged or suspected offence.
Defences to witness intimidation
Subsection 7 states that if the relevant act is proved with the requisite knowledge or belief then the defendant will be presumed, unless the contrary is proved to have done the act with the intention required by the Act. This of course imposes a reverse legal burden on the defendant. So the defendant must prove this defence on the balance of probabilities- so that is more likely than not, this is a lower burden than that imposed upon the defendant to prove the rest of the offence- they have the burden of making the jury sure or in layman’s terms beyond reasonable doubt.
In AG’s reference no 1 of 2004 the court held that this provision of the Act was not contrary to article 6 of the European Convention on Human Rights as it was both justified and proportionate for a reverse burden of proof to be imposed. This was said to be even where the reverse burden goes to an ingredient of the offence rather than a special defence. The court specifically referred to witness intimidation stating that witness intimidation is a serious offence and a threat to the proper administration of justice and that it was understandable why parliament had decided to take such strong measures to stamp out such offences.
There is no specific ‘defence’ e.g. reasonable excuse to witness intimidation. So one cannot have a general defence such as this if all the elements of the offence have been proved. A case of witness intimidation will therefore always turn upon whether the prosecution can prove all of the elements of the offence and/or if the defendant can make out their statutory defence.
What is the sentence for witness intimidation?
When tried in the Crown Court the maximum penalty for witness intimidation is 5 years imprisonment. Although there are no sentencing guidelines for the Crown Court there are guidelines for the Magistrates which state that:
Where there is a sudden outburst in a chance encounter the starting point is 6 weeks custody with a range of medium level community order to 18 weeks custody.
Where there is conduct amounting to a threat, staring at, approaching or following witnesses, talking about the case or trying to alter or stop evidence the starting point is 18 weeks custody with a range of 12 weeks custody to committal to the Crown Court.
In cases where there are threats of violence to witnesses and/or their families or deliberately seeking out witnesses the case will always go to the Crown Court.
As stated earlier the offence of witness intimidation is a serious one and if you are accused of witness intimidation you should seek specialist legal advice as soon as possible. If you find yourself in such a position contact Quentin for an expert view.
POSTED: Wednesday, September 10, 2014