Karsten v Wood Green Crown Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice Laws |
| Judgment Date | 01 July 2014 |
| Neutral Citation | [2014] EWHC 2900 (Admin) |
| Docket Number | CO/1133/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 July 2014 |
[2014] EWHC 2900 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Cranston
CO/1133/2014
Mr M Bisgove (instructed by Tuckers Solicitors) appeared on behalf of the Appellant
Mr L Chinweze (instructed by the Crown Prosecution Service) appeared on behalf of the Interested Party
This is an appeal by way of case stated from the decision of the Crown Court at Wood Green. On 6 September 2013, it dismissed the appellant's appeal against the earlier decision of the Tottenham Magistrates Court that he was guilty of an offence of sending a menacing message by a telecommunications network, contrary to section 127(1)(a) of the Communications Act 2003. The message comprised the words: "Ask if he is Jewish. As him if he's eating kosher."
The background is that the appellant worked with the complainant, Mr Ron Golan, for a period of six weeks between mid June until the end of July 2013. Mr Golan is a company director and is Jewish. The two shared an open plan office with the appellant being about 5 metres away from Mr Golan. They travelled together on work to Manchester and Cardiff. The appellant then went on holiday and never returned to work. The appellant retained a laptop which Mr Golan claimed belonged to his Company. Emails were engaged between the two. The laptop was eventually returned but in a damaged condition.
Between mid September 2012 and the early part of October 2012, Mr Golan received a series of anonymous antisemitic calls from a blocked number. On the evening of 6 October 2012, he received two calls. Although Mr Golan did not identify the voice of the caller in the first call, he identified the voice of the appellant in the background. The appellant was prompting the caller to ask Mr Golan questions, and, according to Mr Golan, the appellant uttered the words I have quoted. A second call was made 10 minutes later. Mr Golan said that in the course of that call, the expression "filthy Jew" was used. He said it was probably the same person had called earlier that evening.
On 19 October 2012, the appellant was arrested for harassment. In the police interview he answered all the questions with "no comment" answers. He gave the police a prepared statement, saying that he was aware of the calls made to Mr Golan but did not want to name anyone involved out of concern for his own safety. On 18 April 2013, the appellant was tried at the Tottenham Magistrates Court for sending a message by a telecommunications network which was grossly offensive, contrary to section 127(1)(a) of the Communications Act 2003. He was convicted and fined £35.
The appellant appealed his conviction to the Wood Green Crown Court. His Honour Judge Pawlak and two justices reheard the case. Mr Golan gave evidence. In the course of his evidence he said that he recognised the appellant's distinctive voice because of what he said was its "presence" and lower than average pitch. However, he could not describe its accent since he had only been in the country eight years. At the close of the prosecution case it was submitted that there was no case to answer, given that the identification was of poor quality and there was no supporting evidence. The application was refused. The appellant did not give evidence but there was unchallenged evidence from a voice recognition expert, Professor French, that the pitch of the appellant's voice was a little higher than average, although not distinctive.
The court directed itself in accordance with R v Turnbull [1977] QB 224 and the passages in Archbold Criminal Pleading, Evidence and Practice on voice identification. The Court acknowledged that there was scope for error in any identification case but found that Mr Golan was a credible and accurate witness. The Court was sure that the appellant was with the caller at the time the first call on 6 October was made and that Mr Golan's recognition of his voice was correct and could be relied upon. Mr Golan had worked with him for about six weeks and his contact was sufficient for him to acquire a good knowledge of the appellant's voice. The appellant had a motive, said the Court: the dispute over the damaged laptop. However, the Court could not be sure that the appellant was present or involved in the making of the second call on the evening of 6 October, or about its content. Accordingly, the Court said that it would disregard the second call.
The prosecution had put the case, as it did in the magistrates court, as one of the first call on 6 October being grossly offensive. However, the Court decided that although the words of that call were abusive and were intended to have that effect, and although Mr Golan had found them to be of that nature, they were not grossly offensive. The words of the second call would have been grossly offensive but, for the reasons given, the Court disregarded them.
However, the Court decided that the words of the first call were menacing. That was because the questions were malicious and intended to threaten and intimidate. It was Saturday evening when Mr Golan would be expected to be at home with his family. The call was anonymous and the nature of the questions, given that the questioner was not in the least bit interested in the answers or in obtaining answers, was menacing. Mr Golan's evidence was that he felt terrified. The questioner and the appellant who was prompting him knew that Mr Golan was Jewish, and there was no other conceivable reason in making the call except to menace him. The Court added that the implication of the call was that the caller knew how and where to find Mr Golan at will and he himself was powerless to do anything about it. The court dismissed the appeal.
In the case stated to this court, the Crown Court poses two questions: (1) whether there was sufficient evidence on which the court could find that the identification of the appellant's voice by the complainant was reliable; (2) whether the words "Ask him if he's Jewish. Ask him if he's eating kosher" in the context of a single anonymous telephone call, and in all the circumstances specified and found by the Court, were menacing.
For the appellant, Mr Bisgrove submitted that the quality of the evidence of the voice identification was poor and...
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