R v Tracey McNeill
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX |
| Judgment Date | 06 November 2007 |
| Neutral Citation | [2007] EWCA Crim 2927 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200605038/D4 |
| Date | 06 November 2007 |
[2007] EWCA Crim 2927
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Rix
Mr Justice Henriques
Mrs Justice Swift DBE
No: 200605038/D4
Mr T Mackinnon appeared on behalf of the Applicant
Mr K Volz appeared on behalf of the Crown
On 8th September 2006 in the Crown Court at Snaresbrook before Mr Recorder Walker QC, after a three days trial, the appellant, Tracy McNeill, was convicted of making threats to kill. That was count 1 of the indictment. She had previously pleaded guilty, on a change of plea, to malicious damage, count 2. Thereafter, on 26th June 2007 she was sentenced to concurrent terms of 36 weeks' imprisonment suspended for 18 months and ordered to undertake alcohol treatment for 60 days. She now appeals against conviction by leave of the Single Judge.
The overall prosecution case was an allegation that the appellant, believing that her upstairs neighbour, Mr Jess Clements, had stolen half a bottle of brandy from her, went to his flat demanding its return. When he refused to open the door, she kicked it and smashed a hole in it with a hammer. That was the content of count 2, malicious damage. Then, through the hole made in the door, she uttered threats to kill her neighbour, that being the content of count 1. The appellant denied those offences.
The neighbour, Jess Clements, gave evidence that at about 11.30 pm on 28th November 2005 he was preparing for bed when he heard her shouting and knocking on his front door. He recognised the appellant's voice and she was shouting that her bottle of brandy had been stolen and demanded he open the door. When he refused to do so she attacked it with a hammer. As the door started to split, she continued to shout abuse at him and ended up threatening to stab him and cut him into little pieces. The words alleged were: “I will cut you up, cut you into little pieces, I will kill you. I know the way out of your flat. I will burn you and kill you all.” She looked through the hole she had made in the door, called him abusive names, and repeated her threats to burn the flat. He had taken those threats seriously and called the police.
Police Constable Beveridge, who attended the scene at about midnight, also gave evidence at trial. He said that the appellant was found in an agitated state, swearing and cursing. She told him: “I've had enough, I will bloody kill them.” She said that when she could not get a reply from the Clements' flat she smashed the door to try to speak to its occupants. She accused them of being drug dealers, theives and prostitutes. Police Constable Beveridge also said that Mr Clements appeared shaken and distressed.
Miss Maddie Cooper, a local council housing officer, gave evidence about an incident that had occurred at the Camden Housing Office two days later, on 30th November. The appellant had come to the Housing Office seeking temporary accommodation. She was upset and indeed distraught, all the more so when told that the Housing Office could not help her. She then threatened to go home and burn the Clements' flat down, declaring: “They'll come out in body bags.”
The appellant gave evidence. She said that she was 33 and only 4 feet 9 inches in height. After a game of bingo she had returned to her flat, left a half bottle of brandy which she had bought just outside the front entrance of her flat, which she had gone into to use the toilet. When she emerged outside she found that the bottle of brandy had disappeared. She heard a door slamming and that led her to believe that someone in the neighbouring flat upstairs had come out and stolen the brandy. So she went up to her neighbour's door, knocked on it, but no one answered. She became agitated, she said, f-ing and blinding, and started to kick the door. She just snapped and became mad and abusive when someone in the flat called her a derogatory name. She smashed a hole in the door with a mallet. She continued to abuse the occupants, calling them whores and drug dealers. Her original intention had been merely to seek reimbursement for her brandy. However, whilst admitting all that, she denied having threatened to kill Mr Clements or to cut him up or to burn his flat down. She could not remember threatening anyone. She accepted, however, that she had used the words to the police which Police Constable Beveridge had given evidence about, namely: “I'll bloody kill them”. Otherwise, however, she had never made a threat to kill to Mr Clements and in any event nobody took her seriously, she was just a little woman with a big mouth. As for the event two days later at the Camden Housing Office, her actual words to Miss Cooper had been: “What do you want me to fucking do? Do you want me to burn it down? Do you want them to come out in body bags?”
In cross-examination, she accepted that her intention had been to scare her neighbour, Mr Clements. She had acted aggressively towards him but what she had said had been said in anger.
The appellant also called, as part of her defence, her friend, Miss Baillie, with whom she had been out playing bingo that evening, and Miss Baillie said that while she had heard what was going on, she had not heard any threats to kill.
It was in the context of that trial that a question arose as to whether the evidence of Miss Cooper, the Camden Housing Officer, was admissible. The prosecution had originally prepared a notice for the purposes of section 101(1)(d) of the Criminal Justice Act 2003, seeking admission of that evidence of Miss Cooper as evidence of bad character, namely as evidence of a propensity to utter threats to kill of that nature. Ultimately, however, Mr Volz, who appeared for the Crown at trial as he does again on this appeal, preferred to put his application (and his opposition to a counter- application to exclude the evidence of Miss Cooper under section 78 of the Police and Criminal Evidence Act 1984), not as bad character material under section 101 of the 2003 Act, but as facts more directly relevant to the alleged offence. In particular, he relied upon section 98(a) of the 2003 Act, which reads:
“References in...
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