Wayne Valentine v DPP

Monday, 24th March 1997.

This is an appeal by Wayne Valentine by way of case stated against his conviction by the Grantham Justices on 22nd July 1996 for threatening behaviour contrary to section 4 of the Public Order Act 1986.

Mr Valentine was the next-door neighbor of Mr and Mrs Day who lived with their three-year old daughter at a house in Bridge End Road, Grantham. The Justices found that two incidents occurred in the late evening of 13th March 1996. In the first incident, which took place at about 11 pm while Mr Day was at work, his wife heard very loud shouting and banging coming from the rear of her house. She was very scared, upset and worried for the safety of her daughter. She, therefore, telephoned the police and her husband. The police arrived some five or ten minutes later. They spoke to Mrs Day and Mr Valentine, who showed a police officer around his house. The police eventually left, having taken no action. Mr Day, who arrived home as the police were leaving, saw his wife had been crying and that she was upset.

The second incident occurred about half-an-hour after the first. Mr and Mrs Day were downstairs in their home and they both heard a lot of shouting, abuse and banging on the doors. This disturbance all came from outside the front of the house. Mr Day saw that Mr Valentine was one of the people outside shouting abuse. In particular, Mr Valentine said:

"You don't know who you're fucking dealing with. We know you are a prison screw. Next time you go on duty we're going to burn your house. You're all going to fucking die."

The police were called again and one of the officers spoke to Mr Valentine who denied that he was involved and said that he was not the person who spoke the words complained of.

On 24th April 1996 Mr Valentine was charged in that he—

" On 13th March 1996 at Grantham used towards another person threatening, abusive or insulting words or behaviour with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person or to provoke the immediate use of unlawful violence by that person or another or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.

Contrary to Section 4 Public Order Act 1986."

The critical words are those that I have underlined.

The argument before the Justices turned on the meaning of the word "immediate". Even if they were satisfied that Mr Valentine had made the threats relied upon, it was said that the words used did not constitute a threat of immediate personal violence, but rather a threat to carry out unlawful violence on some future occasion when Mr Day was absent from home at work. The Justices were satisfied that Mr Valentine did use the words complained of. They considered that the incident, as a whole, including that threat, was extremely frightening for Mr and Mrs Day and that Mr Valentine did intend to cause them to fear immediate and unlawful violence. They were of the view that the word "immediate" could mean within a short time and did not necessarily mean "instantaneous". Mr Day could have returned to work to continue his night shift at any time thereby giving Mr Valentine an opportunity to carry out his threat. They, therefore, convicted him.

The question for the opinion of the High Court is:

"Was there evidence before the Court upon which we could convict the defendant of an offence Contrary to section 4 Public Order Act 1986? Specifically, were we correct in finding that the word 'immediate' in Section 4 Public Order Act could mean within a short time rather than instantaneous?"

As recently as 6th March 1997, my Lord, Curtis J, was part of a constitution of the Court of Appeal, Criminal Division which handed down judgment in a case called R v Gaetano Constanza, bearing upon a related point: the concept of immediacy for the purpose of the law of assault an offence which both parties there accepted was committed "where a person intentionally or recklessly causes another to apprehend the use of immediate and unlawful personal violence". The Appellant there had been persistently, for over 18 months, seeking to impose his unwanted attentions upon the complainant, telling her that, if he could not have her, nobody else could, and finally putting through her door a letter in terms which made her think that the Appellant had "flipped" and was going to do something to her, something which she felt could happen "at any time".

The passage in the judgment relevant for present purposes is this:

""Both parties are agreed that cases could theoretically arise when the fear is of violence not before a time in the distant future and that in those cases it would not be right to leave the case to the Jury. Both parties are agreed that at the other end of the spectrum there can be cases when it should be left to the Jury whether or no the fear was of violence sufficiently immediate to be described as the fear of immediate violence. The essential difference between the parties on the facts of the present case is whether these fall into the category which could legitimately be left to the Jury or whether the Judge should have decided that there was such lack of immediacy that the Prosecution had not established enough to allow the Jury to convict.

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… The essential issue to be decided by...