R v BBrimecombe and another 2024
B was convicted of the offence of breaching a restraining order pursuant to section 5(5) of the Protection from Harassment Act 1997, repealed on the 1st December 2020. B’s actions giving rise to the breach occurred in 2024.
C was convicted of sending an electronic communication with intent to cause distress or anxiety, contrary to section 1(1)(a)(ii) of the Malicious Communications Act 1988 after seeing a communication on the 27th March 2024 however, the offence had been repealed from the 31st January 2024 and replaced with a similar albeit not identical threatening communications offence contrary to section 181(1) of the Online Safety Act 2023.
B and C’s unrelated cases were listed together upon appeal on the shared ground that both individuals had been convicted of offences no longer in force.
Held
C's appeal allowed, conviction quashed.
B's appeal dismissed, conviction amended to reflect the correct provision.
The court outlined that the effect of an offender being charged with an offence which no longer exists in the form in which it is charged will vary according to the circumstances. Whatever the eventual effect, it was stated that is wholly unsatisfactory for a defendant to be convicted, whether on his own plea or by the verdict of a jury, by reference to a statutory provision which is no longer in force. The prosecution and defence were reminded of the importance of undertaking checks of the indictment.
Where the facts of an offence tried by jury are directly analogous to another offence which the jury could have found the defendant guilty, rather than dismissing an appeal, it is within the remit of the court to substitute the verdict and pass sentence for a substitute offence pursuant to section 3 of the Criminal Appeal Act 1968. The court considered application of the power in the context of C’s case but as there were differences between the offence contrary to section 1(1) of the Malicious Communications Act 1988 and that provided by section 181(1) of the Online Safety Act 2023, the jury could not have found C guilty of that offence.
For an offence to be made out under the alternative offence provided by section 181(1) of the Online Safety Act 2023, the threat required needed to be for death or serious injury. In addition, C would need to have intended for the receiving party to either fear that the specific threat would be carried out or be reckless as to whether such a fear had been caused. This had not been the case and it followed that C’s conviction was unsafe and the court allowed the appeal, quashing the conviction.
Turning to the case of B, the statement of case outlined that he had breached a restraining order imposed under section 360 of the Sentencing Act 2020 by calling and messaging the protected party. The breach was charged contrary to section 5(5) of the Protection from Harassment Act 1997, repealed on the 1st December 2020 and then, re-enacted in section 363 of the Sentencing Act 2020. Applying the case of R v Jowett (2022) the transitional provisions in paragraph 4 of schedule 27 of the Sentencing Act 2020 applied so that the reference in the indictment to the repealed provision under section 5(5) of the Protection from Harassment Act was to be read as a reference to the provision re-enacted in section 363 of the Sentencing Act 2020. The appeal therefore failed and the conviction could be amended.
View the full case document here, with links to related legislation and similar cases.
