Neutral Citation Number: [2014] EWHC 2900 (Admin)
 
CO/1133/2014 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 1 July 2014
 
B e f o r e: 

LORD JUSTICE LAWS

MR JUSTICE CRANSTON 
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Between: 
KARSTEN 
Appellant

v 

WOOD GREEN CROWN COURT 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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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
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J U D G M E N T 
1.	MR JUSTICE CRANSTON:  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."
2.	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.  
3.	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.
4.	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.
5.	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. 
6.	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.
7.	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.
8.	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.
9.	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.
10.	For the appellant, Mr Bisgrove submitted that the quality of the evidence of the voice identification was poor and that the Crown Court ought to have acceded to the submission of no case to answer.  He underlined the passage in R v Turnbull at page 228D, that a mistaken witness could be a convincing witness.  He took us to the passages in the Crown Court judgment which highlighted the reliability of Mr Golan as a witness.  
11.	Mr Bisgrove turned to voice identification and the difficulties in lay persons identifying voices.  The first call on 6 October lasted a relatively short period and the second voice Mr Golan identified was in the background and spoke only 11 words over a few seconds.  Mr Bisgrove submitted that that too undermined Mr Golan's voice identification.  Next, Mr Bisgrove pointed out that the appellant and Mr Golan had shared an office and travel journeys for some six week but Mr Golan had not spoken to the appellant or heard his voice for about 10 weeks until the call on 6 October.  Moreover, Mr Golan conceded that he was not good at distinguishing English accents.  Mr Bisgrove highlighted Mr Golan's inability to identify the voice of the second caller that evening, 6 October, as being the same as that in the first call.  Finally, the one quality that Mr Golan had identified, namely pitch, was unsupported by Professor French's evidence and the notion of presence was vague and difficult to test.  In all, Mr Bisgrove submitted, this was a poor quality identification, unsupported by the evidence, and all the points detracted from the reliability of the identification which Mr Golan had made.
12.	R v Flynn and St John [2008] EWCA Crim 970, [2008] 2 Cr App R 20 was a case where the Court of Appeal Criminal Division considered identification by voice recognition in appeals in which it quashed convictions on conspiracy to rob. In that case, police officers purported to recognise voices of four accused taken from recordings of conversations covertly obtained from a microphone located in a van just before it entered the targeted premises.  The jury also heard evidence from two voice recognition experts.
13.	The Court of Appeal held that the identification of a suspect by voice recognition is more difficult that visual identification but is likely to be more reliable when carried out by experts using acoustic spectrographic and sophisticated auditory techniques.  The Court said that the ability of a lay listener correctly to identify voices is subject to a number of factors including the quality of the recording of the disputed voice, the gap in time between the listener hearing the known voice and the attempt to recognise the disputed voice, the ability of the individual lay listener to identify voices in general, the nature and duration of the speech to be identified, and the extent of the listener's familiarity with the known voice.  The Court accepted that some voices are more distinct than others.  It referred to research showing that a confident recognition by a lay listener of a familiar voice may nevertheless be wrong.
14.	In this case, in identifying the appellant's voice in the first call of 6 October, the Crown Court directed itself, correctly, in accordance with Turnbull and, in particular, was aware of the more stringent test required with voice identification, as explained in the passages in Archbold.  The Court took into account the expert report prepared by Professor French and the inevitable scope for errors with voice identification.  The Court concluded that the identification of the appellant's voice was not undermined by the respects in which such identification might otherwise be flawed.  It was impressed, as I have said, that Mr Golan was a credible and accurate witness on the identification of the appellant's voice.  It referred to the background that Mr Golan and the appellant had worked closely together over a period of six weeks with regular contact in the office and when travelling.  Moreover, there was some corroboration of Mr Golan's evidence, since the appellant admitted that he knew who had made the call but refused to divulge the name.  In Mr Chinweze's submission, with which I agree, that is a striking coincidence, in the light of Mr Golan's identification of the appellant's voice.  In my view, there were ample grounds for the Crown Court to conclude that the identification of the appellant's voice was reliable.  I would answer the first question in this case stated in the affirmative.
15.	The second question the Crown Court poses in the case stated concerns the status of the appellant's words in the first call of 6 October, namely "Ask him if he's Jewish.  Ask him if he's eating kosher."  Mr Chinweze for the Crown Prosecution Service accepted that there was no threat in those words but the context was that Mr Golan was Jewish and therefore it could be inferred that the words, in their context, were menacing.  Mr Chinweze highlighted the point made by the Crown Court that there was no reason to make the call other than to intimidate Mr Golan.  In his submission, to remove the first call of 6 October from its context would be artificial and would not do justice to the case stated.
16.	In DPP v Collins [2006] UKHL 40, [2006] 1 WLR 2223, Lord Bingham held that it is a question of fact whether a message is grossly offensive under section 127(1) of the 2003 Act and that in making this determination the Court must assess the words, taking account of their context and all the relevant circumstances: [9] The other law lords agreed.  Lord Bingham also said, at paragraph [11], that where facts known to the offender of the message about the intended recipient render the message particularly offensive to that recipient, or it is likely to be so, that is also a relevant consideration.  It is clear in my view that the same approach applies to whether words are menacing.  It is a question of fact to be judged in context.  
17.	The relatively high threshold set by the words of the statute was laid down in Chambers v DPP [2012] EWHC 2157 (Admin), [2013] 1 WLR 1833.  That was a case before this Court which considered whether a Twitter message, that an airport then closed would be blown sky high if not re‑opened with a week or so, was menacing within the meaning of the section.  The defendant in that case said that the message was sent as a joke and that, by their subsequent inaction, the airport authorities demonstrated that they did not believe that it was a credible threat.  In giving the judgment of this Court, the Lord Chief Justice said that for a message to have a menacing character it has to create a sense of apprehension or fear in the person who receives or reads it. So if it would be brushed aside as a silly joke or empty, bombastic or ridiculous banter, then it could not be described as a message having a menacing character: [30].
18.	As to the mental element to the offence, the Court held that it must be proved that the defendant intended that the message should be of a menacing character or, alternatively, that he was aware of or recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it: [38]. 
19.	As I have said, Mr Golan said that the message terrified him, since he had never been the victim of malicious calls before.  The call implied that the caller knew how to find him when he was powerless to do anything about it.  In my judgment, the difficulty is that the Crown Court made no finding that the appellant was associated with the series of anonymous calls to which Mr Golan referred.  It may have been open to the Crown Court to have made that finding in the light of the appellant's admission that he knew who was making the calls, but it did not do so.  In addition, the Crown Court specifically stated that it would ignore the second call on the evening of 6 October.  In my view, in the absence of findings on those matters, it is impossible to bring into account these other matters as the context of the appellant's words in the first call of 6 October.  By themselves, these words were nasty and antisemitic but I cannot see how they can be regarded as menacing in the sense demanded by Chambers v DPP.
20.	The case started as a gross abusive case but was then transformed by the Crown Court into a menacing case.  In my view, there was no threat expressed or implied in these words, nor do they demonstrate the requisite mental element to menace.  Consequently, I would answer the second question in the case stated in the negative.  The result is, if my Lord agrees, that the appeal is allowed.
21.	LORD JUSTICE LAWS:  I agree that this appeal should be allowed for the reasons given by my Lord, and that the questions posed for the consideration of this Court should be answered as proposed by him.  On question 2, in my judgment there was no threat here.  The Crown Court found that the words were not grossly offensive; they were certainly offensive: a nasty, malicious antisemitic comment of which the appellant should be thoroughly ashamed, but they were not menacing.  The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive.  It is not the task of the criminal law to censor offensive utterances.
22.	Are there any consequential matters?  The conviction, it follows, is quashed.