The concept of 'perverting the course of justice' might
commonly feature in televised series, where crooked cops tamper
with evidence for money or baddies interfere with witnesses, but
before HBO and Netflix came on the scene, it had a long-established
history as an offence in the common law of England and Wales.
In October 2023, the Sentencing Council introduced new guidelines for sentencing
offenders convicted of perverting the course of justice and witness
intimidation in England and Wales. These aim to provide consistency
and clarity across all cases, whereas before a wide range of case
law had to be relied on to devise the correct type or length of
sentences based on the individual circumstances of each case.
We look at how the guidelines, which have now been in force for
just over six months, will likely impact sentencing going forward
in less severe cases. This is of particular interest at a time when
the offence is once again in the limelight, following a recent
high-profile boiler room fraud case brought by the Financial
Conduct Authority (FCA), which has resulted on 7 May 2024 in an individual receiving a custodial
sentence for perverting the course of justice.
An old offence
The current interpretation of the doctrine was crafted in
1891, when Justice Pollock B considered whether the defendant's
attempt to fool arbitrators in a dispute about the quality of
grains amounted to a fraud or cheat against the administration of
public justice. In R v Vreones, he offered the dictum that
"the real offence... is the doing of some act which has a
tendency and is intended to pervert the administration of public
justice".
Since this dictum, the law around perverting the course of justice
has been used and developed to assist the courts in a wide range of
situations, such as:
– discontinuing a criminal prosecution in return for
payments;
– making false statement to police officers investigating an
offence;
– making a false retraction of a true allegation of
rape;
– doing an act calculated to assist another to avoid
arrest;
– interfering with a witness or a juror; or
– the whole gambit of potential scenarios that would make for
good crime cop drama.
Perverting the course of justice has remained a serious offence: it
is indictable only, with maximum life imprisonment and an offence
range between a community order and seven years in custody.
Long-standing principles thrown into question
Before the new guidelines were introduced, practitioners
relied on the long-standing principle that custodial sentences
should be imposed in all but the most exceptional cases.
Indeed, before the guidelines came out, the courts considered, in
R v Abdulwahab [2018]
EWCA Crim 1399, that conduct intended to pervert the course of
justice almost invariably called for a custodial sentence; the idea
being that deterrence was necessary.
In this case, the appellant, a young man with no previous
convictions, had given a false account of events when interviewed
under caution. His friend had used his leased car to deal drugs.
The appellant claimed that he had left it at a car park for his
friend to collect, when in fact, his friend had driven the car to
the car park himself. Drugs were found in the car, and the friend
and two other men were arrested for intent to supply Class A and
Class B drugs. The appellant voluntarily attended the police
station a few days later to collect the car and was interviewed
under caution when he gave the false account. The police had CCTV
evidence contradicted his account.
On reviewing the 15-month custodial sentence that he had received,
and giving full credit for his guilty plea, the appeal judge
observed that there was a "clear, deliberate, and focused lie
told by the appellant with intent to pervert the course of
justice" by either providing his friend with a defence or by
weakening the prosecution case against him. However, he also
observed that "there does not appear to have been any evidence
pointing unequivocally to this appellant having gone to the police
station always intending to put forward that lie...".
In the Court of Appeal, the appellant submitted that his lie not
been elaborate or well thought out, it did not exonerate the friend
from suspicion, it was put forward only during the interview under
caution and, although it was maintained throughout the interview,
it was not repeated on other occasions, and the false account did
not in fact obstruct the course of justice to any significant
extent and did not adversely affect the police investigation.
The judgment further explored that there was "no Definitive
Sentencing Guideline for offences of this nature". However, a
number of relevant principles could be drawn from another case,
R v Radcliffe [2016] 1 Cr App R(S) 65, and other decisions
of the Court of Appeal.
These included that:
1. conduct which tends and intends to pervert the course of justice
striking "at the heart of the administration of justice and
almost invariably calls for a custodial sentence";
2. the appropriate sentence depends on the particular circumstances
of each case and these can vary widely and therefore only limited
assistance can be derived from considering previous decisions in
other cases;
3. in assessing the seriousness of any particular offence of
perverting the course of justice, the seriousness of the underlying
offence, the nature of the deceptive conduct, the period of time
over which it was continued, whether it cast suspicion on or led to
the arrest of an innocent person, and the success or otherwise of
the attempt should also be considered; and
4. the offender's previous character and any personal
mitigation must be taken into account.
New structure
The sentencing guidelines offer a step-by-step approach
for reaching a conclusion on sentencing which broadly reflects the
common law approach previously relied on.
As per all sentencing guidelines issued under the Sentencing Code, step 1
involves "determining the offence category". This
requires assessing the seriousness of the offence to provide a
starting point for sentencing. The seriousness of the offence is
determined by assessing culpability and harm, based on three
categories: A – high culpability, B – medium
culpability, C – lower culpability.
Some demonstrable behaviour for each category includes:
– high culpability: conduct over a sustained period of time
and sophisticated and/or planned nature of conduct, as well as
seriousness of underlying offence;
– medium culpability: factors present in A and C which
balance each other out and/or the offender's culpability falls
between the facts described in A and C; and
– lower culpability: unplanned and/or limited in scope and
duration, unsophisticated nature of conduct, involved through
coercion, intimidation and underlying offence not serious for lower
culpability.
A hypothetical review
If we were to hypothetically review Abdulwahab
with the help of the sentencing guidelines, the first step would
also be to assess the young man's culpability. Here, it may be
argued that he was of medium/low culpability. Although the
underlying offence was "serious", all other factors, such
as the lack of sophistication in the lie, the fact that he did not
attend the police station with a plan to lie, and that the lie was
not repeated, point towards low culpability.
Next, the level of harm should be assessed. This is also divided
into three categories:
– Category 1: where there has been serious consequences or
distress for an innocent party, a serious impact on the
administration of justice, and a substantial delay caused to the
course of justice.
– Category 2: where suspicion was cast on an innocent party
and there has been some, distress, some impact, and some
delay.
– Category 3: limited distress, limited impact, limited
delay.
In our hypothetical review, a judge may find that the young man had
caused a category 3 level of harm: no innocent party was involved,
the impact on the administration of justice and the delay caused to
the course of justice were limited (although bearing in mind that
had it not been for the CCTV the police already had in their
possession, the impact would have been more significant).
Once the level of culpability and the level of harm have been
assessed and a prognosis has been reached, step 2 of the sentencing
guidelines calls for both to be used to identify the corresponding
starting point to reach a sentence within a category range.
The guidelines provide a table to help assess the starting point
and category range, which specifies "the starting point
applied to all offenders, irrespective of plea or previous
convictions". Should our hypothetical appellant be a B3, i.e.
someone of medium culpability (category B) with low level of harm
(category 3), the starting point would be nine months' custody
and the category range between six months' and one year's
custody.
Once the starting point has been reached, the sentencing guidelines
provide additional considerations to be considered in relation to
community orders and custodial sentences. Steps 3 to 8 can then be
used to arrive at an appropriate sentence. These are not considered
in detail here, but include:
– Step 3: consider any factors which indicate a reduction for
assistance to the prosecution.
– Step 4: reduction for guilty pleas.
– Step 5: totality principle.
– Step 6: compensation and ancillary orders.
– Step 7: reasons.
– Step 8: consideration for time spent on bail.
All of these considerations are usually taken into account for the
conviction of criminal offences, which the judge considered in
Abdulwahab.
Time will tell
In Abdulwahab, the Court of Appeal accepted that
the 15 months' custodial sentence that had been handed down was
too long and that 11 months were more adequate. In his judgment,
the judge accepted the appellant's submissions finding that
"the sentence after trial which the learned judge had in mind
was manifestly excessive in length... [he] had therefore erred in
taking too high a starting point for sentence after trial". In
the context of our hypothetical review, this updated sentence would
fall within the range of the guidelines, albeit at the higher end
of the category range.
The guidelines have been in place for only a few months, so their
effectiveness and how they will affect the sentencing landscape
remain to be seen. However, their introduction is likely to be
positive, and it is very much hoped that they will offer
consistency and clarity for all involved, from lawyers, their
clients and the courts.
What remains crystal clear is that notwithstanding the introduction
of the guidelines, serious wrongdoing will continue attracting
sufficiently severe punishment.
This is apparent from the recent 18-month custodial sentence handed
down by Southwark Crown Court in a prosecution brought by the
FCA for a relatively sophisticated and premeditated attempt at
perverting the course of justice (the forging of documents), which
was committed in the context of broader, serious offending by
finance professionals (who ended up receiving lengthy custodial
sentences of their own for fraud offences).
It was undoubtedly considered an aggravating feature in the case
that the forged document was provided to FCA investigators to
mislead them. The individual – who was not found to have
played any part in the boiler room fraud scheme itself –
pleaded guilty but was nonetheless sentenced to 18 months in
prison.
Originally published 20 May, 2024.
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