REGINA v JEFFREY HOWARD ARCHER [2002] EWCA Crim 1996

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 1996Case No Case No: 200104555/S2Venue Royal Courts of Justice, The Strand, London WC2
Between
REGINAJEFFREY HOWARD ARCHER
Before
The Vice PresidentLord Justice RoseMr Justice ColmanMr Justice Stanley BurntonMR N PURNELL QC & MR A CAMERSON appeared on behalf of the APPLICANTDate 22 July 2002
[1]THE VICE PRESIDENT: On 19th July 2001, following a seven week trial at the Central Criminal Court, before Potts J, the appellant as he is in relation to sentence, was convicted by the jury on four counts in the indictment. Count 1 was doing an act, namely procuring Edward Francis to provide a false alibi for 9th September 1986, tending and intended to pervert the course of public justice. He was sentenced to 2 years' imprisonment. On count 3, for doing a series of acts, namely concealing the existence of an A 53 diary, providing his secretary Mrs Peppiatt with a blank A4 diary and details to fill in, and falsely using that diary in litigation as a genuine 1986 diary, those acts tending and being intended to pervert the course of public justice, he was sentenced to 4 years' imprisonment. Count 5 alleged perjury, in falsely swearing an affidavit on 23rd June 1987 about the documents in his possession. For that he was sentenced to 3 years' imprisonment. Count 6 was perjury on 8th July 1987, that the A4 diary produced in libel proceedings, in which he was then giving evidence, was in existence and contained entries in relation to 8th and 9th September 1986, prior to 26th October 1986. On that count he was sentenced to 4 years' imprisonment; all the sentences were ordered to run concurrently. He was also ordered to pay a sum towards the prosecution costs, with a further period in default.[2]There were other counts in the indictment: count 2 related to Edward Francis, a co-accused who was acquitted on a charge which was the mirror of count 1 in relation to the appellant. There were also counts 4, 7 and 8, in relation to which it is not necessary, for present purposes, to refer.[3]It is convenient, first, to rehearse, in outline, the events leading to the appellant's trial, as this sets the evidence given at his trial in context. We should say that he appeals to this Court against sentence by leave of the Single Judge. His application for leave to appeal against conviction was refused by the Single Judge and the renewed application was this morning dismissed by this Court for reasons which will appear in the course of this judgment.[4]In 1986 the appellant was a successful writer, ambitious politician and deputy chairman of the Conservative party. His co-accused, Francis, was a casual friend who was involved in film production, advertising and screen writing. On 26th October 1986, the News of the World published articles asserting an association between the appellant and a prostitute, involving sexual intercourse between them, on the night of 8th/9th September 1986, and the handing over of monies to her at Victoria Station, on the appellant's behalf, on the 24th October 1986, with a view to procuring her silence.[5]The appellant resigned as deputy chairman of the Conservative party. On 26th October, he issued a statement in which he denied that he had ever met the prostitute. He also claimed the money had been paid in response to a telephone call from her, in which she claimed that the press were pursuing her. Recognising that publicity would be harmful to him, he foolishly arranged the payment of money, and this displayed a lack of judgment which caused him, he said, to resign.[6]On 1st November 1986 The Star newspaper effectively repeated the News of the World allegation with added details: in particular, that sexual intercourse had occurred in a hotel near Victoria Station at 1.00 am on Tuesday 9th September. The appellant sued both papers for libel.[7]The Star newspaper's defence, served on 23rd December 1986, mistakenly identified the crucial night as 9th/10th September, instead of 8th/9th September. Mishcons, the appellant's solicitors, were not told by Lovells, the newspaper's solicitors, of the mistake until 27th March 1987. It was during the period between those dates, that is to say between the end of December when the defence was served and the beginning of April when the defence was amended, that the events occurred which involved the co-accused, Francis. These led to the creation of a false alibi for the appellant for the night of 9th/10th September, which gave rise to the first and second counts in the indictment. Thereafter there were dealings with the appellant's diaries by the appellant and his secretary Mrs Peppiatt, which gave rise to the other counts in the indictment. To those events we shall return in a moment.[8]At the libel trial against The Star newspaper, in July 1987, the appellant gave evidence that, on the evening of 8th September, he had had dinner at the Caprice restaurant with friends from the publishing world. At the end of the meal, by chance, he met his political aide, Terence Baker, and at 12.45 am at the earliest, on 9th September, he drove Baker home to south London. Baker, who has since died, gave evidence confirming this. If this was right, the appellant could not have been with the prostitute. The jury found for the appellant, and awarded him £500,000 in damages.[9]It was common ground, at the appellant's criminal trial, that by 1990 the relationship between him and Francis had cooled. In the mid 1990s Francis was approached by a man called Crick who was writing a book about the appellant. Francis eventually showed Crick two letters he had written to Mishcons in January and March 1987. To those letters we shall return.[10]In 1999 Francis approached Max Clifford, a public relations man, who introduced him to the chief crime reporter of the News of the World, Mr Thurlbeck. At the time the appellant was a candidate to be Mayor of London. Francis thought him an inappropriate choice. He told Thurlbeck that, at the appellant's request, he had manufactured a false alibi for the appellant, for the night of 9th September.[11]Prompted and in part scripted by Thurlbeck, and with a view to obtaining admissions from the appellant about what he had done with Francis in early 1987, Francis telephoned the appellant. There were several conversations on the telephone between them, one at least of which was instituted by the appellant himself. Those conversations were tape recorded. The tapes, in due course, were played at the appellant's criminal trial.[12]The appellant, in the course of those conversations, effectively admitted asking Francis to write letters to his solicitors, saying that they had dined together at the Sambucca restaurant on 9th September and he, Francis, had spoken to the appellant on the telephone later that night. The appellant told Francis in the course of the conversations on the telephone that his, Francis's, name had not been mentioned in the libel trial because, when the defence changed the date to the 8th/9th September from 9th/ 10th September, what Francis had said about the night of 9th/10th September became an irrelevance.[13]On 19th November 1999 the appellant was told by the editor and news editor of the News of the World of the substance of the tape recorded telephone conversations. On 20th November, the appellant issued a statement to the media in which he admitted soliciting a false alibi from Francis. He claimed that on 9th September he had been dining with a close female friend, whom he was seeking to protect. He withdrew his candidature for Mayor of London. On 21st November, the News of the World said a woman called Andrina Colquhoun was the friend the appellant had supposedly been dining with on 9th September. On 30th November, the News of the World handed the tapes to the police. Expert examination showed that they had not been tampered with. It was at that stage that the police began the investigation which led to the appellant's appearance at the Central Criminal Court.[14]We turn to the evidence at that trial. It had many twists and turns. For present purposes, it is sufficient to identify the more important matters. It was common ground, as recorded in a genuine A 53 diary, produced at the criminal trial, that, after the appellant's libel writ had been issued, the appellant and Francis met on 20th November and 3rd December 1986. Francis was looking for film finance with which he hoped the appellant might assist, but at that stage the appellant said his funds for such purposes were exhausted for that year. In January 1987, after the newspaper's defence had identified 10th September as the crucial date, at the appellant's invitation Francis dined with him at the Sambucca restaurant. The appellant asked if it was possible that they had dined there the previous September. Francis said that it was. The appellant said that he wanted that to be so, because he was worried his wife would find out he had been dining with Andrina Colquhoun and that might lead to the break-up of his marriage. The libel action, according to Francis, was not discussed. Francis agreed to say that he had dined with the appellant on a particular night which the appellant identified as 9th September.[15]On 22nd January 1987 Francis wrote accordingly to Mischons saying that he had returned home on 9th September at 11.20 pm, had then taken a call from the United States and had then telephoned and spoken to the appellant. In somewhat bizarre circumstances, which the appellant, according to Francis, attributed to his tax affairs, Francis visited two banks, one of them with the appellant, and received £12,000 in cash. The appellant said that he would look at Francis's film script.[16]On 12th March 1987 Mischons wrote to Francis enquiring as to the exact time of his telephone call to the appellant. Francis replied giving an approximate time. Francis accepted, and the appellant did not challenge, that the terms of both those letters, written by Francis to the solicitors, were false. He had not seen the appellant on the evening of 9th, or telephoned and spoken to him thereafter.[17]Andrina Colquhoun gave evidence of an affair with the appellant between 1979 and 1984 and said that this intermittently continued in secret between 1985 and 1987. She said she could not have had dinner with the appellant on 9th September. She was in Greece. These matters gave rise to count 1.[18]As to count 3: the appellant's personal assistant from January 1985 to December 1987, Mrs Peppiatt, gave evidence that only two diaries were kept in relation to the appellant's engagements in 1986: hers, an A 53 diary, and an Economist diary kept by the appellant and by an aide of his. There had been an A4 diary for 1985, but she, Mrs Peppiatt, had chosen the smaller A 53 diary for 1986 because it was more convenient to carry between the two offices where she worked for the appellant. When she left the appellant's employment, she kept her 1985, 1986 and 1987 diaries. In April 1987, which, it will be recalled, was after the date when the libel defendants had corrected the date in their defence to 8th/9th September, the appellant produced to Mrs Peppiatt a blank A4 diary for 1987 and a piece of paper on which was a list of names and times, in handwriting which, it was unchallenged, was the appellant's. Mrs Peppiatt said that he told her to fill in the diary from the list because the paper's lawyers wanted to see his diaries.[19]Photocopies were sent to the paper's solicitors in May. Mrs Peppiatt also took photocopies, and she kept the list in the appellant's handwriting because, she said, she was concerned about what she was being asked do. On 26th May the appellant asked Mrs Peppiatt to photocopy the A4 diary entries between the 5th and 12th September, including entries transferred to it from the Economist diary, and he asked her to take the diary, with the new entries, to Mishcons. She did so. Lovells were only permitted to see the entries relating to 8th and 9th September. She also, for herself, took two photocopies of the Economist diary, which she did not subsequently discover until the 11th May 2001 when she was preparing to give evidence at the Central Criminal Court.[20]On 15th June 1987 Mischons sent photocopies of the Economist diary to Lovells. There were entries in the appellant's writing which were not on the photocopies Mrs Peppiatt had taken previously. On 23rd June the appellant swore the affidavit giving rise to count 5. It referred to the A4 diary but made no reference to Mrs Peppiatt's A 53 diary, which she said was at Central Office from April 1987 up to the time she left the appellant's employment in December of that year. Not until she was recalled and gave further evidence was it suggested to Mrs Peppiatt, on the appellant's behalf, that there was a genuine 1986 A4 diary. She said she was unaware of it: "absolutely not".[21]Caroline Norman confirmed that Mrs Peppiatt kept the A 53 diary for 1987, and she was aware of no other. Her evidence was not challenged.[22]Later, Lady Archer gave evidence for the appellant that she had never seen the A 53 diary, and there was an A4 diary in 1986. It appeared, however, that although she claimed to have said, in August or September 2000, that she had seen the A4 diary, she had made no written statement about that until a day or two before she gave evidence at the criminal trial.[23]As to count 6, the appellant gave evidence at the libel trial that the A4 diary, which was bogus if Mrs Peppiatt was right, was in existence and contained the 8th and 9th September entries prior to the News of the World story of 26th October 1986. The newspaper leading counsel and junior counsel, gave evidence for the prosecution at the Central Criminal Court, that at the libel trial they did not see pages in the A4 diary other than for 8th and 9th September, because they were masked.[24]The appellant did not give evidence at the Central Criminal Court.[25]The defence to count 1 was that, as the 9th/ 10th September ceased to be relevant in the libel proceedings, whatever passed between the appellant and Francis could not have had a tendency to pervert the course of justice and there was no proved intention to pervert on the appellant's behalf.[26]As to count 3, it was said that the appellant was too busy to have done what Mrs Peppiatt claimed. She had a purpose of her own to serve by bringing a bogus diary into existence, if there was one, in order to conceal her own dishonesty in using the appellant's money to pay for some of her own expenditure. The defence statement asserted that the appellant believed the diaries produced were genuine but there was, of course, no evidence from the appellant called as to that.[27]As to count 6, it was said that if the A 53 diary had been produced at the libel trial it would have provided no more information than the Economist A4 diary, namely, a reference in the former to "Baker 8 o' clock Sambucca" and in the latter a reference to "Baker", with no time or place.[28]The defence statement asserted that the appellant's evidence at his libel trial was true, to the best of his knowledge and belief, but there was, as we have said, no evidence to support that before the jury.[29]On behalf of the applicant, as he is in relation to conviction, Mr Purnell QC, who represented him at trial, advanced arguments in support of five of the seven written grounds of appeal. First, submitted Mr Purnell, the judge was wrong not to order severance of the trial of Francis from the trial of the applicant. The judge had a discretion to sever under section 5(3) of the Indictment Act 1915, albeit it is conceded that the counts were properly joined.[30]Mr Purnell submitted that there was no overwhelming public interest in trying counts 1 and 2 together. There were no economic or political reasons to do so. Francis was not involved in the remaining counts of the indictment, and no prejudice to Francis or the Crown was claimed if Francis's case was severed. The evidence, submitted Mr Purnell, was distinct and the judge ought to have ordered severance. Mr Purnell accepted that the judge's direction to the jury in the course of the summing-up was entirely appropriate in relation to what evidence they should rely on in relation to the applicant, as distinct from evidence solely against Francis. But, submitted Mr Purnell, there was background evidence in relation to the steps taken prior to the tape recording of the telephone conversations from the journalists, and from Mr Francis, which would not have gone before the jury had the applicant been separately tried. Mr Purnell submitted that the effect of trying Francis with the applicant was to damage irreparably the case of the applicant. In particular, there was cross-examination, directed on Francis's behalf, to the manner in which the libel damages had been dispersed and whether, all or in part, to a variety of charities. There was also cross-examination in relation to the applicant's sexual activities. Both those matters assumed a disproportionately large role in the applicant's trial because Francis was tried at the same time. Mr Purnell accepted that he had not objected, for example, to the cross-examination of Mrs Waddington hearing on the appellant's sexual activities, but, he said, counsel may very well not object to certain kinds of evidence, lest by so doing he incurs the displeasure of the jury.[31]Mr Purnell accepted that the learned judge, when considering the application as to severance, properly directed himself as to the relevant law and the test which he should apply, in particular, by reference to the speech of Lord Pearson in Metropolitan Police Commissioner v Ludlow 54 Cr App R 233 at 245, and Lord Widgery CJ in R v Lake 64 Cr App R 172 at 175, when he referred to there being powerful public reasons why joint offences should be tried jointly. But Mr Purnell pointed out that these were deliberately indicted as separate offences, counts 1 and 2, rather than a joint charge of conspiracy or otherwise which could have been laid. The judge also referred to the judgment of Lord Taylor in R v Hibbert 25th March 1993 (unreported).[32]In our judgment, so far as the criticism of the judge's ruling in relation to severance is concerned, it was a matter, as Mr Purnell accepts, for the exercise of the judge's discretion. He properly directed himself as to the relevant legal principles and, in our judgment, he reached a correct conclusion. On one view it would have been absurd to try Francis separately from the applicant, when the events giving rise to the counts formulated in 1 and 2 of the indictment were inextricably linked with the applicant and Francis, in relation to the creation of the false alibi and the false alibi was integral to the libel proceedings which gave rise to the other counts. It is further to be noted that, whatever comment is to be made, and Mr Purnell rightly made many comments about the cross-examination on behalf of Francis, Francis's evidence in the trial was not challenged on the applicant's behalf at all. So this was not a case, sometimes met, in what are called cut-throat defence cases, where defendants go into the witness box and blame the other defendant.[33]Furthermore, it is to be noted that the summing-up contained clear and powerful directions, which it is unnecessary to read, as to the jury's proper approach to the evidence applicable to Francis alone, and the evidence applicable to this applicant. Accordingly the first ground failed.[34]The second ground related to the judge's failure to accede to the submission made that proceedings should be stayed as an abuse of process because of the delay which had occurred. There were, as Mr Purnell advanced them, three aspects to this submission: first, memories were necessarily likely to be impaired in relation to events up to 14 years ago; secondly, the massive publicity which had been accorded to the applicant in the media was such as would imperil his chances of a fair trial, and thirdly, payments had been made to persons who were going to give evidence for the prosecution.[35]Mr Purnell accepted that the judge applied the right legal principles in relation to delay. He set out, in the ruling which he ultimately gave after the jury had retired on 13th July, the various factors which Mr Purnell invited him to consider. It is unnecessary to rehearse those factors. They can be dealt with in this way: no complaint is made by Mr Purnell as to the accuracy and fullness with which the learned judge rehearsed the matters which he had to consider.[36]So far as this ground is concerned, the learned judge gave his ruling specifically addressing the three aspects of the matter upon which Mr Purnell relied. There is a transcript of that ruling. It is unnecessary to rehearse it as it seems to us that no arguable criticism can properly be made of the judge's decision that the proceedings should not be stayed.[37]The third ground relates to the admissibility of the transcripts of the tape recording made of the telephone conversations between the appellant and Francis. In that connection, section 7(2) of the Police and Criminal Evidence Act 1984 is pertinent. It is in these terms, in subsection (2) section 76: "... where the prosecution proposes to give in evidence a confession made by an accused person it is represented to the court that the confession was or may have been obtained-(a) by oppression of the person who made it; or(b) in consequence of anything said or done which was likely... to render unreliable any confession... the court shall not allow the confession to be given in evidence" except and so far as matters which are not presently material.[38]As Mr Purnell rightly submitted, the question to be addressed in relation to the admissibility of the terms of the telephone conversations was not whether the confessions made by the applicant were reliable, but whether the circumstances were such that they were likely to render what was said unreliable. Two matters have to be considered. First, oppression, and that, submitted Mr Purnell rightly, is not something which is confined to the activities of a person in authority. There has to be room for oppression by someone who is not in authority. It is clear from what the learned judge said in the course of his ruling that he was alive to that possibility. Mr Purnell submitted that the learned judge had wrongly confined himself, in considering the significance of oppression, to the third definition of that word in the Oxford English Dictionary because it was the third definition to which Lord Lane CJ referred in R v Fulling (1987) 85 Cr App R 136 at 142. That criticism is unsustainable because, immediately prior to a reference to Fulling , Potts J referred to the second meaning of oppression in the Oxford English dictionary.[39]The ruling which the learned judge gave on this aspect of the matter appears in tab 8 at page 64. We start at page 61, where he deals with the judgment in Fulling and the different meanings of the word, 'oppression', at page 62; he refers to the question of the burdensome or otherwise exercise of authority or power. The judge then went on, at page 64, to deal with the second limb of the test which he had to consider, and he said this:
"I have had the advantage of having the tapes played twice. I have read and reread the conversation in question. Applying the test identified by Mance LJ, [that was in the case of Prouix , which is one of a number of authorities to which the judge referred] I am satisfied to the requisite standard that the prosecution have proved the adverse statements made by Lord Archer in the recording were not obtained by anything said or done to Lord Archer which was likely, in the circumstances existing at the time, to render unreliable any adverse statement which might be made by him in consequence."
[40]Elsewhere, the learned judge referred to the tone of Francis, in the tape recorded telephone conversations, as being that of a supplicant and the tone of Lord Archer as being that of one who was in command.[41]In our judgment there is no arguable substance in that ground.[42]It is next said that the learned judge failed properly to distinguish, in relation to the submission of no case to answer on count 1, between the objective consequences of conduct and the intention of the perpetrator of that conduct. It is said that had the learned judge drawn a proper distinction, he must have concluded that there was no objective evidence of a tendency to pervert the course of justice, bearing in mind the evidence from counsel, acting for the newspapers, that they had never intended to rely on 9th/ 10th September as the crucial period; it had always been their intention to rely on 8th/9th September. The learned judge directed himself in accordance with the appropriate authority when considering this matter, which was the case of R v Murray 75 Cr App R 58. In the course of giving judgment in that case Lord Lane said this:
"There must evidence that the man has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what he has done without more might lead to injustice."
[43]Potts J applied that test.[44]In our judgment, whatever may have been the intentions of counsel on behalf of newspapers when conducting the libel trial, there could be no doubt that, on the face of it, the false alibi had been directed to the date which was then pleaded in the defence of the newspaper, as being the date on which reliance was placed: this was pertinent to both consequence and intention. In those circumstances, as it seems to us, it is quite impossible to contend that there was no risk that injustice would result if a false alibi directed to that date were concocted. The judge, in our judgment, was correct to reject the submission of no case to answer.[45]The final criticism advanced in support of the renewed application for permission to appeal against conviction is a criticism of the judge's summing-up on, essentially, three principal grounds: first, failure properly and adequately to put the applicant's defence; secondly, there were repeated, inappropriate references to the applicant's failure to give evidence before the jury; and, thirdly, that the summing-up started prejudicially to the applicant, when the evidence was turned to, with a rehearsal of the evidence of the co-accused, Francis. So far as that third criticism is concerned, as we have said, it was a feature of this trial that Francis's evidence was not challenged in cross-examination on behalf of the applicant. We can see no valid criticism of the judge for starting his review of the evidence in the way which he did.[46]So far as the references to the applicant's failure to give evidence are concerned, no complaint is made about the judge's earlier direction as to the ability of the jury to draw inferences from this failure. But Mr Purnell submits t hat, having given that direction, the judge should have left that subject alone and not returned to it, as he undoubtedly did, on some eight or nine occasions in the course of his summing-up. As it seems to us, the answer to that submission is that it was for the judge to relate the direction he had given to the evidence. We have read each of the passages to which our attention is invited by Mr Purnell in the summing-up. But we find no substantial argument for complaining about the references which the judge made.[47]As to failure to put the defence, Mr Purnell submits that the defence could not have been clearer. Its first limb was that there was no way in which the prosecution had a provable case that the A4 diary was a blank diary, with only entries for the 8th and 9th September filled. An alternative defence was that, if the A4 was a forgery, it been produced by Mrs Peppiatt, not under the applicant's direction but for purposes of her own. The judge's alleged failure to put the defence undoubtedly caused Mr Purnell concern at the time of trial because, at the end of the summing-up, he invited the judge to make additions to his summing-up. The judge took the course, having discussed the matter with counsel in the absence of the jury, of inviting Mr Purnell to make not a further speech but reference to the two points which he felt had been inadequately explained to the jury. Mr Purnell did that. He complains in this court that that was insufficient. The judge ought to have incorporated those matters expressly and by approval in the course of his summing-up.[48]That leads in our judgment to the fundamental question as to how the jury, when the summing-up which lasted over some three or four days was considered as a whole, would have understood the applicant's defence. In other words, was it made clear to them what the applicant's defence was? The fundamental difficulty faced by the judge and, indeed by Mr Purnell, is that the applicant did not give evidence. It might have been thought to be a matter of high materiality to his defence as to the extent to which he knew or believed, when he gave evidence in the libel case, the genuineness of the diaries. He did not give evidence as to his knowledge or belief. The question therefore is: would the jury have been led by the summing-up to an adequate and proper understanding of what the applicant's defence was?[49]In our judgment, bearing in mind the evidence which was given by Mrs Peppiatt and the absence of evidence given by the applicant, the jury could have been left in no doubt at all that the central and crucial question was whether or not they accepted Mrs Peppiatt's evidence in relation to her dealings with the applicant, with regard to the diaries. That was a matter which bore directly upon the state of the A4 diary in 1986, as distinct as from what it subsequently became and as to the reasons why she had, as clearly she had, forged entries in that diary. In our judgment, it must have been abundantly plain to the jury listening to the summing-up which each member of this court has read, what the extent and limits of the applicant's defence as identified by Mr Purnell was. We find no arguable substance in that ground.[50]It was for these reasons that, at the short adjournment, we indicated that leave to appeal against conviction was refused.[51]We turn now to sentence. Mr Purnell submitted that a sentence of 4 years, a long-term sentence, was wholly outside the range of any reported case in relation to perjury in civil proceedings. He advanced the proposition that the authorities suggest that a distinction is to be drawn between whether the proceedings in relation to which lies are told are civil or criminal. For our part, although the nature of the proceedings is clearly a relevant factor, we find no enunciation in the authorities of any principle of distinction determinative of the appropriate level of sentence. Mr Purnell accepted that there is no enunciation of any such principle in any of the authorities to which he referred. But he took us to a number of authorities, in order to seek to make good his submission that the sentence passed upon the appellant was excessive.[52]The first was R v Vianna 15 Cr App R(S) 758, where a sentence of 30 months was reduced to 18 months, following a conviction for subornation of perjury. In the course of giving the court's judgment in that case, Cazalet J drew attention to a number of unusual features of the facts. The appellant's offence was committed in the context of a bitterly contested divorce proceedings between him and his wife. The witness who was suborned did not give evidence, as he had agreed to do as a result of the subornation; indeed he gave evidence on the other side in the divorce proceedings. The matter about which the witness was suborned related the observations kept on the appellant's wife. There was no doubt that the observations had, as purportedly described, been kept on the appellant's wife; but they had not been kept by the witness whom the appellant suborned. There were a number of circumstances of special mitigation in relation to the appellant they included his mental condition, which was the subject of a psychiatrist's report before the court. His company had gone into liquidation and the offence was committed in the context of what Cazalet J described as "desperate strains imposed upon him by the divorce". In concluding that the sentence should be reduced, Cazalet J referred to the unusual facts of the case.[53]In R v Taggart 16 Cr App R(S) a sentence of 5 years' imprisonment was upheld, following a conviction for doing an act tending to pervert the course of justice, by threatening a witness with serious violence. The sentencing judge had ordered a 2 year sentence, for assault occasioning actual bodily harm and inflicting grievous bodily harm, to run consecutively with the 5 years which he imposed for the perversion of justice offence. The Court of Appeal reduced that sentence by ordering those two sentences to run concurrently. In giving the judgment of the Court Smith Mrs J endorsed the sentence of 5 years passed for "a determined attack on the rule of law".[54]In R v Williams 16 Cr App R(S) a sentence of 4 years was upheld following conviction for an attempt to intimidate a witness in civil proceedings. Bell J, in the course of giving the judgment said this at 192:
"People who are tempted to involve themselves in seeking to deter witnesses from giving evidence, or true evidence, must realise that a prison sentence is inevitable, whatever their own personal mitigation and good character might be."
[55]He went on to the refer to the absence of mitigation in that case in any plea of guilty. In R v Walsh and Nightingale 14 Cr App R(S) 671, a sentence of 5 years' imprisonment for conspiring to pervert the course of justice by concocting a false story, was reduced to 3 years' imprisonment, following a plea of guilty.[56]In R v Blakemore [1997] 2 Cr App R(S) 255, a total sentence of 12 years consisting of seven for manslaughter, with five consecutively for doing an act tending to pervert the course of justice, was reduced to a total of 8 years, consisting of five for manslaughter and three for doing an act tending to pervert the course of justice.[57]In Bowen [1996] 1 Cr App R(S) 63, a sentence of 3 years' imprisonment was upheld, following conviction, for conspiracy to pervert the course of justice. That sentence had been imposed consecutively to a sentence of 9 years' imprisonment, for other offences. Mr Purnell referred to a number of other cases, which it is not necessary to identify, involving comparatively minor offences of perjury, consequential upon driving offences.[58]He also referred to Attorney-General's Reference No 44 of 1994 (R v Middleton) [1996] 1 Cr App R(S) 256, where, a probation order having been made following a plea of guilty to four offences of doing an act tending to pervert the course of justice by threatening witnesses, was varied, on an Attorney-General's reference to a sentence of 2 years' imprisonment. Lord Taylor CJ, in the course of giving judgment, and that, in the ordinary way a sentence of 3 years would have been the minimum appropriate total sentence for the course of conduct committed by the offender in that case.[59]Penultimately in R v Boodhoo [2002] 1 Cr App R(S) 33, a juror who had accepted a bribe of £1,000 from a defendant in a criminal trial pleaded guilty to doing acts tending and intended to pervert the course of justice. Having accepted the bribe, he was party to the conviction of the defendant who had paid the bribe. A sentence of 4 years was upheld.[60]In R v Dunlop 2001 2 Cr App R(S) 133, concurrent sentences of 6 years' imprisonment were imposed on an appellant who had given false evidence in his own defence in a murder trial and repeated it at a retrial. This Court declined to interfere with those sentences, which had been imposed, it is to be noted, following a guilty plea. Mr Purnell also referred to the case of Aitken , which has not been the subject of legal reporting when a sentence of 18 months was passed, following a plea of guilty by the defendant to suborning his daughter as a witness in civil proceedings.[61]Mr Purnell drew attention to the fact that 14 years had elapsed between the commission of these offences and the time when the appellant was sentenced. He submitted that the learned judge, in passing sentence, had taken too little account of that lapse of time. Mr Purnell also submitted that the judge appeared to regard it as an aggravating feature, having regard to something that passed between him and counsel in the course of submissions, that the appellant had prospered in life since the offences were committed. It does not seem to us that the judge was regarding that as an aggravating feature. He referred to that fact in the context of counsel's reliance upon the period of time which had relapsed since the offences were committed.[62]Mr Purnell invited our attention to the invasive press attention, in breach of the appellant's right to privacy, while serving his prison sentence, to which attention is drawn in a letter from the prison governor dated 15th July 2002, which is before this Court. Mr Purnell also drew attention to a large number of newspaper cuttings in relation to the appellant since trial and he drew our attention also to the views of the doctors in the prison hospital where the appellant has served, unsurprisingly, with considerable distinction as a hospital orderly.[63]In our judgment, there are many factors to be considered when determining the appropriate level of sentence for perjury and related offences. We have already indicated that there is not, in our judgment, any distinction as to the level of sentence to be drawn according to whether the proceedings contaminated were of a civil or criminal nature. Perjury may be comparatively trivial in relation to criminal proceedings or very serious in relation to civil proceedings. No doubt whether the proceedings were civil or criminal is one of the factors proper to be considered. There are many others. We do not purport to give an exhaustive list. They include the number of offences committed; the timescale over which they are committed; whether they are planned or spontaneous; whether they are persisted in; whether the lies which are told or the fabrications which are embarked upon have any actual impact on the proceedings in question; whether the activities of the defendant draw in others; what the relationship is between others who are drawn in and the defendant. In the present case, Mrs Peppiatt was an employee and therefore, in some respects, vulnerable to suggestions made by her employer. Mr Francis was, as the judge found, and Mr Purnell did not seek to submit to the contrary, corrupted by money to do what he did. All of these factors, as it seems to us, no doubt with others, have to be borne in mind. The judge made no secret of the fact, in the course of submissions made to him by Mr Purnell, that he regarded it as his duty to deal with the whole course of conduct between January and July 1997, which had the various aspects identified in the different counts in the indictment on which the appellant was convicted.[64]All of those factors this Court has to bear in mind; and it has to bear them in mind in the context of earlier decisions of this Court. We have referred in a little detail to each of the relevant authorities to which Mr Purnell drew our attention. It is perfectly true that, as the judge said and as Mr Purnell submitted, there is not to be found, in the authorities, a case precisely similar to the present. The fundamental question is whether a total sentence of 4 years, for this criminality, can be regarded as manifestly excessive. In our judgment it cannot. Having regard to the length of time over which these offences were committed, the perceived involvement of others, and the persistence in dishonest conduct which we have identified, it cannot, in our judgment, be said that, following a trial, a sentence of 4 years was excessive. Accordingly, despite Mr Purnell's able submissions, this appeal against sentence is dismissed.

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