REFERENCE BY THE ATTORNEY GENERAL UNDER v S.36 CRIMINAL JUSTICE ACT 1972 [2002] EWCA Crim 2392

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 2392Case No No: 200203745/S4Venue Royal Courts of Justice, Strand, London, WC2
Between
REFERENCE BY THE ATTORNEY GENERAL UNDERS.36 CRIMINAL JUSTICE ACT 1972ATTORNEY-GENERAL's REFERENCE NO 1 OF 2002
Before
Lord Justice RoseMr Justice PitchersMr Justice TreacyMR D PERRY appeared on behalf of the ATTORNEY GENERALMR GREANEY appeared on behalf of the OFFENDERDate 14 October 2002
[1]THE VICE PRESIDENT: The Attorney-General seeks the opinion of the Court, on a point of law formulated in accordance with leave given at the beginning of these proceedings, under rule 5 of the Criminal Appeal (Reference of Points of Law) Rules 1973, under section 36 of the Criminal Justice Act 1972. In its amended form, the point is in these terms:
"Whether the common-law offence of perverting the course of public justice is committed where false evidence is given or made, not to defeat what the witness believes to be the ends of justice, or not to procure what the witness believes to be a false verdict."
[2]Mr Greaney, on behalf of WPC (as we shall refer to her) did not object to Mr Perry's application on behalf of the Attorney-General to amend the question into that form.[3]The circumstances giving rise to the posing of this question are these. On 3rd April 2002 a WPC appeared for trial at the Crown Court, charged with perverting the course of public justice. The case against her was that she had written a witness statement which contained assertions of fact which she knew to be false. On 4th April 2002, the trial judge ruled that there was no case to answer and he directed the jury to return a verdict of not guilty.[4]The facts were these. On 28th July 2000, there had been a domestic burglary. The occupier, M, was absent. The offence was reported to the police by his next door neighbour, H. H saw the burglary in process and took a number of photographs of the burglar. On the same day, a police officer attended and completed a crime report containing the following entry:
"Witness used his camera to take photos of the offender. The witness refused to give a statement saying that he did not want to be involved."
The following day, the householder, M, came into possession of the photographs which he knew H had taken. A day after that, he returned all but one of the photographs to H. Later, H was seen by WPC, to whom he gave the photographs but refused to make a witness statement. On 5th August, WPC visited M with the photographs that H had given her. She persuaded M to provide a witness statement in which appeared the following:
"On Saturday 29th July 2001 I received an envelope through the door. The envelope contained 5 photographs. These photographs clearly show the offence being committed. At 0945 on 5th August 2000, I handed these photographs to the police as evidence. The photographs were obviously taken by a person who witnessed the offence but didn't want to become involved."
[5]As will be apparent from the facts which we have recited, it was not true that all the photographs had remained in M's position between 29th July and 5th August, nor was it true that the identity of the photographer was unknown to the householder.[6]M was interviewed by the police again on 18th October and asked what advice he had been given by the WPC. He said:
"I believed it was about keeping the old fellow out of next door out of trouble cos he's lived round here a long time and he knows a lot of the kids round here, they're little scallies, and if you are old and weak they prey on you... I wouldn't like to be him if I lived on there... I mean I can look after myself but he can't, so I thought it best keeping him out of it."
[7]The person depicted in the photographs was L who, on 8th August, was arrested on suspicion of burglary and interviewed, in the presence of his solicitor, by WPC and another officer. At first he denied committing the burglary. WPC said an unknown person had taken paragraphs of the burglar and she produced the photographs taken by H. Confronted by these, after some prevarication, L admitted the offence and subsequently took police officers to an address from which some of the property stolen in the burglary was recovered. On 25th September 2000, WPC made a statement producing the record of L's interview. In that statement, she also said that she had received the photographs from M on 5th August. On or shortly before 26th September, WPC submitted a committal file to the Crown Prosecution Service, which contained a confidential information form prepared by WPC prior to 30th August. It contained this entry:
"The Complainant was approached by his next door neighbour on the evening of his burglary... H told him he had photographed the male who committed the burglary and would give him the next day when they were developed. This is what happened and this is why the complainant produced them as his exhibits. I have visited H who confirmed that he took the 5 photographs of L, but he refused to give a statement."
[8]The same file also contained the crime report and a confidential information witness list, which included the name, address and telephone number of H. On 3rd October another police officer became aware that M's statement contained evidence which was untrue. He therefore spoke to WPC, who admitted that she had in fact received the photographs from H. She explained that H had refused to make a statement and she had been unsure how to produce the photographs in evidence. On 5th October L appeared before the Youth Court and was committed to the Crown Court. The statement which M had made was included in the evidence relied on at the committal proceedings. On 1st November, WPC was interviewed under caution, and she produced a prepared statement which explained her dealings with H and M. In relation to H she said:
"He told me he was 73 years old and wanted a quiet life for himself and his wife. He refused to give a statement of any kind, or even sign exhibit labels for the photographs."
She explained how she had visited M on 5th August and said:
"It was then that I told [M] That I could see no harm in including [photographs] in his statement, with him producing them... because I did not want the identity of [H] to be disclosed I decided there and then I would word the statement to the effect that the photographs had been pushed through the door. Therefore [H] remained undisclosed and [M] could produce the photographs. This was what I did. Having written the statement I asked [M] to read and sign it and to sign the exhibit labels. He appeared to read the statement and signed it as asked."
[9]On 30th December L appeared at the Crown Court and when the background was explained to the judge he expressed disquiet, unsurprisingly, about the actions of the WPC. Thereupon the prosecution decided to offer no evidence against L who was acquitted of the burglary.[10]So far as the proceedings against WPC are concerned, she was charged with two offences of making a false statement in criminal proceedings, contrary to section 106(1) of the Magistrates' Court Act 1980, namely, the statement made by M on 5th August and statement which she had made on 25th September. The criminal proceedings identified in the charges were the committal proceedings which had taken place on 5th October.[11]WPC indicated an intention to elect trial by jury. In the committal proceedings which took place on 5th June 2001, it became apparent that the statement made by WPC on 25th September had not been used as evidence in the committal proceedings against L. So, she was only committed to stand trial in relation to M's statement of 5th August.[12]At the Crown Court, the indictment contained two counts, the first alleging perverting the course of public justice contrary to common law, the second alleging making a false statement admitted in criminal proceedings contrary to section 106(1) of the Magistrates' Court Act. At the first hearing at the Crown Court, the judge said this:
"Having looked at the documentation for this case it is at the low end of the scale... [WPC's] actions were not malicious and were not for financial gain. I am surprised that it has got this far and was not dealt with by disciplinary proceedings."
Counsel for the Crown assured the judge that the matter had been carefully considered and the matter was thereupon adjourned to 28th September 2001. On that date a plea and directions hearing took place. WPC pleaded not guilty. Prosecution counsel elected to proceed on count 1, the common-law offence of perverting the course of justice. The case was adjourned for trial, which was fixed for 3rd April 2002. The judge indicated the case should not have been brought and, in the event of acquittal, the prosecution would have to pay costs. On the day fixed for trial the jury was empanelled. At the close of the prosecution case a submission was made that there was no case to answer. The judge accepted that submission and directed the jury to return a verdict of not guilty.[13]The submission which is made by Mr Perry, who did not appear in the Crown Court, on behalf of the Attorney-General, is that the judge in his approach to this matter, confused the course of justice with the ends of justice. He stressed that the question as now formulated is designed to distinguish between intention and motive.[14]The broad submission is made by Mr Perry that an intention to pervert the course of justice will nevertheless be made out, even though the motive is to achieve a just result. The offence is directed to protecting the source of justice and not just the end result. He submits that there were three aspects to WPC's conduct which were pertinent. First, if the witness statement made by WPC contained evidence on a material matter known by her not to be true, and she intended it to be used in judicial proceedings, that would be one way in which the offence could be committed. Secondly, if she had persuaded M to make a witness statement, containing material known to be untrue and intended to be used in judicial proceedings, that would be a further way in which the offence could be committed. Thirdly, if she had put an accusation to a person in interview, on the basis of a false assertion, that also could give rise to the offence if the intention was to effect the course of justice. The fact that the motive for doing any of these things might not be to defeat the ends of justice, does not, submits Mr Perry, provide a defence. He referred to a number of authorities. They can be dealt with quite shortly, because Mr Greaney, in the submissions which he made to this Court on behalf of WPC, does not differ from Mr Perry in his analysis of the law.[15]In Vreones [1891] 1 QB 360 , in a case concerned with tampering with samples of wheat taken for the purposes of an arbitration, Lord Coleridge CJ said this, at 366:
"The first count of the indictment in substance charges the defendant with the misdemeanour of attempting, by the manufacture of false evidence, to mislead a judicial tribunal which might come into existence. If the act itself of the defendant was completed, I cannot doubt that to manufacture false evidence for the purpose of misleading a judicial tribunal is a misdemeanour. Here, in point of fact, no tribunal was misled, because the piece of evidence was not used; but I am of opinion that that fact makes no difference."
At the foot of 367 he said:
"I think that an attempt to pervert the course of justice is in itself a punishable misdemeanour; and though I should myself have thought so on the grounds of sense and reason, there is also plenty of authority to show that it is a misdemeanour in point of law."
At page 369 Baron Pollock said:
"The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice."
In Tibbits and Windust [1902] 1 KB 77 , where an editor published articles prepared by a reporter, affecting the conduct and character of some persons under trial and the editor and reporter were charged with unlawfully attempting to pervert the course of justice, Lord Alverstone CJ, at page 88 said this:
"We further think that, if the articles are in the opinion of the jury calculated to interfere with the course of justice or pervert the minds of the magistrate or of the jurors, the persons publishing are criminally responsible: See Reg v Grant. We are also of opinion that the fact that Allport and Chappell, the persons referred to, were subsequently convicted can have no weight in the decision of the question now before us. To give effect to such a consideration would involve the consequence that the fact of a conviction, though resulting, either wholly or in part, from the influence upon the minds of the jurors at the trial of such articles as these, justifies their publication. This is an argument which we need scarcely say reduces the position almost to an absurdity, and, indeed, its chief foundation would appear to be a confusion between the course of justice and the result arrived at."
[16]In Kellett [1976] 1 QB 372, where the defendant, having received, in the course of divorce proceedings, disparaging statements made about him by neighbours, communicated with those neighbours, inviting them to withdraw the statements they had made and threatening proceedings for slander. He was charged with attempting to pervert the course of justice and it was held that a threat or promise made to a witness with the intention of persuading him to alter or withhold his evidence was an attempt to pervert the course of justice, even if the threat or promise related to a lawful act or the exercise of a legal right.[17]It was for the jury to decide whether the defendant's letter constituted a threat to bring an action with the intention of causing his neighbours not to give evidence. It was also said that the offence of attempting to pervert the course of justice would not necessarily be committed by a person who tried to persuade a false witness or even a witness believed to be false to speak the truth or to refrain from giving false evidence. However proper the end, the means must not be improper. The passages in Stephenson LJ's judgment which support those propositions summarised in the headnote to the report are to be found at 383G, 386H- 387A, 388D and 392G-H.[18]In Lalani [1999] 1 Cr App R 481, where there was communication between a defendant and a juror, and the juror was charged with doing acts tending and intended to pervert the course of public justice, her conviction was quashed on appeal. The judgment of the Court was given by Brooke LJ and, for present purposes, it suffices to refer to two passages in the judgment. At page 490D appears this by reference to the trial judge's ruling:
"...he appears to have conflated the actus reus and the mens rea together without focussing sufficiently clearly on the mens rea element of the offence."
By reference to the requisite intent Brooke LJ at 439C said this:
"It appears from the authorities that the prosecution must either prove an intent to pervert the course of justice or, as in Meissener [a decision of the High Court of Australia, referred to in a passage at 499D at Brooke LJ's judgment] an intent to do something which, if achieved, would pervert the course of justice. The course of justice may be perverted if it is obstructed, interfered with, defeated or changed."
[19]In Rafique 97 Cr App R 395, in a judgment of the Court of Appeal (Criminal Division) given by Lord Taylor CJ, at page 398, passages from the judgments of Lord Coleridge CJ and Baron Pollock in Vreones were cited with approval and Lord Taylor referred to Tibbitts and Windust and Kellett in support of this proposition at 398:
"to excuse an act by claiming that the truth is on your side is to confuse the course of justice with the result arrived at."
[20]In support of his submission that the learned judge confused the end result with the course of justice, Mr Perry referred to certain passages in the course of the argument between counsel, before the judge, prior to the judge's ruling that there was no case to answer and the direction that the jury should acquit. For example at 2E the judge said this:
"the course of justice here is the apprehension, interview and ultimate prosecution of the burglar."
At 9H he said:
"It seems to me there is a considerable distinction there. If this officer locked [L] up and then compiled a list of admissions which he made, but he never did in fact, then clearly she is manufacturing evidence, but she is not manufacturing evidence here. She is misrepresenting the source of the evidence, and it seems to me that there is a very considerable difference."
With great respect to the learned judge, although the degree of manufacture involved and the gravity of the manufacture may differ when one compares, on the one hand, the complete fabrication of a case against a defendant, and that which the WPC did in the present case, there is, as it seems to us, no distinction in principle between the manufacture of one piece of evidence and the manufacture of another piece of evidence by a police officer, either in incorporating that evidence in his or her own statement, or in persuading a lay witness to incorporate that which is known to be false into his or her statement.[21]At page 20G, in the course of his direction to the jury, following his ruling that there was no case to answer,

the judge said this:

"...the course of justice in this case was the prosecution and, well, apprehension, interview and prosecution of the young man [L], and what I have to be satisfied about is that there is evidence here from which you could conclude that when the statements were taken from [M], the householder, when the defendant wrote her own statement as to the source of the photographs, and that when the defendant [L] was eventually interviewed and told that the photographs came from an unknown source, that she had, that you can be sure she had, an intention to manipulate, change, conceal, mess around with, the case against him."
Mr Greaney points out, rightly, that it is apparent from that passage that the learned judge had the decision of this Court in Lalani in mind. The judge went on to refer to the WPC's "overwhelming intention... to protect." At page 22B, he said:
"What the Prosecution have got to prove... is to show that, at the time, when she was sat in his front room taking that statement, her intention was in some way to manipulate or to conceal evidence or to fabricate evidence or to alter the normal course of prosecution of that youth."
At 22D he said:
"...in my judgment there is no evidence from which you could properly conclude that when she was sat in [L's] house her thoughts were not to protect [the photographer] but her thoughts were to prevent or to pervert in some way the course of justice against young [L]."
The judge was no doubt, in that passage, refering to her sitting in [M's] house rather than [L's] house.[22]Mr Perry submits that there was ample evidence for the jury's consideration that WPC had an intention to manipulate the course of justice. The origin and provenance of the photographs was material. Her intention was to mislead the Court and the defendant as to their origin and provenance. She persuaded a member of the public to give a false account. She falsified her own statement. There was ample material that her intention was to conceal the true state of affairs, that is to say to pervert the course of justice. It is, submits Mr Perry, fundamental that witnesses should give truthful accounts in witness statements.[23]Whatever may have occurred subsequently, when others became involved in this matter, such as the Crown prosecution service and the other officer to whom we have referred, and whatever light WPC's motive might be capable of casting upon her intention at the time she did those matters upon which the prosecution relied, there was, submits Mr Perry, plainly evidence for the jury to consider. They would have been given the opportunity of considering it had the learned judge not proceeded on a false basis. No proper application of Galbraith , submits Mr Perry, could have led to the learned judge withdrawing this case from the jury.[24]On behalf of WPC, Mr Greaney, as we have indicated, accepts that the authorities demonstrate a distinction between the course and ends of justice and it is the course which matters for the purpose of this offence. He accepts that there is, as the authorities demonstrate, a distinction between motive and intent, although motive may cast light upon intent. He accepts that the offence may be committed even if a just result was intended by the perpetrator. He accepts that the intention required is, as identified in Lalani, to obstruct, interfere with or change the course of justice.[25]But, he submits, the learned judge was entitled to withdraw this case from the jury. It was incumbent upon the prosecution to prove more than a mere intention to do the culpable act of falsifying a statement herself and through M. A mere intention to communicate, as in Lalani , is not of itself, submits Mr Greaney, a sufficient intention to support the perversion of the course of justice which is fundamental to this common-law offence. He accordingly submits that, although in many cases it may be that the answer to the question posed for the opinion of this Court is 'yes', in the present case, the answer to be given can only appropriately be "yes, so long as there are no further facts. If there are further facts", the answer to the question will depend upon what other light those facts cast on the intention. In the present case, submits Mr Greaney, the matter was not for the jury and the judge was right to withdraw the case from them.[26]We are not able to accept that submission. In our judgment, the learned judge ought to have left this case for the jury's consideration. Whether or not her motive in making the false statement which she undoubtedly made, and in persuading the witness M to make the false statement which he undoubtedly made, was, at first sight, a laudable one of protecting the elderly neighbour; and whether or not, if that was the motive, that bore upon her intention in making those false statements, were eminently, as it seems to us, matters for consideration by the jury. The fact that a police officer had made a false statement and had persuaded a lay witness to make a false statement and had, in the course of interviewing a suspect, made a false statement to him, were, as it seems to us, each capable of giving rise to the inference that there was the necessary intention to pervert the course of justice. There was certainly evidence there for the jury to be permitted to consider.[27]Accordingly, reverting to the question which, at the beginning of this judgment we set out, in our opinion, the answer is yes.

Cited in 5 later judgments