The Director of Public Prosecutions v SK [2016] EWHC 837 (Admin)

Case No CO/4693/2015[2016] EWHC 837 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 10 February 2016
Strand
London WC2A 2LL
B e f o r e:
SIR BRIAN LEVESON
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE HOLROYDE
Between
THE DIRECTOR OF PUBLIC PROSECUTIONSAppellantv
Between
SKRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limitedtrading as DTI8th Floor, 165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr P Lodato (instructed by the Crown Prosecution Service Appeals Unit) appeared for AppellantMiss M Pasteris (instructed by Punator & Co) appeared for Respondent
J U D G M E N T
[1]SIR BRIAN LEVESON, P: On 7 August 2015, in the Youth Court sitting at Willesden, SK faced trial charged by way of information with the offence of conspiracy to pervert the court of public justice contrary to section 1(1) of the Criminal Law Act 1977. The particulars were:
"Between 7 December 2014 and 24 March 2015 within the jurisdiction of the Central Criminal Court, conspired with another to do an act, namely complete community service [sic] purporting to be somebody else, with intent to pervert the course of justice."
[2]The facts were essentially agreed and at the conclusion of the prosecution case a submission was made that no offence known to law was disclosed on the basis that the material act did not take place "within the course of justice". There was thus no case to answer. No doubt attractively advanced, the justices acceded to that submission and dismissed the information.[3]The Director of Public Prosecution now seeks to appeal against that decision by way of Case Stated, identifying the following questions for the opinion of the High Court:[1]Whether we were right to conclude that the sentence or punitive element of a case could not extend the original public course of justice embarked upon until successful completion?[2]Whether or not actual evidence is required of future or contemplated proceedings, at the halfway stage of a case, to find a public course of justice?[3]Whether even without such evidence does compliance with sentence of a criminal court, by another person, fall within the "course of justice"?[4]The facts can be simply stated. On 28 November 2014, at the Tottenham Magistrates' Court, Mr John D'Oleary was convicted of various driving offences and committed to Wood Green Crown Court for sentence, where on an unidentified date he was sentenced to a suspended term of imprisonment (unspecified in the case) together with a requirement to perform unpaid work for 200 hours. In short, the unchallenged and admitted evidence was that the respondent had completed all or a proportion of his hours of work while purporting to be Mr D'Oleary.[5]Before turning to the law relating to the offence of perverting the course of public justice, it is appropriate to identify the requirements of those sentenced to undertake unpaid work. Unlike a fine, the object is not merely for a penalty to be paid for the offence whether by or on behalf of the offender; the purpose of the sentence is that the offender undertake the unpaid work for the benefit of the community. Enforcement is governed by Schedule 8 of the Criminal Justice Act 2003, falling either to the Magistrates' Court (see paragraph 9) or the Crown Court (paragraph 10).[6]It is unclear in this case whether the Crown Court remitted enforcement back to the magistrates but the power is essentially the same. Taking paragraph 10 as an example, it provides:
"(1) Where ... an offender appears or is brought before the Crown Court and it is proved to the satisfaction of that court that he has failed without reasonable excuse to comply with any of the requirements of the community order, the Crown Court must deal with him in respect of the failure in any one of the following ways— (a)by amending the terms of the community order so as to impose more onerous requirements which the Crown Court could impose if it were then making the order; (b)by dealing with him, for the offence in respect of which the order was made, in any way in which he could have been dealt with for that offence by the court which made the order if the order had not been made; (c)where— (i)the offence in respect of which the order was made was not an offence punishable by imprisonment (ii)the offender is aged 18 or over (iii)the offender has wilfully and persistently failed to comply with the requirements of the order by dealing with him, in respect of that offence, by imposing a sentence of imprisonment for a term not exceeding 51 weeks. (2)In dealing with an offender under sub-paragraph (1), the Crown Court must take into account the extent to which the offender has complied with the requirements of the community order. (3)In dealing with an offender under sub-paragraph (1)(a), the court may extend the duration of particular requirements ... but may not extend the period specified under section 177(5). ... (4)In dealing with an offender under sub-paragraph (1)(b), the Crown Court may, in the case of an offender who has wilfully and persistently failed to comply with the requirements of the community order, impose a custodial sentence (where the order was made in respect of an offence punishable with such a sentence) notwithstanding anything in section 152(2)." (5)Where the Crown Court deals with an offender under sub-paragraph (1)(b) or (c), it must revoke the community order if it is still in force. (6)In proceedings before the Crown Court under this paragraph any question whether the offender has failed to comply with the requirements of the community order is to be determined by the court and not by the verdict of a jury."
[7]It will thus be apparent that failure to carry out unpaid work is itself a serious breach of the community order, which in this case was part of the suspended sentence of imprisonment imposed by the court. It cannot have been outside the contemplation of anyone, let alone Mr D'Oleary or this respondent, that by performing the unpaid work for Mr D'Oleary the order of the court imposing a punishment upon Mr D'Oleary was being flouted.[8]With that introduction, I turn to the common law offence of perverting the course of public justice. It is committed where a person: (1) acts or embarks on a course of conduct; (2). which has a tendency to; and (3). is intended to pervert; (4). the course of public justice (where the course of public justice may be understood as the administration of public justice) (see R v Vreones (1891) 1 QB 360 at 369; R v Kenny [2013] EWCA Crim 1 at 27). Furthermore, conspiracy within the meaning of Section 1 of the Criminal Law Act 1977 to so pervert is an offence under that section.[9]In that regard it is pertinent to repeat the observation of Lord Simon of Glaisdale in DPP v Withers [1975] AC 842 at 867, where he said:
"To be punishable as conduct tending to pervert the course of justice, the conduct must be such as can be properly and seriously so described. 'Pervert' is a strong word (cf. 'corrupt' and 'outrage' as explained in Knuller (1973) AC 435)."
[10]It is worth noting that this observation would also be highly material to the payment of the fine of another. In most cases of a financial penalty the contemplation of the court is that the fine will be paid by the offender or on his behalf.[11]The long-established leading case in this area is R v Selvage and R v Morgan (1982) QB 372, in which Watkins LJ gave an illustrative list of instances of perverting the course of

justice at 379H in these terms:

"That conduct includes giving false information to the police with the object of among other things putting the police on a false trail, obstructing the police in their inquiries into crime, the destruction of or other interferences with evidence and bringing wrongful influence to bear upon witnesses or potential witnesses [my emphasis]."
[12]However, it should not be thought that perverting the course of public justice acts as a catch-all offence. Watkins LJ went on to urge caution extending the ambit of the offence to new fact patterns (at 381A):
"In our judgment unless the principles governing the offence of perverting the course of justice which emerge from the reported cases are well recognised and properly applied there is a danger of bringing into existence a hitherto unrecognised and unwarranted extension of the ambit of this offence."
[13]As for the limits of the offence, in R v Clark (Mark)[2003] EWCA Crim 991, although Tuckey LJ emphasised at 10 that there was "no closed list of acts which may give rise to the offence" such that "it would be wrong to confine it to the specific instances or categories which have so far appeared in the reported cases", he sounded a note of caution. He went on (at [13]):
"The need for caution is underlined by Article 7 of the ECHR which requires any criminal offence to be clearly defined by law. In R v Cotter and others (2002) EWCA Crim 1033 an Article 7 attack was made on this offence. At paras. 35 and 36 of its judgment this court rejected the attack on the basis that the offence had been elucidated by gradual clarification of the rules of criminal liability through judicial interpretation from case to case. The ECtHR has approved such a process of clarification (SW v UK (1995) Series A No. 355B)."
[14]Therefore, given the common law and Article 7 of the ECHR imperatives, Tuckey LJ rightly warned at 13 that "if the ambit of [perverting the course of justice] is to be enlarged, it must be done step by step on a case by case basis and not with one large leap".[15]Such a step was taken by the Court of Appeal in R v Kenny [2013] EWCA Crim 1. The question the court considered was whether a breach of a restraint order made under the Proceeds of Crime Act 2002 ("POCA") is capable without more (i.e. no illegality beyond the breach itself) of constituting the offence of perverting the course of justice. Even given the POCA scheme (see [30] to [32]), in particular the express provisions in a restraint order warning of the sanction of contempt of court for breach of the order, Gross LJ observed:
"All of this ... points to contempt of court being the obvious sanction for breach of a restraint order; none of this, however, makes good that it is the only sanction for a breach of a restraint order ... "
[16]In holding that a breach of restraint order made under POCA was capable without more of constituting the offence of perverting the course of justice, Gross LJ made the point that this was irrespective of whether the act in breach of the restraint order would otherwise be lawful.

(i) ]:

"Put more generally, a focus on previous prosecutions runs in our judgment contrary to the authoritative observations that there is no 'closed list' of acts which may give rise to this offence. Further still, the suggested focus on whether the acts in question constitute some independent offence risks over-complication and distortion; we cannot see that it is necessary to consider anything more than whether the acts under consideration have a tendency to and were intended to, pervert the course of justice."
[17]Drawing the authorities together, the principles in regard to extending the ambit of the offence of perverting the course of justice to a novel situation may be summarised as per R v Kenny at 35: i). There is no closed list of acts which may give rise to the offence; ii). That said, any expansion of the offence should only take place incrementally and with caution, reflecting both principles of common law reasoning and the requirements of Art. 7, ECHR; iii). Neither authority nor principle supports confining the requisite acts to those giving rise to some other independent criminal wrongdoing; iv). If there is no such limitation generally, then there is no basis for importing such a restriction – as a matter of law – into the elements of the offence where it arises in the context of a breach of a restraint order.[18]Miss Pasteris, on behalf of the respondent, argues that the critical component of the offence is the contemplation of proceedings of some type. She points to R v Selvage and R v Morgan, which specifically held that removal by an official of the DVLC (now DVLA) of driving licence endorsements (now penalty points) as a favour for friends did not constitute interference with the course of public justice. In that case, taken from the headnote, it was held:
"Although the records of the DVLC had an important role to play in the administration of justice, the offence of perverting the course of justice was restricted to acts which did and were intended to interfere with pending or imminent proceedings or with investigations which might end with criminal proceedings being brought; that, since no proceedings had been brought or were contemplated at the time when the attempt was made to remove the endorsements from the driving licences, there had been no conspiracy or attempt to commit the substantive offence."
[19]There is no doubt that the process of investigation whether or not charges result (R v Kiffin [1994] Crim LR 449) and the prospect of a police investigation being set in train is sufficient (see R v Rafique & Ors [1993] QB 843 and R v Cotter, Clair & Wynn [2002] EWCA Crim 1033). Although not relevant to the facts of this case, it is worth making the point that it is not necessary to identify the precise proceedings which might ensue. In R v Sinha [1995] Crim LR 68, a junior doctor altered computerised records after a patient died. He did so out of fear. The Court of Appeal held it was sufficient if the act might mislead the court in all or any of criminal, civil or coronial proceedings.[20]Miss Pasteris, who has conducted this appeal with admirable skill, submits however that in this case the criminal proceedings had been concluded. Like R v Selvage and R v Morgan, no proceedings were in being or imminent. Investigations which could or might bring about proceedings were not in progress. She argues at the relevant time no course of justice was or could have been in contemplation.[21]In fact, the very request by the offender that his work be carried out by SK and SK's agreement to do the work is a conspiracy in which it is clear that the offender was acting in contemplation of imminent proceedings which would flow from his non-attendance and in which by sending his co-conspirator on his behalf he was seeking to avoid.[22]It is beyond argument, and the contrary it not suggested by Miss Pasteris, that if the officer of the DVLA in R v Selvage had known her friend was due to the prosecuted for another offence which might lead to his or her being disqualified or her licence endorsed, the offence would have been made out. That case therefore turns on the remoteness of any possibility of prospective proceedings.[23]What is the position in this case? Admittedly there is no new offence being investigated or in respect of which proceedings could or might be brought but there were criminal proceedings which could or might be brought and which, depending on the extent of the investigation at the relevant time, were likely to be imminent. Those proceedings would have been effectively immediate had SK not attended to take the offender Mr D'Oleary's place on the unpaid work commitment. The investigation or proceedings to which I am referring are therefore the proceedings for breach of the unpaid work requirements of the order of Wood Green Crown Court, which (as it apparent from the provisions of Schedule 8 of the Criminal Justice Act 2003, set out above) could lead to a substantial penalty based on wilful and persistent failure to perform unpaid work.[24]It is certainly open to the court to infer, and at the close of the prosecution case a possible inference on which the Crown was entitled to rely, that Mr D'Oleary and SK would have been well aware that the former was not performing the obligation placed upon him by the court so would be liable to criminal sanction and furthermore that the effect of SK performing the work would be to pervert the course of justice by delaying and potentially undermining the investigation of that failure.[25]Thus, for my part, I would reject the notion that the facts forming the basis of this offence break new ground even though the example may not have previously been analysed by the court. As in cases involving restraint orders, this case also concerns continuing and ongoing criminal process intended to enforce the requirement to undertake unpaid work. To that end, providing cover for the failure to perform such work perverts (perhaps better here understood as frustrates) the course of justice. Given that in this case there was a prospect that breach could be brought, it is unnecessary to consider whether the offence could be proved by showing that there had been a dishonest interference with a sentence which is no longer extant, for example where an order for unpaid work had been revoked because of the apparent ill health of the offender but it subsequently emerged that he had conspired with others to feign injury. We see force in the argument that there should be no difference in the position but that question must await analysis and determination in a case which directly raises it.[26]In the circumstances, notwithstanding Miss Pasteris' valiant attempts, I would allow the appeal, answering the first of the three questions posed in the case: no. As for the remaining two questions, there must be material from which it is appropriate to infer, as there is here, that there are potentially impending proceedings, which proceedings can include proceedings for breach of the unpaid work requirement of the suspended sentence.[27]In the circumstances, I would remit the case back to the Youth Court for the hearing to continue.

MR JUSTICE HOLROYDE: I agree.