COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
London, WC2A 2LL
B e f o r e :
MR JUSTICE GOLDRING
HIS HONOUR JUDGE METTYEAR
|- and -|
|CHRISTOPHER JAMES COTTER|
SURJIT SINGH CLAIR
CRAIG ALAN WYNN
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Saunders, QC Appeared on behalf of the appellant Cotter
Mr Simon Davis Appeared on behalf of the appellant Wynn
Mr Philip Bown Appeared on behalf of the appellant Clair
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Latham:
“Last night you were lucky. Next time we won’t make a mistake”
“Christopher James Cotter, Surgit Singh Clair and Craig Alan Wynn on diverse days between the 15th day of March 2000 and the 18th day of May 2000 conspired together with intent to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice in that they falsely represented to the West Midlands Police there existed a racially motivated conspiracy to commit violent attacks on black athletes and their immediate associates.”
“The prosecution did need to establish that it would be within the contemplation of these defendants that there would be judicial proceedings; and there needed to be established acts which had a tendency in that context to pervert the course of public justice ...... How could the jury infer, in particular, that what the defendants embarked upon was likely to lead to any sort of criminal proceedings or investigation which would have a tendency to pervert and bring about an injustice?”
“I have concluded that there is here if they accept it, evidence upon which the jury might convict the defendants in respect of Count 1. It seems to me ... that it is open to the jury here to say that it must have been within the contemplation of these defendants that if they did indeed fabricate an attack upon Mr Cotter involving serious wounding, including stabbing to the back, and if they agreed to report that matter to the police as being a genuine attack with racist undertones, together with the other actions of sending threatening letters and leaking the matter to the press, then there must have been some contemplation that that would lead to police investigation and thereafter to criminal proceedings. Or, put it another way, and indeed put in the way that it is framed in the indictment, that was a series of acts which not only had the tendency to pervert the course of public justice, but in respect of which the defendants must have had the necessary intention.”
“Let me go through the ingredients. ... During that two month period, the prosecution allege that these defendants conspired together with the intention of perverting the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, in that they falsely represented to the West Midlands Police that there existed a racially motivated conspiracy to commit violent attacks on black athletes and their immediate associates. The Prosecution must prove ..... first of all the prosecution must prove an agreement between the defendants to pervert the course of public justice. It is immaterial it does not matter if there were other involved apart from the defendant, provided at least two of the defendants were in agreement together. .....
What is a course of public justice? I have set down here for you for our purposes what it is. A police investigation which may lead to criminal proceedings is a course of public justice. The prosecution say that is precisely what was undertaken here – a police investigation which might have lead to criminal proceedings. They don’t have to prove that any criminal proceedings would definitely have taken place. They don’t have to prove that, for example, Mr Tinkley would definitely have been charged with any offence or anybody else. What has to be established is that there has been a police investigation which may have lead to criminal proceedings.... there has to be an investigation which has lead to some proceedings in all probability involving other persons.
The second matter that has to be proved by the prosecution is an intention on each of their parts or on the parts of at least two of them to pervert the course of public justice in the manner that is alleged. When it says “in the manner alleged” that is by doing a series of acts and making the false representations that are set out in the indictment and I will come back to that in due course.
Thirdly, the prosecution must prove that the series of acts had a tendency to pervert the course of public justice in the manner alleged. To establish a tendency to pervert the course of public justice the prosecution does not have to prove that injustice occurred, but merely that there is a risk or possibility that what the defendants did might lead to an injustice.
Fourthly, members of the jury, the prosecution has to establish that the defendants falsely represented to the police that there existed a racially motivated conspiracy to commit the violent attacks on black athletes and their immediate associates, in other words making a false allegation of racially motivated attack upon Christopher Cotter followed by the sending of letters both to Ashia Hanson and also to the other black athletes or athletes which purported to come from a raciest organisation and which contained threats.”
“The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.”
“3.3 A general offence of perverting the course of justice was held to exist in R –v- Grimes  3 All ER 179, was confirmed by the Court of Appeal in R –v- Panayiotou and Another  1 WLR 1032, and is now generally accepted.
3.4 The boundaries of the offence are uncertain but it clearly includes the following:
(i) Fabricating, concealing or destroying evidence with intent to influence the outcome of judicial proceedings, civil or criminal whether or not they have yet been instituted .....
vii) Giving a false story to the police in relation to a criminal offence resulting in the arrest of another: R –v- Rowell  65 CAR 174 R –v- Rose  1 Jo Crim Law 171 ....”
“Conspiracy to charge a man falsely with any crime has long been indictable: Macdaniel’s Case (1775) 19 St Tr 745: and R –v- Rispal (1762) 3 Burr 1320. It seems immaterial whether the conspiracy proceeds so far as actually indicting a person falsely accused; and if the object of the conspiracy is extortion the truth or falsity of the charge is immaterial: R –v- Hollingberry (1825) 4 B & C 329.
Where a person knowingly makes a false allegation to the police to the effect that a person has committed a criminal offence and as a result that other person is arrested, such conduct constitutes the offence of attempting to pervert the course of justice. In R –v- Rowell 65 CAR 174, the court observed that although section 5(2) of the Criminal Law Act 1967 .... was an appropriate way of dealing with the wasting of police time, it was scarcely an appropriate way to deal with the exposing of the individuals as to the risk of arrest, imprisonment pending trial and possible wrongful conviction. See also R –v- Bailey  NI15 and Withers –v- DPP  AC page 842 HL.”
“(g) Making false allegations against X intending that he should be prosecuted or knowing that he might be (Rowell  1 WLR 132). Where false stories merely waste police time (e.g. in looking for a none existent defendant) a charge under the Criminal Law Act 1967 s.5(2) would be more appropriate...”
“In the opinion of the court the indictment aptly describes two ingredients of public mischief or prejudice to the community, one of these being that officers of the Metropolitan Police were lead to devote their time and services to the investigation of an idle charge the other being that members of the public or at any rate those of them who answered a certain description were put in peril of suspicion and arrest.”
“The story which the appellant told to the police was an invented story; it was told to the police with the intention that they should commence criminal investigations, and it had in fact that result. In my opinion the giving to the police information known to be false, for the purpose of causing it to institute an investigation with a view to criminal proceedings is in itself a crime.
Great injury and damage may be caused to the public interest, which is mainly to be regarded by a false accusation, though no individual is named or pointed at by the informer. A charge which is perfectly general and leaves the public at large open to suspicion does nevertheless constitute a crime if it is falsely made. That the appellant when he gave the information to the police did not actually charge a particular crime but left open the possibility that the knocking over of the pedal cyclist might have been the result of an innocent accident but it is also, in my opinion, immaterial. The point is that the criminal authorities were deliberately set in motion by a malicious person by means of an invented story. That is the essence of the crime and when these essentials are present, I think that a crime is committed. Accordingly I am of the opinion that the appeal against conviction fails.”
“All offences of a public nature, that is, all such acts were attempts to lead to the prejudice of the community, are indictable.”
“The administration of public justice, particularly in the criminal sphere, cannot well be confined to the process of adjudication. In point of principle we think it comprehends functions which nowadays belong, in practice almost exclusively, to the police, such as the investigation of offences and the arrest of suspected persons; we see no good reason for regarding these preliminaries as beyond the scope of the category we are now considering.”
“On this state of the authorities, and on principle, I think that the better view is that English law knows no offence of conduct by an individual effecting or tending to effect a public mischief. I agree with Lord Goddard CJ’s criticisms of Manley expressed in Newland – in particular that the form was based on an obiter dictum of Lawrence J which is inconsonant with the modern development of the Criminal Law and the implications of which are inconsistent with your Lordships firm endorsement to Knuller  AC 435 with the principle that it is not open to the courts to create new offences in these days. On the other hand, I think that Bailey correctly held that the conduct there in question (and by inference, that in Manley) was indictable as conduct tending to pervert the course of justice. But I must not be taken to be saying that all conduct which misleads or wastes the time of the police or tends to cause disaffection towards them is so indictable. 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 .....”
“However, I think that the law has so evolved that the various types of conduct held to be criminal perversions of the course of justice are demonstrable as specific instances of a generic offence of conduct tending to pervert the course of justice. I agree that the conduct in Manley  1 QB 528 and Bailey constituted criminal offences under this head.”
“The wasting of police time and resources was one thing; the exposing of individuals, identified or otherwise, at risk of arrest, imprisonment, pending trial and possibly wrongful conviction and punishment, is quite another., Section 5(2) of the Criminal Law Act 1967 which creates a summary offence as an appropriate was of dealing with the former, but scarcely with the latter, which, if proved, is a much graver matter.”
“However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed in the United Kingdom as in other progressive states the development of the criminal law through the judicial law making is a well known entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided the resultant development is consistent with the essence of the offence could reasonably have been foreseen.”
“Members of the jury, of course I dare say you are going to ask yourselves, what about this phone call that Mr Saunders referred to that we see at 11.25 when somebody, presumably a police officer, seems to have gone to the voice mail and checked the voicemail? We have absolutely no evidence about that, as I have said to you already, I am going to invite you not to speculate at all about that. It may be nothing was found. It may be something was found, although if anything was found it would be very very unfortunate if none of us heard anything about it. Anyway be that as it may, that is a rather odd gap in the case, in the prosecution case.”
“I repeat that. If you think that there are innocent reasons for the lies disregard them. Only if you are sure that there are not innocent reasons would you be entitled to regard the lies as evidence that might tend to support the prosecution case.
Members of the jury I am going to add to that warning this warning. In a case like this I suggest to you it would be dangerous to act on lies alone. Look for other evidence in this case. Do not merely have regard to any lies that you conclude were told. They are a factor in this case. The prosecution say they are an important factor. The defence say too much importance has been attached to them. That is something which is very much a matter for your judgment. But do be most careful about acting merely on the basis of lies.”
LORD JUSTICE LATHAM: For the reasons set out in the judgment which we hand down, the applications and appeals are dismissed.
There has been an application in writing for the certification of questions.
MR DAVIS: There has, my Lord. Mr Saunders, who led me during the course of the appeal hearing, is out of the country today. He apologises for not being here, and I submit on his behalf. We have had an opportunity of reading through the judgment, obviously in draft form. I hope your Lordship has received both the application and the skeleton argument accordingly.
LORD JUSTICE LATHAM: Yes.
MR DAVIS: I am grateful. My Lord, the questions which Mr Saunders drafted are set out in point 3 of the points which have been sent to the Court, namely:
"[a] Whether an intention to pervert the course of justice is made out by proving only that a defendant made a false complaint to the police that a crime had been committed intending that the police should investigate the complaint.
[b] Whether it is necessary to prove in addition to [a] above that the defendant believed that it was at least possible that someone would be arrested as a result of the false complaint."
It may be, my Lord, that those questions are extremely specific, I know not.
LORD JUSTICE LATHAM: There is a furthermore general question which we need to consider. That is the extent to which you would wish to argue that the Australian Supreme Court was correct; and that would raise the question as to whether or not the police investigation can be considered to be a course of justice or part of the course of justice.
MR DAVIS: My Lord, it would appear - and it is only upon quite obviously dealing with a country a long way away from the United Kingdom, and I have been only able to look at the authorities which I have been able to pull down off the internet or from authorities which have been available to me - that there are authorities which postdate the case of Rogerson but which affirm its decision and support the decision or the dicta of I think their Lordships, Toohey and I forget the other Lord's name, I do apologise.
LORD JUSTICE LATHAM: There is McHugh certainly.
MR DAVIS: Which effectively say that the police investigation is not or does not form a course of justice. That is the point my learned friend Mr Saunders made at this hearing a few days ago.
LORD JUSTICE LATHAM: That is right; and the question may arise as to whether or not that is an issue with which the House of Lords ought to grapple.
MR DAVIS: My Lord, I have not supplied them to the Court, and I apologise for not doing so, but I have been able to obtain the reports in which the Rogerson case is alluded to.
LORD JUSTICE LATHAM: Do not worry about that. The only question is should we, if we are minded to certify any questions at all, expand the questions so as to raise that issue which at present, if we are correct, creates a conflict between the approach in this country and the approach in Australia to a similar common law crime.
MR DAVIS: My Lord, yes. But this morning my learned friend for the Crown and I have spoken about this and it may be that questions more akin to this may be appropriate, I know not.
LORD JUSTICE LATHAM: Shall I just ask Mr Raggart? What do you say at the moment?
MR RAGGART: My Lord, my reaction to Mr Saunders' questions was that they were too narrow, too factually specific.
LORD JUSTICE LATHAM: As you have gathered, that is my present concern. It seems to me that it will be better, rather than discussing this matter in court at the moment in a loosely structured way, if I can put it that way, if the two of you got together this morning and sought, if you could, to put before us for our consideration, which we can do in writing, we can do without the need for reconvening the Court, questions which you think are appropriate. Then we will discuss it between ourselves and come to a decision as to the way the questions ought to be formulated.
MR RAGGART: Certainly.
LORD JUSTICE LATHAM: Because I think you obviously appreciated that we would be minded to grant a certificate however the questions are worded.
MR RAGGART: Yes.
LORD JUSTICE LATHAM: Because we think that there are questions raised which are fit for certification. The most sensible course, as I have said, is for you to get your heads together.
MR RAGGART: My Lord, I have made a number of suggestions to Mr Davis. In one sense it is not for us to do that, but I felt it right to seek and cooperate as far as that is concerned.
LORD JUSTICE LATHAM: Mr Raggart, it would be very helpful if you could do that --
MR RAGGART: I will, my Lord.
LORD JUSTICE LATHAM: -- and then submit to us during the course of today or whenever, but within the next seven days, your suggested questions for certification.
MR RAGGART: My Lord, I wonder if one might think about it over the weekend and submit it to your Lordships early next week.
LORD JUSTICE LATHAM: That is why I said seven days. Although it may sound a bit unorthodox, we will indicate that we are prepared to certify. We are also prepared to deal with the issue now orally as to whether or not we should give leave. I do not think the formulation of the question itself is going to affect our decision as to that.
MR RAGGART: So be it, my Lord.
LORD JUSTICE LATHAM: And you are asking for leave?
MR DAVIS: My Lord, I am.
LORD JUSTICE LATHAM: Yes.
MR DAVIS: On the basis that there is obviously a matter of public importance to be discussed here. It is a matter which ought to be clarified by the House of Lords, in my submission, regardless, as we have already discussed, of the questions that we are about to be put before your Lordships. My Lord, I know not the formula one has to make in respect of an application for leave other than what I have said in my submissions to you orally and in writing.
LORD JUSTICE LATHAM: If we were to refuse you leave, we do not want to set time running so that you have difficulties about complying.
(The Bench conferred.)
LORD JUSTICE LATHAM: What we propose to do is to say this. We will not be giving you leave. If we are correct, the matter was resolved in this Court some time ago, and it seems to us that the right course is for you to interest their Lordships' house, if you can.
MR DAVIS: Of course. That was intimated again most helpfully by my learned friend a few moments ago before the Court sat, so...
LORD JUSTICE LATHAM: What you can do is to make your formal application. We can deal with it on paper in a way which means that we will then give you the formal decision as to leave and the certification on paper. The important thing is not to do it today so as to trigger the time for appealing.
MR DAVIS: My Lord, it is at 7-257.
LORD JUSTICE LATHAM: Yes. We now having given our decision, you should make your formal application. I think it can be made in... (Pause.) It does not say whether it is in writing or not.
MR DAVIS: My Lord, it at 7-258, the Criminal Appeal Rules, rule 23:
"An application to the court ... shall either be made orally immediately after the decision of the court from which an appeal lies to the House of Lords or notice thereof shall be in Form 17 and shall be served on the Registrar."
LORD JUSTICE LATHAM: Is the right course for you to do a Form 17?
MR DAVIS: I think that must be the case, having read that.
LORD JUSTICE LATHAM: You can make your application now. We then have to deal with it either now, which, as I say, sets time running, which you do not necessarily want today, or we have to reconstitute the court again to give our decision. The sensible thing is for you to get a Form 17.
MR DAVIS: I think it is.
LORD JUSTICE LATHAM: -- and deal with it that way, we indicating that we will be minded to certify.
MR DAVIS: I am grateful.
LORD JUSTICE LATHAM: But we are minded to refuse the application, so that you know where you stand.
MR DAVIS: Thank you, my Lord.
LORD JUSTICE LATHAM: Thank you both very much.