B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE PITCHERS
MR JUSTICE TREACY
|REFERENCE BY THE ATTORNEY GENERAL UNDER|
|S.36 CRIMINAL JUSTICE ACT 1972|
|ATTORNEY-GENERAL's REFERENCE NO 1 OF 2002|
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MR GREANEY appeared on behalf of the OFFENDER
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"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."
"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."
"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."
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."
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."
"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.
"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  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."
"...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."
"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."
"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.
"...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.