COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE GILBERT Q.C.
AT TAUNTON CROWN COURT
London, WC2A 2LL
B e f o r e :
MR. JUSTICE GROSS
SIR IAN KENNEDY
|- v -|
|MARK GROSVENOR CLARK||Appellant|
J. STANNILAND for the Appellant
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Tuckey:
… in my judgment the jury are entitled to conclude, first of all, that that journey [the journey home after the accident] was a positive act on the part of the defendant, the purpose of which was to try to conceal or destroy evidence relevant to an investigation into how [the victim] was killed and his own criminal responsibility for that death. After all, a number of possible offences would have arisen – causing death by dangerous driving, causing death by careless driving whilst in excess of the legal limit, and indeed, if nothing else, driving with excess alcohol.
The jury are entitled to decide – and they may on the evidence - that this was not simply driving home after a night out having drunk too much but a man who believes he has or may have committed an offence and who would then deliberately leave the scene in order to escape detection. If that is right, then it is open to the jury to conclude that he did act or embark upon a course of conduct of a positive nature which had a tendency to pervert the course of public justice and was intended by the defendant to …. pervert the course of public justice, both in relation to removing the car itself and its damage from the scene and also removing himself as the driver and removing his body containing an excessive blood alcohol level.
In the view of this court there must be 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. It seems to us that he does not himself have to introduce the evidence into the process of justice … it is sufficient that what he has done "without more" has a tendency to produce that result. To establish a tendency or a possibility you do not have to prove that the tendency or the possibility in fact materialised.
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.
We accept this counsel of caution. The common law has always developed incrementally and if the ambit of this common law offence is to be enlarged it must be done step by step on a case by case basis and not with one large leap. 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).