Case No: 2002/06362/Y5
Neutral Citation:  [2003] EWCA Crim. 991 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE GILBERT Q.C.
AT TAUNTON CROWN COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 4th April 2003
Before :

LORD JUSTICE TUCKEY
MR.  JUSTICE GROSS
and 
SIR  IAN  KENNEDY

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Between :

	R	Respondent	
	- v -		
	MARK GROSVENOR CLARK	Appellant	

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(Transcript of the Handed Down Judgment of
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S.   DENT for the Respondent
J.  STANNILAND for the Appellant

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice  Tuckey: 

1.	On the 10th October 2002 in the Taunton Crown Court before Judge Gilbert Q.C. and a jury the appellant, Mark Grosvenor Clark, was convicted of doing an act tending and intended to pervert the course of justice and was sentenced to 5 years imprisonment.  He appeals against conviction and sentence by leave of the single judge.  The appeal against conviction is on the ground that the facts alleged by the Crown could not constitute the offence alleged and that the judge should have upheld a submission to this effect at the close of the Crown’s case.  
2.	At about 11.30 p.m. on the 3rd October 2001 the appellant was involved in a fatal road accident with a cyclist on the A38 in Somerset.  The Crown’s case was that the appellant had been under the influence of alcohol and had driven away from the scene knowing he had hit the cyclist and  that he had excess alcohol in his blood.  He had not reported the accident until the following morning when he knew that he was not at risk from the breathalyser.  By acting in this manner he deliberately attempted to conceal the commission of an offence.  Had he remained at the scene he would have been breathalysed with a view to prosecution for serious road traffic offences and his car would have been forensically examined at that time.  
3.	There were no independent witnesses of the collision.  Two cars had passed the cyclist safely on the unlit stretch of road where the accident happened,  although the driver and passenger of one of the cars were somewhat critical of its lighting.  Another car came on the scene shortly after the collision.  Its driver saw parts of a bumper and tyre about 60 or 70 yards ahead of him in the road some distance out from the kerb.  Just after this he saw the appellant’s car ahead with its brake lights flickering.  There was a lot of smoke coming from under it and bits of rubber were coming off one of the tyres.  He followed this car at about 55 – 60 miles an hour.  When they got to a roundabout the tyre came off and sparks started flying from the  nearside front wheel.  It drove on and then pulled into a garden centre  where its lights were turned off before it came to a halt.  The appellant worked at the garden centre and was due to stay the night there.
4.	The next morning the appellant told colleagues that he thought he had hit a cow.  He said to one of them who was a friend:  “not a word to anyone but on the A38 last night I hit something, I don’t know if it was a cow.  I was blinded by the lights”.  The witness suggested that it might have been a badger.   The appellant said he had been worrying about it all night but he wasn’t “pissed”.  He had been listening to the radio during the night to see if any accidents had been reported.  The witness smelt stale alcohol on his breath and the appellant seemed to be behaving abnormally.  Later that morning the appellant went to the Cheddar police station.  He said to the first officer who saw him:  “I think I hit a badger last night on the A38… I went back to have a look but I could not see anything”.  He was arrested and breathalysed at 12.14 p.m. when no positive reading was obtained.  In the course of interview the appellant admitted that he had drunk 7 or 8 pints of lager that evening (there was evidence  that in fact he had drunk 9 or 10) and had had little to eat.  He said he had gone to the police station after seeing a road block at the crash site.   He maintained that he thought he had struck an animal (a badger or a fox) and that he had been dazzled by oncoming lights.  He claimed that he had stopped his car for about 5 to 10 minutes and walked back along the road but found nothing to suggest that he had struck a human being.  
5.	The appellant’s car was examined.  The nearside front and bonnet were very visibly damaged.  The nearside half of the windscreen was shattered.  A police  expert in accident reconstruction gave evidence that the car had hit the victim from behind as he cycled along.  The impact  propelled the bike over the hedge and the rider onto the verge with serious injuries from which he died.  The rear wheel had been ripped off the bicycle and deposited 50 metres further down the road.   Photographs of the scene showed a good deal of debris lying on the road.
6.	At the close of the prosecution’s case the defence submitted that there was no case for the appellant to answer.  The offence was committed when a person does an act or embarks on a course of conduct which tends and is intended to pervert the course of justice.  Some positive act was required.  Simply not stopping after an accident and driving   home to avoid being breathalysed was not enough.
7.	The judge rejected the submission saying:
… 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.
8.	Mr Stanniland, for the appellant then as now, submits that the judge’s conclusion cannot be right.  There is no reported case in which the ambit of the offence has been extended this far.  The course of conduct relied on by the Crown amounts to no more than driving home for the night and not reporting the accident to the police until the following morning.  This is not enough.  Taken to its logical conclusion it means that every driver over the limit who drives home instead of to the nearest police station would commit the offence.  Likewise every motorist who failed to stop at the scene of an accident.  In the latter case section 170 of the Road Traffic Act 1988 sets the limits of a driver’s responsibility for stopping and/or reporting accidents.  
9.	The Crown submit that there is no reason in principle why the offence should not cover the facts of this case and the judge was right for the reasons he gave.  
10.	Perverting the course of justice is a common law offence which covers a wide variety of situations as a quick look at the first part of chapter 28 of Archbold shows.  It was defined as we have set out in para. 6  in R v Vreones 1891 1 QB 360.  There is no closed list of acts which may give rise to the offence and it would be wrong to confine it to the specific instances or categories which have so far appeared in the reported cases.  The offence undoubtedly covers fabricating, concealing or destroying evidence with intent to influence the outcome of criminal proceedings, which include criminal investigations.  Fabrication and destruction of evidence are likely to involve positive acts which will obviously fall within the ambit of the offence.  Concealment is more difficult.  It may involve a positive act such as hiding a body or a weapon (as in R v Rafique (1993) QB 843) but will not necessarily do so.  There is authority however that some positive act is required.  That is implicit in the definition of the offence with its reference to doing an act or embarking on a course of conduct but was decided by this court in R v Headley (1995) Crim. L. R. 738.  In that case the appellant’s brother had been stopped by police and given his  name and address as the driver of the car.  The appellant was charged with perverting the course of justice on the basis that he had failed to respond to the summons against him arising out of his brother’s driving.  The court held that the appellant had not done any act or pursued any course of conduct that could amount to the actus reus of the offence: inaction was not enough.   But, as the late Professor Sir John Smith’s commentary on this case shows, acts of omission can sometimes just as easily be characterised as acts of commission.
11.	In R v Murray 75 Crim. App. R. 58  the appellant had tampered with his part of a specimen of blood.  The court rejected  the submission that this act was incapable of having a tendency to pervert the course of justice because it was done in private.  Lord Lane, said at p. 62:
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.
12.	There is little doubt that the offence has not so far been extended to cover facts such as those in this case.  That is the collective experience of this court and was that of the single judge (Gage J.) who granted leave to appeal.
13.	Are there any inhibitions to extending the ambit of the offence?  Mr Stanniland drew our attention to a passage in R v Selvage (1982) 1QB 372, 381 where Watkins L.J. said:
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).  
14.	Mr Dent for the Crown suggested that charging this offence could be restrained by the de minimis  principle or by restricting its use to serious cases.  There is a note in para. 28 – 2 of Archbold which supports the latter suggestion.  But in the case  referred to, R v Sookoo (2002) EWCA Crim. 800, this court only sought to discourage the offence being charged in addition to a substantive offence unless there were serious aggravating features in the attempt to pervert the course of justice.   But in any event we think that such restraints are elusive and not acceptable as a means by which to define the ambit of a criminal offence.
15.	It is clear however that the ambit of the offence is not inhibited by express statutory provision.  The same acts may tend to pervert the course of justice and also be contrary to specific statutory provisions or amount to contempt of court.  So in this case the fact that section 170 of the Road Traffic Act 1988 contains provisions requiring drivers involved in accidents to stop and report was no answer to the charge of perverting the course of justice.
16.	With these considerations in mind we return to the facts of this case.  There can be no doubt that the appellant’s actions after the accident provided ample evidence  of intent to commit the offence.  However it is important not to allow this to obscure the need to identify and examine the act or course of conduct relied on as tending to pervert the course of justice (i.e. the actus reus).  When pressed to identify this  Mr Dent settled for the appellant removing himself (in a drunken state and/or with excessive alcohol in his blood) and his damaged car from the scene of the accident.  He submitted that the offence was complete when the appellant reached home.
17.	But intuitively we find it very difficult to characterise this conduct as concealing evidence.  The appellant had driven home.  By the time he got there he would still be drunk and his body would still contain excess alcohol.   So by removing himself he had not concealed this evidence; it was still there to be seen or sampled.  Without more he had done nothing which tended to pervert the course of justice.  If he had telephoned the police the moment he arrived home he would not have committed the offence.  The evidence was concealed because the alcohol dissipated and its effect diminished naturally over the following hours but this process is not and cannot be relied on as some qualifying act or course of conduct. We can understand why the Crown submitted that the offence was complete when the appellant reached home because any alternatives involving it being complete sooner or later risked unacceptable imprecision.  If the offence was not complete until the appellant reported to the police the following morning it is difficult to see how the Crown’s case would get off the ground at all.
18.	The essence of the Crown’s argument is that the appellant concealed evidence that he had excess alcohol in his blood.  We do not accept that the logic of this argument is that every driver who is over the limit must hand himself in to avoid prosecution for perverting the course of justice, as Mr Stanniland submitted, because  no-one is required to incriminate himself in this way.  But if the Crown is right it would mean that a driver would be guilty of the offence if he saw police outside a pub or at a ‘Do not drink and drive’ Christmas road block and then abandoned his car and got home by some other means to avoid being breathalysed.  We do not think this can be right.  Charging a man who has simply gone home in this way with this serious criminal offence cannot be justified.  Without more he has not perverted the course of justice.
19.	As to the car its state did not change overnight.  Nothing material was done to it to conceal the damage it had sustained in the accident. (Compare R v Sharpe and Stringer 26 Crim. App. R. 122 where the appellant attempted to conceal the evidence that his car had been involved in a collision with a cyclist).  The accident reconstruction was possible without the presence of the car at the scene.  So removal of the car did not tend to pervert the course of justice.
20.	The Crown do not rely on the appellant’s failure to stop or report the accident.  His statutory obligations under section 170 (2) (3)  and (6) of the 1988 Act were to stop and give his name and address to anyone who reasonably required it, failing which to report the accident to a police station as soon as reasonably practicable and in any case within 24 hours of the accident.  It appears that the appellant did stop but there was no-one at the scene of the accident to whom he could have given his name and address.  What can be said is that he failed to report the accident to a police station as soon as reasonably practicable.  However the Crown were right not to rely on this as an act tending to pervert the course of justice because it was self evidently an omission not an act.   
21.	So this analysis leads to the conclusion that the acts or course of conduct relied on by the Crown did not sustain the offence.  It follows that the judge should have upheld the submission and we must quash the appellant’s conviction.
22.	Whilst we can sympathise with the Crown’s view that without a charge of perverting the course of justice the appellant would have “got away with it”, that is not a good reason for extending the ambit of this offence unjustifiably.  In fact on the evidence of what the appellant had drunk, it would have been possible to charge him with causing death by careless driving whilst unfit to drive through drink (section 3A (1) (a) of the 1988 Act).  We were told that the Crown were doubtful about whether they could prove carelessness and did not consider that they had sufficient evidence of unfitness to justify such a charge because the appellant asserted that his driving was not affected by drink.  With the benefit of hindsight they should  perhaps have left this for a jury to decide.  In the event the appellant was charged with careless driving and a section 170 offence but we are told those charges have now been dismissed in the light of the appellant’s conviction.
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LORD JUSTICE TUCKEY:  For the reasons given in the judgment which has been handed down, this appeal against conviction will be allowed.  The defence have applied for a defendant's costs order.  We shall make such an order and direct that the costs to be paid should be determined by the Registrar of this court.