England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 25 June 2009

1. MR JUSTICE BURNETT: This is a renewed application for permission to appeal against sentence following refusal by the single judge.
2. On 23 September 2008 the applicant was sentenced by the Recorder of Winchester to a total of three years' imprisonment in respect of three counts of doing acts tending to and intended to pervert the course of justice. 40 days spent on remand in custody was directed to count towards that sentence. The applicant was also fined for two health and safety offences. No complaint is made about those fines. Two other defendants received prison sentences for perverting the course of justice. One of those defendants applied unsuccessfully for permission to appeal against his sentence. A company, owned and substantially run by the applicant and his wife, was fined for health and safety offences.
3. The applicant had pleaded guilty to one count of perverting the course of justice and was convicted of the other two. In the same trial he was acquitted of manslaughter as was the company. So far as the manslaughter charges were concerned, this was essentially a retrial, the original trial having been aborted very close to its conclusion as a result of the production of fresh evidence to which we will return.
4. The prosecutions arose from a fatal accident which had occurred on 9 May 2005. The company was a scrap metal business located in Dorset. One of the machines used at the company's premises was used to cut and compact scrap metal. In short what happened on that fateful day was that an old acetylene cylinder was being processed when it exploded. An employee, Tommy Mooney, who was also a close friend of the applicant, suffered extensive burns from which he died later the same day. The applicant himself suffered serious injury which took him out of commission for three months or so.
5. The machine was in fact being operated dangerously by the applicant and the deceased. They were standing in the hopper with Mr Mooney holding or pushing the object to be cut and the applicant operating the cutter using a remote control device on the end of a cable which was then attached to the control panel of the machine. Under no circumstances should a machine of this nature be operated with people in the hopper.
6. In the immediate aftermath of the accident the investigating authorities ran into difficulty in getting to the bottom of how it had happened. The applicant, it should not be forgotten, was away from the site at this time and in hospital. There was immediately what amounted to a cover-up by other directors of the company. The remote control cable was removed and placed under a seat in the control cab. The investigating authorities were not told the truth from the outset, that anyone had been in the hopper when the explosion occurred.
7. As we have indicated, there were health and safety related charges and charges of manslaughter in addition.
8. There was a trial in the autumn of 2007. It was the prosecution's case that Mr Mooney had been in the hopper when the explosion occurred. The account of all those representing the interests of the company was that that was not so. The applicant gave evidence that he was operating the machine from the cab. That would be a proper place from which to operate it. In essence he said that Mr Mooney had been passing the machine when the explosion occurred.
9. As the trial was coming to an end a new witness came forward who told the prosecuting authorities that the machine was in fact being operated by use of a remote cable and that two men were in the hopper. The witness concerned was later accepted by all to have been present at the scene. However, when the emergency services first arrived to deal with the explosion one of the exercises they performed was to make up a list of all those who might be witnesses. This particular witness did not appear on that list. It is now clear that he left the scene hurriedly after the explosion had occurred as a result of what he had seen and the immediate trauma that he suffered.
10. Given the stage which the trial had reached, which was perhaps only a day from closing speeches, and the importance of this potential evidence, the jury were discharged. The trial was re-fixed to take place at a later stage following further investigation by all concerned. It was the evidence of this witness which provided the spark for the counts of perverting the course of justice with which we are today concerned. As we have indicated, the cable had in fact been removed shortly after the accident by one of the applicant's co-accused. However, after the emergence of the witness the applicant instructed one of his co-defendants to reinstate the cable and remote switch but the instruction was to do so in a way which would enable the applicant to sustain the essence of his account, namely that the machine was being operated from the cab.
11. The overview of what had happened in this case was that a false account of what occurred had been peddled by the co-accused before the applicant returned to work. He continued with it and then when it began to unravel took steps to shore it up.
12. The first of the offences related to the applicant's instruction to his co-accused to reinstate the cable. It was this count to which the applicant pleaded guilty and in respect of which he received a sentence of two and a half years' imprisonment. The other counts of perverting the course of justice related to his instructing two employees not to mention, if asked, that the new witness had been working on the day of the accident. He was convicted on those two counts after the trial and received a sentence of three years' imprisonment on each. All sentences were ordered to be served concurrently. Both he and the company were acquitted of manslaughter.
13. Mr Climie, to whose submissions we are indebted, submits that the learned judge gave inadequate weight to a number of particular factors. They are set out in an advice jointly drafted by Mr Climie and Mr Bowes QC which has set out with clarity all the points that can reasonably be advanced in this case. Those factors were as follows. The learned judge failed to give any or any adequate weight to the specific submissions in mitigation including: (a) the loss of his close friend Thomas Mooney; (b) his own injuries; (c) the good record of the company on matters of health and safety; (d) his plea of guilty on one count; (e) the impact of a term of imprisonment on the company; (f) the fact that the original cover-up had commenced without his knowledge and at a time when he was in hospital recuperating from his injuries; (g) the matters referred to in the pre-sentence report, including a lack of risk of reoffending. Mr Climie also submits that the learned judge failed properly to apply the principles enunciated in this court in Tunney [2007] 1 Cr App R (S) 91. Before turning to those submissions in a little more detail, we should add that the applicant had a previous conviction for tax fraud in respect of which he was sentenced to a term of imprisonment.
14. As the judge said in his sentencing remarks, the applicant had lied when he was originally interviewed about the accident towards the end of 2005. He lied again during a reconstruction that had taken place for the benefit of experts during 2006. He lied on oath during the first trial. He lied again when he was interviewed in the early part of 2008. The judge concluded that this was a:

"... carefully woven mixture of truth and fiction designed to produce a plausible explanation for this explosion which very nearly succeeded."

15. At the heart of it was an attempt to avoid the possibility of a conviction of manslaughter both personally and for the company. The personal consequences of a conviction for manslaughter in these circumstances would almost certainly have been a term of imprisonment. The company was fined a substantial amount of money for the health and safety offences. It is inevitable that had it been convicted for manslaughter those fines would have been much larger.
16. Looking at the sentencing remarks, it is clear in our judgment that the factual matters identified by Mr Climie were all in the mind of the sentencing judge. His sentencing remarks were exceptionally detailed and they followed a trial during which he was in an unrivaled position to assess the culpability of the applicant and his co-accused.
17. We would add this in respect of the submission that it is a strong mitigating factor that the applicant lost his friend Thomas Mooney. One of the consequence of the course of conduct which is reflected in the charges is that both the public and the friends and family of Thomas Mooney might have been denied a proper opportunity of learning of the circumstances of his death. There is a very strong public interest in the circumstances of all deaths, and in particular work related deaths, being thoroughly investigated. There is a very strong public interest in those true circumstances being brought into the public domain. It is apparent from the information before us that in parallel with the lies and deceptions that attended the official investigation and prosecution one of the applicant's co-defendants appears to have told a nephew of the deceased the true position and also appears to have provided him with compensation in cash. That to our mind goes nowhere towards dealing with the serious aspect of peddling lies and maintaining deceptions in respect of a death.
18. Turning then to the factors identified in Tunney. Mr Climie has reminded us that they are, first, the seriousness of the substantive offence to which the perverting the course of justice relates. Secondly, the degree of persistence in the conduct in question of the offender. Thirdly, the effect on the course of justice itself. The offence here was one of manslaughter which is one of the most serious in the lexicon. The course of conduct was persistent, albeit that we accept that the period of time during which the offences were committed was relatively condensed. True it is that both the applicant and his company were acquitted of manslaughter so that their attempts to pervert the courses of justice turned out to have been unnecessary, but the whole of the first trial, which occupied some weeks and involved a large number of defendants proceeded on a false premise. Indeed, it can with confidence be said that it was only as a result of the attempts to pervert the course of justice, that in fact commenced shortly after the accident, that there were two trials at all.
19. Mr Climie has submitted that there is some disparity which should be reflected in a reduction in the sentence for the applicant when one compares his position with that of his co-defendants. One of those co-defendants received a sentence of 15 months after a trial and the other six months after a plea. Looking at the sentencing remarks, and remembering that the judge had presided over a lengthy trial, we are unpersuaded that there is anything in that point.
20. Secondly, Mr Climie has submitted that the three years imposed in respect of the second and third counts, which we remind ourselves involved telling witnesses to dissemble, is too long when compared with the two and a half years that the judge sentenced in respect of the first count, namely the instruction to change the wiring.
21. To equate those two sentences properly one needs to gross up the two and a half years to arrive at a figure which would reflect the position had there been a not guilty plea. If that were the case that sentence would have been three years and nine months with the three years standing for comparison. To our mind, telling witnesses to persist in a lie after that lie had effectively been disclosed, with the possibility of continuing a deception that had persisted throughout one trial, represents a serious perversion of the course of justice. It is not of a completely different order from the first count, namely the instruction to interfere with the wiring. We are far from persuaded that there is anything to be said of that point.
22. We have looked carefully at the material before us, the sentencing remarks of the judge and the admirable advice that is with our papers. We have concluded that it is impossible to discern any error in the learned judge's approach to this sentencing exercise. We do not consider that it is arguable that the sentence of three years was manifestly excessive. In those circumstances this application is refused.