England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
His Honour Judge Brown

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/05/2010

The Lord Chief Justice of England and Wales:

1. Following a trial at Preston Crown Court before His Honour Judge Brown and a jury, on 3 February 2010 John Cooper was convicted of perjury. His appeal against conviction raised an interesting point of law. The conviction was quashed on 20^th April 2010. These are our reasons.
2. The appellant was driving a Scania heavy goods vehicle in Barrow in Furness on 12th May 2008. He was stopped because a police officer had seen him using a telephone, holding it to his right ear, while he was driving. He denied the offence. The matter was tried before the Magistrates at Barrow-in-Furness on 13^th January 2009. The police officer gave evidence which, if believed, demonstrated the appellant's guilt. The appellant was called to give evidence in his own defence. He adamantly denied that he had used a hand held telephone. It was an essential part of his defence that his vehicle was fitted with a hands-free system, so there would be, and was, no need for him to use a hand-held telephone. This had been fitted on 14^th April 2008 and paid for in cash. Although the receipt demonstrating payment had been sent to his accountant, and was therefore unavailable, the appellant produced a supporting letter, dated the same date as the hearing, from Halfords store in Barrow-in-Furness, signed by Jason Thomas, that he had fitted a hands free kit to the vehicle on 14 April.
3. The appellant was convicted. Further police enquiries were then made about the letter.
4. Mr. Thomas was the deputy manager at Halford's store at the material time. Hands-free telephone equipment was supplied there, and one had indeed been fitted to the appellant's Scania. Mr. Thomas said that the appellant had come to see him on 13 January 2009, telling him that the police did not believe that his vehicle was fitted with a hands-free telephone. Mr. Thomas was asked to provide a letter confirming that it was. He agreed but when he was writing the letter, he could not recall the date of the fitting and rather than check his records, he simply asked the appellant. The appellant then supplied Mr. Thomas with the information that the date was 14th April 2008. Having explained how the letter came to be written, Mr. Thomas produced the business records at the store to the police. From them it was said to emerge that two hands-free kits had been supplied to two of the appellant's vehicles, the first on 4^th July 2008, and the second supplied and fitted to the Scania driven by the appellant on 12th May 2008, not as he had claimed at trial on 14th April 2008, but rather on 25th July 2008.
5. In due course the appellant was charged with perjury. The particulars alleged that he had wilfully made a material statement at his trial which he "knew to be false or did not believe to be true namely that on 12^th May 2008 he had a working hands-free phone fitted to his vehicle…".
6. The crucial issue at Preston Crown Court was the date when the Scania was fitted with the hands free telephone. Mr. Thomas gave evidence, explaining the circumstances in which the hands free telephone systems were fitted to the appellant's vehicles. He had no recollection of the dates when the fittings took place independent of the business records, and so far as the records relating to the fittings of the hands-free kits were concerned, he was the member of staff responsible for their preparation.
7. The worksheets were kept in the depot as a daily record, and the procedure was for them to be stored away at the end of each day, in date order in a file. Checking through the file, he found the first relevant document, dated 4 July, which related to the defendant's vehicle which is unconnected with this case. The second, described as "Diary Sheet", is undated. It simply states, "Friday", and notes the fitting of the hands-free telephone to the appellant's Scania. This document is written in Mr. Thomas' own hand. He found it in the records for the period 24-26 July. 25 July was a Friday. From the records Mr. Thomas drew the conclusion that the hands-free kit must have been fitted on that date.
8. The defendant's evidence, briefly summarised, was that due to the passage of time between the date he was stopped by the police to the date of his appearance at the magistrates court, he had made a mistake about the date on which the hands-free device was put into his vehicle, and he thought it had been fitted the day before he was stopped by the police. When he gave evidence he did not know, or believe, that his evidence was false.
9. Section 13 of the Perjury Act 1911 provides:

"A person shall not be liable to be convicted of any offence against this Act…solely upon the evidence of one witness as to the falsity of any statement alleged to be false".

10. In R v Threlfall [1914] 10 CAR 112 a decision of the Court of Criminal Appeal promulgated very shortly after the Perjury Act came into force, and before the seminal decision providing the classic definition of corroboration in R v Baskerville [1917] 12 CAR 81, it was observed, "The section…amounts to this, that there can be no conviction on the evidence of one witness alone; there must be one witness and something else in addition;…" This provision has been interpreted by the Court of Appeal as imposing a requirement for corroboration of the falsity of the relevant statement, (R v Hamid and Hamid [1979] 69 CAR 324; R v Carroll and others [1994] 99 CAR 381) unless its falsity is not in issue (R v Rider [1986] 83 CAR 207).
11. In unequivocal terms therefore, the evidence of one witness as to the falsity of the statement given in evidence is not enough to found a conviction. For this purpose there must be at least two pieces of evidence, at least one of which must be independent of the witness called to establish the falsity of the statement. There must be some evidence "in addition" to that witness. This may be provided by two or more witnesses, it may be provided by one witness and a document, for example, a confession by the defendant, or an incriminating letter written by him. But the necessary further evidence must be independent of the witness whose evidence requires corroboration, coming from a source independent of him. Material which is not independent of the testimony to be corroborated is not capable of amounting to corroboration.
12. The prohibition is absolute: unlike many of the common law corroboration requirements, it is not open to the jury to convict if, having given due regard to the warning against returning a conviction in the absence of corroboration, it is, notwithstanding the absence of corroboration, convinced of the truthfulness of the witness.
13. When he addressed the corroboration issue, the judge directed the jury that they could not convict the appellant of perjury on the evidence of one witness alone. "So you would either need two witnesses which you have not got. You have only got Mr. Thomas, or you do need something else and I direct you as a matter of law …. that there is something else in this case for you consider if you accept the evidence, and that is the work sheet records which are contemporaneous records of the work done at Halfords… and you can rely upon those if you accept that evidence and if you think it reliable. You can rely upon those business records, the worksheet documents, in addition to the oral evidence of Mr. Thomas as to the date upon which the hands-free kit was fitted…". The present appeal is concerned with the correctness, or otherwise, of this direction.
14. The submission by Mr. Batra on behalf the appellant was straightforward. It is clear that all the evidence as to falsity came from Mr. Thomas, or perhaps more accurately, the proof of falsity depended solely on evidence created by him. Without the records he could not give any evidence as to the date when the hands-free kit had been supplied for the Scania lorry, let alone that any specific date was falsely given. Even if the records themselves constituted evidence of falsity, they provided a single piece of evidence, not two, because Mr. Thomas himself could not prove the falsity without reference to the records which he had prepared personally.
15. For the Crown, Mr. Nance submitted that the direction was accurate and correct. The documents produced by Mr. Thomas did not simply constitute a memory aide at all: the documents he produced were created for the purposes of the business, recording the fitting of the hands-free telephone, demonstrating that this did not occur on 14^th April but that it must have been done, between 24^th and 26^th July. The evidence of falsity did not depend on Mr. Thomas' oral testimony alone. The business records provided the crucial evidence, which he contended, were sufficient in themselves, but if not, they provided ample support for each other. The documents to which he referred had come into existence at the time of the transaction without any thought to possible later proceedings. There was no reason for Mr. Thomas to give untruthful evidence on the subject, or to create documents which were false. In any event Mr. Nance submitted that the prohibition in section 13 does not extend to evidence of falsity derived from a single business document: section 13 is concerned with the oral testimony of a live witness, not evidence derived from documentary records.
16. We accept that since 1911 the circumstances in which documents constitute admissible evidence have developed beyond recognition, but their admissibility is subject to statutory criteria. Thus, for example, business records are not admissible under section 117 of the Criminal Justice Act 2003 unless the court is satisfied that the individual who has supplied the information from which the document was created, whether by himself or by someone else, could have or "may reasonably be supposed to have had personal knowledge of the matters dealt with…" In short, dealing with it generally, business records are not admissible unless they are derived from a human source. This reflects the reality. Business records which purport to demonstrate that perjury has been committed do not emerge from nowhere. Accordingly if the business records relied on to establish the falsity of the impugned statement depend on a single human source, the statute applies: if it can be shown that the records are derived from more than one such source, and both support the allegation of falsity independently of each other, the statutory prohibition would not apply.
17. In our judgment the crucial features of the present case are that the evidence of falsity does not come from a witness, Mr. Thomas, supported by business records made and prepared within the business independently of him. The records relied on in support of his evidence were prepared by him. Without reference to them, he could not speak to the falsity of any crucial dates. Similarly, the records, taken on their own, unexplained by him, do not establish the alleged falsity either. It is only when taken together with his evidence, and explained by him, and refreshing his own memory from them, that they do so, but self-evidently the two areas of evidence are not independent of each other. Without reference to the records he prepared himself Mr. Thomas cannot establish the dates: without Mr. Thomas the business records do not speak for themselves on the critical issue. In the ultimate analysis, Mr. Thomas is the single source of both, and the Crown's case against the appellant depended "solely" on his evidence.
18. In these circumstances, the statutory prohibition was contravened. Accordingly the conviction for perjury was quashed.