England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORTHAMPTON
H.H. JUDGE BARRIE

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/03/2011

Lord Justice Stanley Burnton:

Introduction

1. On 17th August 2010 in the Crown Court at Northampton before H.H. Judge Barrie the appellant was convicted of doing an act tending and intended to pervert the course of public justice. She was sentenced to 6 months' imprisonment suspended for 24 months with a supervision requirement for a period of 24 months. Her husband, Mr T, pleaded guilty on re-arraignment to possessing indecent photographs of children and making indecent photographs of children. He was sentenced to a total of 16 months' imprisonment.
2. The appellant appeals against her conviction with leave of the single judge.

The facts

3. In 2004, Mr T was found in possession of a number of indecent images of children under the age of 14. He had downloaded the images from the internet and put them onto a CD which was found in the house he shared with the appellant and their two daughters. He was sentenced to 12 months' imprisonment and placed on the Sex Offenders' Register.
4. The appellant's daughter gave evidence that having completed some coursework on her laptop computer at home, she had asked the appellant for a memory stick so that she could move her work onto the main home computer and print it out. The appellant told her to look in the drawer where she found a memory stick and plugged it in. She said that she then saw the titles of a number of files on the stick which she believed were child pornography videos. There were five files in total and each one had a really long name. She said that one of the files was about a teenager getting raped in her own home. She said that upon discovering the videos, she immediately informed her mother, the appellant. The appellant went "tight lipped" and quickly deleted the files from the memory stick
5. On 27 November 2008, the appellant's daughter told her deputy head teacher that whilst doing her homework she had seen a number of distressing titles of child pornography videos on her father's memory stick. Her teacher contacted the police and the social services.
6. The appellant's daughter was interviewed on 27 November. She recalled the title of one video on the memory stick as "Virgin teenager who gets raped in her own home."
7. On 1 December 2008, police officers searched the appellant's home and seized a number of computers and memory sticks. Forty indecent images of children were found on a laptop computer together with 8 shortcut links to files containing abusive terms. An examination of the memory stick used by the appellant's daughter showed that three child pornography videos with distressing titles had been saved onto the stick on 18 November 2008. Although the titles of the files remained on the stick, the contents had been deleted. Their deletion was the subject of the perverting the course of justice count. The titles of the files were "Girl gang banged in garage sex girl hardcore fuck incest preteen child porn young ass pussy vagina", "Hot young schoolgirls teen hardcore sex movie – after class sex series – 3 young schoolgirls sucking cock xxx Lolita porn" and "Virgin teen gets raped in her own house 2 (illegal preteen underage Lolitas kiddy child incest xxx porno gay fuck young naked".
8. On 19 May 2009, the appellant was arrested and interviewed. She said that she and her husband had been together for approximately 16 years. She confirmed that she was aware of her husband's previous conviction for downloading child pornography and was aware that he was on the Sex Offenders' Register. She said that when her daughter gave her the memory stick, she saw that it contained one file called "16 Sex." Believing the file contained adult pornography, she immediately deleted it as it was not the sort of thing that she wanted in the house. She said that she did not check the file or discuss it with her daughter. She said that she would have remembered if the memory stick contained more files or a file called "Virgin teenager who gets raped in her own home." She said that she did not report the incident as she did not think that it would be anything like what she had found in 2004. She maintained that she had been monitoring the computers since her husband's conviction in 2004 and had never found anything of any concern.
9. The prosecution case was that the appellant had deleted the file(s) on the memory stick with the intention of preventing a potential investigation against her husband. The prosecution relied on the fact that the appellant knew about her husband's previous conviction and that he was on the Sex Offenders' Register and that she had lied in her police interview.
10. The defence case was that the appellant did not intend to pervert the course of public justice; the only reason she had deleted the files on the memory stick was to ensure that her daughters did not see them.
11. Thus the issues for the jury were:

(1) whether the course of public justice had arisen.

(2) If so, whether the appellant had deleted the files on the memory stick with the intention of destroying evidence that might be used in a potential investigation against her husband, and thereby intended to pervert the course of justice.

(3) Whether the deletion of the files tended to pervert the course of justice.

12. At the trial, the appellant's daughter gave the evidence set out above. The prosecution called a computer expert, who confirmed that the three files mentioned above had been on the memory stick.
13. The judge rejected a submission of no case. The appellant then gave evidence that once her daughter had moved her coursework onto the memory stick, she plugged the stick into the main computer. She said that she then saw the title of a file that she did not like the look of and so she immediately deleted it before printing off her daughter's coursework. She said that the file said something about 16 and sex. When she saw the title of the file, she did not think that it was child pornography. She said that she thought it was adult pornography and deleted it in order to prevent her daughters from seeing it. She said that she regularly checked the history of the computer but had never found anything of any concern. She said that one of the reasons she made such checks was because she was sexually abused as a child and she had told her husband that if she found him in possession of child pornography again, their relationship would be over.
14. In cross-examination she said that she was shocked and horrified about her husband's conviction in 2004 but had not seen anything since to cause her any concern. She maintained that she had seen only one file on the memory stick and that she had not seen anything about a teenager being raped in her house. She said that her only purpose in deleting the file was to protect her daughters.
15. As mentioned above, the jury convicted the appellant.

The contentions of the parties

16. For the appellant, Mr James submitted:

(1) The judge had been wrong to reject the submission of no case, since there was no evidence that the deletion of the files tended to pervert the course of justice. The police expert had with the aid of specialist software been able to retrieve the names of the deleted files, and their contents, which did not match their titles, in that they did not include child pornography.

(2) In any event, the conviction was unsafe because there was no evidence or no sufficient evidence that the deletion of the files on the memory stick did tend to pervert the course of justice. The judge's direction on this issue had been defective.

17. For the respondent, Miss Wade submitted that it was not necessary for the prosecution to establish that the course of justice had in fact been perverted. The act of the appellant had created a sufficient risk of the perversion of the course of justice. The judge's direction had been sufficient.

Discussion

18. Mr James is right to emphasise that for the offence in question to be proved, it must be established both that the defendant intended to pervert the course of justice and that her act tended to do so. There was clearly evidence that the appellant intended to pervert the course of justice, by deleting the files and, as she must be taken to have thought, rendered them unavailable to the police or any other investigating authority. We can assume that the jury found that the appellant had deliberately lied about the names of the files on the memory stick. Those lies, and the fact of their deletion, were sufficient to justify the jury's finding of intent. It follows that the purpose of the appellant in deleting the files was to impede any police investigation.
19. The offence in question is not committed by an act that can have no effect on the course of justice. Conversely, however, the offence may be committed even if in the result the act does not affect the course of justice. The offence is complete when the act is done with the requisite intent, and does not cease to be criminal because it does not have the intended effect of perverting the course of justice. It is sufficient if the act creates a significant risk that the course of justice will be affected.
20. In a criminal case, the course of justice includes the police investigation of a possible crime. An act that makes that investigation more difficult, or which may mislead the police in their investigation, may tend to pervert the course of justice.
21. Furthermore, it is irrelevant that the act may be prejudicial to a potential accused rather than the police or the prosecution. It is for this reason that it is irrelevant that, for example, the file entitled "Virgin teen gets raped in her own house …" may not or did not contain child pornography. If, as happened, the police were to learn of the existence of a file so entitled on a computer or memory stick of the appellant's husband, they would be bound to investigate the matter, and he would in all likelihood be arrested. It would only be if and when the police engaged a computer expert to seek to recover the deleted file that it would be discovered that there was no child pornography in the file. If, however, the file had not been deleted, it could have been shown to the police when they first came to the appellant's house, or during her husband's interview, and he need never have been charged with any offence in relation to that file.
22. For similar reasons, the fact that the files were in the event recovered by an expert does not mean that the deletion of the files was when done necessarily inconsequential. There was no evidence that the deletion of the files could not be effective. In fact files on the memory stick would have been over-written and been irrecoverable if there had been sufficient use of the memory stick before it was examined by a computer expert.
23. Although the facts of the present case are very different from those in R v Rafique [1993] 4 All ER 1, in our judgment it is materially indistinguishable. In that case, the appellants had driven to a park with a friend, A, to try out a shotgun which A had recently acquired. While the first appellant was carrying the gun it discharged accidentally and A was killed. The appellants panicked and ran back to their car and drove off. They later threw the gun and cartridges into some bushes in another park, abandoned the car and went into hiding for 12 days before giving themselves up to the police. In fact the gun had been recovered by the police on the day it had been thrown into the bushes. Thus in fact by throwing the gun and cartridges away the course of justice had not been perverted. Nonetheless, the appellants' convictions were upheld. Lord Taylor of Gosforth CJ said:

"… on the facts of the present case, it must follow from a finding that there was an intention to impede police investigations that there was an intention to pervert the course of public justice. On these facts, there can be no explanation for intentionally impeding police investigations other than an intention to pervert the course of public justice. … the jury clearly rejected the appellants' explanations as to why they disposed of the shotgun and cartridges and concluded that the appellants intended to impede police investigations. …

It was in the sense that what impedes police investigations will usually also have a tendency to pervert the course of public justice that we read the statement of Lord MacDermott LCJ in R v Bailey [1956] NI 15 at 26 that the administration of public justice—

'comprehends functions that nowadays belong, in practice almost exclusively, to the police, such as the investigation of offences and the arrest of suspected persons.'"

24. Similarly, in the present case the jury must be taken to have found that the appellant deleted the files on the memory stick with the intention of impeding a police investigation. Their deletion would impede a police investigation, for the reasons we have given.
25. It follows that the appellant was rightly convicted. The appeal will be dismissed.