England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 10 July 2013

1. LORD JUSTICE AIKENS: This is an appeal against conviction by Carole Denise Norman (now aged 41), which is brought with the leave of the Single Judge on one ground only. Counsel for the appellant seeks leave to renew out of time an application for leave to appeal on another one of the four original grounds of appeal. We will consider that application in the course of this judgment.
2. The appeal arises from the conviction of the appellant on 7 September 2012 after a trial before HHJ Belcher and a jury on a charge of doing an act tending and intended to pervert the course of public justice: (count 2 on the amended indictment). The third count, of which she was also convicted, was of money laundering: (count 3 on the amended indictment). On 5 October 2012, the appellant was sentenced to four months' imprisonment suspended for 12 months, with a requirement to do 100 hours of unpaid work and to be subject to an electronically monitored curfew. That sentence was imposed in respect of both offences; each sentence to be served concurrently.
3. The jury acquitted the appellant on count 2 of the amended indictment. That was another charge of doing an act tending to and intended to pervert the course of public justice, but obviously that count was based on different particulars of offence than those set out in count 2 of the amended indictment.
4. The facts giving rise to the charges are as follows: the appellant is a married woman with two daughters. On 14 May 2009, the husband of the appellant, Mr Ian Norman, had been made the subject of a Crown Court restraint order under the Proceeds of Crime Act 2002 ("POCA"). That order prohibited him, without the permission of the court, from dealing with various assets, including joint assets owned by him and his wife. By the same order the appellant was also prohibited from dealing with joint assets owned by her and her husband without the permission of the court. Amongst the assets specifically identified in the restraint order was a BMW motor car, which was leased and used as a family car by the Normans, togther with another car, called a Smart car. The effect of the restraint order was that the Normans could not dispose or deal with either the BMW or the Smart car in any way.
5. Prior to the Restraint Order, Ian Norman had been running a business under the name of HRL. In 2006 HRL had entered into a contract for the lease of the Smart car, registration number KG56XWU, for a period of 36 months from Mercedes Finance. The lease was therefore due to expire on 30 November 2009. As a result of the Restraint Order of 14 May 2009 the business, HRL, went into liquidation on 27 July 2009.
6. Upon HRL going into liquidation, another company called Folderframe took over the payment of the rental on the Smart car.
7. In early May 2010 the lease agreement on the BMW was about to come to an end. There was a sum of £10,000 outstanding in rental payments. The lessor of the BMW wrote to the Normans requiring the car's return by 14 June 2010. By this time Mr Norman had been in prison since 23 March 2010, although he was released on 23 July. Because the BMW was about to be returned to the lessor, the appellant decided that she needed another small family car for journeys with her two children, for which the Smart car would not be suitable.
8. The appellant approached Mr Patrick Gallagher of the CPS about releasing funds from the Restraint Order so as to pay the money due on the rental of the BMW and/or to purchase a small family car. Mr Gallagher declined to agree. The appellant then applied to the judge for a variation of the Restraint Order either: (a) to release £10,298.57 to pay off the outstanding rental on the BMW, or (b) to provide money to purchase a small family car.
9. A hearing took place before HHJ Dobkin on 10 June 2010 at which the judge indicated that he might be prepared to order the release of £5,000 for the purchase of a small car, but he first required the appellant to see if BMW would accept further lease payments for a period of three months. It seems that BMW was not prepared to do so, because by September 2010 it had started civil proceedings for the return of the car.
10. In the meantime the appellant had started a business herself; this was concerned with document shredding. The company, of which she was the sole director, was called Shred-X. The Smart car, which had been leased to HRL, was still being "held over" on lease, although the formal period of lease had ended in 2009. In September 2010 Mercedes Finance wrote and stated that the Smart car could be bought for £4,350, but if it was not then it would be repossessed.
11. By this stage it appears that the appellant regarded the Smart car as ideal for her business needs. On 6 October 2010, the appellant wrote to Leeds Crown Court requesting a variation of the restraint order to permit the release of funds to purchase a motor car "for my family's daily use". At this point the CPS was not prepared to consent to such an order.
12. Meanwhile, in respect of the Smart car, Mercedes Finance had extended the date for its return to 8 October 2010. About this time a man called Mr Alan Guest, a friend of the appellant, offered the appellant some money for use over Christmas and also for the appellant's personal use. Mr Guest gave the appellant a blank cheque to be drawn on his Nationwide Building Society account. Mr Guest told the appellant to make it out.
13. The evidence from the appellant at the trial was that the two had agreed a sum of £5,000, or thereabouts. The appellant made out the cheque payable to Mercedes Finance in the sum of £4,350 to pay for the purchase of the Smart car. The appellant sent this cheque under cover of a letter from the company Shred-X because she wished that company to be able to recover the VAT payable on the purchase price of the Smart car.
14. The appellant informed Mr Guest of what she had done. A form v5 evidencing keeper transfer of the Smart car from HRL to Shred-X was completed by Mr Norman on 23 November 2010. On 26 November 2010, there was a hearing before HHJ McGill for a variation of the Restraint Order that had been made on 14 May 2009. The judge granted the application for a variation, such that £5,000 would be released on condition that the money was spent on buying a car outright and that the car was registered in the name of the appellant.
15. The judge was, at that stage, unaware of the fact that Shred-X was by then the owner of the Smart car. In evidence at the trial the appellant said that she had already told an official in the Court Listing Office about the Smart car.
16. When the appellant left court she went home and she said, in order to comply with the judge's order that the car be registered in her name, she prepared a sales invoice whereby Shred-X sold the Smart car to her. Effectively, therefore, from 26 November 2010 the appellant herself was the owner of that car.
17. Pursuant to the order of the court made on 26 November 2010, on 3 December 2010 the sum of £5,000 was transferred from the restrained funds to the personal account of the appellant. In evidence at the trial the appellant said that she then contacted Mr Guest to tell him that "the money had come in" and that she had drawn out money to repay him. She said in evidence that Mr Guest told her that she could keep the money for her own personal use, noting that he could not see her before Christmas anyway, and that, in any case, that was what the money was intended for. Her evidence was that Mr Guest had said that she should repay him when matters were "sorted out". We understand that the debt has not been repaid to date.
18. On 6 December 2010, the appellant registered herself as the owner of the Smart car. On the same day £607.95 was withdrawn from the personal account into which the £5,000 had been paid. The following day two sums, £503.40 and £698.57, were withdrawn from the same account. On 9 December 2010, the sum of £3,000 was also withdrawn from that account. A further sum of £3,000 was withdrawn from the appellant's investment account on the same day.
19. The appellant's evidence at the trial was that as a result of what Mr Guest had told her the appellant put £3,000 into her account with the Santander Bank. A further sum of £2,010, said to be from "an unknown provenance", was paid into the same Santander account on 6 January 2011. On that day a cheque in the sum of £4,153.88, drawn on the Santander account, was presented and met and then on 7 January 2011 a further cheque for £2,000, drawn on the same account, was presented and met. Thus there was a total withdrawal from that account of £6,153.88.
20. The appellant's daughter Katie attended a private school from January 2010. At that stage the fees were £3,780 a term. The fees rose, as they inevitably do. The second daughter Emily started at the same school in January 2011. At that stage the fees were £4,200 a term.
21. At the start of the trial against the appellant the indictment contained two counts only. The statement and particulars of offence of count 1 in the original indictment were as follows:
"PARTICULARS OF OFFENCE

...CAROLE DENISE NORMAN between the 25th day of November 2010 and the 8th day of January 2011 with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that on 26th November 2010 [you] sought the variation of a Crown Court restraint order to allow for the release of £5,000 to purchase a family car when that need did not exist, and thereafter used the money to fund other expenditure."

22. Count 2 on the original indictment was a count of concealing criminal property, contrary to section 327(1)(a) of the Proceeds of Crime Act 2002. The particulars of the offence in respect of count 2 were that:

"CAROLE DENISE NORMAN between the 2nd day of December 2010 and the 13th day of January 2011 concealed criminal property namely, £3,000 cash knowing or suspecting it to constitute a person's benefit from criminal conduct."

23. On the forth day of the trial the prosecution applied to stay the original indictment and to prefer a new one with three counts on it. Counts 1 and 2 of the proposed new indictment both alleged that the appellant had committed acts tending and intended to pervert the course of public justice, but the particulars of offence were, of course, different in each case.
24. The particulars of offence of the proposed new count 1 were as follows:

"CAROL DENISE NORMAN between the 25th day of November 2010 and the 8th day of January 2011 with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that on 26th November 2010 after you applied for the release of the sum of £5000 from a joint account which was the subject of a restraint order for the specific purpose of purchasing a motor car when she (sic) had no intention of purchasing the said car but to use the said sum to fund other expenditure."

The particulars of offence on count 2 of the proposed new indictment were as follows:

"CAROL DENISE NORMAN between the 25th day of November 2010 and the 8th day of January 2011 with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice in that after the 26th November 2010 having applied for and being granted the release of the sum of £5000 from a joint account which was the subject of a restraint order for the sole purpose of purchase of a motor car failed to apply the said sum to that purchase or seek a variation of the order or return the said sum but used it to fund other expenditure."

25. What had been count 2 on the original indictment became count 3 and that was in its unamended form. The reason for the prosecution wishing to amend the indictment so as to have the new counts 1 and 2, was because the prosecution wished to put two different factual cases to the jury. The first was that the appellant applied to the Crown Court Judge for a variation of the restraint order in November 2010 knowing at that time that she had no intention of using any money thereby released to buy a car. The alternative scenario, which the prosecution said was not covered by the original count 1, was that even if the appellant had a genuine intention at the time of the application for a variation in November 2010 to buy a Smart Car with the money, she did not in fact use the money released by HHJ McGill's order of 26 November 2010 for that purpose, and the money was in fact used for other unauthorised expenditure.
26. The application to stay the original indictment, and to prefer a new one, was opposed by Mr Edie representing the appellant at the trial, as he did on this appeal. The judge however allowed the new indictment. In her ruling permitting the amended indictment the judge accepted that the original count 1 did not cover both the alternative factual cases that the prosecution wished to put to the jury. The judge rejected the defence argument that before the allegation could be made in the new count 2 there had to be a written order from the court as a result of the hearing on 26 November 2010.
27. HHJ Belcher had before her a transcript of the variation of the restraint order hearing before HHJ McGill. Judge Belcher was quite satisfied that HHJ McGill had made an order that £5,000 was to be released so that the appellant could purchase a car of any type. Judge Belcher also held in her ruling that the appellant was not prejudiced by the proposed changes in the indictment and that the appellant had been able to meet the case in the course of her evidence during the trial.
28. In her summing-up HHJ Belcher gave directions as to what the prosecution had to prove in order that the jury could find the appellant guilty on count 2. These are dealt with at pages 8, 9 and 10 of the transcript. The judge directed the jury that there were three elements that the prosecution had to prove: first, the judge said that it was the prosecution case that when it transpired that the £5,000 was not needed to purchase a car the appellant should have "handed the monies back or sought a further variation in the Restraint Order as the purpose for which she was given the monies had ceased to exist". (see page 8, lines 12 to 15) So the judge said the first question to be answered by the jury was: were the jury sure that the appellant would not use the money to purchase a car? The judge went on to say that if the jury were satisfied that the answer to that question was "We are sure that the appellant did not use the money to purchase a car", then the second question was: Did the appellant's:"... actions in using the monies for something other than a car instead of returning them [have] a tendency to pervert the course of public justice. The course of public justice includes the process of criminal investigation and ongoing criminal proceedings. An act has a tendency to pervert the course of public justice if that act without more might lead to injustice. To put this another way, it is not necessary for the Prosecution to prove that the act actually did pervert the course of justice but that it simply had the tendency so do so." (see page 9, lines 10 to 19 of the summing-up).
29. The prosecution case was that this money should have been restrained and used for the confiscation proceeding if not for buying a car. The way that the judge put it was at page 9, line 21:

"The Prosecution case is that using money for a purpose other than that for which they were released and/or failing to hand the monies back when the purpose ceased to exist had a tendency to pervert the course of public justice. This they say is because the monies that would otherwise have been restrained and available in the confiscation proceedings if needed have been reduced by the misdirection of funds or the failure to hand the funds back. This is not conceded by the Defence and is a matter for you to decide."

30. The third element the judge said that the prosecution had to prove was that the appellant intended to pervert the course of public justice. The prosecution case on this was that this conclusion could be drawn from the fact that the appellant failed to hand back the £5,000 that had been released by the court order. The defence case was that the funds had been used to pay for the car by way of repayment of Mr Guest's loan, which he had then refused to take. The judge gave a further direction at page 10, lines 13 to 19:

"If, having considered all of the evidence, you are sure firstly that Alan Guest refused payment of the loan and, secondly, that Carole Norman failed to hand back the monies and, thirdly, that Carole Norman intended to pervert the course of justice, your verdict on count 2 must be guilty. If you are not sure in respect of anyone or more of those elements your verdict on count 2 must be not guilty."

31. It seems that a "route to verdicts2 had been prepared by the judge and considered by counsel before the summing-up had started. However, it was not handed out to the jury until after the judge had completed her summing-up, but there is no need to refer further to it.
32. Originally there were four proposed grounds of appeal. The Single Judge gave leave to appeal on ground 2. That reads:

"The particulars of count 2 alleged failures to act. The offence of doing acts tending and intended to pervert the course of public justice cannot be committed by omissions, Headley [1995] Crim LR 737."

33. It is accepted that ground 4 only arises if the appeal in relation to count 2 is successful because count 4 says:

"Since the conviction on count 2 is unsafe, so also is the conviction on count 3 as there is no criminal property as required by the definition of the offence."

34. The Single Judge refused leave to appeal in respect of ground 3. That reads:

"The judge misdirected the jury on the element of tending to pervert the course of public justice in relation to count 2, and did so on an incorrect factual basis."

35. The appellant now applies for leave to renew out of time the application for leave to appeal in respect of that ground 3, relying on the very recent decision of this court in R v Kenny [2013] 3 WLR 59.
36. We will deal, first of all, with ground 2. The allegation in the particulars of offence of count 2 of the amended indictment is, in short, that although the appellant had a genuine intent to use the funds for which a variation of the restraint order was sought only for the purpose of purchasing a car thereafter, the appellant "failed to apply the said sum to that purchase or [to] seek a variation of the order or return the said sum but used it to fund other expenditure". The prosecution case was that the "other expenditure" was school fees of the two daughters.
37. The "acts" which are said to constitute a "tendency to pervert the course of public justice" are therefore put in the particulars of offence of count 2 as four different alternatives: firstly, the failure to use the money to buy the car; secondly, the failure to obtain a variation; thirdly, the failure to return the money; and fourthly, as a result of all those, putting the money to an unauthorised use. That, on the prosecution's case, was the payment of the school fees. It is to be noted that the allegations, at the most, amount to no more than there being a breach of the restraint order as varied by HHJ McGill on 26 November 2011. No further criminal conduct beyond that breach of the restraint order is encompassed by the particulars of offence in count 2.
38. On behalf of the appellant, Mr Edie submits that failures to act cannot amount to the offence of doing an act tending and intended to pervert the course of justice. He refers us to the case of R v Headley [1996] RTR 173 in which the judgment of this court was given by Lord Taylor of Gosforth CJ. In that case the Lord Chief Justice referred to the well-known description of the offence as given by Barren Pollock in R v Vreones [1891] 1 QB 360 at 369:

"The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice."

Lord Taylor then referred to the definition given in the then current edition of Archbold:

"The offence is committed where a person or persons (1) acts or embarks upon a course of conduct (2) which has a tendency to, and (3) is intended to pervert, (4) the course of public justice..."

39. In the case of Headley the appellant had literally done nothing, therefore there was no act which could form a "course of conduct", let alone one which had a tendency to pervert the course of justice. The definition of the offence used in Headley was adopted by Gross LJ in giving the judgment of this court in the very recent case of Kenny at paragraph 27. Gross LJ then gives some examples and he emphasises that there is no closed list of acts which may give rise to the offence, and that there should be no attempt to confine the offence to the specific instances or categories which have so far appeared in the reports (see paragraph 28). We respectfully agree.
40. In this case if the particulars of offence of count 2 had been confined to the first three alternatives it may be that this point would have been arguable, but the prosecution also alleged, and this was the prosecution's point of aim, that the appellant had engaged in a course of conduct in the sense that she, through a minuet or sarabande or gavotte, or some other type of dance or movement of the released funds from account to account, had applied them for the unauthorised use of paying for the school fees. No point was taken at the trial that there were four alternatives all rolled up in the particulars of offence of count 2. No application was made for a direction to the jury as in the case of Smith. If the jury were satisfied the released funds were used for the school fees via a roundabout route, then that would be a course of conduct. Therefore we are satisfied there is nothing in ground 2 of the grounds of appeal, subject to what we have to say about proposed ground 3.
41. The "course of conduct" of applying released funds for the unauthorised purpose of paying the school fees would only have a tendency to pervert the course of public justice if it meant that there was, as a result of that course of conduct, a dissipation of funds, or a danger of dissipation of funds which would, but for the release, have been potentially available to fulfil any confiscation order. This leads us back into ground 3 of the original proposed grounds of appeal for which the Single Judge did not give leave and for which the renewed application is made.
42. There are, in reality, two different points that Mr Edie wishes to make under the heading of ground 3. The first is that on the facts there was no, or no appreciable, dissipation of assets at all, so that the judge was wrong to direct the jury on the factual basis that he did at page 9, line 21 to page 10, line 4, to which we have already referred.
43. Mr Edie points out the Smart car remained an asset of the appellant and was therefore available as an asset for restraint and potential fulfilment of a confiscation order. Therefore, the argument runs, the actions of the appellant, even if it includes the course of conduct of applying the released money for the unauthorised object of paying for school fees, did not, or cannot, without more, lead to any injustice so that there cannot have been any tendency to pervert the course of public justice.
44. This is a point which Mr Edie frankly accepts was not argued before the judge at all. Whether there was a dissipation or risk of dissipation is a matter of fact for the jury to decide. It is too late to raise it now. We reject that argument.
45. The second subpoint Mr Edie wishes to argue is that to charge this appellant with this offence of acts tending and intended to pervert the course of public justice, when all that happened was, at worse, that the terms of a variation of the restraint order have not been observed au pied de la lettre is wrong because this offence should not be charged when nothing more had happened than a breach of the terms of a variation order.
46. This was the point that was considered by this court in Kenny. In that case it was argued that where the defendant had by his acts committed no illegality that went beyond a breach of the restraint order that had been made under POCA, then it was improper to charge a simple breach of a restraint under POCA as the offence of doing acts tending and intended to pervert the course of public justice. The judge had ruled against that submission at the trial and the appellant thereafter pleaded guilty. This court agreed with the judge's ruling.
47. Gross LJ, having referred to various authorities, summarised the law as follows at paragraph 35:

"For present purposes, the state of the law concerning the offence of perverting the course of justice may be summarised as follows: (i) there is no closed list of acts which may give rise to the offence; (ii) that said, any expansion of the offence should only take place incrementally and with caution, reflecting both principles of common law reasoning and the requirements of article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (iii) so far as concerns the offence generally, neither authority nor principle supports confining the requisite acts to those giving rise to some other independent criminal wrongdoing; (iv) if there is no such limitation generally, then there is no basis for importing such a restriction – as a matter of law – into the elements of the offence where it arises in the context of a breach of a restraint order."

48. Mr Edie relies particularly on the comments then made by Gross LJ in paragraph 36, where the learned Lord Justice said that in cases of breaches of restraint orders nothing should encourage prosecutors to charge perverting the course of justice where it is unnecessary to do so, and that ordinarily the sanction of proceedings for contempt of court will suffice. Gross LJ said that normally the charge of perverting the course of justice should only be made where there are "serious aggravating features". With those comments we respectfully agree.
49. Mr Edie would now wish to submit that there are no such "serious aggravating features" in this case and that this is reflected in the sentence passed upon conviction. Therefore Mr Edie would wish to argue that this charge on count 2 constituted an abuse of process. If Kenny had been decided before the trial, then he would have submitted that the case should have been stayed as being an abuse of process.
50. In our judgment this argument cannot succeed. In Kenny at paragraph 41 this court reiterated that, as a matter of law "... a breach of a restraint order made under POCA is capable, without more (ie, involving no illegality beyond the breach of the order itself), of constituting the offence of perverting the course of justice." In this case the effect of the course of conduct of the appellant was that the money was released for a legitimate purpose, ie the purchase of a car, but that car had already been purchased some weeks before via Shred-X, yet the money was retained. The position was that on the facts put forward by the prosecution the jury was entitled to come to the conclusion that this money had, by a roundabout route, been used to pay for school fees, which was not the use for which it had been released.
51. That, in our view, would be a serious breach of a restraint order and, in our judgment, it could not be said that the decision to charge count 2 was an abuse of process. The breach of the restraint order did mean that money was dissipated and that, without more, was capable of leading to injustice as fewer assets were thereby available to meet any confiscation order. Therefore, whilst we will grant leave to renew out of time to make the application for leave to argue ground 3, and we grant leave to argue ground 3, we dismiss that ground of appeal.
52. It follows that ground 4 must also be dismissed and that the appeal over all must be dismissed.
53. LORD JUSTICE AIKENS: We are nevertheless very grateful to you

Mr Edie for raising the point. Thank you both.