Jersey Unreported Judgments

Perverting the course of justice - no case to answer

[2020]JRC026

Royal Court

(Samedi)

12 February 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner sitting alone

The Attorney General

-v-

Charles David Barnett

R. C. P. Pedley Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        At the close of the prosecution case Advocate Steenson for the defendant submitted that there is no case to answer.  The relevant principles are set out in Archbold at paragraphs 4-364 by reference to the well-known case of R v Galbraith [1981] 1 WLR 1039 in which the proper approach was held to be as follows:-

"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty - the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.  (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

2.        The defendant is charged with perverting the course of justice.  The particulars of the offence as set out in the indictment read as follows:-

"Charles David Barnett, between the 31^st March 2016 and 26^th April 2016, in the Island of Jersey, criminally perverted the course of justice by preparing a confession letter and instructing Eric MAHE to arrange for the said letter to be signed by Francis VOISIN"

3.        The defendant had been convicted before the Royal Court of possessing and making indecent images of the children on 3^rd December, 2015.  His defence then was that his partner had planted them.  His conviction was upheld by the Court of Appeal on the 17^th March, 2016.  At no stage during those proceedings did the defendant allege in Court that Mr Voisin had been responsible for these images. 

4.        It is admitted that on the 1^st April 2016, after a number of written exchanges between the defendant and Advocate Begg, the defendant sent this letter from prison to Mr Mahe, a business acquaintance of his, who had assisted him during the trial.  The letter read as follows:-

"1st April:-

Eric

See what you can do with this.

There are two copies for Frank to sign (keep both or give him one if you have to) and a copy for you to show to anyone who says anything.

Please sign as Witness and Date, then send to me here.

Thanks and I will keep my fingers crossed!

Chas"

5.        Enclosed were two copies of the same letter which read as follows:-

"To Whom It May Concern

I Francis Chapple Voisin of:

Devonia,

Route de Genets

St Brelade

Jersey

Hereby say that during the period of approximately 1998 to 2002, I was the key holder of the business premises of:

Cobra Radio Communications

Route de Genets

St Brelade

Jersey

Within that period of time, I used the computer on that premises during the evenings and downloaded images of young girls that would be described as indecent and also, images of crucifixions.

Additionally, I hand wrote my initials (FV) on the web site addresses on an A4 thick envelope and left it on the premises. 

I did not realise at the time that such images were unlawful and I now realise that Charles D Barnett has been blamed and imprisoned as a result of my wrong doings. 

My wish is that his name is cleared from blame from these images and that he be released from prison"

There is a place for Mr Voisin to sign, a place for a witness and a place for a date.

6.        Now the defendant stated in his question and answer session with the police, that Mr Voisin had access to his business premises during this period of 1998 to 2002 and according to the defendant, used his computer in the evenings.

7.        In evidence Mr Mahe, who had been an honorary police officer for some 14 years, said he had discussed these matters with the defendant over the telephone beforehand, and had said to him "I will look at the letters, and decide what to do".  When he got the letters he felt it was wrong and inappropriate to approach Mr Voisin, but at the same time, wrong to bin the letters or to take no action.  He decided it was best to approach the police for them to deal with.

8.        Mr Mahe confirmed that the defendant had previously raised the possible involvement of Mr Voisin with at least two of the defendants' lawyers, even if this was not raised before the Court at trial or during the appeal.  After interviewing the defendant on suspicion of perverting the course of justice, the police did bring Mr Voisin in for questioning, but he was found to be unfit to be interviewed by a Dr Barrett who had assessed him as having severe cognitive impairment, which impairment still continues to this day. 

9.        The defendant had also sent to Mr Mahe a document, comprising a hand written list of websites which it would seem was found by the police with indecent images of children when searching the defendant's lockup garage, and which has Mr Voisin's initials in two places.  Mr Mahe was unable to say whose handwriting it was, but the defendant will say that these were lists written or prepared by Mr Voisin.

10.      There are four elements to this offence, each of which has to be proved namely, that the defendant firstly acted or embarked on a course of conduct, secondly, which had a tendency to and thirdly, was intended to pervert, fourthly the course of public justice. 

11.      Advocate Steenson was only recently instructed for the defendant had a number of criticisms of the prosecution and its conduct of the case, but in my view he made one central submission that requires consideration in the context of a no case application, and that relates to the second element of the offence namely, whether the actions of the defendant had a "tendency" to pervert. 

12.      In his helpful paper on the ingredients of the offence, Crown Advocate Pedley gave this, in my view, accurate summary of the law in relation to the second element. 

"In R v Rowell (Michael Charles) [1978] 1 WLR 132 the Court of Appeal cited with approval Pollock B's statement in R -v- Vreones [1981] 1 QB 360, "The real offence... is the doing of some act which has a tendency and is intended to pervert the administration of public justice." An act done with the intention of perverting the course of justice is not enough; the act must also have that tendency.  The prosecution does not have to prove that the tendency or possibility did materialise, but only that the tendency existed.  The word "pervert" has a meaning "alter" but the behaviour does have to go that far.  All the prosecution needs to prove is that there is a possibility that what the suspect has done "without more" might lead to a wrong result such as the arrest of an innocent person. "R v Murray (Gordon Ellison) [1982] 1 WLR 475."

13.      Advocate Steenson asked how a letter, which Mr Voisin had a choice to sign or not, could pervert the course of justice.  Assuming Mr Voisin was compos mentis, if he signed the confession, then he would be admitting his involvement, and any investigation or subsequent conviction of him would not be wrong.  If on the other hand he refused to sign, then there would be no confession.  In fact in this case, it had been left to Mr Mahe to decide what to do with the unsigned confession and it never went to Mr Voisin. 

14.      Was there a possibility, on the evidence of the prosecution, that sending the letter to Mr Mahe, which Mr Voisin had a choice to sign or not, might lead to a wrong result, such as the arrest of an innocent person?

15.      It is instructive and, for comparative purposes, helpful in my view to look at examples of cases of perverting the course of justice, as set out in the authorities and they by way of summary are:-

(i)        Making false allegations;

(ii)       Perjury;

(iii)      Concealing evidence;

(iv)      Obstructing the police;

(v)       Failing to prosecute and

(vi)      Interfering with witnesses, evidence or jurors. 

In relation to this last category, if a person has been summonsed as a witness deliberately absents himself in return for payment he will have committed the offence.  The offence would not necessarily be committed where a person tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or refrain from giving false evidence.  However, the offence will be committed if unlawful means are used, even when the aim is to prevent an injustice.  There may be cases where the issue of improper pressure could properly be left with the jury.  However, some means of inducement (e.g. bribery) are improper and a judge should direct that if proved, the defendant is guilty (R v Kellett (Alan Rex) [1976] QB 372).  If the end in view is improper then the offence may be committed even where the means of persuasion used are not unlawful or improper (R v Tony (Ivan) [1993] 1 WLR 364).

16.      In this case, the defendant whilst acknowledging his conviction, has consistently maintained his innocence as he is entitled to do.  In his Q&A with the Police he said that he had not involved Mr Voisin in the trial as he was an old friend of his and he thought he had enough evidence to be acquitted of the charges.  It was only after his appeal had failed that he took what he described as the hard decision to write the letter to Mr Mahe.  It is not a letter making an allegation against Mr Voisin, but in effect an invitation for him to confess to his involvement. 

17.      In Crown Advocate Pedley's paper on the ingredients of the offence, he gave this commentary in relation to the second element of the offence and quoting:

"In this case, if Mr Voisin had signed the letter as requested it would amount to an admission of a criminal offence and would almost certainly result in an investigation of Mr Voisin, and expose him to the risk of arrest, detention or wrongful conviction.  The intended effect would be that Mr Voisin assume the blame for the offences committed by the Defendant.  The fact that Mr Voisin is unlikely or lacked capacity to sign such a letter is not in issue."  [My emphasis]

This, as can be seen, assumes that any confession would have been a false one. 

18.      In terms of Mr Voisin's mental state, Crown Advocate Pedley went on to say this at paragraphs 13 and 14 and again I quote:-

"13. The prosecution position is that Mr Voisin's mental state is not in issue when it comes to the offence being made out.  As held in Michel, the fact that third parties had to act as instructed to further the plan before justice was actually perverted is irrelevant and: "The acts of third parties may be required before justice is actually perverted but the offence is nonetheless committed. (Paragraph 36)

14. The prosecution suggest that Mr Voisin's mental state may have made it more likely that he might sign the statement as planned, but that this would amount only to an aggravating factor, depending on the Defendant's knowledge of his mental state at that time."

19.      The prosecution case, is that there is no credible evidence to implicate Mr Voisin and as the case progressed the prosecution went further to file with the jury, with leave, a copy of the Act of the 3^rd December 2015 showing the details of the five counts of which he was convicted, which it says will show that Mr Voisin could only have been involved in Count 2; a position not accepted by the defence.  The prosecution will say that the defendant has deluded himself in relation to these offences, and is living in denial.  If he has a belief in Mr Voisin's involvement, then it has to be a reasonable belief, which the prosecution say it is not. 

20.      In considering whether the acts of the defendant had a tendency to pervert, it is inevitable in my view that the jury must conduct a hypothetical exercise; what would have happened if the letter had been taken to Mr Voisin.  The defendant had placed that exercise in the hands of Mr Mahe.  There was on the prosecution evidence no "instruction" to Mr Mahe to arrange for it to be signed, as alleged in the Indictment.  The letter to Mr Mahe simply said "see what you can do with this", and there is no suggestion in the letter or in communications with Mr Mahe of the defendant asking for any pressure or any inducement to be applied to Mr Voisin.  The defendant, it would seem, simply hoped that Mr Voisin would confess and nothing more.

21.      It is not the prosecution case that the defendant had randomly selected Mr Voisin, because of his cognitive impairment, with a view to obtaining a false confession and there is no evidence that the defendant knew the extent of the impairment of Mr Voisin when he wrote the letter.

22.      In my view, it comes down to the proposition as to whether inviting a person to sign a confession when there is no pressure placed or inducement offered to do so, can ever lead to the course of justice being perverted; simply because the person has a free choice whether to confess or not.  There is no evidence that the defendant used unlawful means in order to have the confession letter placed before Mr Voisin.  Indeed the defendant says in his Q&A that this was done after advice from his lawyer Advocate Begg. 

23.      In my view, on the evidence before the jury in this case, I would have to direct them in such a way that they could not properly convict on this second element of the offence.

24.      Advocate Steenson submitted there was no evidence to support the second element of this offence at all.  In my view, there is evidence in the form of the letters, but taken at its highest, I conclude that a jury properly directed could not properly find the second element proved essentially because this constitutes an invitation to Mr Voisin to confess to a crime without any pressure being placed or inducements offered for him to sign, or indeed without any unlawful means being employed. 

25.      I do therefore find that there is no case to answer, the second element of the offence at least, not being made out. 

Authorities

Archbold Criminal Pleading, Evidence and Practice. 

R v Galbraith [1981] 1 WLR 1039. 

R v Kellett (Alan Rex) [1976] QB 372. 

R v Tony (Ivan) [1993] 1 WLR 364)