Public Justice Offences incorporating the Charging Standard

Revised: 09 February 2011

• Introduction
  • Charging Standard – Purpose
  • Perverting the Course of Justice
• General Charging practice
  • Charging Practice for Public Justice Offences
  • Perverting the Course of Justice
  • Misrepresentation as to Identity
• Perjury
  • Perjury by a Prosecution Witness
  • Perjury by a Defendant
  • Perjury by a Defence Witness
  • Offences Akin to Perjury
• Offences Concerning Witnesses and Jurors
  • Intimidating or Harming Witnesses and Others – Criminal Proceedings
  • Section 51(1): Intimidation of Witnesses/Jurors
  • Section 51(2): Harming People who have Assisted the Police/Given Evidence/Been a Juror
  • Application to set aside a ‘Tainted’ Acquittal
• Interfering or Harming Witnesses – Civil Proceedings
  • Section 39 – Intimidation
  • Section 40 – Harming
• Interference with Jurors
  • Offences Committed by Jurors
  • Public Interest Considerations
  • Permission to Interview Jurors
• Offences Concerning the Police
  • Obstructing a Police Officer
  • Wasting Police Time
  • Misrepresentation as to identity
  • Impersonating a Police Officer
  • Refusing to Assist a Constable
• Offences Concerning Prisoners and Offenders
  • Failing to Surrender to Bail
  • Harbouring Escaped Prisoners
  • Assisting an Offender
• Offences Concerning the Coroner
  • Obstructing a Coroner – Preventing the Burial of a Body

Introduction

A large number of offences cover conduct, which hinders or frustrates the administration of justice, the work of the police, prosecutors and courts.

Charging Standard – Purpose

The charging standard below, gives guidance concerning the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met. The purpose of charging standards is to make sure that the most appropriate charge is selected, in the light of the facts, which can be proved, at the earliest possible opportunity.

Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police, CPS and the courts.

This will help the police and Crown Prosecutors in preparing the case. Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police and the Crown Prosecution Service.

The guidance set out in this charging standard:

• should not be used in the determination of any investigatory decision, such as the decision to arrest;
• does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning or conditional cautioning;
• does not override the principles set out in the Code for Crown Prosecutors;
• does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest;
• does not remove the need for each case to be considered on its individual merits or fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.

This standard covers the following offences:

Perverting the Course of Justice

Perjury

• Offences akin to perjury

Offences Concerning Witnesses and Jurors

• Intimidation – criminal proceedings
• Intimidation – civil proceedings
• Offences committed by jurors

Offences Concerning the Police

• Obstructing a police officer
• Wasting police time
• Impersonating a Police Officer
• Refusing to assist a constable

Offences Concerning Prisoners and Offenders

• Escape
• Harbouring
• Assisting an offender
• Prison Mutiny

Offences Concerning the Coroner

• Obstruction
• Preventing Burial of a Body

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General Charging Practice

You should always have in mind the following general principles when selecting the appropriate charge(s):

• the charge(s) should accurately reflect the extent of the accused’s alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately;
• the choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
• there should be no overloading of charges by selecting more charges than are necessary just to encourage the accused to plead guilty to a few;
• there should be no overcharging by selecting a charge which is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.

Charging Practice for Public Justice Offences

The following factors will be relevant to all public justice offences when assessing the relative seriousness of the conduct and which offence, when there is an option, should be charged. Consider whether the conduct:

• was spontaneous and unplanned or deliberate and elaborately planned;
• was momentary and irresolute or prolonged and determined;
• was motivated by misplaced loyalty to a relative/friend or was part of a concerted effort to avoid, pervert, or defeat justice;
• whether the activities of the defendant drew in others;
• was intended to result in trivial or ‘serious harm’ to the administration of justice;
• actually resulted in trivial or ‘serious harm’ to the administration of justice.

Examples of ‘serious harm’ include conduct which:

• enables a potential defendant in a serious case to evade arrest or commit further offences;
• causes an accused to be granted bail when he might otherwise not have;
• avoids a police investigation for disqualified driving or other serious offences;
• misleads a court;
• puts another person in real jeopardy of arrest/prosecution or results in the arrest/prosecution of another person;
• avoids a mandatory penalty such as disqualification;

• results in the police losing the opportunity to obtain important evidence in a case.

In cases of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Although there may be public interest factors against prosecution in a particular case, prosecutions for public justice offences should usually go ahead and those factors should be put to the court for consideration when sentence is being passed.

For guidance on charging in cases involving rape and/or domestic violence allegations see Perverting the course of Justice – charing in cases involving rape and or domestic violence allegations, elsewhere in the Legal Guidance.

Perverting the Course of Justice

(Archbold 28-1 to 28-28)

The offence of Perverting the Course of Justice is committed when an accused:

• does an act or series of acts;
• which has or have a tendency to pervert; and
• which is or are intended to pervert;
• the course of public justice.

The offence is contrary to common law and triable only on indictment. It carries a maximum penalty of life imprisonment and/or a fine.

The course of justice must be in existence at the time of the act(s). The course of justice starts when:

• an event has occurred, from which it can reasonably be expected that an investigation will follow; or
• investigations which could/might bring proceedings have actually started; or

• proceedings have started or are about to start.

In R v Cotter and Others [2000] EWCA Crim 1033 it was held that ‘the course of public justice included the process of criminal investigation following a false allegation against either an identifiable or unidentifiable individual.’

The offence of perverting the course of justice is sometimes referred to as “attempting to pervert the course of justice”. It does not matter whether or not the acts result in a perversion of the course of justice: the offence is committed when acts tending and intended to pervert a course of justice are done. The words “attempting to” should not appear in the charge. It is charged contrary to common law, not the Criminal Attempts Act 1981: R v Williams 92 Cr. App. R. 158 CA.

The offence of perverting the course of justice overlaps with a number of other statutory offences. Before preferring such a charge, consideration must be given to the possible alternatives referred to in this Charging Standard and, where appropriate, any of the following offences:

• corruption: Prevention of Corruption Act 1906 and Public Bodies Corrupt Practices Act 1889;
• agreeing to indemnify a surety: s.9 Bail Act 1976;
• making false statement: s.89 Criminal Justice Act 1967, s.106 Magistrates’ Courts Act 1980 and s. 11(1) European Communities Act 1972;
• using documents with intent to deceive: s.173 Road Traffic Act 1988;
• impersonating a police officer: s.90 Police Act 1966;
• acknowledging a recognisance or bail in the name of another: s.34 Forgery Act 1861; and

• concealing an arrestable offence: s.5 Criminal Law Act 1967.

Perverting the course of justice covers a wide range of conduct. A charge of perverting the course of justice should, however be reserved for serious cases of interference with the administration of justice. Regard must be had to the factors outlined General Charging Practice, above in this chapter and Charging Practice for Public Justice Offences, above in this chapter, which help to identify the seriousness of the conduct.

Before deciding to proceed with a charge of perverting the course of public justice you should consider whether the acts complained of can properly be dealt with by any available statutory offence, or any other offence mentioned in this Charging Standard. If the seriousness of the offence can properly be reflected in any other charge, which would provide the court with adequate sentencing powers, and permit a proper presentation of the case as a whole, that other charge should be used unless:

• the facts are so serious that the court’s sentencing powers would be inadequate; or
• it would ensure the better presentation of the case as a whole; for example, a co-defendant has been charged with an indictable offence and the statutory offence is summary only.

Note that in R v Sookoo (2002) TLR 10/4/02 the Court cautioned against adding a count of perverting the course of justice when the conduct could properly be treated as an aggravating feature of the principal offence. However, consecutive sentences may be imposed when the conduct is a separate and subsequent act, in which case a count of perverting the course of conduct should be considered.

The following are examples of acts which may constitute the offence, although General Charging Practice, above in this chapter and Charging Practice for Public Justice Offences, above in this chapter should be carefully considered before preferring a charge of perverting the course of justice:

• persuading, or attempting to persuade, by intimidation, harm or otherwise, a witness not to give evidence, to alter his evidence or to give false evidence;
• interference with jurors with a view to influencing their verdict;
• false alibis and interference with evidence or exhibits, for example blood and DNA samples;
• providing false details of identity to the police or courts with a view to avoiding the consequences of a police investigation or prosecution;
• giving false information, or agreeing to give false information, to the police with a view to frustrating a police inquiry; for example, lying as to who was driving when a road traffic accident occurred;
• lending a driving licence to another to produce to the police following a notice to produce, thereby avoiding an offence of driving whilst disqualified being discovered;
• agreeing to give false evidence;
• concealing or destroying evidence concerning a police investigation to avoid arrest;
• assisting others to evade arrest for a significant period of time; and
• making a false allegation which wrongfully exposes another person to the risk of arrest, imprisonment pending trial, and possible wrongful conviction and sentence.

In deciding whether or not it is in the public interest to proceed, consideration should be given to:

• The nature of the proceedings with which the defendant was trying to interfere;
• The consequences, or possible consequences, of the interference.

A prosecution may not be in the public interest if the principal proceedings are at a very early stage and the action taken by the defendant had only a minor impact on those proceedings.

It is likely that perverting the course of justice will be the appropriate charge when:

• the acts wrongfully expose another person to risk of arrest or prosecution;
• the obstruction of a police investigation is premeditated, prolonged or elaborate;
• the acts hide from the police the commission of a serious crime;
• a police investigation into serious crime has been significantly or wholly frustrated or misled;
• the arrest of a wanted person for a serious crime has been prevented or substantially delayed, particularly if the wanted person presents a danger to the public or commits further crimes;
• the acts completely frustrate a drink/drive investigation thereby enabling the accused to avoid a mandatory disqualification;
• the acts strike at the evidence in the case. For example, influencing a vital witness to give evidence/altered evidence/false evidence, or destroying vital exhibits or frustrating a scientific examination;
• the acts enable a defendant to secure bail when he would probably not have otherwise secured it;
• the acts strike at the proceedings in a fundamental way. (For example, by giving a false name so as to avoid a mandatory disqualification or a ‘totting’ disqualification: giving false details which might significantly influence the sentence passed; giving details which may result in a caution instead of prosecution);
• concerted attempts to interfere with jurors; attacks on counsel or the judge; or conduct designed to cause the proceedings to be completely abandoned);
• a concerted attempt has been made to influence significant witnesses, particularly if accompanied by serious violence;
• the sentencing powers of the court for an alternative offence would be inadequate