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Cite as: [2003] QB 951, [2003] 2 WLR 115, [2002] 2 Cr App R 29, [2002] EWCA Crim 1033, [2002] Crim LR 824

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Cotter & Ors, R v [2002] EWCA Crim 1033 (10th May, 2002)

Neutral Citation Number: [2002] EWCA Crim 1033
Case No: 2001/3630/3631/3731/Z5

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
(HHJ ORME)

Royal Courts of Justice
Strand,
London, WC2A 2LL
10th May 2002

B e f o r e :

LORD JUSTICE LATHAM
MR JUSTICE GOLDRING
and
HIS HONOUR JUDGE METTYEAR

____________________

Between:
R

- and -

CHRISTOPHER JAMES COTTER
SURJIT SINGH CLAIR
CRAIG ALAN WYNN

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Timothy Raggat, QC Appeared for the Crown
Mr John Saunders, QC Appeared on behalf of the appellant Cotter
Mr Simon Davis Appeared on behalf of the appellant Wynn
Mr Philip Bown Appeared on behalf of the appellant Clair

____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

    Lord Justice Latham:

  1. This appeal raises the question of the ambit of the common law offence of perverting the course of justice and whether its constituents are sufficiently certain to comply with the requirements of certainty required by Article 7(1) of the European Convention on Human Rights.
  2. On the 8th June 2001 in the Crown Court at Birmingham before HHJ Orme, the appellants were convicted of conspiracy to pervert the course of justice. The appellant Clair was also convicted of attempting to obtain property by deception. They were each sentenced to 2 years imprisonment in respect of the conspiracy count; Clair was sentenced to 12 months imprisonment consecutive in respect of the deception count.
  3. The appellant Cotter was at the relevant time the boyfriend of the Olympic athlete Ashia Hanson. Their relationship was, however, not secure. There had been difficulties. On the 21st March 2000, they had arranged that he should visit her for a meal. He did not arrive when she was expecting him. She looked out for him, and noticed a dark blue estate car with a number of people in it, drive away from near her house without any lights on. About two minutes later she saw the appellant approaching, bent and holding his head. She went to the door where she found him bleeding from a cut to his head and from what appeared to be stab holes in his tee-shirt. He said that he had been mugged. A 999 call was recorded at 10.29 pm. The police and the ambulance service arrived within a short time. The police described finding him on the door step of Ashia Hanson’s address with a serious head wound and three stab wounds in his back. He told the police that after he had parked and locked his car, he was approached by a number of men whom he believed to be white. One of them said “We want to get it”; another said “Where is the bitch?”. He was then attacked. He was accompanied to the hospital by the police and told them that amongst other things that were said was that he “should not mix”. He took that to be a reference to his relationship with Ashia Hanson, because she was black.
  4. At the hospital he was found to have an 8 cm long wound to his forehead which required 10 to 15 stitches. Without treatment it could have been life threatening. He had three wounds to his back with bruising to the trunk and arms. Two of the wounds were superficial being about 1 to 1.5 cms long, but the third was 3 cms deep. One of those wounds was close to the abdomen, which could, of itself, have been dangerous.
  5. The appellants were friends. There was evidence that there had been a number of phone calls between their respective mobile phones during the evening of the 21st March. The appellant Wynn was the owner of an estate car which matched the description given by Ashia Hanson, and one other witness who noticed such a car in the vicinity at the relevant time. The appellant Clair had, on a number of previous occasions, given information to the press, in particular to Mr Gallagher of the Daily Express. There was a phone call timed at 11.47 p.m. on the evening of the 21st March from the appellant Wynn’s mobile to Mr Gallagher which was consistent with Mr Gallagher’s evidence that he had received a phone call from the appellant Clair at about that time. In subsequent telephone conversations between Mr Gallagher and the appellant Clair, the appellant Clair maintained that the attack was a racist attack. He considered that the information was such as to justify a significant payment of up to £6,000 for the story.
  6. Meanwhile the appellant Cotter over a lengthy period of interviews with the police, asserted that it was a racist attack. A few days after the incident, Ashia Hanson received a letter which said:
  7. “Last night you were lucky. Next time we won’t make a mistake”
  8. It contained other offensive remarks. Four other black athletes received similar letters all posted at the same time. The prosecution handwriting expert, Mr Metcalfe considered that there was moderate evidence to show that the letters had all been written by the appellant Clair, although this was disputed by the defendant’s expert, Mr Hughes.
  9. The prosecution case was that the attack on the appellant Cotter was a charade designed to illicit the sympathy of Ashia Hanson and to re-establish the appellant Cotter’s relationship with her. It was also intended to enable them to obtain money from the press for the story. Although those were the appellants’ motives, the prosecution’s case was that in order to achieve them the appellants intended to, and did, set in train a police investigation into a serious, racially motivated assault, which resulted in wide spread police investigations, and put individuals at risk of detention, arrest, charge and even prosecution.
  10. The relevant charge in the indictment of which the appellants were found guilty was in the following terms:
  11. “Christopher James Cotter, Surgit Singh Clair and Craig Alan Wynn on diverse days between the 15th day of March 2000 and the 18th day of May 2000 conspired together with intent to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice in that they falsely represented to the West Midlands Police there existed a racially motivated conspiracy to commit violent attacks on black athletes and their immediate associates.”
  12. At the end of the prosecution the case appellants submitted that they had no case to answer. The basis of the submission was, as set out in the Judge’s ruling:
  13. “The prosecution did need to establish that it would be within the contemplation of these defendants that there would be judicial proceedings; and there needed to be established acts which had a tendency in that context to pervert the course of public justice ...... How could the jury infer, in particular, that what the defendants embarked upon was likely to lead to any sort of criminal proceedings or investigation which would have a tendency to pervert and bring about an injustice?”
  14. The judge after a careful review of the authorities to which we pay tribute, held:
  15. “I have concluded that there is here if they accept it, evidence upon which the jury might convict the defendants in respect of Count 1. It seems to me ... that it is open to the jury here to say that it must have been within the contemplation of these defendants that if they did indeed fabricate an attack upon Mr Cotter involving serious wounding, including stabbing to the back, and if they agreed to report that matter to the police as being a genuine attack with racist undertones, together with the other actions of sending threatening letters and leaking the matter to the press, then there must have been some contemplation that that would lead to police investigation and thereafter to criminal proceedings. Or, put it another way, and indeed put in the way that it is framed in the indictment, that was a series of acts which not only had the tendency to pervert the course of public justice, but in respect of which the defendants must have had the necessary intention.”
  16. The judge having concluded there was a case to answer. The defendants gave evidence. Their evidence was to the effect that the attack on the appellant Cotter was genuine. The appellant Clair accepted that he had sought to obtain money from the Daily Express for the story, but asserted that the story was genuine. They all accepted that they were friends who had been in contact with each other at the relevant time. But they denied emphatically that there was any collusion between them, in particularly that they had devised a plan to cause injury to the appellant Cotter and dishonestly to present it as a genuine attack. As far as they were concerned, the circumstances were such as to justify the conclusion that it was indeed a racist attack.
  17. The judge in directing the jury, took them to the indictment and as to Count 1, said as follows:
  18. “Let me go through the ingredients. ... During that two month period, the prosecution allege that these defendants conspired together with the intention of perverting the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, in that they falsely represented to the West Midlands Police that there existed a racially motivated conspiracy to commit violent attacks on black athletes and their immediate associates. The Prosecution must prove ..... first of all the prosecution must prove an agreement between the defendants to pervert the course of public justice. It is immaterial it does not matter if there were other involved apart from the defendant, provided at least two of the defendants were in agreement together. .....
    What is a course of public justice? I have set down here for you for our purposes what it is. A police investigation which may lead to criminal proceedings is a course of public justice. The prosecution say that is precisely what was undertaken here – a police investigation which might have lead to criminal proceedings. They don’t have to prove that any criminal proceedings would definitely have taken place. They don’t have to prove that, for example, Mr Tinkley would definitely have been charged with any offence or anybody else. What has to be established is that there has been a police investigation which may have lead to criminal proceedings.... there has to be an investigation which has lead to some proceedings in all probability involving other persons.
    The second matter that has to be proved by the prosecution is an intention on each of their parts or on the parts of at least two of them to pervert the course of public justice in the manner that is alleged. When it says “in the manner alleged” that is by doing a series of acts and making the false representations that are set out in the indictment and I will come back to that in due course.
    Thirdly, the prosecution must prove that the series of acts had a tendency to pervert the course of public justice in the manner alleged. To establish a tendency to pervert the course of public justice the prosecution does not have to prove that injustice occurred, but merely that there is a risk or possibility that what the defendants did might lead to an injustice.
    Fourthly, members of the jury, the prosecution has to establish that the defendants falsely represented to the police that there existed a racially motivated conspiracy to commit the violent attacks on black athletes and their immediate associates, in other words making a false allegation of racially motivated attack upon Christopher Cotter followed by the sending of letters both to Ashia Hanson and also to the other black athletes or athletes which purported to come from a raciest organisation and which contained threats.”
  19. The appellants’ submissions are three fold. Firstly, Mr Saunders QC submits on their behalf, that these facts are not sufficient to justify a charge of perverting the course of justice. He submits that there is no binding English authority which justifies the conclusion that simply to make an invented story of a crime to the police is of itself sufficient. There has, at the least, to be an allegation which identifies with some precision a person who is said to have committed that crime. Second, he submits that the judge misdirected the jury as to the necessary intent for the crime. The judge should have directed the jury that it could only convict if satisfied that the appellants intended that some person or persons should be arrested and charged. Third, in any event, he submits that the ambit of the offence is so uncertain as to infringe the requirements of Article 7 of the European Convention on Human Rights
  20. Mr Raggatt QC for the Crown, submits that the judge properly identified the ingredients of the offence for the jury, and accurately directed it as to the necessary intent. He submits that all that is necessary in English Law is that the prosecution prove that the appellants, by means of an invented story, did an act, that is by making the false allegations, which was capable of resulting in police investigations based upon those allegations which were capable in turn of resulting in a criminal prosecution with the necessary intention.
  21. There is no dispute that there is, in English law, an offence of perverting the course of justice. Mr Saunders, QC accepts that its basic ingredients were identified by Baron Pollock in R –v- Vreones [1891] 1 QB 360 at page 369, where he said:
  22. “The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.”
  23. The limits of the examples of the circumstances in which such an offence is committed, have, however, in his submission, been fully set out in the Law Commission’s Report No 96 into Offences Relating to Interference with the Course of Justice (1979), in Archbold 2002, and Blackstone 2002.
  24. In the Law Commission Report the passages he relies on is:
  25. “3.3 A general offence of perverting the course of justice was held to exist in R –v- Grimes [1968] 3 All ER 179, was confirmed by the Court of Appeal in R –v- Panayiotou and Another [1973] 1 WLR 1032, and is now generally accepted.
    3.4 The boundaries of the offence are uncertain but it clearly includes the following:
    (i) Fabricating, concealing or destroying evidence with intent to influence the outcome of judicial proceedings, civil or criminal whether or not they have yet been instituted .....
    vii) Giving a false story to the police in relation to a criminal offence resulting in the arrest of another: R –v- Rowell [1977] 65 CAR 174 R –v- Rose [1937] 1 Jo Crim Law 171 ....”
  26. In Archbold 2002, at 28-3 under the heading “Making false allegations” it is said:
  27. “Conspiracy to charge a man falsely with any crime has long been indictable: Macdaniel’s Case (1775) 19 St Tr 745: and R –v- Rispal (1762) 3 Burr 1320. It seems immaterial whether the conspiracy proceeds so far as actually indicting a person falsely accused; and if the object of the conspiracy is extortion the truth or falsity of the charge is immaterial: R –v- Hollingberry (1825) 4 B & C 329.
    Where a person knowingly makes a false allegation to the police to the effect that a person has committed a criminal offence and as a result that other person is arrested, such conduct constitutes the offence of attempting to pervert the course of justice. In R –v- Rowell 65 CAR 174, the court observed that although section 5(2) of the Criminal Law Act 1967 .... was an appropriate way of dealing with the wasting of police time, it was scarcely an appropriate way to deal with the exposing of the individuals as to the risk of arrest, imprisonment pending trial and possible wrongful conviction. See also R –v- Bailey [1956] NI15 and Withers –v- DPP [1975] AC page 842 HL.”
  28. In Blackstone 2002 at page 658 the only relevant example is:
  29. “(g) Making false allegations against X intending that he should be prosecuted or knowing that he might be (Rowell [1978] 1 WLR 132). Where false stories merely waste police time (e.g. in looking for a none existent defendant) a charge under the Criminal Law Act 1967 s.5(2) would be more appropriate...”
  30. In England, the only case directly in point is R –v- Manley [1933] 1KB 529. In that case the appellant had falsely alleged that she had been robbed by a man whose description she gave to the police. It was the description of an imaginary man. She was charged with unlawfully effecting a public mischief. Lord Hewart CJ said at page 534:
  31. “In the opinion of the court the indictment aptly describes two ingredients of public mischief or prejudice to the community, one of these being that officers of the Metropolitan Police were lead to devote their time and services to the investigation of an idle charge the other being that members of the public or at any rate those of them who answered a certain description were put in peril of suspicion and arrest.”
  32. Shortly thereafter, the High Court of Justicary in Scotland considered in Kerr –v- Hill [1936] SLT 320, a case in which the appellant made a false allegation that a motor omnibus belonging to a named bus company struck a pedal cyclist which resulted in a police investigation. Lord Normand said at page 321:
  33. “The story which the appellant told to the police was an invented story; it was told to the police with the intention that they should commence criminal investigations, and it had in fact that result. In my opinion the giving to the police information known to be false, for the purpose of causing it to institute an investigation with a view to criminal proceedings is in itself a crime.
    Great injury and damage may be caused to the public interest, which is mainly to be regarded by a false accusation, though no individual is named or pointed at by the informer. A charge which is perfectly general and leaves the public at large open to suspicion does nevertheless constitute a crime if it is falsely made. That the appellant when he gave the information to the police did not actually charge a particular crime but left open the possibility that the knocking over of the pedal cyclist might have been the result of an innocent accident but it is also, in my opinion, immaterial. The point is that the criminal authorities were deliberately set in motion by a malicious person by means of an invented story. That is the essence of the crime and when these essentials are present, I think that a crime is committed. Accordingly I am of the opinion that the appeal against conviction fails.”
  34. In R –v- Newland [1954] 1 QB 158, Lord Goddard LCJ made trenchant criticism of R –v- Manley. He considered that the authorities did not support the court’s conclusion that the facts alleged amounted to the offence of public mischief, although he left open the question as to whether or not a conspiracy to the same effect might have been well founded, had two or more agreed to concoct such a story. R –v- Manley and R –v- Newland were both considered by the Court of Criminal Appeal in Northern Ireland in R –v- Bailey [1956] NI 15. In that case, the appellant made a false confession to the police implicating two other men and himself in a murder and was convicted on an indictment which described the offence as “effecting a public mischief”. Lord MacDermott, LCJ considered that the criticism of Lord Goddard was based mainly on the reliance of Lord Hewart LCJ in Manley on a dictum of Lawrence J in R –v- Higgins [1801] 2 East 5:
  35. “All offences of a public nature, that is, all such acts were attempts to lead to the prejudice of the community, are indictable.”
  36. Lord MacDermott said that this broad statement might have been appropriate at the beginning of the 19th century, but was not adequate description of an offence in the 20th century. The Lord Chief Justice therefore put on one side the decision in R –v- Manley, and considered the matter as a matter of principle. He identified acts prejudicial to the administration of public justice as acts which properly attracted criminal sanctions. He said at page 26:
  37. “The administration of public justice, particularly in the criminal sphere, cannot well be confined to the process of adjudication. In point of principle we think it comprehends functions which nowadays belong, in practice almost exclusively, to the police, such as the investigation of offences and the arrest of suspected persons; we see no good reason for regarding these preliminaries as beyond the scope of the category we are now considering.”
  38. He considered the case of R –v- Vreones and concluded that there was no difference in principle between the act of the appellant in that case, which was the removing of wheat from sample bags and substituting wheat of a different quality and value and the act of the appellant in the case in question. He concluded that although the offence had been described in the indictment as “effecting a public mischief” that did not vitiate the indictment. The words “attempting to pervert the course of justice” would have been a closer and more pointed description, but the offence was not otherwise mis-described and did not embarrass the appellant.
  39. In the Director of Public Prosecutions –v- Withers & Others [1975] AC 842, the House of Lords considered, inter alia, R –v- Manley and R –v- Bailey in the course of speeches in an appeal relating to a charge of conspiracy to effect a public mischief, in a very different context. Viscount Dilhorne, with whom Lord Reid agreed appears, at page 858 F to have considered that the court, in R –v- Manley impermissibly used a wide ranging concept of public interest as identified by judges, to uphold the conviction. He concluded, however, at page 860D that it was far too late to hold that a conspiracy to pervert the course of justice was not criminal, and cited Bailey in support. It is somewhat surprising that he used the decision in that case, which was not one in relation to a charge of conspiracy, in support of his conclusion, without any explanation as to how he reconciled that view with his apparent disapproval of R –v- Manley.
  40. Lord Simon of Glaisdale was the only other of their Lordships to deal expressly with R –v- Manley and R –v- Bailey. His conclusion, at page 867 D was:
  41. “On this state of the authorities, and on principle, I think that the better view is that English law knows no offence of conduct by an individual effecting or tending to effect a public mischief. I agree with Lord Goddard CJ’s criticisms of Manley expressed in Newland – in particular that the form was based on an obiter dictum of Lawrence J which is inconsonant with the modern development of the Criminal Law and the implications of which are inconsistent with your Lordships firm endorsement to Knuller [1973] AC 435 with the principle that it is not open to the courts to create new offences in these days. On the other hand, I think that Bailey correctly held that the conduct there in question (and by inference, that in Manley) was indictable as conduct tending to pervert the course of justice. But I must not be taken to be saying that all conduct which misleads or wastes the time of the police or tends to cause disaffection towards them is so indictable. To be punishable as conduct tending to pervert the course of justice, the conduct must be such as can be properly and seriously so described. “Pervert” is a strong word .....”
  42. Later, at page 868A:
  43. “However, I think that the law has so evolved that the various types of conduct held to be criminal perversions of the course of justice are demonstrable as specific instances of a generic offence of conduct tending to pervert the course of justice. I agree that the conduct in Manley [1933] 1 QB 528 and Bailey constituted criminal offences under this head.”
  44. In R –v- Rowell 65 CAR 174, this court considered a case in which the appellant made a false allegation of robbery describing an individual, who was capable of being identified, as the perpetrator. He was charged with: “attempting to pervert the course of public justice”. Ormrod LJ, giving the judgment of the Court, considered the cases of Manley, Kerr –v- Hill, Bailey, and Withers. The court agreed with the statements of Lord Normand and Lord MacDermott which we have already cited as being accurate statements of the law of England. In particular, the court said at page 179, when considering the case of Bailey in particular:
  45. “The wasting of police time and resources was one thing; the exposing of individuals, identified or otherwise, at risk of arrest, imprisonment, pending trial and possibly wrongful conviction and punishment, is quite another., Section 5(2) of the Criminal Law Act 1967 which creates a summary offence as an appropriate was of dealing with the former, but scarcely with the latter, which, if proved, is a much graver matter.”
  46. This decision is binding on us. We consider that it establishes that English law accords with the statements of principle set out by Lord MacDermott. By necessary implication this includes the proposition that for the purposes of the offence, “the course of public justice” includes the process of criminal investigation. The mischief at which it is aimed is clearly set out in the passage in the judgment in Rowell which we have just cited. Although it is true to say that in Bailey the false allegation was made against identifiable individuals, Ormrod LJ makes it clear that the mischief exists whether the allegation is capable of identifying individuals or not. We consider that there can be no distinction in principle between the two situations. Although the risk of an innocent person being subjected to wrongful arrest may be the greater in the former instance, it remains a risk even in the latter, wherever the offence is described with sufficient particularity as to justify a significant police investigation. There may be cases in which a false allegation is made in such a generalised nature that there is no such risk, or the risk is theoretical. In such circumstances it may be more appropriate to invoke the provisions of s. 5.2 of the Criminal Law Act 1967.
  47. We have been referred to a number of subsequent decisions of this court particularly R –v- Selvage & Morgan [1982] 1 QB 372, R –v- Rafique [1993] QB 843. But we do not consider that either of those cases, or indeed any other cases to which we have been referred affect the principles which were established in Rowell. It is to be noted that in R –v- Kiffin [1994] Crim LR 449, the court clearly endorsed the views of Lord MacDermott that the administration, or course, of justice, includes the process of criminal investigation, whether or not that leads to any charges.
  48. Mr Saunders, QC has however, referred us to a decision of the Court of Appeal in Australia, R –v- Rogerson [1992] 174 CLR 268 in which the court considered in some detail the authorities relating to the offence of perverting the course of justice. The court there held that the “course of justice” referred only to the course of court or tribunal proceedings which were imminent, probable or even possible. The earliest moment at which it could be said, according to McHugh J the course of justice commenced was the moment of arrest of a suspect. He submits, that although not binding, this is a persuasive authority to the effect that the defence can only be committed if directed to the commencement of legal proceedings against an individual or individuals in that sense. That could only be the case, he submits, if a false allegation identifies, or is capable of identifying, a particular perpetrator or perpetrators. Further, the necessary intent must therefore be that that perpetrator or those perpetrators should be arrested.
  49. Whilst we recognise the force and respect the reasoning of the judgments in that case, we do not consider that we are free to follow the logic of that case as submitted by Mr Saunders, QC, in the light of the authorities to which we have already referred. Further, as a matter of principle we consider that the description of the mischief of the offence by Lord MacDermott is compelling. If an allegation is made which is capable of being taken seriously by the police so as to institute a criminal investigation with the possible consequences to which we have referred with intent that it should be taken seriously by the police we consider that that is properly described as an act perverting the course of justice.
  50. In his ruling, the judge appears to have gone some way to accepting Mr Saunders QC’s as to the requirements of the offence. But in his directions to the jury, he accurately set out the ingredients in English law, as we have sought to identify them. The necessary intent is simply, that in making the false allegations, the appellants intended that they should be taken seriously, so that there was the possibility of a police investigation being set in train carrying with it the mischief to which the offence, in these circumstances, is directed. The judge’s direction was, in our view, adequate for the purposes of this case.
  51. Mr Saunders, QC has however, a subsidiary argument based on the Human Rights Act 1989. He submits that the juris prudence of the European Court makes it clear that Article 7 of the European Convention on Human Rights requires any criminal charge which is clearly to be one which is clearly defined by law. He refers us in particular to the case of SW –v- the United Kingdom [1995] Series A No 355 B page 28 which was the case in which the European Court of Human Rights had to consider the conviction of a man for raping his wife. It is to be noted, however that at paragraph 36, the court said:
  52. “However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed in the United Kingdom as in other progressive states the development of the criminal law through the judicial law making is a well known entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided the resultant development is consistent with the essence of the offence could reasonably have been foreseen.”
  53. We consider that this accurately describes the process of elucidation of the offence clearly defined in the first instance by Baron Pollock which the courts have undertaken since 1891. We do not consider that the provisions of the convention affect our conclusions.
  54. Mr Saunders, QC renews a further ground of appeal in behalf of the appellant Cotter. Part of the evidence against the appellants was, as we have already said, the use made by the appellants of mobile telephones on the evening in question. One such call was recorded as having been made from the appellant Wynn’s phone to the appellant Cotter’s phone 13 minutes before the 999 call. The appellant Cotter’s account in evidence was that he was unaware of such a call. Either he did not hear it or it failed to connect with his phone, but connected with his answering service. The appellant Cotter’s phone was held by the police from the moment he was first interviewed at the hospital. The police records show that the phone was retrieved from the store by someone unknown for approximately six hours on the 22nd March, and that somebody dialled the number 121 on that day which was the number which would have picked up any messages. Thereafter the phone was transferred to New Scotland Yard. By the time investigations were made, any messages before the 23rd March were no longer retrievable. Mr Saunders, QC understandably, did not seek to raise the matter at any stage during the prosecution or defence case, in case the evidential gap could be closed to his clients disadvantage. But he made the point in his speech to the jury that the prosecution could not properly assert that the call from the appellant Wynn was of any significance unless it could also establish that investigation of the answering service had not resulted in any innocuous message having been received. Mr Saunders, QC complained that the judge failed to deal properly with this submission. The judge said, at page 78A:
  55. “Members of the jury, of course I dare say you are going to ask yourselves, what about this phone call that Mr Saunders referred to that we see at 11.25 when somebody, presumably a police officer, seems to have gone to the voice mail and checked the voicemail? We have absolutely no evidence about that, as I have said to you already, I am going to invite you not to speculate at all about that. It may be nothing was found. It may be something was found, although if anything was found it would be very very unfortunate if none of us heard anything about it. Anyway be that as it may, that is a rather odd gap in the case, in the prosecution case.”
  56. We understand that Mr Saunders, QC may have wished for some more forceful comment, but we do not consider that this in anyway unfairly represented his argument to the jury in a way which undermines the safety of the conviction.
  57. Turning to the appellant Wynn, he also seeks to renew a ground of appeal upon which leave was refused. His submission is that the judge failed to deal properly with the appellant’s admitted lies. He accepts that the judge gave a proper Lucas direction at page 16. It is submitted, however, that he should have gone further and stated that the jury could not and should not convict on lies alone. The last part of the judge’s direction in this aspect was as follows, at 17C:
  58. “I repeat that. If you think that there are innocent reasons for the lies disregard them. Only if you are sure that there are not innocent reasons would you be entitled to regard the lies as evidence that might tend to support the prosecution case.
    Members of the jury I am going to add to that warning this warning. In a case like this I suggest to you it would be dangerous to act on lies alone. Look for other evidence in this case. Do not merely have regard to any lies that you conclude were told. They are a factor in this case. The prosecution say they are an important factor. The defence say too much importance has been attached to them. That is something which is very much a matter for your judgment. But do be most careful about acting merely on the basis of lies.”
  59. We consider that in the context of this case, that was a sufficiently clear and strong direction in relation to lies.
  60. The appellant Clair also renewed his application for leave in respect of a further ground of appeal. He submits that the evidence in relation to Count 2 in the indictment was such as inevitably to implicate the appellants Cotter and Wynn. Accordingly, the fact that they were acquitted of Count2 means that his conviction on Count 2, must be unsafe. We fail to understand that submission. What was inevitable was that a conviction on Count 1 must lead to a conviction of the appellant Clair on Count 2. He was the one who contacted the press, it was Clair who sought to obtain payment. The fact that the jury were not certain so that they were sure that the appellants Cotter and Wynn were party to that aspect of the case in no way casts doubt on the safety of the conviction of the appellant Clair.
  61. For all these reasons, the renewed applications are refused, and the appeals dismissed
  62. - - - - - - - - - - - - - - -

    LORD JUSTICE LATHAM: For the reasons set out in the judgment which we hand down, the applications and appeals are dismissed.

    There has been an application in writing for the certification of questions.

    MR DAVIS: There has, my Lord. Mr Saunders, who led me during the course of the appeal hearing, is out of the country today. He apologises for not being here, and I submit on his behalf. We have had an opportunity of reading through the judgment, obviously in draft form. I hope your Lordship has received both the application and the skeleton argument accordingly.

    LORD JUSTICE LATHAM: Yes.

    MR DAVIS: I am grateful. My Lord, the questions which Mr Saunders drafted are set out in point 3 of the points which have been sent to the Court, namely:

    "[a] Whether an intention to pervert the course of justice is made out by proving only that a defendant made a false complaint to the police that a crime had been committed intending that the police should investigate the complaint.

    [b] Whether it is necessary to prove in addition to [a] above that the defendant believed that it was at least possible that someone would be arrested as a result of the false complaint."

    It may be, my Lord, that those questions are extremely specific, I know not.

    LORD JUSTICE LATHAM: There is a furthermore general question which we need to consider. That is the extent to which you would wish to argue that the Australian Supreme Court was correct; and that would raise the question as to whether or not the police investigation can be considered to be a course of justice or part of the course of justice.

    MR DAVIS: My Lord, it would appear - and it is only upon quite obviously dealing with a country a long way away from the United Kingdom, and I have been only able to look at the authorities which I have been able to pull down off the internet or from authorities which have been available to me - that there are authorities which postdate the case of Rogerson but which affirm its decision and support the decision or the dicta of I think their Lordships, Toohey and I forget the other Lord's name, I do apologise.

    LORD JUSTICE LATHAM: There is McHugh certainly.

    MR DAVIS: Which effectively say that the police investigation is not or does not form a course of justice. That is the point my learned friend Mr Saunders made at this hearing a few days ago.

    LORD JUSTICE LATHAM: That is right; and the question may arise as to whether or not that is an issue with which the House of Lords ought to grapple.

    MR DAVIS: My Lord, I have not supplied them to the Court, and I apologise for not doing so, but I have been able to obtain the reports in which the Rogerson case is alluded to.

    LORD JUSTICE LATHAM: Do not worry about that. The only question is should we, if we are minded to certify any questions at all, expand the questions so as to raise that issue which at present, if we are correct, creates a conflict between the approach in this country and the approach in Australia to a similar common law crime.

    MR DAVIS: My Lord, yes. But this morning my learned friend for the Crown and I have spoken about this and it may be that questions more akin to this may be appropriate, I know not.

    LORD JUSTICE LATHAM: Shall I just ask Mr Raggart? What do you say at the moment?

    MR RAGGART: My Lord, my reaction to Mr Saunders' questions was that they were too narrow, too factually specific.

    LORD JUSTICE LATHAM: As you have gathered, that is my present concern. It seems to me that it will be better, rather than discussing this matter in court at the moment in a loosely structured way, if I can put it that way, if the two of you got together this morning and sought, if you could, to put before us for our consideration, which we can do in writing, we can do without the need for reconvening the Court, questions which you think are appropriate. Then we will discuss it between ourselves and come to a decision as to the way the questions ought to be formulated.

    MR RAGGART: Certainly.

    LORD JUSTICE LATHAM: Because I think you obviously appreciated that we would be minded to grant a certificate however the questions are worded.

    MR RAGGART: Yes.

    LORD JUSTICE LATHAM: Because we think that there are questions raised which are fit for certification. The most sensible course, as I have said, is for you to get your heads together.

    MR RAGGART: My Lord, I have made a number of suggestions to Mr Davis. In one sense it is not for us to do that, but I felt it right to seek and cooperate as far as that is concerned.

    LORD JUSTICE LATHAM: Mr Raggart, it would be very helpful if you could do that --

    MR RAGGART: I will, my Lord.

    LORD JUSTICE LATHAM: -- and then submit to us during the course of today or whenever, but within the next seven days, your suggested questions for certification.

    MR RAGGART: My Lord, I wonder if one might think about it over the weekend and submit it to your Lordships early next week.

    LORD JUSTICE LATHAM: That is why I said seven days. Although it may sound a bit unorthodox, we will indicate that we are prepared to certify. We are also prepared to deal with the issue now orally as to whether or not we should give leave. I do not think the formulation of the question itself is going to affect our decision as to that.

    MR RAGGART: So be it, my Lord.

    LORD JUSTICE LATHAM: And you are asking for leave?

    MR DAVIS: My Lord, I am.

    LORD JUSTICE LATHAM: Yes.

    MR DAVIS: On the basis that there is obviously a matter of public importance to be discussed here. It is a matter which ought to be clarified by the House of Lords, in my submission, regardless, as we have already discussed, of the questions that we are about to be put before your Lordships. My Lord, I know not the formula one has to make in respect of an application for leave other than what I have said in my submissions to you orally and in writing.

    LORD JUSTICE LATHAM: If we were to refuse you leave, we do not want to set time running so that you have difficulties about complying.

    (The Bench conferred.)

    LORD JUSTICE LATHAM: What we propose to do is to say this. We will not be giving you leave. If we are correct, the matter was resolved in this Court some time ago, and it seems to us that the right course is for you to interest their Lordships' house, if you can.

    MR DAVIS: Of course. That was intimated again most helpfully by my learned friend a few moments ago before the Court sat, so...

    LORD JUSTICE LATHAM: What you can do is to make your formal application. We can deal with it on paper in a way which means that we will then give you the formal decision as to leave and the certification on paper. The important thing is not to do it today so as to trigger the time for appealing.

    MR DAVIS: My Lord, it is at 7-257.

    LORD JUSTICE LATHAM: Yes. We now having given our decision, you should make your formal application. I think it can be made in... (Pause.) It does not say whether it is in writing or not.

    MR DAVIS: My Lord, it at 7-258, the Criminal Appeal Rules, rule 23:

    "An application to the court ... shall either be made orally immediately after the decision of the court from which an appeal lies to the House of Lords or notice thereof shall be in Form 17 and shall be served on the Registrar."

    LORD JUSTICE LATHAM: Is the right course for you to do a Form 17?

    MR DAVIS: I think that must be the case, having read that.

    LORD JUSTICE LATHAM: You can make your application now. We then have to deal with it either now, which, as I say, sets time running, which you do not necessarily want today, or we have to reconstitute the court again to give our decision. The sensible thing is for you to get a Form 17.

    MR DAVIS: I think it is.

    LORD JUSTICE LATHAM: -- and deal with it that way, we indicating that we will be minded to certify.

    MR DAVIS: I am grateful.

    LORD JUSTICE LATHAM: But we are minded to refuse the application, so that you know where you stand.

    MR DAVIS: Thank you, my Lord.

    LORD JUSTICE LATHAM: Thank you both very much.


© 2002 Crown Copyright


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