HANLEY, APPEAL AGAINST CONVICTION AND SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_29 (01 June 2018)

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_29.html
Cite as: 2018 JC 169, [2018] ScotHC HCJAC_29, 2018 GWD 19-242, [2018] HCJAC 29, 2018 SCCR 153

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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lady Paton
Lord Brodie
[2018] HCJAC 29
HCA/2017/0000365/XC
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
MARC HANLEY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: A Brown, QC, Considine, Sol Adv; Faculty Services Limited
Respondent: M Meehan, AD; Crown Agent
1 June 2018
[1]       The appellant was indicted inter alia on two charges of attempting to murder Jay
Fraser (charges 1 and 3) and one of attempting to pervert the course of justice (charge 2).
After trial he was convicted of the latter charge, as amended. The amended libel was that on
20 and 21 June 2016, at Barlinnie prison and elsewhere, he:
“knowing that Agnes Boyd or another female witness who had provided a
statement to the police, was a witness against you and that she was due to attend an
identification parade on 21 June 2016 at which she could identify you as being
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2
responsible for an alleged assault on Jay Fraser did contact Robert Duncan and
Daniel Baxter by telephone and did instruct them to induce or coerce said Agnes
Boyd or another female witness who had provided a statement to the police, not to
identify you or anyone else as being responsible for said crime at said identification
parade, and this you did with intent to pervert the course of justice and you did thus
attempt to pervert the course of justice.”
[2]       Included in the original charge, prior to the words “and this”, were the words
“whereby Agnes Boyd attended said identification parade and did not identify you or
anyone else having been induced or coerced to do same”. The Crown however successfully
moved to amend the charge, and inter alia these averments were deleted. Arguments that (a)
the amended charge was irrelevant; and (b) that there was insufficient evidence to prove the
offence were repelled by the trial judge.
The Facts
[3]       On 4 June 2016 the witness Agnes Boyd had given the police a signed statement in
which she clearly implicated an individual known to her as Marc Hanley in the offence
which became charge 1 on the indictment. To secure identification evidence relating to this
individual an “old fashioned” identification parade was arranged for 21 June 2016. On
20 and 21 June 2016, whilst on remand in Barlinnie Prison in respect of charge 1, the
appellant repeatedly telephoned two friends and associates instructing them to induce or
coerce said Agnes Boyd by giving her drugs and money not to identify him or anyone else
as being responsible for the crime at an identification parade. The calls included one made
on 20 June at 1852 hrs and one made on 21 June at 0727 hrs. There were other subsequent
calls where he remonstrated with an associate for not sortingwitnesses out for him, the
trial judge making specific reference to one made at 2100 hrs on the evening of the 21 June.
None of the witnesses, including Agnes Boyd identified the appellant as being responsible,
although there was no evidence that this was as a result of his instructions being carried out
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3
and the amendment to the charge reflected this. The appellant gave evidence and admitted
responsibility for the calls and the instructions given therein. He explained that he was
innocent of the alleged stabbing and did what he did to support his innocence by ensuring
that no witness identified him.
The trial judge’s decision
[4]       The trial judge, relying on HMA v Harris (No 2) 2011 JC 125 and Dalton v HMA 1951
JC 76 concluded that the libel was relevant in that it contained clear specification that the
appellant attempted to eliminate evidence which might tend to incriminate him in a future
criminal charge”. Those words echo the approach taken in Dalton. On the question of
sufficiency, the trial judge noted that the test for proof of an attempt was whether the
accused had “done some positive act towards executing his purpose, that is to say that he
has done something which amounts to perpetration rather than mere preparation” (Docherty
v Brown 1996 JC 48, Lord Justice Clerk (Ross) page 60)
[5]       In the circumstances of the present case, the trial judge concluded, “the act of
instructing, by prison phone, persons to offer money and drugs to a witness (or witnesses) of
a serious crime, to fail to identify the caller at an identification parade is a positive act
towards executing his purpose”, going beyond mere preparation to an act of perpetration.
Once the instructions were issued, the matter was out of the appellant’s hands. From
subsequent calls, it was clear that he expected his instructions to be carried out.
Submissions for the appellant
[6]       The argument rejected by the trial judge, and repeated in the appeal, was that the
amended charge did not relevantly aver the crime of attempting to pervert the course of
justice. In the absence of an averment that steps were taken in furtherance of the
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instructions given by the appellant, which engaged the course of justice in the form of an
attempt to influence a witness, the charge was irrelevant. The allegations made would have
provided a sufficient basis for a charge of conspiracy or incitement to pervert the course of
justice but that was not the libel which the appellant faced. An analogy was drawn with the
circumstances arising in Morton v Henderson 1956 JC 55 (at 58), which involved a charge of
attempted fraud. The critical omission in the present case, in distinction from the factually
analogous case of Dalton, was the lack of any engagement with the witness(es). It was
necessary, according to the appellant, that the overt act could “of itself” interfere with or
hinder the course of justice, whereas the instruction of associates to perform such an overt
act was “one step removed” from such an act, and therefore insufficient to constitute the
actus reus of an attempt to pervert the course of justice. In the present case, therefore, it was
not a “sufficiently proximate” act to constitute an attempt to pervert the course of justice (cf
Docherty v Brown 1996 JC 48).
[7]       Further, esto the amended charge was relevant, whilst it was accepted that the
appellant made the calls and issued the instructions set out in the charge, in the absence of
evidence of steps being taken to act on those instructions there was insufficient evidence led
in support of it to enable the jury to convict. The “overt act” required for the crime of
attempt to interfere with or impede the course of justice was missing. In Dalton v HMA,
relied upon by the trial judge, the charge was in similar terms to the unamended charge in
this case, but there, contact was made with the witness in an attempt to persuade her to
refrain from making an identification of the accused, the very element absent in the present
case. In Baxter v HMA 1998 SLT 414 it was held that it would be sufficient for a charge of
incitement to murder that an appellant had encouraged or requested another person to
commit that crime. Applying the reasoning of the trial judge in the present case to the facts
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in Baxter, the result would not be incitement but attempted murder. The present case was
similar to Morton v Henderson where the charge was one of attempting to defraud
bookmakers and others by requesting the owner of a greyhound to administer a substance
to impair its performance. The request was made but no further steps taken and it was held
that the matter had not got to the state of perpetration as opposed to mere preparation. The
crime of attempting to pervert the course of justice required that the course of justice has
been obstructed, hindered, or interfered with. There had to be some overt act capable of
achieving that result.
Crown submissions
[8]       The actus reus of attempting to pervert the course of justice lay in conduct which
constituted an attempt to impede, obstruct or hinder the course of justice. The phone calls
constituted deliberate attempts to pervert the conduct of the identification parade, which at
the time of issuing the instructions, the appellant knew was about to be held. The parade
was a critical part of the police inquiry in respect of which the appellant had been remanded.
Commission of the crime was not contingent on the instructed steps being taken by the
appellant’s associates.
Analysis and decision
[9]       The trial judge observed that the crime of attempting to pervert the course of justice
can come in many guises. In Harris the court narrated the development of the crime known
in modern times as attempting to pervert the course of justice. The court noted the
observation in Gordon’s Criminal Law of Scotland paragraph 1.32 that attempting to pervert
the course of justice had not been noticed by the institutional writers, and its emergence as a
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6
specific crime under that nomen juris was a relatively modern phenomenon. The court
observed [para 24]:
“It is true that ‘attempt to pervert the course of justice’ is not noticed by the
institutional writers as a distinct crime. Although ‘conspiring … to defeat or obstruct
the administration of justice’ (by impersonating an accused) was part of the narrative
of a charge in 1845 (HM Advocate v Rae and Little) the first appearance of it in a
reported case as a distinct crime appears to have been in Scott (AT) v HM Advocate
when the indictment libelled, among other crimes, an attempt to persuade certain
witnesses to give false evidence in criminal proceedings. It might, no doubt, have
been charged as subornation of perjury. The issues arising in the appeal were not
concerned with the name under which the charge in question had been framed.
Lord Carmont, however, at page 93 observed ‘I do not suggest that attempts to
pervert the course of justice, as a crime might not be constituted by inducing persons
to make false statements outwith the witness box …. ‘”.
[10]       In Harris the court noted some of the many forms in which an attempt to pervert the
course of justice may be committed. For example in Dalton attempts to persuade an eye-
witness not to identify a particular person could constitute the crime. As in the case of Scott
already referred to, this could no doubt have been charged as subornation of perjury, but
that possibility did not prevent it from being relevantly averred as an attempt to pervert or
defeat the ends of justice. In HMA v Martin 1956 JC 1, the libel of attempting to defeat the
ends of justice was apt to apply to the attempt to secure the escape of prisoners from lawful
custody. A prisoner escaped from legal custody, and two others were charged with aiding
and abetting his escape, the libel containing the narrative of these acts and concluding that
all three “did attempt to defeat the ends of justice”. No doubt they could have been charged
with prison breaking or the statutory offence of escaping from lawful custody, but the libel
was held to be relevant, on the basis that “what is libelled here is but one species of a well-
recognised and undoubted genus of crime”. In Harris, the court went on to state (paragraph
28):
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7
“It is thus clear that by not later than 1961 it had been authoritatively recognised that
attempting to pervert (or to defeat) the ends of justice was a crime according to the
common law of Scotland and that the commission of that crime might take various
forms.”
[11]       That there may be more than one way relevantly to aver a crime contrary to the
course of justice thus appears from the examples cited. This appears consistent with Hume’s
treatment of the subject. Hume conceives of a broad class of “offences against the course of
justice” (Commentaries on Crimes, vol I, chaps. XI XV), including those where, if there
may be some doubt of the propriety of a charge of subornation, there seems, however, to be
none of competently and severely punishing the offence, as a species of the crimen falsi, or as
a conspiracy and machination, or under some other more detailed description, such as may
suit the circumstances of the case” (p 383). In the particular context of attempted
subornation, Hume adverts to “other the like proceedings, tending to corrupt the sources of
evidence” (p 382, n 2,) and, in treating of punishments more generally (p 384), “any evil
practice, tending to mislead, constrain, or corrupt the witnesses, or to destroy, suppress, or
alter evidence of any kind” in the course of any criminal trial, as examples of “an
interference with the course of justice”.
[12]       In all cases, the essence of the charge is the interference with what would otherwise
be expected to have come to pass in the ordinary and uninterrupted course of justice in the
particular case. To that extent, the nomen juris adopted at the discretion of the Crown in any
particular case may be of limited significance (cf Gordon, supra, paras 1.32 1.36). The fact
that a different charge might have been libelled does not mean that a charge of attempting to
pervert the course of justice is for that reason irrelevant. It is thus not surprising in Harris
(para 26) to see attempting to effect an escape from lawful custody recognised simply as “a
species of the more general class of crime of taking steps to frustrate the ends of criminal
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8
justice.” In Harris it was argued that the scope of the crime was limited to cases in which
there was an attempt to destroy evidence. However, the court took the view (para 30), that
“the cases on analysis are not restricted to such a narrow scope. Attempting to pervert the
course of justice can foreseeably take a number of forms.” In holding the charge to be
relevant, the court noted the salient points of the offence as being that a course of justice was
in train, in that case in the form of police investigations, and that the appellant took various
steps in an attempt to stop them.
[13]       The same description may be applied to the circumstances and actions of the present
appellant. There is no doubt that a course of justice was in train, and that the appellant took
steps designed to frustrate it. The offence libelled lies in the instruction to induce or coerce
one or more witnesses not to identify the appellant “or anyone else” as being responsible for
an alleged crime, in the knowledge that the witness(es) had previously provided a
statement(s) to the police against the appellant. To that extent, whatever his motive for
doing so, and whether or not the desiderated failure to identify him as the perpetrator was
intended to represent the truth of the matter, or a false account, nonetheless the appellant
sought to dictate or influence the nature of the witnesses’ evidence, in blatant disregard of
the existence, content or veracity of their earlier statements to the police. The appellant’s
instruction, in the knowledge of the earlier statement(s) having been given, and of the
anticipated attendance of the witnesses at an identification parade thereafter, is amply
sufficient evidence from which to infer the necessary intent to pervert the course of justice.
In addition, a jury would be entitled to infer from the inducements apparently to be offered
that the appellant so intended.
[14]       There being no doubt (and no dispute) that the appellant had displayed the relevant
intent, the issue was whether the necessary actus reus had been established. The discrete
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9
question arising was whether the appellant had so tendered the inducement or otherwise
manifested his intention, notwithstanding that the intermediary engaged for the purpose
failed to communicate it to the witness. The extent to which one can draw an analogy
between the crime of attempting to pervert the course of justice, the elements of which can
take many forms, and the concept of attempted crimes generally, for example fraud, where
the constituent elements of the offence are in more limited scope, is open to question. The
point is touched on in Dalton, p81, in the opinion of Lord Mackay (although in the context of
what is required for corroboration rather than for primary evidence of the actus reus).
Macdonald suggests (Criminal Law of Scotland (5th edn), p 186) that:
“Subornation of perjury may perhaps be regarded as being a special instance of
criminal conspiracy, perjury being the object agreed upon. Such an agreement is
indictable at common law (as attempted subornation) where the false deposition has
not been emitted.”
To that extent, it may be unhelpful to look beyond offences against the course of justice in
seeking to identify the character of the primary offence or attempts thereanent. In the
circumstances of the present case, the primary offence may itself be characterised as a form
of conspiracy, and there is nothing objectionable in the Crown’s decision to frame the libel as
it did.
[15]       Whilst it may be that any analogy with attempted crimes in general should not be
pressed too far, it may be relevant to notice the words of the Lord Justice General (Hope) in
Docherty (p50, underlining added) where, suggesting that the difference between a
completed crime and an attempt had not adequately been explored in the authorities, he
said:
“[Hume] puts the matter correctly when he says that, even when no harm ensues on
the attempt, still the law rightly takes cognisance of it: “if there has been an inchoate
act of execution of the meditated deed; if the man hath done that act, or a part of that
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act, by which he meant and expected to perpetrate his crime, and which, if not
providentially interrupted or defeated, would have done so.”
[16]       Thus we consider that the trial judge was correct to conclude that in the present case
the charge was relevant. To draw an analogy with attempted subornation of perjury (Hume,
I, p 382):
“The conspiracy has had its course so far as depended on the suborner; and it would
be a great encouragement of those dangerous and pernicious practices, if they were
to pass unpunished in every instance where they happened not to succeed. One
thing, however, seems to be material to the relevancy of a charge of this sort; that the
alleged solicitation, which in these circumstances is not vouched or confirmed by any
actual perjury, or engagement for perjury, must have been used in an ouvert and
palpable shape, such as testifies an earnest and serious determination to seduce.”
That the appellant, of necessity, interposed third parties and communicated his instructions
to them rather than directly to the witness(es) does not justify the conclusion that the charge
was not relevant. The drawing of such a formal distinction, on account of a lack of direct
engagement with the witness, would be to defeat the practical utility and deterrent effect of
such charges. The repeated phone calls made in anticipation of the identification parade
constitute a sufficiently overt act for the purpose of the offence. The libel was that the
appellant did “instruct” Robert Duncan and Daniel Baxter to induce or coerce the witnesses
in other words that such were the circumstances and perhaps his relationship with Duncan
and Baxter that the appellant reasonably expected that what he wished to be done by them
would be done by them.
[17]       The second part of the appeal maintained that even if the charge could be said to be
relevant, there was insufficient evidence of an overt act. We cannot agree. The evidence
showed the following:
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(i) that the appellant knew that the witness Agnes Brown had named him in a
statement to the police, implicating him in the commission of what became the
primary offence on the indictment;
(ii) that the appellant knew that an identification parade was to be held for the
purpose of securing identification evidence from that witness;
(iii) with that knowledge the appellant repeatedly instructed associates of his to
offer inducement to the witness, and other witnesses, not to identify him, or anyone
else;
(iv) that at no stage prior to the identification parade did the appellant recall or
change those instructions; indeed on the very morning of the parade he repeated
them;
(v) that in subsequent calls he berated his associates for failing to “sort” the
witnesses, suggesting that when the initial instructions were given he had reason to
think they would be followed;
(vi) that, being incarcerated, the appellant could not directly contact the witnesses
himself, but had done what he could to make his involvement in the matter
complete.
[18]       In the result we consider that there was sufficient evidence supporting a relevant
charge. We therefore refuse the appeal against conviction.
Sentence
[19]       The appeal was also against sentence, the argument being that the four years
imprisonment imposed by the trial judge was excessive. The deletion of the averment that
the witness had in fact attended the parade and failed to identify anyone having been
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induced not to do so removed the most serious part of the original libel. The appellant was
26 years of age and whilst he has previous convictions, had never previously served a
sentence of imprisonment. The sentence was back-dated only to the date of conviction,
19 May 2017. The appellant had appeared on petition on charge 1 on 15 June 2016 when he
had been remanded in custody. Charge 2 was committed on 20 and 21 June of that year.
The appellant was admitted to bail on charge 1 on 23 June 2016. On 10 August 2016 he
appeared on petition in relation to the second charge of attempting to murder Jay Fraser and
was remanded in custody. At that stage the circumstances of charge 2 were already known
to the authorities, and the allegations which came to form the basis of that charge were
amongst reasons advanced by the Crown in successfully resisting the appellant’s application
for bail.
[20]       The trial judge took into account the appellant’s previous convictions, his age, the
serious nature of the charge faced by him, the vulnerability of the witness who was the
object of the offence and the blatant disregard for the justice process which he deliberately
and calculatedly sought to interfere with. It was on that basis that he selected a sentence of
four years imprisonment. In the circumstances we do not think that sentence can be said to
be excessive.
[21]       The trial judge was not made aware of the fact that the circumstances of charge 2 had
been relied upon to resist bail on 10 August 2016, hence his decision to backdate only to
19 May 2017. The Crown having explained that these circumstances did indeed form part of
their objection to bail, we are satisfied that the sentence should be backdated to 10 August
2016. We allow the appeal against sentence to that extent.



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