316.8a Incriminating innocent people, Trying to Non-rape claims Guideline remarks

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1 PERVERTING THE COURSE OF JUSTICE Volume a Incriminating innocent people, Trying to Non-rape claims Guideline remarks R v Reedy 2013 EWCA Crim 338 D pleaded to perverting the course of justice. He made an anonymous phone call to the police reporting a robbery of an elderly lady. There was no robbery. He gave the address of the perpetrators as his ex-partner s address. She was arrested, along with her new partner and two friends, and detained for 14 hours. Held. The fact that the false allegation here was not of rape makes it no less serious than those allegations. Those who commit this type of offence and make bogus allegations as the result of which innocent people are harmed and resources expended must expect immediate custodial sentences, whatever the mitigation. 12 months Incriminating innocent people, Trying to Non-rape claims Cases See also: R v Reedy 2013 EWCA Crim 338 (Plea. Phoned police reporting a false robbery on an elderly lady. Gave address of his ex-partner. Police attended and arrested the four occupants, including his expartner and her new partner. They spent 14 hours in custody. Police resources tied up for 44 hours investigating the offence. Starting at 18 months, 12 months not 2 years Incriminating innocent people, Trying to Rape claims Cases R v Simpson 2013 EWCA Crim 1250 D pleaded (full credit) to two counts of perverting the course of justice. V was formerly married to D s mother. V had not seen D for about 9 years, when she was aged 11. In 2010, D telephoned a police rape team and alleged that V had pulled up in his car, driven her to an address where four other men and a woman had raped her orally, anally and vaginally. Almost three weeks later, she again telephoned the police rape team and alleged that V had called at her grandmother s address and taken her, with her grandmother s partner and another man, to an address where they all raped her. V was arrested and taken into custody. He was detained for 14 hours, physically examined, required to provide intimate samples and was interviewed under caution. The experience was traumatising and upsetting, despite the fact that it was all too apparent that he could have committed neither offence and that the allegations were wholly false. When arrested, D claimed the first allegation was true and that she could not remember making the second allegation. Her basis of plea was that the first allegation was made because she was angry how she had been treated in the abusive relationship between V and her mother. D had been diagnosed with an emotionally unstable personality disorder associated with reactive depression. It was accepted that starting at 3 years could not be criticized, before considering the mitigation. D was aged 22, of good character and had a young baby. Held. Making due allowances for the mental health issues at the relevant time, it is important not to lose sight of the fact that these were very serious offences, the more serious because D made the second allegation quite deliberately to make matters even worse for V. There could be no criticism of starting at 3½ years. With the plea and mitigation, 21 months was necessarily severe and not manifestly excessive Jury interference R v Curtis and Medlan 2012 EWCA Crim 945, Cr App R (S) 28 (p 147) C and M admitted contempt of court on the second and last day of their trial of the issue. T, a friend of M, was a defendant on trial. C s partner had been in the company of T at the time of the alleged offence and C had spent time in T s company shortly after the alleged offence. C and M attended T s trial. The Judge had noticed that M and C had been peering through the tinted glass screen which separated the public area from the courtroom. He was satisfied that this was in order to get a better view of the jury. At the close of one of

2 the day s proceedings, M and C hung around outside court. Two jurors walked past them and M and C followed. The two jurors were joined by a third, and all three boarded a bus. M and C also boarded the bus. M sat next to one juror and C sat directly opposite. The bus was nearly empty. The Judge concluded that M and C had deliberately followed the jurors and were acting in concert. As soon as C sat down, she started speaking unnaturally loudly and clearly in her mobile phone. The content of the conversation was clearly for the benefit of the jurors. She named T and commented on how well his barrister was doing in comparison to the prosecution barrister and said that it was looking good for T. The clear implication, the Judge found, was that if the jury convicted T, it would be the fault of the jury and not T or his barrister. The jurors were perturbed and frightened. They felt intimidated. The jurors got off the bus at the earliest reasonable opportunity. They returned to the court and reported the incident to the court staff. The trial continued and T was convicted. M and C denied that they recognised the jurors when they got onto the bus. M was aged 21 and of effective good character. She was a single parent with a very young child. She was remorseful and ashamed of her actions. C was aged 30 and had no convictions. She was also a single mother with a 4-year-old son. Held. Immediate custody was inevitable. Appropriate credit was given for their remorse and personal mitigation. Limited credit was available for their acknowledgement of guilt as it had occurred at a late stage. For C, 5 months and M, 3 months was not manifestly excessive and an appropriate distinction between them. Note: The judgment does not reveal the starting point or what the sentence would have been if the offence was committed by someone who wasn t a single parent. Ed Photographs taken of courtrooms Guideline remarks R v Ivanov 2013 EWCA Crim 614 Ordinarily there must be an element of deterrence in situations of this kind. Very often that element of deterrence may be conveyed by the very fact of immediate custody being imposed Photographs taken of courtrooms Cases R v Ivanov 2013 EWCA Crim 614 D pleaded to contempt of court. He attended Southwark Crown Court to give evidence for the defence in an ongoing trial. He was a friend of the defendant. After giving evidence, he remained in court. After the jury retired, a juror angrily complained to the jury bailiff that D had been filming them. He initially denied it, claiming to have been texting someone. When the Judge asked to see the phone, he admitted taking one picture. In fact he took three. When the phone was seized, he admitted filming for a few seconds, subsequently admitting it was about 30 seconds. It became apparent that D had taken two photographs of the defendant in the witness box through the door of the court and one of the defendant in the dock. He then filmed one minute of the Judge summing up the case. He had in fact not filmed or taken pictures of the jury. The jury was discharged and a fresh trial was ordered. D offered an apology to the Judge, who accepted that D had no intention of frightening the jury. D, aged 22 at appeal, had previously received 33 months for robbery. Held. The comments in R v D 2004 EWCA Crim 1271 are relevant and helpful. Such photographs may be easily shared after the event, even if the intention at the time of taking them is not so specific. The potential prejudice remains whatever the intention may have been at the actual time of taking the photographs. Given all the circumstances, D s relative youth and the fact his mother was recently taken very ill, 5 months not Prosecution/conviction To avoid Cases R v Davies 2013 EWCA Crim 671 D pleaded (20% credit) to perverting the course of justice. At 1am, a car crashed into a boundary wall of a property. The police were called but the driver could not be found at the scene. The vehicle was registered to C who was, at the time, in a relationship with D. The police attended C s address and she made a statement saying that D had returned to her address minutes before

3 the police arrived and told her to report the vehicle as stolen. D wasn t found at the property but they did see someone, now known to be D leaving. Telephone records showed that D sent various messages to C over a two-day period encouraging her to contact the police and tell them the vehicle had been stolen and to change her earlier statement about how D had asked her to report the vehicle as stolen. C did not do so, but later became unco-operative with the police. When arrested, D claimed he knew nothing about the vehicle being stolen. D, aged 25 when sentenced, had 29 offences on 18 occasions. Had D been the driver at the time, he would have been in breach of a suspended sentence. Held. This was a serious and persistent offence of perverting the course of justice. The offences that were left undetected as a result of D s actions were serious. Starting point at 15 months, with plea 12 months, was not outside the appropriate range. Note: The court said D would have breached his suspended sentence if he had been driving but it would appear the pervert offence would have been a breach of the suspended sentence as well. Ed a Social media offences Guideline remark Att-Gen v Harkins and Liddle 2013 EWHC 1455 (Admin) H and L admitted contempt. Both placed images of Thomson and Venerables on their Facebook page. (The details are below.) Both were given 9 months suspended. Held. If a similar publication occurs after the date of this judgment there will be little prospect of such a person escaping a substantial custodial sentence and little prospect of the sentence being suspended b Social media offences Case HM Attorney General v Harkins and Liddle 2013 EWHC 1455 (Admin) H and L admitted contempt of court. In 1993,Thompson and Venables aged 11 were sentenced to detention at HM s Pleasure for the murder of 2-year-old James Bulger. In 2001, prior to their release, a worldwide injunction was granted prohibiting the publication etc. of images or voice recordings, purporting to be of Thompson or Venables, or any description of their physical appearance, voices or accents. H used his Facebook profile to post a photograph of persons said to be Thompson and Venables. He had 141 friends on Facebook but his posting of the picture resulted in over 20,000 sharings'. It was not clear how many people had seen it but it was obviously a very significant number. H also posted two messages rebuking the system for providing Thompson and Venables protection. The Treasury Solicitor wrote to H informing him of the Attorney-General s involvement and asked him to remove the picture. He immediately did so, apologised and de-activated his Facebook account. He stated that he believed the images were not subject to legal constraints as they were freely available on the Internet. H admitted breaching the injunction. L posted images purporting to be Thompson and Venables on his Twitter account under the name OpinionatedDad. That profile was accessible to the general public. L picked up the photograph from elsewhere on the Internet. The images were removed less than an hour later when someone informed him that the images were not of Thompson and Venables. L tweeted I heard about it [the injunction] for a while but I posted it as people are talking about being prosecuted for putting it and I don t think it s right. The same day, he tweeted So I get a huge fine. Great. They will get 2 a week off me and the evil men who murdered a child will be known publicly - #worthit. L had 915 Twitter followers. He later tweeted Just been served with court papers What a joke and Love them to take me to court. He subsequently telephoned the Treasury Solicitor and was immensely apologetic. He later sent an acknowledging that he was aware of the injunction but had already seen the image hundreds of times. He also stated that he did not understand what breaking an injunction actually meant. Both were of good character. L had a deaf child and had done charity work. Held. It was a serious contempt of court. The potential consequences, for Venables and Thompson but also for others who might be mistakenly identified as them, aggravate the offences. It is plain both knew of the existence of the injunction, but perhaps not the extent of the consequences of what they did. Both offending pictures were removed and

4 apologies were made. The very serious nature of publication on social media or otherwise on the Internet must be taken into account. Social media can reach very many people and so anyone who publishes such information on the Internet or social media has that very serious consequence. L had significant personal mitigation. 9 months suspended for 15 months was appropriate Statement, Making a false R v Tibbits 2012 EWCA Crim 1018, Cr App R (S) 25 (p 130) D pleaded to perverting the course of justice. In 2010 he was sentenced to 16 months for making indecent images. A SOPO was also imposed. His daughter, a minor, had discovered some of the images on a memory stick and the matter was referred to the police. The SOPO prohibited him from having access to a computer at his home address unless it was password protected by an adult over the age of 25, approved by the supervising officer. In 2011, D instructed his solicitors to apply to have the SOPO varied on the basis that it was creating difficulties in his daily life. It was emphasised that in particular, the provision caused difficulties in relation to the seeking of employment. D was advised that his application would be strengthened by some proof of the difficulties he was experienced. His solicitors subsequently attended court with a letter. The letter purported to be from the transport manager of D s previous employers. It stated that as D was unable to have access to or the Internet, the company were unable to offer him any employment. The Crown sought to have the letter verified and it was discovered that it was a forgery. The purported author of the forged letter confirmed that it was not necessary for employees of the company to have access to the Internet and that D had been asked to leave the company in 2010 upon his conviction. Held. It would be wrong to treat D s behaviour as an attempt to revert to his previous offending behaviour. The terms of the order were legitimately subject to an application to vary by reason of subsequent decisions of this Court. D attempted to subvert the due process of the law and sought to vary a court order by use of a forged letter. He subsequently attempted to mitigate that by claims that the letter was never intended for use. Those are aggravating factors, but 2 years not 3. R v Livesley 2012 EWCA Crim 1100, Cr App R (S) 27 (p 138) D was convicted of intending to pervert the course of justice. In 2004, he pleaded to a 29,000 benefit fraud. During the sentencing hearing, his counsel placed before the court a bundle of references. Those included one from an Air Commodore who referred to D s distinguished employment at the Imperial War Museum, Duxford, and how he was awarded the Military Medal for bravery in action with the Parachute regiment in the Falklands War. Another, from a Major, stated that he had served a full career in the Parachute Regiment and had risen to the rank of Colour Sergeant. The makers of these statements relied on what D told them which was false. In reality, D had joined the army as a teenager and been discharged as medically unfit after 2½ years. He had served as a cook in the catering corps. D, aged 57 at appeal, showed genuine remorse. He was of good character and had difficulties in distinguishing between truth and fantasy. The probation psychiatrist for the Court of Appeal said D was severely impaired by a personality disorder. Held. The Judge would have sentenced D to immediate custody but for the references that were before the court. The sentence would have been of some length. The deception was sustained and planned in the sense that the references were obtained from two innocent referees and deployed with a view to achieving the purpose of getting a lesser sentence than he otherwise would have done. Those purporting to give these two references were obviously gravely embarrassed, and most importantly of all, the court was very seriously misled. As the Judge rightly said, it is crucially important that judges should be able to rely on character references, so a particular element of deterrent sentencing is appropriate in this context which of its nature (perverting the course of justice) calls for deterrence in any event. Despite the considerable personal mitigation and some judges might have imposed less, 3 years could not be described as excessive. R v Afford 2013 EWCA Crim 633 D pleaded (full credit) to perverting the course of justice. His brother in law contacted the police to report that D had been attacked by four Asian males, one of whom had slashed

5 his face with a knife whilst commenting no white person should walk here. The police attended D s address to take a statement. He provided a description of the attackers but gave a different location to that which was originally reported. The officers spent 90 minutes reviewing CCTV footage and investigating the location. No blood was found at the scene and there were inconsistencies with his account. The story was reported in the local press and the police were concerned that community tensions might be engaged and so they gave high priority to their investigation. An article featured a photograph of D and his injuries. There were 16 separate slashes which D had inflicted upon himself. CCTV images showed D walking back after the alleged attack, but showing no sign of injuries. He was interviewed an admitted he had falsely reported the attack. He had had an encounter with someone over a cigarette and had been punched by that person. That person then followed him home and attacked him. The attack had arisen from a dispute between D and his ex-partner over the use of a motor vehicle. D had no convictions since Held. There were clearly racial elements in the way the offence was reported. Scarce police and health service resources were wasted. There was a clear risk that men fitting the description given by D would be arrested, though in the event no one was arrested. That had to be borne in mind. The selfinflicted injuries were committed to further the complaint. The risk of inflammation of community or race relations could not be ignored but starting at 12 months, 8 months not 12. Note: The case is listed here as there was no attempt to incriminate a particular person. Ed.