Perverting the course of justice
December 31, 2010 Leave a comment
Getting to grips with the basics – perverting the course of justice.
by Robert Whiston FRSA Dec 31st 2010
For many people the idea of someone being charged with making a false allegations will immediately conjure up the impression that the person will probably be charged with perjury.
However, few false accusers are ever tried under the perjury laws (see Appendix A). Instead they are usually prosecuted for “perverting the course of justice.” The reason for this is that perjury tends to imply an ‘under oath’ secenario and or in a court setting, whereas making a false statement to the police and sending them on a wild goose chase is wasting police time (itself a crime).
Somewhere in the middle is “perverting the course of justice”. It is somewhere between (and after) simply wasting police time and before the court room setting of lying under oath, which is perjury.
For someone making a false rape allegation the charge of perverting the course of justice could be the right and most appropriate charge, or it could be that it gives the CPS a greater chance of securing a conviction, or it could be that “perverting the course of justice” permits the judge a greater degree of discretion in the penalty he chooses to award.
Much of the following is taken from the official manual containing advice to lawyers acting on behalf of the Crown Prosecution Service, or CPS, circa 2007. For those interested in these technical nuances it might prove rewarding to compare the guidance notes for CPS staff (which can be found at http://www.cps.gov.uk/search.asp?mode=allwords&search=charging+standard&submit.x=13&submit.y=13) with today’s manual (i.e. Dec 2010).
Perjury is regarded in text books as one of the most serious offences possible because:
” . . . . it wholly undermines the whole basis of the administration of justice” - (see R v Warne (1980) 2 Cr. App.R. (S) 42). Judge Chapman
Perjury is regarded as serious regardless of whether it is committed for a trifling set of circimstances or a most serious case. For example, a car passenger who falsely states that the driver did not drive through a red light as alleged, will be dealt with as severly as one who gives a false alibi to a bank robber.
There are other reasons why women who are caught by police making false rape allegations are not tried under the purjury laws. One of the most powerful is that the offence is ‘triable’ only on indictment but carries a maximum penalty of seven years’ imprisonment (and/or a fine).
“Perverting the course of justice” on the other hand carries only a 2 year penalty. ‘Perverting the Course of Justice’ is an indictable offence under Common Law, but perjury is statute law and an indictable offence under the Perjury Act 1911 (sect 1).  However, another source, Archbold 28-1 to 28-28, states that it carries a maximum penalty of life imprisonment.
The ‘course of justice’ – and therefore it potential for pervertion - starts when an event has occurred from which it can reasonably be expected that an investigation will follow. Or an investigation which has actually started, or legal proceedings have actually started or are about to start.
R v Cotter and Others  TLR – In this case 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 offocial sentencing guidence is fairly arbitary. Consider, for instance, these three ‘official’ examples, all involving false allegations of rape.
1. R v Merritt  1 Cr. App. R.(S.) 105 – In this case a husband was accused of rape and held in custody for 9 hours; sentence reduced to 4 months imprisonment (reviewed by authorities).
2. R v Fletcher  2 Cr. App. R. (S.) 24. – Here false rape allegations led to the victim being in police custody for 17 hours and then waiting 3 months before being told that no further action would be taken. The sentence of 2 years imprisonment upheld.
3. R v Beeton  1 Cr.App.R.(S.) 46. – The appellant made false allegations of rape against two young men, in respect of one over a period of months and having a profound effect upon him. Sentence reduced to three years imprisonment.
The offence of perverting the course of justice overlaps with a number of other statutory offences. e.g. Criminal Attempts Act 1981, Criminal Justice Act 1967,
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).
General Charging Practice
In an effort to achive uniformity of pratice and standardise prosections the CPS issues guidance called “General Charging Practice.”
The first criterion listed gives guidence when selecting the appropriate charge(s), i.e. it should reflect the accused alleged involvement while allowing the court the degree of discretion in any sentence it sees fit to impose.
The second criterion listed is that there should be no longlist of changes no ‘overlaoading’. The choice of charges should be the clear and simple in presentation. There should be no ‘overloading’ of charges by selecting more charges than are necessary in an effort to ‘encourage’ the accused to plead guilty to a few charges. Nor should this technique be used where a charge is not supported by sufficient evidence in order to encourage a guilty plea to a lesser allegation (charge).
For some, a closer reading of all the criteria will prove an invaluable insight into how the whole court process operates.
The table below shows the number of Perjury cases in England & Wales between 1996 and 2000 (source: Home Office RDS).
The next table (below) shows the number of Perjury cases in England & Wales for the years prior to that, ie between 1994 and 1997.
|Perjury Data England and Wales only (1994 – 97)|
|67/01||Perjury and false statements (also false declarations and||Caution||33||17||16||18|
|representations made punishable by any statute)||Prosecution||59||60||60||77|
|Perjury Act 1911, Sec.1 Criminal Justice Act 1967, Sec.89. Magistrates’ Courts Act 1980, Sec.106||Conviction||35||50||49||49|
|67/02||Perjury and false statements (also false declarations and||Caution||88||31||29||34|
|representations made punishable by any statute)||Prosecution||140||172||151||161|
|Perjury Act 1911 except Sec.1; Criminal Justice Act, 1925, Sec.36; Country Courts Act, 1984, Sec. 133; Mental Health Act, 1983, Sec. 126(4); Mines and Quarries (Tips) Act 1969 Sec.12(2) (in part) Criminal Justice & Public Order Act 1994, Sec.75||Conviction||109||143||109||124|
|Source : Home Office RDS|
 See CPS ‘Sentencing Manual’ (April 2010) http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/