Perverting the course of justice: an overview of the incoming sentencing guidelines

25/09/2023

New sentencing guidelines for the offence of perverting the course of justice will come into effect next month. These guidelines will apply to all defendants sentenced from 1^st October 2023 onwards, irrespective of the date of the offence.

Perverting the course of justice

The offence of perverting the course of justice is committed when an accused:

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

The course of justice starts when:

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

The offence is contrary to common law and triable only on indictment.

A wide range of acts may constitute the offence, some obvious examples include:

• Persuading or intimidating a witness to give false evidence or alter his evidence
• Destroying evidence relevant to a police investigation
• Making a false allegation
• Interfering with juror with the aim of influencing their verdict

This wide range of acts and circumstances which may constitute the offence has led to considerable difficulty for practitioners when advising clients as to the likely length of sentence they can expect if convicted.

Sentencing principles

In the absence of sentencing guidelines, the sentencing authorities were reviewed in Abdulwahab [2018] EWCA Crim 1399. At paragraph 14 of the judgment, a number of relevant principles were identified:

• Conduct which tends and is intended to pervert the course of justice strikes at the heart of the administration of justice and almost invariably calls for a custodial sentence. Deterrence is an important aim of sentencing in such cases, although the necessary deterrence may sometimes be achieved by the imposition of an immediate custodial sentence without necessarily requiring a sentence of great length.
• The appropriate sentence depends on the particular circumstances of the specific case. Only limited assistance can be derived from considering previous decisions in other cases.
• In assessing the seriousness of a particular offence, relevant factors include the seriousness of the underlying offence, the nature of the deceptive conduct, the period of time over which it was continue, whether it cast suspicion upon or led to the arrest of an innocent person, and the success or otherwise of the attempt to pervert the course of justice.

New Guideline

Although the maximum sentence is life imprisonment, the sentencing range contained within the guideline is from a community order to 7 years’ custody.

The structure is similar to other guidelines.

Step 1 – Culpability and Harm

Culpability is determined by weighing up all the factors in the case and can be demonstrated by one or more of the following:

A – High culpability

• Conduct over a sustained period of time
• Sophisticated and/or planned nature of conduct
• Underlying offence very serious
• Breach of trust or abuse of position or office

B – Medium culpability

• Other cases that fall between categories A and C because:
  • Factors are present in A and C which balance each other out and/or
  • The offender’s culpability falls between the factors described in A and C

C – Lower culpability

• Unplanned and/or limited in scope and duration
• Unsophisticated nature of conduct
• Underlying offence was not serious
• Involved through coercion, intimidation or exploitation or as a result of domestic abuse
• Offender’s responsibility substantially reduced by mental disorder or learning disability

Harm is assessed by weighing up all the factors in this case:

Category 1

• Serious consequences for an innocent party as a result of the offence (for example time spent in custody/arrest)
• Serious distress caused to an innocent party (for example loss of reputation)
• Serious impact on administration of justice
• Substantial delay caused to the course of justice

Category 2

• Suspicion cast upon an innocent party as a result of the offence
• Some distress caused to an innocent party
• Some impact on administration of justice
• Some delay caused to the course of justice

Category 3

• Limited distress caused to an innocent party
• Limited impact on the administration of justice
• Limited delay caused to the course of justice

Step 2 – Starting point and category range

Having determined the category at step one, the court will use the corresponding starting point to reach a sentence within the category ranges available.

The most serious offences – category 1A cases – have a starting point of 4 years’ custody, with a range of 2 – 7 years’ custody.

The least serious offences – category 3C cases – have a starting point of 6 months’ custody, with a range of a high level community order – 9 months’ custody.

The guideline then sets out a non-exhaustive list of aggravating and mitigating factors, all of which will be familiar to practitioners from other guidelines.

Steps 3-8

3 – Prosecution assistance (s.74 Sentencing Act 2020)

4 – Reduction for guilty pleas (s.73 Sentencing Act 2020)

5 – Totality principle (Totality guideline)

6 – Compensation and ancillary orders

7 – Reasons (s.52 Sentencing Act 2020)

8 – Consideration for time spent on bail (s.240 Criminal Justice Act 2003 and s.325 Sentencing Act 2020)

These steps reflect the usual process of applying reductions to any sentence reached within the category range and mirror the process in other similar guidelines.

Comment

The culpability and harm factors in the guideline echo those factors identified in Abdulwahab as relevant to assessing the seriousness of the offending. With accompanying category starting points and ranges, the guideline should ensure greater consistency in the application of those factors and the court’s approach to sentencing.

However, the sentences imposed in two recent high-profile cases concerning false allegations of crimes, Ahmed [2021] EWCA Crim 1786 and Beech [2020] EWCA Crim 1850 (10 and 15 years’ imprisonment respectively), are a reminder that very serious offences of perverting the course of justice can properly attract sentences in double figures, which will mean that in such particularly serious cases judges will need to impose sentences, with reasons, which eclipse the Guideline.

It is no surprise that the starting point for all the categories in the guideline is a custodial sentence, which reflects the first of the principles identified in Abdulwahab, namely that deterrence is an important aim in sentencing for offences of perverting the course of justice.

It also worth noting that the lowest of these category ranges includes a high level community order. While these cases will undoubtedly be rare, the guideline affords judges the possibility of dealing with certain lower-level cases by avoiding a custodial sentence where appropriate.

Overall, practitioners will welcome the certainty that the guideline brings when advising clients on sentence in cases involving the offence of perverting the course of justice.