The concept of ‘perverting the course of justice’ might commonly feature in televised series, where crooked cops tamper with evidence for money or baddies interfere with witnesses, but before HBO and Netflix came on the scene, it had a long-established history as an offence in the common law of England and Wales.

In October 2023, the Sentencing Council introduced new guidelines for sentencing offenders convicted of perverting the course of justice and witness intimidation in England and Wales. These aim to provide consistency and clarity across all cases, whereas before a wide range of case law had to be relied on to devise the correct type or length of sentences based on the individual circumstances of each case.

We look at how the guidelines, which have now been in force for just over six months, will likely impact sentencing going forward in less severe cases. This is of particular interest at a time when the offence is once again in the limelight, following a recent high-profile boiler room fraud case brought by the Financial Conduct Authority (FCA), which has resulted on 7 May 2024 in an individual receiving a custodial sentence for perverting the course of justice.

An old offence

The current interpretation of the doctrine was crafted in 1891, when Justice Pollock B considered whether the defendant’s attempt to fool arbitrators in a dispute about the quality of grains amounted to a fraud or cheat against the administration of public justice. In R v Vreones, he offered the dictum that “the real offence… is the doing of some act which has a tendency and is intended to pervert the administration of public justice”.

Since this dictum, the law around perverting the course of justice has been used and developed to assist the courts in a wide range of situations, such as:

– discontinuing a criminal prosecution in return for payments;
– making false statement to police officers investigating an offence;
– making a false retraction of a true allegation of rape;
– doing an act calculated to assist another to avoid arrest;
– interfering with a witness or a juror; or
– the whole gambit of potential scenarios that would make for good crime cop drama.

Perverting the course of justice has remained a serious offence: it is indictable only, with maximum life imprisonment and an offence range between a community order and seven years in custody.

Long-standing principles thrown into question

Before the new guidelines were introduced, practitioners relied on the long-standing principle that custodial sentences should be imposed in all but the most exceptional cases.

Indeed, before the guidelines came out, the courts considered, in R v Abdulwahab [2018] EWCA Crim 1399, that conduct intended to pervert the course of justice almost invariably called for a custodial sentence; the idea being that deterrence was necessary.

In this case, the appellant, a young man with no previous convictions, had given a false account of events when interviewed under caution. His friend had used his leased car to deal drugs. The appellant claimed that he had left it at a car park for his friend to collect, when in fact, his friend had driven the car to the car park himself. Drugs were found in the car, and the friend and two other men were arrested for intent to supply Class A and Class B drugs. The appellant voluntarily attended the police station a few days later to collect the car and was interviewed under caution when he gave the false account. The police had CCTV evidence contradicted his account.

On reviewing the 15-month custodial sentence that he had received, and giving full credit for his guilty plea, the appeal judge observed that there was a “clear, deliberate, and focused lie told by the appellant with intent to pervert the course of justice” by either providing his friend with a defence or by weakening the prosecution case against him. However, he also observed that “there does not appear to have been any evidence pointing unequivocally to this appellant having gone to the police station always intending to put forward that lie…”.

In the Court of Appeal, the appellant submitted that his lie not been elaborate or well thought out, it did not exonerate the friend from suspicion, it was put forward only during the interview under caution and, although it was maintained throughout the interview, it was not repeated on other occasions, and the false account did not in fact obstruct the course of justice to any significant extent and did not adversely affect the police investigation.

The judgment further explored that there was “no Definitive Sentencing Guideline for offences of this nature”. However, a number of relevant principles could be drawn from another case, R v Radcliffe [2016] 1 Cr App R(S) 65, and other decisions of the Court of Appeal.

These included that:

1. conduct which tends and intends to pervert the course of justice striking “at the heart of the administration of justice and almost invariably calls for a custodial sentence”;
2. the appropriate sentence depends on the particular circumstances of each case and these can vary widely and therefore only limited assistance can be derived from considering previous decisions in other cases;
3. in assessing the seriousness of any particular offence of perverting the course of justice, the seriousness of the underlying offence, the nature of the deceptive conduct, the period of time over which it was continued, whether it cast suspicion on or led to the arrest of an innocent person, and the success or otherwise of the attempt should also be considered; and
4. the offender’s previous character and any personal mitigation must be taken into account.

New structure

The sentencing guidelines offer a step-by-step approach for reaching a conclusion on sentencing which broadly reflects the common law approach previously relied on.

As per all sentencing guidelines issued under the Sentencing Code, step 1 involves “determining the offence category”. This requires assessing the seriousness of the offence to provide a starting point for sentencing. The seriousness of the offence is determined by assessing culpability and harm, based on three categories: A – high culpability, B – medium culpability, C – lower culpability.

Some demonstrable behaviour for each category includes:

– high culpability: conduct over a sustained period of time and sophisticated and/or planned nature of conduct, as well as seriousness of underlying offence;
– medium culpability: factors present in A and C which balance each other out and/or the offender’s culpability falls between the facts described in A and C; and
– lower culpability: unplanned and/or limited in scope and duration, unsophisticated nature of conduct, involved through coercion, intimidation and underlying offence not serious for lower culpability.

A hypothetical review

If we were to hypothetically review Abdulwahab with the help of the sentencing guidelines, the first step would also be to assess the young man’s culpability. Here, it may be argued that he was of medium/low culpability. Although the underlying offence was “serious”, all other factors, such as the lack of sophistication in the lie, the fact that he did not attend the police station with a plan to lie, and that the lie was not repeated, point towards low culpability.

Next, the level of harm should be assessed. This is also divided into three categories:

– Category 1: where there has been serious consequences or distress for an innocent party, a serious impact on the administration of justice, and a substantial delay caused to the course of justice.
– Category 2: where suspicion was cast on an innocent party and there has been some, distress, some impact, and some delay.
– Category 3: limited distress, limited impact, limited delay.

In our hypothetical review, a judge may find that the young man had caused a category 3 level of harm: no innocent party was involved, the impact on the administration of justice and the delay caused to the course of justice were limited (although bearing in mind that had it not been for the CCTV the police already had in their possession, the impact would have been more significant).

Once the level of culpability and the level of harm have been assessed and a prognosis has been reached, step 2 of the sentencing guidelines calls for both to be used to identify the corresponding starting point to reach a sentence within a category range.

The guidelines provide a table to help assess the starting point and category range, which specifies “the starting point applied to all offenders, irrespective of plea or previous convictions”. Should our hypothetical appellant be a B3, i.e. someone of medium culpability (category B) with low level of harm (category 3), the starting point would be nine months’ custody and the category range between six months’ and one year’s custody.

Once the starting point has been reached, the sentencing guidelines provide additional considerations to be considered in relation to community orders and custodial sentences. Steps 3 to 8 can then be used to arrive at an appropriate sentence. These are not considered in detail here, but include:

– Step 3: consider any factors which indicate a reduction for assistance to the prosecution.
– Step 4: reduction for guilty pleas.
– Step 5: totality principle.
– Step 6: compensation and ancillary orders.
– Step 7: reasons.
– Step 8: consideration for time spent on bail.

All of these considerations are usually taken into account for the conviction of criminal offences, which the judge considered in Abdulwahab.

Time will tell

In Abdulwahab, the Court of Appeal accepted that the 15 months’ custodial sentence that had been handed down was too long and that 11 months were more adequate. In his judgment, the judge accepted the appellant’s submissions finding that “the sentence after trial which the learned judge had in mind was manifestly excessive in length… [he] had therefore erred in taking too high a starting point for sentence after trial”. In the context of our hypothetical review, this updated sentence would fall within the range of the guidelines, albeit at the higher end of the category range.

The guidelines have been in place for only a few months, so their effectiveness and how they will affect the sentencing landscape remain to be seen. However, their introduction is likely to be positive, and it is very much hoped that they will offer consistency and clarity for all involved, from lawyers, their clients and the courts.

What remains crystal clear is that notwithstanding the introduction of the guidelines, serious wrongdoing will continue attracting sufficiently severe punishment.

This is apparent from the recent 18-month custodial sentence handed down by Southwark Crown Court in a prosecution brought by the FCA for a relatively sophisticated and premeditated attempt at perverting the course of justice (the forging of documents), which was committed in the context of broader, serious offending by finance professionals (who ended up receiving lengthy custodial sentences of their own for fraud offences).

It was undoubtedly considered an aggravating feature in the case that the forged document was provided to FCA investigators to mislead them. The individual – who was not found to have played any part in the boiler room fraud scheme itself – pleaded guilty but was nonetheless sentenced to 18 months in prison.