No: 200901931 A7 
Neutral Citation Number: [2009] EWCA Crim 1375

IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 26th June 2009
 
B e f o r e:

LORD JUSTICE KEENE 

MRS JUSTICE DOBBS DBE 
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RECORDER OF NOTTINGHAM
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 35 OF 2009   
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr J Laidlaw QC appeared on behalf of the Attorney General
Mr B Morris appeared on behalf of the Offender
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J U D G M E N T
1.	LORD JUSTICE KEENE:  Her Majesty's Attorney General seeks leave to refer to this court under section 36 of the Criminal Justice Act 1988 a sentence passed on the offender for the offence of perverting the course of justice because it appears to her to be unduly lenient.  We grant leave and we treat this as the hearing of the reference.
2.	The offence arose out of a murder investigation following the death of a 18 year‑old gay man, Michael Causer, in the Liverpool area.  He was beaten to death by being punched and kicked.  Two men were ultimately charged with his murder.  One, James O'Connor, pleaded guilty to that offence; the other, Gavin Alker, contested the charge and was acquitted following a trial in February 2009, during which this offender gave evidence for the prosecution.  
3.	The offender had pleaded guilty in October 2008, at the first reasonable opportunity, to this offence of perverting the course of justice.  He was sentenced by King J at Liverpool Crown Court on 23rd March this year.  He was made the subject of a suspended sentence order, the custodial term of which was 34 weeks detention in a Young Offender Institution, suspended for a period of two years.  There were then further requirements which accompanied the order, namely a supervision requirement and an unpaid work requirement of 200 hours to be completed within a 12 month period.
4.	The attack on the victim followed a night of drinking by a group of men, including those to whom we have already referred.  They ended up back in the home of the offender's grandmother, where they continued to drink and where the attack happened.  Though, as we have indicated, the victim was gay, the judge himself found in effect that this was not a homophobic attack.  After it was over, the offender assisted in the removal of Michael Causer to the street, which involved carrying him over a fence, and in the street the victim collapsed.  The offender then made a call to the emergency services.  It was what the judge described as "a convincing but wholly false piece of emotional and tearful play acting" in which he invented an account that Michael Causer had just been attacked by three strangers in the street.  He told the same false story to paramedics who attended, before then identifying to the police a completely bogus scene of the crime.  
5.	Thereafter, the offender made two false witness statements to the police to the same effect.  When suspicion fell upon him, he was arrested.  He still persisted in his subsequent interviews to give a detailed but entirely false account of the attack.  Only when confronted the day after the attack with significant inconsistencies between his account and that which was being given by O'Connor did this offender admit what had really happened.  He gave various explanations for his behaviour, ranging from panic to fear for his own safety if he had informed upon those responsible through to a belief that the victim would recover and provide his own account.
6.	The offender is 19 years old.  He was treated as a man of previous good character and indeed there were a number of testimonials put before the judge to his positive good character.  Amongst other things, he acts as one of two carers for his grandmother, who suffers from Parkinson's disease.  He was at the time of sentencing at a college where he had obtained two A Levels and was hoping to go to university.  As we have already indicated, it was he who called the emergency services, albeit giving a false account of what had happened.
7.	Mr Laidlaw, on behalf of the Attorney General, acknowledges that some of these matters to which we have referred, that is to say the offender's age, his good character and the call to the emergency services, were mitigating features, as were his plea of guilty and his giving of evidence on behalf of the Crown at trial.  Nonetheless, it is submitted on behalf of the Attorney General that an immediate custodial sentence was required in this case and that to suspend the term was and is unduly lenient.  The Attorney General does not complain about the length of the custodial sentence which was imposed, a sentence equivalent approximately to eight and a half months, but she does complain about it being made a suspended sentence.  Emphasis is placed by Mr Laidlaw on the gravity of the offence which the offender had witnessed, that of a killing and undoubtedly murder, and about which he then lied.  Mr Laidlaw also points to the way in which the offender persisted in his misleading account, giving it a number of times.
8.	Reference is made to a number of authorities, including R v Chin and McVitie [1990] 12 Cr.App.R(S) 745.  There one of the offenders, Chin, was of exemplary character.  Nonetheless this court reduced the sentence on him to nine months.  It is acknowledged by Mr Laidlaw that Chin was considerably older than the present offender, being 44 years of age, that there was no plea and that the offender did not give evidence to the Crown.  Nonetheless, he emphasises that the court clearly thought that an immediate custodial sentence was required.  Reference is also made to the case of R v Manning [2004] 2 Cr.App.R(S) 75, where this court reduced to two years' imprisonment a sentence on a man who told a false story about the shooting of a friend and flatmate.  In R v Gonslaves [2008] 1 Cr App R(S) 40, a sentence of two and a half years was reduced to 18 months on a woman who pleaded guilty, having given a false account of an incident to the police in order to exculpate her partner who had committed murder.  She was described as a decent hardworking woman of previous good character and the reduction to 18 months was described as an act of mercy.  It is submitted to this court on behalf of the Attorney General that that case had particular parallels to the one with which we are now dealing.
9.	Mr Laidlaw especially emphasises the need to deter others from similar acts of that kind, particularly in serious cases such as those involving homicide.  It is important, it is said, that public confidence should not be damaged.
10.	On behalf of the offender, Mr Morris stresses the mitigating features to which we have already referred.  Those include, of course, the offender's youth, his early guilty plea and his willingness to come forward and give evidence at trial.  Reliance is also placed on the personal circumstances of this offender, in particular his violent upbringing and yet the fact that he emerged from that as a person of positive good character.  We are also reminded by Mr Morris, of the constraints upon this court when it is applying the test of whether a sentence is or is not unduly lenient.  We bear that very much in mind.
11.	We begin our own analysis with the fact that it is a longstanding principle that perverting the course of justice is so serious an offence that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances; so said the then Lord Chief Justice, Lord Taylor, in Attorney General's Reference (No 44 of 1994) [1996] 1 Cr.App.R(S) 256.  With that proposition this court entirely agrees.  That is because such actions as giving a false account of events to investigating authorities undermines the very system of criminal justice which is thereby impeded in its functioning.  Hence even in cases of driving offences, immediate custody, albeit sometimes short in duration, can be expected for giving false information about the driver's identity.
12.	In assessing the gravity of the offence in a case like this, the most relevant factors are identified in the well known case of R v Tunney [2007] 1 Cr.App.R(S) 565.  They are the seriousness of the substantive offence, the degree of persistence in the misleading conduct and the effect of the attempt to pervert the course of justice on that course of justice.
13.	In the present case, the last of the factors works in the offender's favour.  Not only was there no discernible adverse effect on the eventual criminal trial of O'Connor and Alker but the offender actually gave evidence, as we have indicated, for the Crown.  It is important that those who do that get full credit for it.  However, the other two considerations aggravate the offence.  It may be that in terms of time the false accounts were persisted in for only a little over 24 hours but during that time the offender repeated his lies a number of times, as we have described.  They included the making of two false witness statements.  It is only when confronted with the inconsistencies between those statements and the account given by O'Connor that this young man changed his story and told the truth.  In other words, he did not volunteer the truth.  It was not a voluntary change of heart that lead to him dropping the false account.  It is, on the other hand, to be noted that that false account does not appear to have impeded the police investigation to any significant degree.  
14.	Above all, we have to bear in mind the extreme gravity of the substantive offence in this case.  There is no doubt that the offender was well aware that Michael Causer had been brutally killed in the way which we have described.  The offender was seeking to mislead the police and others about the murder.  That makes his offence of perverting the course of justice extremely serious.  We accept the proposition advanced by Mr Laidlaw that there is a need to deter others from such actions.  
15.	Are there then exceptional circumstances in this case?  We have read the psychological reports.  The offender is not unintelligent, as his record of A Levels indicates, despite some learning difficulty.  There is reference to peer pressure in the report, but the pre‑sentence report reveals that it was he who came up with the story of an attack by strangers.  Neither are his plea of guilty nor his previous good character, relevant though they are to length of sentence, exceptional circumstances.  
16.	We are prepared to accept that he may have acted initially out of panic, although that cannot explain the way in which he persisted in his story.  It may also be that he would find custody more difficult than some others would, for reasons set out in the reports.  We bear that in mind, as we do the fact that custody will interrupt his studies.  However, none of this persuades us that this is a case where, at first instance, immediate custody could have been avoided.  We conclude that a suspended sentence in these circumstances was lenient and unduly so.  Given, however, the offender's willingness to give evidence for the Crown, an important piece of mitigation, the term of immediate detention would not have been a lengthy one.  We say that because it is in the public interest that those that have relevant evidence to give should be encouraged to do so and should receive recognition for doing so, especially in serious cases.  
17.	Concluding that a suspended sentence was unduly lenient at first instance is not, however, the end of the story.  This court has a discretion as to whether it now intervenes, bearing in mind all the circumstances as they currently stand.  Those include the facts, first, that the offender has now done over 130 hours of unpaid work under the suspended sentence order out of the 200 hours required of him; secondly, that, for the reasons we have given, the length of immediate custody would not have been lengthy; and, thirdly, that moving from a suspended sentence to an immediate custodial one, a substantial allowance for double jeopardy would have to be made to reflect the fact that he is being sentenced for a second time; see Attorney General's References (Nos 14 and 15 of 2006) [2007] 1 All ER 718.  We bear in mind particularly what is said there in paragraphs 59 and 61.  A reduction on this aspect alone would be approaching the 30 per cent figure there referred to.  
18.	The upshot is that, when we put all those factors together, it seems to this court that any sentence of immediate custody which would now, in the present circumstances, be appropriate would be so short that the disruption to this young man's life and its effect upon his future would not be justified.  It follows that, while we find the sentence passed at first instance to have been unduly lenient, we are not in the exercise of our discretion prepared to intervene.  The sentence passed by King J will therefore stand.