Appeal - Perverting the course of justice

R v A: Court of Appeal, Criminal Division (Lord Judge, Mr Justice Silber and Mr Justice Maddison): 13 March 2012

It was alleged that between February and July 2010, the defendant, with the necessary intent, did a series of acts which had a tendency to pervert the course of public justice by making and pursuing false retractions of her complaints of rape against her husband, X. In November 2009, the defendant alleged that her husband had raped her on more than one occasion (the complaint). The defendant subsequently withdrew the complaint, asserting and reasserting that the complaint had been false.

Proceedings against X were stopped and the defendant was prosecuted for perverting the course of justice by making a false complaint of rape. In due course, the defendant reasserted the truth of the complaint. In October 2010, the defendant faced two indictments, both of which alleged that the defendant had perverted the course of public justice. Although the statement of offence in each indictment was identical, the particulars of offence were mutually contradictory. The first indictment alleged that the defendant had made and pursued false allegations of rape against X, the second that she had made and pursued a false retraction of those allegations.

The defendant pleaded not guilty to the first indictment and pleaded guilty in relation to the second indictment to doing acts tending and intended to pervert the course of public justice contrary to common law. She was acquitted in relation to the first indictment and was sentenced to eight months' imprisonment in relation to the second indictment. The sentence was subsequently quashed and replaced with a non-custodial sentence in the form of a community based order. Thereafter, fresh guidance (the guidance) was published by the Crown Prosecution Service (CPS). It was accepted by the prosecution that, if the guidance had been in force at the date of the defendant's conviction, on the basis of the evidence that she had been raped and subjected to other domestic violence over a long period and that that had had a damaging effect on her health, she would in all likelihood not have been prosecuted. The defendant appealed against conviction.

Based upon recent evidence provided by a forensic clinical psychologist that, during the latter part of her relationship with her husband the defendant had been experiencing post-traumatic stress disorder and that this condition had persisted at the time when she retracted the complaint (the material), she submitted, inter alia, that crucial evidence had not been properly examined or considered before she had pleaded guilty.

If it had been, she would have had a viable defence to the charge in the form of duress. She further submitted that the material revealed that the decision to prosecute followed failings by the police, the defendant's legal advisors, the CPS and the court and further, that it constituted an inexplicable and inappropriate exercise of the well established prosecutorial discretion which required that she should not have been prosecuted at all. The overall effect, if all of those concerned had behaved differently, would have been the discontinuance of the prosecution. Accordingly, the conviction was unsafe. The appeal would be dismissed.

(1) It was elementary, but necessary to emphasise, that guidance issued by the director of public prosecutions (DPP) did not, and as a matter of law, could not, create any immunity or defence. The guidance and any policy documents publicly reflected the considerations which, in an individual case of the kind under consideration, were considered to be relevant to the exercise of the prosecutorial discretion not to bring an individual case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. If that exercise had been conscientiously undertaken, the sole question for the court was whether the offence had been committed. It was not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution (see [83] of the judgment). DPP v Humphrys [1976] 2 All ER 497 considered.

(2) When it was sought to advance an argument for a stay by reference to policy or guidance issued by the DPP, the decision whether to prosecute or not always had to be made by the CPS and not the court. The court did not make prosecutorial decisions. Provided there was evidence from which the jury might properly convict, it could only be in the rarest circumstances that the prosecution might be required to justify the decision to prosecute. The decision whether or not to prosecute in most cases required a judgment to be made about a multiplicity of interlocking circumstances. Accordingly, even if it could be shown that in one respect or another, part or parts of the relevant guidance or policy had not been adhered to, it did not follow that there had been an abuse of process. It remained open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance (see [84] of the judgment).

(3) A prosecution which did not constitute an abuse of process at the date of conviction could not acquire that characteristic on the basis of new or amended prosecutorial guidance or policy subsequently issued (see [86] of the judgment). On the facts, the court was not entitled to interfere with the conviction. There was no basis for concluding that the defendant had felt exposed to violence or the threat of violence when she had made the false retractions on which her prosecution had been founded.

The defence of duress had not been realistically available and, faced with the material now available, no responsible counsel would have advised the defendant that the case should have been contested on that basis. There had been no unreasonable disregard for or unjustified or inexplicable disapplication of existing prosecutorial policy at the time of the defendant's conviction. The reality of the instant case was that the defendant had been undoubtedly guilty of a serious crime from which police officers had done all they reasonably could to dissuade her.

Compassion for her position, and for any woman in the same or a similar position, ought to have produced a non-custodial sentence. That was why the court had acted speedily to quash the custodial sentence and replace it with a community order which would offer practical assistance to the defendant in the immediate aftermath of her release from prison. The court had also expressed itself in clear and direct language which had been immediately considered by the DPP who had since issued fresh guidance about how cases involving false retractions of true allegations by vulnerable defendants would be addressed in the future.

All that acknowledged, it was not possible for the court to dispense with or suspend the statute, or to grant itself an extra statutory jurisdiction (see [70], [86], [88] of the judgment).

Niall Quinn QC, solicitor advocate and David Malone (instructed by Woodfines LLP) for the defendant; Alison Levitt QC and Iain Wicks (instructed by the CPS) for the Crown.