Attorney-General's Reference No 35 of 2009

Perverting the course of justice will almost always require an immediate custodial sentence unless exceptional circumstances justify a different course. Its gravity depends particularly on the seriousness of the underlying offence, the persistence of the deception, and its effect on the administration of justice.

Mitigation, including youth, previous good character, a guilty plea and later assistance to the prosecution, must receive proper credit. It does not necessarily make suspension appropriate. Even after finding a sentence unduly lenient, the Court of Appeal retains a discretion whether to intervene. Compliance with an existing suspended sentence order and the double-jeopardy allowance may make immediate custody now inappropriate.

The offender pleaded guilty to perverting the course of justice after giving repeated false accounts to the emergency services, paramedics and police following the killing of Michael Causer. The false account attributed the attack to strangers. The offender later admitted the truth and gave evidence for the prosecution at the murder trial.

At Liverpool Crown Court, King J imposed 34 weeks’ detention in a young offender institution, suspended for two years, with supervision and 200 hours’ unpaid work. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988, contending that suspension, rather than the length of the term, was unduly lenient.

The central issue was whether immediate custody was required and, if so, whether the court should exercise its discretion to replace the suspended sentence.

1. The court granted leave and found the suspended sentence unduly lenient, but declined to intervene. The order made by King J was therefore to stand.
2. Perverting the course of justice is an offence for which immediate custody is almost always necessary unless there are exceptional circumstances. False accounts given to investigating authorities undermine and impede the criminal justice system. The court entirely agreed with the principle stated in Attorney General's Reference (No 44 of 1994) [1996] 1 Cr.App.R(S) 256.
3. The gravity of the offence was assessed by reference to the factors identified in R v Tunney [2007] 1 Cr.App.R(S) 565: the seriousness of the substantive offence, persistence in the misleading conduct, and the effect on the course of justice. The last factor favoured the offender because the deception had not significantly impeded the investigation and he later gave evidence for the Crown. The murder which he sought to conceal and his repeated lies, including two false witness statements, made the offence extremely serious.
4. The offender’s youth, good character, guilty plea, personal circumstances and eventual assistance to the Crown were relevant mitigation. They did not amount to exceptional circumstances. His assistance required substantial credit and meant that any immediate custodial term at first instance would have been short.
5. After an undue-leniency finding, the court retained a discretion whether to alter the sentence. It took account of the more than 130 hours of unpaid work already completed, the short term now in contemplation, and the substantial double-jeopardy allowance required by Attorney General's References (Nos 14 and 15 of 2006) [2007] 1 All ER 718. Any immediate term now appropriate would be too short to justify the disruption to the offender’s life and future.

• Court of Appeal (Criminal Division): On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court found the sentence unduly lenient but declined, in its discretion, to vary it.
• Liverpool Crown Court: King J imposed 34 weeks’ detention in a young offender institution, suspended for two years, with supervision and 200 hours’ unpaid work.