Matthews, R v

In sentencing for perverting the course of justice, the court should assess the seriousness of the substantive offence, the persistence of the offender’s conduct, and its effect on the administration of justice. A sustained attempt to conceal the true circumstances of a work-related death is especially serious. It may deprive the public and the deceased’s family and friends of a proper investigation and can cause a trial to proceed on a false premise.

Where the sentencing judge has conscientiously considered the relevant mitigation and applied those factors, an appellate court will not interfere unless an error or a manifestly excessive sentence is arguable.

The applicant sought renewed permission to appeal against a total sentence of three years’ imprisonment imposed by the Recorder of Winchester for three offences of doing acts tending to and intended to pervert the course of justice. A single judge had refused permission.

The offences followed a fatal explosion at the applicant’s scrap-metal business. The prosecution alleged that he participated in maintaining a false account of the accident, instructed a co-defendant to reinstate a remote-control cable so as to support that account, and told employees not to reveal that a newly identified witness had been present. He pleaded guilty to the cable count and was convicted of the other two counts. He and the company were acquitted of manslaughter.

The central issue was whether the concurrent three-year sentences were manifestly excessive, having regard to mitigation, disparity and the sentencing principles in Tunney [2007] Cr App R(S) 565.

1. Application for permission to appeal refused. The court held that no error in the Recorder’s sentencing approach was discernible and that a total sentence of three years’ imprisonment was not arguably manifestly excessive.

2. The court applied the factors identified in Tunney [2007] Cr App R(S) 565: the seriousness of the substantive offence, the persistence of the conduct intended to pervert justice, and its effect on the course of justice. The underlying allegation was manslaughter, an offence of the greatest seriousness. The applicant’s course of deception was persistent, even though it occurred over a relatively condensed period.

3. The effect on justice was grave. The first trial, involving several defendants and lasting weeks, proceeded on a false premise. The attempts to conceal the truth after the fatal accident also led to two trials. The fact that the applicant and the company were ultimately acquitted of manslaughter did not reduce the seriousness of attempts made to avoid that possible liability.

4. The Recorder had been exceptionally well placed, having presided over the lengthy trial, to assess culpability. His detailed sentencing remarks showed that he had considered the asserted mitigation, including the applicant’s injuries, the death of his friend, his guilty plea on one count and the company’s position. The loss of the deceased did not substantially mitigate conduct which risked denying a proper public investigation into a work-related death.

5. There was no material disparity with the co-defendants’ sentences. Nor was there an unsustainable difference between the two-and-a-half-year sentence for interfering with the wiring, reflecting a guilty plea, and the three-year sentences for instructing witnesses to maintain the deception.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against sentence refused: [2009] EWCA Crim 1450.
• Crown Court: the Recorder of Winchester imposed concurrent sentences of three years’ imprisonment for three offences of perverting the course of justice.
• Single judge: permission to appeal against sentence was refused.