Henderson, R. v

For a deliberate attempt to pervert justice by falsely identifying another driver, immediate custody will ordinarily be appropriate. The custodial starting point must nevertheless be proportionate to the particular offenders and a short prison term should be no longer than reasonably necessary to punish and deter.

A driving disqualification may properly accompany the sentence where the offence was committed to evade a disqualification. Its duration must reflect the circumstances. Where a volunteer falsely accepts penalty points but has not sought to avoid his own disqualification, a further disqualification may lack sufficient justification.

The appellants pleaded guilty at Lincoln Crown Court to perverting the course of justice. Henderson falsely stated that Metcalfe had driven his lorry when it was recorded speeding. Metcalfe knowingly confirmed the false account, accepted a fixed penalty and received penalty points.

The Recorder sentenced each appellant to six months’ imprisonment and disqualified each from driving for 12 months. They appealed against the custodial terms and the disqualification orders. The central issues were whether the prison terms were manifestly excessive and whether the driving disqualifications were justified and proportionate.

1. The appeals were allowed. Each custodial sentence was reduced from six months to four months. Henderson’s disqualification was reduced from 12 months to six months. Metcalfe’s disqualification was quashed.

2. The offence was deliberate rather than spontaneous. It was an attempt to defeat the penalty-points system, which protects the public and deters bad driving. The Recorder was therefore entitled to find that the custody threshold was crossed. Henderson and Metcalfe were equally culpable: Metcalfe knowingly volunteered to accept the punishment due to Henderson.

3. However, the Recorder’s nine-month starting point was higher than reasonably open on these facts. Both appellants were effectively of previous good character, made full admissions and pleaded guilty. Deterrence remained important, but a six-month starting point, reduced to four months for the guilty pleas, would have the requisite punitive and deterrent effect. The court gave weight to the need to keep short custodial sentences as short as reasonably possible.

4. Henderson had committed the offence to avoid the mandatory six-month disqualification that his penalty points would otherwise have produced. A disqualification was therefore plainly appropriate. Its period should, however, be reduced to the six months he would properly have faced for the speeding offence.

5. Metcalfe had not used the offence to escape disqualification. Instead, he acquired penalty points he would not otherwise have received. In light of the custodial sentence and the absence of sufficient further justification, the gravity of the offence did not require his disqualification.

• Court of Appeal (Criminal Division): Allowed the sentencing appeals in [2011] EWCA Crim 1152, reducing both custodial terms and varying the driving disqualification orders.
• Crown Court at Lincoln: On 25 March 2011, the Recorder sentenced each appellant to six months’ imprisonment and disqualified each from driving for 12 months following guilty pleas to perverting the course of justice.