Kenny v R.

A breach of a restraint order under the Proceeds of Crime Act 2002 is capable of amounting to perverting the course of justice even where the breach involves no separate criminal offence. The question remains whether the conduct had a tendency, and was intended, to pervert the course of public justice.

The availability of contempt proceedings, and a warning in the order of that sanction, does not make contempt the exclusive response. There is no closed list of conduct capable of constituting the offence, although its development must remain incremental and cautious. Ordinarily contempt will suffice; a charge of perverting the course of justice should be reserved for breaches with serious aggravating features.

The appellant arranged funding said to be a gift for the legal fees of a fraud defendant who was subject to a restraint order. After learning of the order, he represented that the funding was a gift, although it was a loan. The loan was ultimately repaid through funds derived from the restrained company.

Following the trial judge’s ruling that the conduct was capable in law of amounting to perverting the course of justice, the appellant pleaded guilty to conspiracy to pervert the course of public justice. He was sentenced to 13 months’ imprisonment and appealed by leave of the single judge.

The central issue was whether breach of a restraint order made under the Proceeds of Crime Act 2002, without further illegality, could constitute that common-law offence rather than being punishable only as contempt.

1. Appeal dismissed. A breach of a restraint order under the Proceeds of Crime Act 2002 may, without additional independent criminality, be capable of constituting perverting the course of justice.
2. The common-law offence requires conduct, or embarking on a course of conduct, which has a tendency and is intended to pervert the course of public justice. The court applied the established understanding that the offence is not confined to a closed list of acts: R v Clark (Mark) [2003] EWCA Crim 991. It may be committed in otherwise civil proceedings, as illustrated by R v Vreones [1891] 1 QB 360.
3. The court accepted that expansion of the offence must be incremental and cautious, consistently with Article 7 of the European Convention on Human Rights. That caution did not justify a new requirement that the conduct must also constitute an independent offence. Earlier observations in R v Kellett [1976] 1 QB 372 and R v Machin [1980] 71 Cr App R 166 supported the conclusion that otherwise lawful conduct may suffice where the required tendency and intent are established.
4. The unreported ruling in R v Ludlam et al was distinguishable insofar as it concerned the High Court regime under section 77 of the Criminal Justice Act 1988. The Court of Appeal also disagreed with its POCA-related reasoning. Criminal Procedure Rules 2011, rule 59(6), was permissive: it required a contempt warning but did not make contempt the exclusive enforcement mechanism.
5. On the facts, the appellant took planned and sophisticated steps to remove assets from the court’s control and frustrate their availability for confiscation. The prosecution was therefore lawful and appropriate. The court nevertheless stated, as guidance, that contempt will ordinarily be sufficient and that a perverting charge should generally be reserved for serious aggravating features.

• Court of Appeal (Criminal Division): Dismissed the appeal and upheld the Birmingham Crown Court ruling that the conduct was capable in law of amounting to perverting the course of justice: [2013] EWCA Crim 1.
• Birmingham Crown Court: Following HHJ Henderson’s ruling, the appellant pleaded guilty to conspiracy to pervert the course of public justice and received 13 months’ imprisonment.