Sudale, R v

Perverting the course of public justice is inherently serious because it impedes the criminal justice system. A substantial and immediate custodial sentence will ordinarily be required. The reference to exceptional circumstances means that suspension is confined to an unusual case, assessed by reference to culpability, harm and the relevant sentencing factors.

A realistic prospect of rehabilitation, strong personal mitigation, and a significant harmful impact on others may justify suspension only where, taken with the facts of the offending, they make immediate custody inappropriate. On substituting an immediate sentence following an Attorney General’s reference, the court may reduce its length to reflect double jeopardy and satisfactory compliance with the original suspended sentence.

The offender was convicted at Warwick Crown Court of doing an act tending and intended to pervert the course of public justice. She had made a false witness statement intended to provide her then partner with an alibi for an armed jewellery-shop robbery. Although she attended his trial prepared to give evidence, she was not called and he was convicted.

The Recorder imposed 24 months’ imprisonment, suspended for 24 months, with unpaid work and a rehabilitation requirement. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The central issue was whether the offender’s vulnerability, mitigation, delay, rehabilitation and the effect on her adult daughter made suspension of the custodial term proper.

1. The Attorney General’s reference was allowed. The 24-month suspended sentence was quashed and replaced with 18 months’ immediate imprisonment.

2. Perverting the course of public justice is always serious. It attacks the proper functioning of the criminal justice system. The court applied the established approach in Attorney General's Reference No 44 of 1994 (Middleton) [1996] 1 Cr App R (S) 256, Attorney General's Reference No 35 of 2009 (Binstead) [2010] 1 Cr App R (S) 61, and R v Omayr & Rehman [2017] EWCA Crim 814. In the usual case, appropriate punishment can only be achieved by immediate custody.

3. The court applied the three sentencing considerations stated in R v Tunney [2007] 1 Cr App R (S) 91: the seriousness of the underlying offence, persistence in the conduct, and the actual effect on the course of justice. The armed robbery was serious and the offender had been prepared to repeat the false alibi at trial. The lies had not ultimately prevented the conviction of her partner, but that did not make suspension appropriate.

4. An exceptional-circumstances formulation should be understood as identifying an unusual case in which immediate imprisonment is not imposed. The court considered the relevant suspension factors: rehabilitation, personal mitigation and impact on others. The absence of a guilty plea did not demonstrate a realistic prospect of rehabilitation. Her mitigation, vulnerability, delay and some effect on her adult daughter did not make the case unusual. The reasoning in Attorney General's Reference No 34 of 2015 [2015] EWCA Crim 1152 supported the conclusion that deterrence and the public interest outweighed those matters.

5. In fixing the substituted term, the court made reductions for the fact that the offender had effectively been sentenced twice and for her satisfactory compliance with the suspended sentence. That approach was supported by Attorney General's Reference No 45 of 2014 (Afzal) [2014] EWCA Crim 1566.

• Court of Appeal (Criminal Division) — On an Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court allowed the reference and substituted 18 months’ immediate imprisonment: [2017] EWCA Crim 2496.
• Crown Court at Warwick — Following conviction for perverting the course of public justice, the Recorder imposed 24 months’ imprisonment suspended for 24 months, with unpaid work and a rehabilitation requirement.