Graham, R. v (Rev 1)

For offences of perverting the course of justice, an immediate custodial sentence is almost invariably appropriate. A high degree of exceptionality is required before custody may properly be suspended. The sentencing court must nevertheless assess all relevant circumstances cumulatively. Exceptional delay and its impact, autism and associated vulnerability, previous good character, rehabilitation prospects and strong personal mitigation may collectively justify suspension. Restrictive prison conditions during the Covid-19 pandemic could also be considered, although they would not ordinarily be decisive. On a challenge for undue leniency, the appellate court asks whether the sentence fell outside the range reasonably open to the sentencing judge. It does not substitute its own view merely because another judge might have imposed immediate custody.

The respondent was tried in the Leicester Crown Court for two counts of doing acts intending and intended to pervert the course of justice. He was acquitted of making a false complaint of assault, but convicted of knowingly providing altered video footage to the police in support of that complaint.

On 17 September 2020, the Crown Court imposed 12 months’ imprisonment, suspended for two years, with 100 hours’ unpaid work and a restraining order. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to challenge only the suspension of the custodial term as unduly lenient.

The central issue was whether the combination of delay, personal mitigation, autism-related vulnerability and Covid-19 prison conditions made suspension exceptionally available despite the ordinary need for immediate custody for perverting the course of justice.

1. Leave refused. The court held that the sentencing judge’s decision to suspend the 12-month custodial term was within the range of sentencing options reasonably open to him. The sentence was therefore not unduly lenient.

2. The court reaffirmed that perverting the course of justice will almost invariably require immediate custody. A high degree of exceptionality is required to justify suspension. That general approach was consistent with R v Abdulwahab [2018] EWCA Crim 1399.

3. The judge was nonetheless entitled to evaluate the circumstances cumulatively. Material matters included the acquittal on the first count, the limited seriousness of the alleged underlying assault, the absence of previous convictions or further misconduct, the fact that the respondent had not himself been proved to have altered the footage, and the absence of any link to the later attack on the officer’s home.

4. Autism and the respondent’s other vulnerabilities were relevant both to the appropriate custodial term and to suspension, consistently with R v Dahir [2019] EWCA Crim 2286. The exceptional delay before trial and its serious effect on the respondent were particularly important. Covid-19 prison restrictions could also lawfully form part of the overall assessment, as recognised in R v Manning [2020] EWCA Crim 592, although they would not ordinarily determine the issue alone.

5. Each consideration alone might not have justified suspension. Taken together, however, they entitled the judge exceptionally to suspend the sentence. The application for leave was refused.

• Court of Appeal (Criminal Division) — On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, refused leave to challenge the suspended sentence as unduly lenient: [2020] EWCA Crim 1693.

• Leicester Crown Court — On 17 September 2020, acquitted the respondent on one count of perverting the course of justice and convicted him on a second count. It imposed 12 months’ imprisonment, suspended for two years, with unpaid work and a restraining order.