R v Darren Stanley Feve

An offence tending and intended to pervert the course of public justice will almost invariably require an immediate custodial sentence. Deterrence and the inherent seriousness of interference with justice ordinarily mean that a suspended sentence cannot provide appropriate punishment.

References to exceptional circumstances do not impose a separate legal test. They convey that only very compelling reasons will rarely justify avoiding immediate custody. Sentencers must follow the relevant guidelines under the Sentencing Code. Where the term is two years or less, suspension requires a balancing exercise, but in the great majority of such cases the need for immediate custody outweighs rehabilitation, personal mitigation and harmful impact on others.

The offender was convicted by a jury in the Crown Court at Kingston upon Hull of doing an act tending and intended to pervert the course of public justice. He gave police a false account placing his stepson at home on the evening of a murder. He was sentenced to 12 months’ imprisonment, suspended for 12 months, with 200 hours’ unpaid work.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The central issue was whether the later sentencing guidelines permitted suspension without the very compelling circumstances formerly described as exceptional, and whether this suspended sentence was within the proper range.

1. The court granted leave to refer and held that the suspended sentence was unduly lenient. It nevertheless exercised its discretion not to increase the sentence. The sentence therefore remained 12 months’ imprisonment suspended for 12 months, with 200 hours’ unpaid work.

2. Acts tending and intended to pervert the course of public justice strike at the administration of justice. The need to deter such conduct, together with its inherent seriousness, means that immediate custody is almost invariably required. R v Abdulwahab [2018] EWCA Crim 1399 and Attorney-General's Reference (R v Graham) [2020] EWCA Crim 1693 reflected that long-established position.

3. The descriptions in earlier cases of exceptional circumstances are not a separate legal test. They are shorthand for the proposition that there will be few cases in which immediate custody can properly be avoided, and that very compelling reasons are required.

4. Under section 59 of the Sentencing Code, the sentencer must follow the relevant guidelines unless that would be contrary to the interests of justice. The Perverting guideline preserved, rather than changed, the established approach: it makes custody inevitable in the great majority of cases. If the appropriate term is two years or less, the Imposition guideline requires consideration of suspension. In most perverting cases, however, the factor that appropriate punishment can be achieved only by immediate custody will outweigh rehabilitation, personal mitigation and harmful impact on others.

5. Here, despite substantial mitigation and limited practical impact on the investigation, the offender deliberately gave police a false alibi concerning a crime he knew to be serious. Appropriate punishment could only be achieved by immediate imprisonment. The sentencing judge’s suspended sentence was outside the proper range. Compliance with the order, deteriorating health, and the serious consequences for the offender and his children justified the court’s discretionary decision not to increase it.

• Court of Appeal (Criminal Division) — on the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, granted leave and found the suspended sentence unduly lenient, but did not increase it.
• Crown Court at Kingston upon Hull — following conviction by a jury, imposed 12 months’ imprisonment suspended for 12 months, with 200 hours’ unpaid work.