Appeal against conviction for attempting to pervert the course of justice rejected

The appellant argued that the charge did not relevantly allege the crime of perverting the course of justice, but the High Court of Justiciary Appeal Court ruled that there was “no doubt” that the course of justice was in train and that the appellant “took steps designed to frustrate it”.

The Lord Justice Clerk, Lady Dorrian, sitting with Lady Paton and Lord Brodie heard that the appellant Marc Hanley was was indicted on two charges of attempting to murder Jay Fraser (charges 1 and 3) and one of attempting to pervert the course of justice (charge 2).

After trial he was convicted of the latter charge, as amended, and sentenced to four years’ imprisonment.

Identification parade

The court was told that on 4 June 2016 a witness, Agnes Boyd, had given the police a signed statement in which she clearly implicated an individual known to her as Marc Hanley in the offence which became charge 1 on the indictment.

To secure identification evidence relating to this individual an “old fashioned” identification parade was arranged for 21 June 2016.

But on 20 and 21 June 2016, while on remand in Barlinnie Prison in respect of charge 1, the appellant repeatedly telephoned two friends and associates instructing them to induce or coerce Ms Boyd by giving her drugs and money not to identify him or anyone else as being responsible for the crime at and identification parade.

The amended libel was to the effect that he on 20 and 21 June 2016, at Barlinnie prison and elsewhere, he: “knowing that Agnes Boyd … or another female witness who had provided a statement to the police, was a witness against you and that she was due to attend an identification parade on 21 June 2016 at which she could identify you as being responsible for an alleged assault on Jay Fraser … did contact Robert Duncan and Daniel Baxter … by telephone and did instruct them to induce or coerce said Agnes Boyd or another female witness who had provided a statement to the police, not to identify you or anyone else as being responsible for said crime at said identification parade, and this you did with intent to pervert the course of justice and you did thus attempt to pervert the course of justice.”

Included in the original charge, prior to the words “and this”, were the words “whereby Agnes Boyd attended said identification parade and did not identify you or anyone else having been induced or coerced to do same”, but the Crown successfully moved to amend the charge.

‘Irrelevant charge’

The argument rejected by the trial judge, and repeated in the appeal, was that the amended charge did not relevantly aver the crime of attempting to pervert the course of justice, and that there was “insufficient evidence” to prove the offence.

The trial judge, relying on HM Advocate v Harris (No 2) 2011 JC 125 and Dalton v HM Advocate 1951 JC 76 concluded that the libel was relevant in that it contained “clear specification that the appellant attempted to eliminate evidence which might tend to incriminate him in a future criminal charge”.

However, it was submitted that in the absence of an averment that steps were taken in furtherance of the instructions given by the appellant, which engaged the course of justice in the form of an attempt to influence a witness, the charge was “irrelevant”.

However, on behalf of the Crown the advocate depute submitted that the “actus reus” of attempting to pervert the course of justice lay in conduct which constituted an “attempt to impede, obstruct or hinder the course of justice”.

The identification parade was a critical part of the police inquiry in respect of which the appellant had been remanded and the phone calls constituted “deliberate attempts” to pervert the conduct of the parade, which at the time of issuing the instructions the appellant knew was about to be held.

It was also argued that commission of the crime was not contingent on the instructed steps being taken by the appellant’s associates.

‘Frustrating the course of justice’

The court agreed with the trial judge’s observation that the crime of attempting to prevent the course of justice can come in “many guises”.

Refusing the appeal, the judges rejected the relevancy argument and also considered that, in any event, there was sufficient evidence of an “overt act”.

Delivering the opinion of the court, the Lord Justice Clerk said: “That there may be more than one way relevantly to aver a crime contrary to the course of justice thus appears from the examples cited.

“In all cases, the essence of the charge is the interference with what would otherwise be expected to have come to pass in the ordinary and uninterrupted course of justice in the particular case.”

In Harris, the court considered that the salient points of the offence as being that a course of justice was in train, in that case in the form of police investigations, and that the appellant took various steps in an attempt to stop them.

The same description could be applied to the circumstances and actions of the appellant in this case.

“There is no doubt that a course of justice was in train, and that the appellant took steps designed to frustrate it,” Lady Dorrian said.

She added: “That the appellant, of necessity, interposed third parties and communicated his instructions to them rather than directly to the witness(es) does not justify the conclusion that the charge was not relevant. The drawing of such a formal distinction, on account of a lack of direct engagement with the witness, would be to defeat the practical utility and deterrent effect of such charges.

“The repeated phone calls made in anticipation of the identification parade constitute a sufficiently overt act for the purpose of the offence. The libel was that the appellant did ‘instruct’ Robert Duncan and Daniel Baxter to induce or coerce the witnesses in other words that such were the circumstances and perhaps his relationship with Duncan and Baxter that the appellant reasonably expected that what he wished to be done by them would be done by them.”

The second part of the appeal maintained that even if the charge could be said to be relevant, there was insufficient evidence of an overt act, but the judges also rejected that argument.