Tag Archives: perverting the course of justice

Constance Briscoe Sentenced – 16 months in prison

From The Guardian

From The Guardian

Introduction

On 1st May 2014 Constance Briscoe, a barrister and Recorder (part-time Judge) was convicted of three offences of Perverting the Course of Justice and bailed overnight for sentence to be passed.

We commented that it was an inevitable custodial sentence, in the order of 18 months. How did we do?

 

Sentence

The sentencing remarks are now available. We know that the Judge sentenced her to 16 months in prison, so we were not that far off the mark.The posts that we had linked to set out the various sentencing decisions that the Judge would have looked at (which is what we based our prediction on).

This is a serious offence which almost always leads to a prison sentence. Here, there were a lot of personal circumstances that were good mitigating features, but these would be far outweighed by the seriousness of the offences.

There had been speculation as to whether Ms Briscoe’s job as a barrister would have made the Judge go easier on her. It wouldn’t, if anything, it goes the other way. She, of all people, should have known that this was wrong. Also, Judges are aware that when they are sentencing ‘one of their own’ are acutely aware that the public are looking at them to see if they are lenient, and this often leads to a sentence higher than one would otherwise get.

 

What next for Ms Briscoe?

Her legal career is finished – there is no way that she will be allow to practice after this.

Famously, in 2008 she won a libel trial brought by her mother in relation to her books. It has already been announced that this will be re-investigated.

Chris Huhne took the conviction of Ms Briscoe with less than good grace and sympathy, saying – “Constance Briscoe has been revealed as a compulsive and self-publicising fantasist. British justice is likely to be a lot fairer with Briscoe behind bars. If she can make up the witness statement used as the key evidence against me, she is clearly capable of hiding evidence she should have disclosed to the defence in the many cases that she prosecuted for the Crown Prosecution Service. Aggrieved defendants will now seek a CPS review.

Whilst Mr Huhne may not particularly have the moral high ground, one can understand why he feels a bit aggrieved in the circumstances. Is he right that there will be a raft of convictions being found unsafe?

Probably not. The Courts are generally very reluctant to go over old cases, and there was a warning last week from the Court of Appeal that this will be even harder in future. For any case to be successful actual prejudice would have to be shown – a situation where Ms Briscoe deliberately withheld evidence or lied to the Court (as two examples), to the detriment of a defendant. Similarly with case that she sat as a Judge over. This is very difficult from such a distance of time, and even if some failing can be picked out, a defendant would need to show that this may have impacted on the verdict – a very high task.

Having said that, it is understandable that people who were prosecuted, defended or sentenced by Ms Briscoe may feel slightly aggrieved.

 

Constance Briscoe guilty of perverting the course of justice

v3-BriscoeREX

Introduction

In the Spring of 2003 Chris Huhne persuaded his then wife, Vicky Pryce, to take his speeding points. This seemingly minor act would come back to haunt them ten years later. It’s effect went further than them and one of the major casualties was Constance Briscoe.

On 1 May 2014 she was convicted of three count of perverting the course of justice.

This is a very quick look just after the verdict is announced. We will look at this in more detail when the  dust has settled and Ms Briscoe is sentenced.

Charges

Ms Briscoe was originally charged with two offences of Perverting the Course of Justice :

Charge 1

Between 16 May 2011 and 6 October 2012 you with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice, in that you provided the police with two statements which were inaccurate.

Charge 2

On 6 October 2012 you with intent to pervert the course of public justice, did an act which had a tendency to pervert the course of public justice, in that you produced a copy of your witness statement that had been altered and maintained that it was the correct version of that statement.

A third charge was added during the proceedings that related to the falsification of a document.

In 2011 when the police were investigating the Huhne case they took two witness statements from Ms Briscoe (a neighbour). In this she indicated that she ‘held them in the same regard’ and that she had not had any contact ‘whatsoever’ with the press. This was incorrect in that Ms Briscoe was a confidant of Ms Pryce and was discussing matters with the Mail on Sunday.

When “Ms Briscoe was later interviewed by police following her arrest, she pointed out an alteration in her statement, claiming it changed the meaning, the court was told”.

This triggered the third allegation. A copy of the statement was given to an expert witness instructed by Ms Briscoe’s legal team and it was alleged that the wrong one was deliberately handed to the expert in order to get favourable evidence.

The Prosecutor was quoted as saying (when she opened the case to the jury) “the criminal offences she is charged with all arise … out of what the prosecution say is Ms Briscoe acting deliberately: a) to hide what she was really up to when the police asked her about it; b) giving the police misleading information and; c) later on trying to manipulate both the police and the court during an investigation into Ms Briscoe’s own actions“”

Ms Briscoe accepted being an intermediary between Ms Pryce and the Mail on Sunday, but stated that the relevant part of the statement had been added by the Police by the mistake.

Why is she called a ‘top Judge’?

This appears to be an unwritten rule of journalism. Any barrister must be reported in the press as a ‘top brief/barrister/lawyer’, and most often a QC (even if they’re not). For the same reason, there’s no such thing as a mere ‘judge’, everyone is a top judge. It’s just one of those things – I don’t make the rules.

Sentence

Perverting the course of justice almost always results in a custodial sentence (see the factsheet above). Vicky Pryce got 8 months and this would appear to be, on the fact of it, far more serious than that. The fact that Ms Briscoe is a lawyer will not help her (if anything, it aggravates it).

Barring some exceptional circumstance, it would seem quite clear that the result will be a custodial sentence. Based on the seriousness of the offences, we would expect the court to start at somewhere in the region of 18 months, before considering any mitigation.

She will be sentenced on Friday 2 May 2014.

What happens next for her?

She will be sentenced shortly and will not doubt be considering an appeal. We’ll have a look at the case in more detail shortly. Her legal career is finished following this conviction.

There are instances of Judges being found guilty of criminal offences (common assault as an example and, more recently, failing to control a dog), but this is in a different league. It is also, as far as we know, the first time a Judge in England and Wales has been convicted of Perverting the Course of Justice.

 

Rakesh Bhayani found guilty of the murder of Caroline Waugh

Taken from BBC News

Taken from BBC News

Bhayani, 41, was convicted at the Old Bailey on 27 November 2013. He had previously pleaded guilty to perverting the course of justice and conspiracy to defraud. Nicholas Kutner, 48, was convicted of perverting the course of justice and had already pleaded guilty to conpiracy to defraud.

A Mr Khoury, 40, was acquitted of conspiracy to defraud.

Facts

Ms Waugh was an escort and met Bhayani through that work. The court heard that she considered Bhayani a friend and had visited him in prison. The prosecution stated that there had been an intimate relationship between the two at one point in the past.

Ms Waugh was stabbed in the neck in her central London flat. Thereafter, her body was hidden.

Ms Waugh had lent Bhayani about £40,000. An estate agent who gave evidence at the trial stated that in addition to that sum, Bhayani also owed him £17,000.

It appeared that after murdering Ms Waugh, Bhayani attempted to create the impression that she was still alive by sending text messages from her phone. These included messages to the estate agent, arranging to meet in order to hand over money owed. At the last minute, a message from Ms Waugh’s phone would be sent to the estate agent explaining that she could not attend and she had sent her friend (Bhayani) instead.

Bhayani told the estate agent that Ms Waugh had moved out of London in order to care for her sick mother. Thereafter, there was suspicious activity around Ms Waugh’s bank accounts and the police began to investigate. Ms Wuagh’s flat was fraudulently leased and cleared of all her belongings before attempts were made to sell it. Applications for bridging loans and remortgage were made in the sums of £250,000 and £400,000. It is presumed that these were not successful, judging by the descriptions in the news reports.

The news reports state that Bhayani was accused of taking £1m of her assets.

Bhayani had rented a lock up garage in south west London. When the garage was eventually searched, a VW Golf was found inside, inside which was Ms Waugh’s decomposed body.

The BBC reported: Det Ch Insp Justin Davies said after the case: “Bhayani is a confidence trickster who murdered her with the sole intention of stripping her assets and the belongings she had worked hard for.

Sentencing

Sentencing was adjourned so that Ms Waugh’s family could attend.This is an interesting move as it perhaps demonstrates a new approach in how the families of victims may be treated in cases of homicide.Is this yet a further move to put the victim (and their family) at the centre of criminal justice?

The sentence for murder is mandatory life imprisonment. The Judge must set a minimum tariff which must be served before Bhayani can be considered for release by the parole board.

Setting the tariff is a complicated exercise. Reference will be made to the starting points listed in CJA 2003 Sch 21. More information on those starting points can be viewed here.

The starting point will be 30 years – that is because the murder was ‘done for gain’. From there, the Judge will have to assess the aggravating and mitigating factors.

The planning and  the concealment of the body are statutory aggravating factors. The Judge may also wish to take account of the fact that there was an element of breach of trust, in that Ms Waugh regarded Bhayani as a friend. In addition, the use of a knife (which in itself would attract a starting point of 25 years if taken to the scene) will also aggravate the offence.

Bhayani’s previous convictions, of which we know little, are unlikely to have a great impact upon the sentence.

Solicitor sentenced to three years for Attempting to Pervert the Court of Justice

Defence solicitor Basharat Ditta was imprisoned for three years on Friday 1st November, having been found guilty of attempting to pervert the course of justice.

Disgraced: Basharat Ditta, 42, was jailed for three years at Liverpool Crown Court after tipping off a drug dealer about a major police investigation

Ditta was found to have passed on sensitive police intelligence to his client Neil Scarborough, who was facing a conspiracy charge relating to drug smuggling.  Ditta passed on sensitive information about Scarborough’s co-conspirators in an attempt to divert attention away from Scarborough.  Hair analysis showed Ditta to be a user of cocaine and Scarborough was said to be his supplier.  Supt Lee Halstead said the 44-year-old’s cocaine addiction had left him “hopelessly compromised”.

Scarborough later pleaded guilty to a charge of conspiracy to supply heroin, cocaine and cannabis, and was sentenced to fourteen years in prison.  Thirty-five other men were also jailed.

Prosecutor Anne Whyte QC said:

“[Ditta] thwarted the police’s investigation as much as possible to enable them to continue in their criminal activities.  Mr Ditta was not honouring his profession, but dishonouring it.”

Ditta denied any wrong-doing was convicted of the charge after trial.

In sentencing Ditta, HHJ Holroyde sitting at Liverpool Crown Court stated:

“The role of the criminal solicitor is a demanding one. Those who carry out such work understandably wish to maintain a good relationship with their clients, many of whom can be demanding and at times unreasonable.

“In a highly competitive field with increasing financial pressure solicitors in this field of practice understandably wish, if they properly can, to avoid conducting cases in a way which might cause their clients to take their business elsewhere.”

Paul Meehan guilty of wasting police time in Tia Sharpe murder investigation

paulmeehan

Image from BBC News

Paul Meehan, a former neighbour of the grandmother of murdered schoolgirl Tia Sharpe has been convicted and sentenced for wasteful employment of the police – more commonly known as wasting police time.

The written remarks explaining the evidence and the reasons for finding that Meehan is guilty, are available here. Nb. This post was written prior to the release of the remarks of District Judge Hammond.

Our posts on Tia’s murder are here (Hazell changed his plea to guilty) and here (sentence).

Offence

The offence is under the Criminal Law Act 1967 s 5(2).

It is a summary only offence which means it can only be tried in the Magistrates’ Court.

Trial

Meehan, a bus driver aged 40 from Croydon, had told police that he had seen Tia walk past him in street on 3 August. In fact, she had been murdered by Stuart Hazell the previous day.

There was no suggestion that Meehan had colluded with Hazell, however the description of Tia which he gave to the police complimented Hazell’s account of Tia having left the house at the time he (Hazell) alleged.

It was suggested that Meehan was attention seeking. The false statement resulted in a 24 hour delay to the police investigation into the murder.

It is interesting to read the District Judge’s ruling. Juries, as we know, don’t give reasons when they return a verdict. The Judge here sets out clearly the reasons why she found Meehan guilty (especially in light of the conflicting medical evidence).

Sentence

He received 5 months’ imprisonment.

There was of course no credit for pleading guilty.

We are unaware of any details relating to his character and previous convictions. Assuming there are none, let’s consider the sentence against the maximum prescribed by statute.

The maximum is 6 months and / or a level 4 fine (£2,500).

Where the offence warrants a greater penalty than permitted under section 5(2), the CPS will routinely charge perverting the course of justice, which, as a common law offence, has no maximum sentence.

5 months is therefore towards the upper end of the scale of permitted sentences – with the absence of a malicious motive (it appears the prosecution’s case was that he was attention seeking) and assuming there is no nasty previous, that would seem on the high side.

However, the consequences can be serious. In this case, as Tia had already been murdered, the consequences were less severe – there could be no suggestion that she would have been found, safe, if it were not for Meehan’s actions. Notwithstanding that, the wasted efforts of the police and local helpers (time and cost would be taken into account) and the false hope given to the family are serious consequences which clearly the court thought it appropriate to mark with an immediate custodial sentence.

Appeal?

It may be worth a shot as it does seem a little on the high side for this offence. However, if charged as perverting the course of justice, there would seem a little less scope to complain, as that is a more serious offence.

The courts are not impressed by barristers inventing the worst possible case imaginable to demonstrate that a sentence close to the permitted maximum is excessive, and so any attempt to suggest that there are worse cases of wasting police time is likely to receive short shrift.

Any appeal would be by way of a rehearing in the Crown Court (as the sentence was imposed by the Magistrates’ Court. See here for more details.

Chris Huhne (8 months) and Vicky Pryce (8 months) sentenced for perverting the course of justice

Chris Huhne and Vicky Pryce arriving at Southwark Crown Court earlier

Chris Huhne and Vicky Pryce were sentenced this afternoon by Mr Justice Sweeney to 8 months and 8 months imprisonment respectively. Chris Huhne received a 10% deduction for his plea of guilty.

The key information is available here, including the facts, the abuse of process applications and those infamous jury questions. There is also a brief look at the sentences for such cases – and a prediction.

The sentencing remarks are available here.

It is extremely useful having the sentencing remarks and they’re certainly worth reading (they’re only 5 pages), but a brief summary follows:

After setting out the facts of the offence and the history of the proceedings, the Judge noted that whilst this was a huge tragedy and fall from grace for them, “any element of tragedy is entirely your own fault“.

He then noted that there were no guidelines for the offence, but that this sort offending inevitably carries a custodial sentence unless there are exceptional circumstances. And in this case, those circumstances did not exist.

In relation to Chris Huhne, the Judge stated that the offence was his idea which made him more culpable (but not by much). Taking into account the delay before his sentence and the impact on his career, the starting point would be 9 months in prison. Given his late guilty plea, the actual sentence would be 8 months.

In relation to Vicky Pryce, the Judge stated that in his view she was marginally less culpable and noted that this would have a catastrophic effect on her. However, there was no genuine remorse and nothing that could mean that the sentence could be suspended. For that reason, she also was sentenced to 8 months.

When will they be released?

Neither have spent any time on custody, so the sentence of 8 months will start from today. The normal rules mean that they will have to serve half of that – so 4 months. They will both be eligible for HDC (early release on a tag) which means, in this case, they could be released after two months.

Given their age and personal background it’s highly unlikely that they will be in trouble again. Also, they clearly do not present any violent or sexual risk to the public, so it is almost certain that they will be released on a tag in 2 months.

Will they appeal?

In relation to Ms Pryce, we do not know if she will appeal to her conviction.

As to the sentence – it is above the usual sentences given for this offence, but not by much. For this reason, whilst it may be that both will appeal, we would not expect their sentence to be reduced.

Which prison will they go to?

Overnight, it will be the local prisons, probably Wandsworth for Mr Huhne and Holloway for Ms Pryce.

Given that the sentences are quite short, it may be that they are kept there for the whole sentence (see here for an overview). If they are moved then they will both by Cat D.

R v Huhne and Pryce – The key information

R v Huhne and Pryce – Sentencing hearing

Southwark Crown Court

11 February 2013, 2pm

Mr Justice Sweeney

Facts can be found here.

Here is an explanation of what perverting the course of justice is.

The emails between Pryce and The Sunday Times can be found here. 

An explanation of how Huhne tried to avoid pleading guilty can be found here

Click here for our report of when Huhne pleaded guilty.

Here is a timeline of the Pryce trial. 

The questions asked by the first Pryce jury can be seen here.

See here for an opinion piece on the potential consequences of discharging the jury for failing to reach a verdict rather than because there were concerns over the propriety of any verdict they would return.

When might Pryce and Huhne be released? Here is an explanation of release provisions. 

What is the likely sentence? See here for a brief look.

R v Huhne and Pryce – A brief chronology

R v Huhne and Pryce – Sentencing hearing

Southwark Crown Court

11 February 2013, 2pm

Mr Justice Sweeney

Well, where to start? The Huhne/Pryce saga has provided many column inches over the last month or so. On Friday, Vicky Pryce was convicted of perverting the course of justice by a unanimous verdict. Chris Huhne had earlier pleaded guilty after attempts to have the prosecution stayed as an abuse of process.

So, let’s set out exactly what has happened.

In short, Huhne was caught speeding, attracting 3 penalty points. He already had 9 on his licence and so would be liable to be disqualified via the totting up procedure. He asked (or made, if you believe Vicky Pryce) his then wife, Pryce, to ‘take’ the points for him. This essentially involved Chris Huhne completing a form stating that he was not driving, and Vicky Pryce completing a form stating that she was driving. This would absolve Huhne of liability and therefore he would retain his licence.

He did retain his licence, for all of 3 months. He was caught speeding once again and was disqualified.

Subsequently, Chris Huhne had an affair with Carina Trimmingham, his PR aide. He left Pryce and the family home.

Pryce then sought to ‘ruin’ Huhne and began conversations with The Sunday Times about how best to orchestrate Huhne’s downfall. The allegations of Huhne making someone take his penalty points subsequently turned into an admission that Pryce had been a part of the deception.

See here for the emails between Pryce and The Sunday Times. 

Pryce was advised that there was a risk but that it was ‘highly unlikely’ that she would be prosecuted (note: don’t take your legal advice from a journalist). The allegations were made public and so the CPS became interested. Hunhe was charged with perverting the course of justice and amid blanket denials from Huhne, the case began to strengthen.

Here is an explanation of the offence.

Huhne pleaded not guilty. Pryce pleaded not guilty.

Huhne made a series of attempts to have the prosecution kicked out. Andrew Keogh of Crimeline wrote a superb explanation of the basis for the abuse of process applications.

Click here to see how Huhne tried to avoid pleading guilty.

This led to Huhne pleaded guilty on the day set for trial.

Click here for our report of when Huhne pleaded guilty.

Pryce’s trial began and it appeared that the defence she was seeking to establish was one of marital coercion.

There was extensive legal argument over the defence of marital coercion; it had not been before the courts since R v Shortland 1996 – pre the Human Rights Act. It was therefore necessary to re-examine the law and determine whether it was lawful to require Pryce to prove that she was coerced, or whether, pursuant to her article 6 rights, and the presumption of innocence, the burden should be ‘read down’ to an evidential burden only and that it was for the prosecution to disprove the claim that Pryce was coerced. Click here for the reasons given by Sweeney J.

Here is a timeline of the trial. 

The jury asked a series of questions which created quite a stir on Twitter and in the press. They can be seen here.

The jury were then discharged for failing to reach a decision (although in light of Sweeney J’s comments about the questions asked, it was suspected that a factor was the fact that the jury had appeared to fundamentally fail to grasp how a jury trial works and what their function was.).

See here for an opinion piece on the potential consequences of discharging the jury for failing to reach a verdict rather than because there were concerns over the propriety of any verdict they would return.

The CPS announced they would seek a retrial and a retrial was set for the following week.

Pryce was convicted on Thursday 7 March of perverting the course of justice. In a statement, she said she was disappointed.

Sentencing was adjourned until Monday 11 March 2013. When Huhne pleaded guilty, he was told to be under no illusion as to the sentence he would receive – this is a slightly flowery way of saying he can expect a custodial sentence. This would have come as no surprise to him, I am sure.

Pryce was given the same warning on Thursday.

Sentencing will take place at Southwark Crown Court at 2pm before Mr Justice Sweeney.

R v Huhne and Pryce – What is the likely sentence?

R v Huhne and Pryce – Sentencing hearing

Southwark Crown Court

11 February 2013, 2pm

Mr Justice Sweeney

Chris Huhne and Vicky Pryce were warned to be under no illusion as to the sentence they would likely receive when sentenced. This means they are going to receive custodial sentences.

The Court of Appeal have said that this offence should always lead to a custodial sentence ‘in all but the most exceptional circumstances’.

But how long? Well let’s first look at Huhne. He pleaded guilty, on the day of trial. Here is our explanation of the usual way in which credit for a guilty plea is calculated.

Based on that, one may think he is entitled to no more than 10%. However, based on his abuse of process applications (for an explanation, see here) it may be that Huhne is entitled to more. It will not have been Chris Huhne’s decision to have the abuse of process applications immediately before the trial and so it could be argued that his late plea is not a consequence of his persistent denials of guilt. Consequently, it may be said on his behalf that he would have pleaded guilty earlier, had the abuse applications been heard sooner. If Mr Kelsey-Fry is feeling cheeky, he may even argue that Huhne had the right to make the abuse applications and upon their determination (against him) pleaded at the first reasonable opportunity. Such an argument is unlikely to succeed. He may receive 20% credit – but it is difficult to predict.

Turning to Vicky Pryce, she did not plead guilty and so she receives no such credit. She was obviously less culpable than Huhne, who instigated the offence, and gained nothing from the offence.

Perhaps Huhne and Pryce could end up with the same sentence – the 20% credit for plea wiping out the uplift for being the driving force behind the offence.

The persistent denials have certainly done them no favours.

My personal view is that 9 months would be appropriate, however, on the authorities, it may be that 6 months is more in keeping with sentencing practice.

Of course, there is much to be said in mitigation – how much both of them have lost, personally and professionally, and so the range would appear to be from 4 months (any shorter would not mark the seriousness of the offence) to 16 months (any longer would certainly trouble the Court of Appeal.

Perverting the course of justice

 

Type of offence Common law (not defined by statute)

Mode of trial Indictable only (Crown Court)

Maximum Sentence Life imprisonment (in reality, sentences are no where near this and frequently measured in months or single figure years)

Definition The offence is committed where a person:

  1. does an act (a positive act or series of acts is required; mere inaction is insufficient)
  2. which has a tendency to pervert and
  3. which is intended to pervert
  4. the course of public justice.

What does ‘pervert’ mean?

The word pervert can mean ‘alter’ but the behaviour does not have to go that far – any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice. All the prosecution needs to prove is that there is a possibility that what the suspect has done “without more” might lead to a wrongful consequence, such as the arrest of an innocent person (Murray (1982) 75 Cr. App. R. 58).

What does ‘the course of justice’ mean?

The course of justice includes the police investigation of a possible crime (it is not necessary for legal proceedings to have begun). A false allegation which risks the arrest or wrongful conviction of an innocent person is enough.

What about the ‘intention’?

All that is necessary is proof of knowledge of all the circumstances, and the intentional doing of an act which has a tendency, when objectively viewed, to pervert the course of justice.

Examples

False allegations – It is only necessary that the defendant intended that the police should take the false allegation seriously, not that someone is actually arrested.

Double retractions – This is where someone makes a complaint, then retracts the statement claiming the complaint was false, then later, maintains the complaint was true and the retraction was false. It is inappropriate for the Crown to charge two mutually inconsistent charges and invite the jury to decide which is true.

Motoring offences – for an explanation of the procedure in relation to motoring offences whereby the police can demand the name of the driver from the owner of a car see here. An offence will be committed where somebody who knows they are guilty of an offence (say speeding) and is offered a ‘fixed penalty notice’ persuades another to take their points from them (as will be the person who takes them). An example is the case of Henderson [2012] EWCA Crim 1152. Another is, of course, the case of Chris Huhne.

Penalties

This entirely depends on the facts of the case – fact specific is the phrase often used. This means that the judge will assess the overall criminality, having regard to the following:

  1. the significance of the substantive offence to which the perverting of the course of justice related;
  2. the degree of persistence; and
  3. the effect on the course of justice itself.

Guidance

CPS Guidance can be found here, including guidance on when it is appropriate to charge in cases involving domestic violence and rape allegations.

Much of the material on this page was taken from the very helpful CPS Guidance.