Public Justice Offences

• Perverting the Course of Justice
• Perjury
• Offences Akin to Perjury
• Escape and Breach of Prison
• Preventing lawful burial
• Offences Concerning Witnesses and Jurors
• Intimidating or Harming Witnesses and Others - Criminal Proceedings
  • Section 51(1): Intimidation of Witnesses/Jurors
  • Section 51(2): Harming People who have Assisted the Police/Given Evidence/Been a Juror
  • Application to Set Aside a 'Tainted' Acquittal
  • Interference with Jurors
• Wasting Police Time - section 5(2) Criminal Law Act 1967
• Obstructing a Police Officer - section 89(2) Police Act 1996
• Offences of providing assistance to offenders
• Public interest
• Selection of charges

This guidance outlines a series of public justice offences, starting with the most serious. It sets out that, if there is sufficient evidence, it is likely that a prosecution will be required in the public interest and the important caveats to this. It suggests the approach prosecutors might take when considering the important question of charge selection.

Perverting the Course of Justice

The offence of perverting the course of justice is committed when an accused:

• does an act or series of acts;  
• which has or have a tendency to pervert; and 
• which is or are intended to pervert; 
• the course of public justice.

The course of justice must be in existence at the time of the act(s). The course of justice starts when:

• an event has occurred, from which it can reasonably be expected that an investigation will follow; or 
• investigations which could/might bring proceedings have actually started; or 
• proceedings have started or are about to start.

The course of justice refers to civil justice as well criminal justice.

In R v Cotter and Others [2002] EWCA Crim 1033 it was held that where the prosecution case is that a false allegation has been made, all that is required is that the person making the false allegation intended that it should be taken seriously by the police. It is not necessary to prove that she/he intended that anyone should actually be arrested.
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The offence of perverting the course of justice is sometimes referred to as “attempting to pervert the course of justice”. It does not matter whether or not the acts result in a perversion of the course of justice: the offence is committed when acts tending and intended to pervert a course of justice are done. The words "attempting to" should not appear in the charge. It is charged contrary to common law, not the Criminal Attempts Act 1981: R v Williams [1990] 10 WLUK 130.

Some examples of what may amount to a charge of perverting the course of justice include:

• causing a person to be arrested or to fall under suspicion;
• materially affecting proceedings e.g. obtaining bail when it might not have been obtained, receiving a sentence which might not otherwise have been passed;
• persuading, or attempting to persuade, by intimidation, harm or otherwise, a witness not to give evidence, to alter their evidence or to give false evidence
• interference with jurors with a view to influencing their verdict;
• false alibis and interference with evidence or exhibits;
• giving false information, or agreeing to give false information, to the police with a view to frustrating a police inquiry; for example, lying as to who was driving when a road traffic accident occurred; 
• lending a driving licence to another to produce to the police following a notice to produce, thereby avoiding an offence of driving whilst disqualified being discovered; 
• agreeing to give false evidence; 
• concealing or destroying evidence or providing a false alibi;
• assisting others to evade arrest for a significant period of time.

For guidance on charging in cases involving rape and/or domestic violence allegations, please refer to the separate Perverting the Course of Justice prosecution guidance in cases involving rape and/or domestic violence allegations.

Perjury

By section 1(1) of the Perjury Act 1911, perjury is committed when:

• a lawfully sworn witness or interpreter;  
• in judicial proceedings; 
• wilfully makes a false statement; 
• which he knows to be false or does not believe to be true; and 
• which is material in the proceedings.

A conviction cannot be obtained solely on the evidence of a single witness as to the falsity of any statement. There must, by virtue of section 13 Perjury Act 1991, be some other evidence of the falsity of the statement, for example, a letter or account written by the defendant contradicting his sworn evidence is sufficient if supported by a single witness.

A charge of perverting the course of justice cannot be brought simply to avoid the requirements of corroboration of the falsity of the evidence as required by section13: Tsang Ping Nam v The Queen [1981] 1462 WLR.

Offences Akin to Perjury

There are a number of offences akin to perjury in the Perjury Act 1911 which may also fall to be considered, including:

• false statements on oath made otherwise than in a judicial proceeding: section 2; 
• false statements etc with reference to marriage: section 3; 
• false statements as to births or deaths: section 4; 
• false statutory declarations and other false statements without oath: section 5; 
• false declarations etc to obtain registration etc for carrying on a vocation: section 6; 
• subornation of perjury: section 7; 

Where the false evidence is tendered in written form under Section 9 Criminal Justice Act 1967, an offence is committed under section 89 of that Act.

It is an offence contrary to section 36 Criminal Justice Act 1925 to make an untrue statement to obtain a passport. 

Section 80 of the Civil Partnership Act 2004 creates an offence of knowingly giving a false declaration, notice, certificate or statement in order to procure the formation of a civil partnership.

Note that extended time limits apply to some summary only motoring offences and the principal offence can be prosecuted beyond the 6 months’ time limit. Note also section 49 Road Traffic Offenders Act 1988. This allows a Court to re-sentence an individual who has deceived it about circumstances which were or might have been taken into account in deciding whether, or for how long, to disqualify that person.

Escape and Breach of Prison

It is a common law offence for a person to escape lawful custody without the use of force (escape) or with the use of force (breach of prison). In many cases the evidence of lawful custody may be clear, especially in criminal proceedings, but in others care is required in applying the law to the facts when assessing whether this element can be proved.

Preventing lawful burial

This is a common law offence with a maximum sentence of life imprisonment where a suspect conceals the death of another person. A common law offence attracting the same penalty also exists where there is evidence of an intention to obstruct or prevent a coroner’s inquest.

Offences Concerning Witnesses and Jurors

Intimidating or Harming Witnesses and Others - Criminal Proceedings

Section 51 Criminal Justice and Public Order Act 1994 creates two offences:

• section 51(1) creates an offence directed at acts against a person assisting in the investigation of an offence or a witness or potential witness or juror or potential juror whilst an investigation or trial is in progress; and
• section 51 (2) creates an offence directed at acts against a person who assisted in an investigation of an offence or who was a witness or juror after an investigation or trial has been concluded.

Section 51 is concerned with the protection of persons who are involved with criminal, as opposed to civil, investigations and/or trials and it is concerned with witnesses and not to other elements of the course of justice.

Sections 39 and 40 of the Criminal Justice and Police Act 2001 created similar provisions to criminalise this conduct where committed in respect of civil proceedings.

There is a presumption in both sets of provisions that if an act is done within the relevant period (from the start of proceedings to one year after they have concluded) it is done with the requisite knowledge and belief: see sections 51(9) and 40(6) of the 1994 and 2001 Acts respectively.

Section 51(1): Intimidation of Witnesses/Jurors

A person commits an offence contrary to section 51(1) when doing to another person:

• an act which intimidates, and is intended to intimidate, that other person; 
• knowing or believing the other person is assisting in the investigation of an offence or is a witness/potential witness or a juror/potential juror in proceedings for an offence; 
• intending thereby to cause the investigation or course of justice to be obstructed, perverted or interfered with.

There must be an investigation underway at the time of the alleged act. It is insufficient that the doer of the act believes this to be the case by necessary implication from the wording of the third requirement set out immediately above: R v Singh and others [2000] 1 Cr App R 31. In this case the suspect may be liable to be prosecuted for an attempt instead.

If a person does an act which intimidates another with the requisite knowledge or belief then they are to be presumed to have done so with the necessary intent unless the contrary is proved (section 51 (7)).  

Examples of the type of conduct appropriate for a charge of intimidating include:

• orally or in writing threatening a witness not to make a statement to the police; 
• damaging or threatening to damage the property of a potential witness in such a way that the witness will know or believe that it is linked to him assisting an investigation or giving evidence; 
• staring at witnesses waiting to give evidence at court or at jurors, in an intimidating manner; 
• intending to intimidate a juror by following a juror away from the court building before the trial is concluded; 
• assaulting or threatening to assault a relative or friend of a witness or juror in such a way that he/she will know that it is linked to him/her giving evidence or trying the case.  

Section 51(2): Harming People who have Assisted the Police/Given Evidence/Been a Juror

A person commits an offence contrary to Section 51(2) when doing to another person:

• An act which harms and is intended to harm another person, or intending to cause another person to fear harm, threatens to do an act which would harm that other person.
• Knowing or believing the person harmed or threatened to be harmed (the victim), or some other person, has assisted in an investigation into an offence, or has given evidence or particular evidence in proceedings for an offence or has acted as a juror, or concurred in a particular verdict in proceedings for an offence, and
• the act is done or the threat is made because of that knowledge or belief.

If within (the relevant period) a person does or threatens to do an act to another person which harms or would harm that other person, with the required intent and knowledge or belief, they are to be presumed, unless the contrary is proved, to have done so with the necessary motive. (For definition of "the relevant period" see Section 51(9)).

The offence requires proof an act which harms. Section 51(4) defines harm but note that physical injury is required, such that spitting (and by analogy any other battery without proof of injury) alone would not suffice: R v Normanton  [1997] 8 WLUK 102.

Examples of post-trial conduct which may fall within a s.51 (2) charge are:

• attacking or threatening to attack the home of someone who provided a police observation point, or police informant;
• attacking or threatening to attack the home or family of a police officer or other witness;
• assaulting or threatening to assault a former juror or witness who gave evidence;
• scaring customers away from a former juror's business.

Application to Set Aside a 'Tainted' Acquittal

Where a person who has been acquitted of an offence is later convicted of an administration of justice offence involving interference with, or intimidation of a juror or a witness (or potential witness) in the proceedings which led to their acquittal, an application may be made to the High Court to have the acquittal set aside as "tainted": see Section 54 and 55 Criminal Procedure and Investigations Act 1996. If granted, such an application opens the way to fresh proceedings for the original offence. The offences which allow for this procedure are set out above, namely perverting the course of justice, perjury and witness etc. intimidation

Interference with Jurors

The trial judge should be alerted to any instance of interference with jurors, whether that falls within the offences above, may be a contempt of court or simply an ill-judged improper contact. The trial judge may seek to make inquiries and/or ask that a police investigation by officers unconnected with the case being heard is considered. A CCP should be alerted to any such inquiries/investigation which needs to be undertaken.

Wasting Police Time - section 5(2) Criminal Law Act 1967

The offence of wasting police time is committed when a person causes any wasteful employment of the police:

• by knowingly making to any person a false report orally or in writing tending to:
  • show that an offence has been committed; or,
  • give rise to apprehension for the safety of any persons or property; or,
  • show that he has information material to any police inquiry.

Proceedings may only be instituted by or with the consent of the Director of Public Prosecutions: section 5​​(3). The CPS therefore and not the police should make the charging decision for this offence.

Examples of the type of conduct appropriate for a charge of wasting police time include:

• false reports that a crime has been committed, which initiates a police investigation;
• the giving of false information to the police during the course of an existing investigation.

There are statutory offences which cover similar conduct, for example:

• bomb hoaxes: section 51(2) Criminal Law Act 1977
• false alarms of fire: section 49 Fire and Rescue Services Act 2004
• fraud: section 1 Fraud Act 2006

Note the specific guidance on the evidential, public interest and selection of charges considerations which arise in sexual offences and domestic abuse cases: see the prosecution guidance on Perverting the Course of Justice and Wasting Police Time in Cases involving Allegedly False Allegations of Rape and/or Domestic Abuse.

Obstructing a Police Officer - section 89(2) Police Act 1996

This offence is committed where a person resists or wilfully obstructs a constable in the execution of their duty, or a person assisting a constable in the execution of their duty.

A person obstructs a constable if they prevents them from carrying out their duties or makes it more difficult for them to do so.

The obstruction must be 'wilful'. This means a deliberate act or omission which does obstruct the police officer acting in the execution of their duty (as above) and that the suspect intended that state of affairs to come about. The suspect need not consider the state of affairs to amount to obstruction and motive is irrelevant but they must intend the state of affairs to come about which amounts to obstruction: Hills v Ellis [1983] 2 WLR 234.

Examples of the type of conduct which may constitute this offence (which can include conduct wider than public justice offences) include:

• warning a landlord that the police are to investigate after hours drinking;
• warning that a police search of premises is to occur;
• giving a warning to other motorists of a police speed trap ahead; 
• a person who provides a false details to the police which inevitably fails and has minimal consequences‘’
• a person who falsely claims that they, not another person in the car, was driving at the time of the accident but relents before the breathalyser procedure is undertaken; 
• a person refusing to permit entry to premises or who hinders access/search where the police have lawful authority to enter/search 

In circumstances which rarely arise, consideration may need to be given to the offences of impersonating a police officer (section 90 Police Act 1996) and the common law offence of refusing to assist a constable when called upon to do so.

Offences of providing assistance to offenders

Offences which may be considered in these scenarios include:

• assisting an offender contrary to section 4 Criminal Law Act 1977 (note the provisions of section 4 which requires DPP consent to prosecute – so the CPS should make the charging decision not the police – and the different sentences which may be imposed depending on what offence was being assisted);
• assisting a prisoner to escape contrary to section 39 Prison Act 1952;
• harbouring an escaped prisoner contrary to section 22(2) Criminal Justice Act 1961.

Public interest

Where there is sufficient evidence to prosecute a public justice offence, by their nature these offences are serious and this means a prosecution is likely to be required in the public interest. However, in each and every case the public interest stage of the Code test must be carefully applied. The assessment of seriousness is part of this and while any deliberate act contrary to the administration of justice is serious there are fact-specific assessments of culpability and harm to be made in each case. The prosecutor will also need to apply any relevant prosecution guidance, for instance, the Mental Health: Suspects and Defendants guidance.

Selection of charges

There is a clear potential for conduct to overlap between different criminal offences set out above. The selection of charges should apply section 6 of the Code for Crown Prosecutors.

Addressing the question of seriousness in section 6 means making an assessment of culpability and harm. Addressing the question of the court’s sentencing powers, prosecutors should bear in mind the maximum sentences for these offences:

• Perverting the course of justice, preventing lawful burial, obstructing a coroner, escape from lawful custody and breaching prison have a maximum sentence of life imprisonment and which are triable only on indictment
• Perjury has a maximum sentence of seven years’ imprisonment and is trial only on indictment
• Witness intimidation etc. has a maximum sentence of five years’ imprisonment and is triable either way
• Wasting police time has a maximum sentence of six months’ imprisonment and is triable only in summary proceedings
• Obstructing a police officer has a maximum sentence of one months’ imprisonment and is triable only in summary proceedings

The offences carrying a maximum life sentence are all common law offences. The House of Lords has held: “…good practice and respect for the primacy of statute… require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise”: Rimmington [2005] UKHL 63.

A statutory offence should therefore be prosecuted rather than these common law offences unless there is a good reason. Prosecutors choosing to prosecute a common law offence should ensure their review explains the good reason in the terms provided for by section 6 of the Code for Crown Prosecutors i.e. whether or not the seriousness and powers of sentence justify the selection of the common law offences.

In relation to perverting the course of justice there is a particular need to be alive to overlapping offences, including:

• impersonating a police officer: section 90(1) Police Act 1996 (maximum sentence six months’ imprisonment); 
• agreeing to indemnify a surety: section 9 Bail Act 1976 (maximum twelve months’ imprisonment) 
• making false statement: section 89 Criminal Justice Act 1967 and section 106 Magistrates' Courts Act 1980 (maximum sentence two years’ imprisonment) 
• using documents with intent to deceive: section173 Road Traffic Act 1988; 
• concealing an arrestable offence: section 5 Criminal Law Act 1967 (maximum sentence two years’ imprisonment); and
• acknowledging a recognisance or bail in the name of another: section 34 Forgery Act 1861 (maximum sentence seven years’ imprisonment)

Two examples underscoring the importance of careful charge selection are as follows.

First, the provision of false details. In In R v Sookoo (2002) EWCA Crim 800 offender stole from a shop and gave false details upon arrest. This attempt to hide his identity was a simple lie and it inevitably failed. The Court of Appeal in allowing his appeal against sentence considered that the count of perverting the course of justice was quite unnecessary. They contrasted this with cases where a suspect was arrested, or the attempt was sophisticated or diverted police time and resources to resolve the hiding of identity. An assessment of culpability and harm is particularly important when false details are provided in order to select the correct charge. The mere provision of false details should not be prosecuted as perverting the course of justice.

Second, the making of a false allegation. A significant diversion of police resources may better be met by a charge of wasting police time but an allegation which results in arrest let alone prosecution or conviction might better be met by a charge of perverting the course of justice.