R v Clark (Mark Grosvenor)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tuckey,LORD JUSTICE TUCKEY |
| Judgment Date | 04 April 2003 |
| Neutral Citation | [2003] EWCA Crim 991 |
| Court | Court of Appeal (Criminal Division) |
| Date | 04 April 2003 |
| Docket Number | Case No: 2002/06362/Y5 |
[2003] EWCA Crim 991
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE GILBERT Q.C.
AT TAUNTON CROWN COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Tuckey
Mr. Justice Gross and
Sir Ian Kennedy
Case No: 2002/06362/Y5
S. DENT for the Respondent
J. STANNILAND for the Appellant
On the 10 th October 2002 in the Taunton Crown Court before Judge Gilbert Q.C. and a jury the appellant, Mark Grosvenor Clark, was convicted of doing an act tending and intended to pervert the course of justice and was sentenced to 5 years imprisonment. He appeals against conviction and sentence by leave of the single judge. The appeal against conviction is on the ground that the facts alleged by the Crown could not constitute the offence alleged and that the judge should have upheld a submission to this effect at the close of the Crown's case.
At about 11.30 p.m. on the 3 rd October 2001 the appellant was involved in a fatal road accident with a cyclist on the A38 in Somerset. The Crown's case was that the appellant had been under the influence of alcohol and had driven away from the scene knowing he had hit the cyclist and that he had excess alcohol in his blood. He had not reported the accident until the following morning when he knew that he was not at risk from the breathalyser. By acting in this manner he deliberately attempted to conceal the commission of an offence. Had he remained at the scene he would have been breathalysed with a view to prosecution for serious road traffic offences and his car would have been forensically examined at that time.
There were no independent witnesses of the collision. Two cars had passed the cyclist safely on the unlit stretch of road where the accident happened, although the driver and passenger of one of the cars were somewhat critical of its lighting. Another car came on the scene shortly after the collision. Its driver saw parts of a bumper and tyre about 60 or 70 yards ahead of him in the road some distance out from the kerb. Just after this he saw the appellant's car ahead with its brake lights flickering. There was a lot of smoke coming from under it and bits of rubber were coming off one of the tyres. He followed this car at about 55 – 60 miles an hour. When they got to a roundabout the tyre came off and sparks started flying from the nearside front wheel. It drove on and then pulled into a garden centre where its lights were turned off before it came to a halt. The appellant worked at the garden centre and was due to stay the night there.
The next morning the appellant told colleagues that he thought he had hit a cow. He said to one of them who was a friend: "not a word to anyone but on the A38 last night I hit something, I don't know if it was a cow. I was blinded by the lights". The witness suggested that it might have been a badger. The appellant said he had been worrying about it all night but he wasn't "pissed". He had been listening to the radio during the night to see if any accidents had been reported. The witness smelt stale alcohol on his breath and the appellant seemed to be behaving abnormally. Later that morning the appellant went to the Cheddar police station. He said to the first officer who saw him: "I think I hit a badger last night on the A38… I went back to have a look but I could not see anything". He was arrested and breathalysed at 12.14 p.m. when no positive reading was obtained. In the course of interview the appellant admitted that he had drunk 7 or 8 pints of lager that evening (there was evidence that in fact he had drunk 9 or 10) and had had little to eat. He said he had gone to the police station after seeing a road block at the crash site. He maintained that he thought he had struck an animal (a badger or a fox) and that he had been dazzled by oncoming lights. He claimed that he had stopped his car for about 5 to 10 minutes and walked back along the road but found nothing to suggest that he had struck a human being.
The appellant's car was examined. The nearside front and bonnet were very visibly damaged. The nearside half of the windscreen was shattered. A police expert in accident reconstruction gave evidence that the car had hit the victim from behind as he cycled along. The impact propelled the bike over the hedge and the rider onto the verge with serious injuries from which he died. The rear wheel had been ripped off the bicycle and deposited 50 metres further down the road. Photographs of the scene showed a good deal of debris lying on the road.
At the close of the prosecution's case the defence submitted that there was no case for the appellant to answer. The offence was committed when a person does an act or embarks on a course of conduct which tends and is intended to pervert the course of justice. Some positive act was required. Simply not stopping after an accident and driving home to avoid being breathalysed was not enough.
The judge rejected the submission saying:
… in my judgment the jury are entitled to conclude, first of all, that that journey [the journey home after the accident] was a positive act on the part of the defendant, the purpose of which was to try to conceal or destroy evidence relevant to an investigation into how [the victim] was killed and his own criminal responsibility for that death. After all, a number of possible offences would have arisen – causing death by dangerous driving, causing death by careless driving whilst in excess of the legal limit, and indeed, if nothing else, driving with excess alcohol.
The jury are entitled to decide – and they may on the evidence—that this was not simply driving home after a night out having drunk too much but a man who believes he has or may have committed an offence and who would then deliberately leave the scene in order to escape detection. If that is right, then it is open to the jury to conclude that he did act or embark upon a course of conduct of a positive nature which had a tendency to pervert the course of public justice and was intended by the defendant to …. pervert the course of public justice, both in relation to removing the car itself and its damage from the scene and also removing himself as the driver and removing his body containing an excessive blood alcohol level.
Mr Stanniland, for the appellant then as now, submits that the judge's conclusion cannot be right. There is no reported case in which the ambit of the offence has been extended this far. The course of conduct relied on by the Crown amounts to no more than driving home for the night and not reporting the accident to the police until the following morning. This is not enough. Taken to its logical conclusion it means that every driver over the limit who drives home instead of to the nearest police station would commit the offence. Likewise every motorist who failed to stop at the scene of an accident. In the latter case section 170 of the Road Traffic Act 1988 sets the limits of a driver's responsibility for stopping and/or reporting accidents.
The Crown submit that there is no reason in principle why the offence should not cover the facts of this case and the judge was right for the reasons he gave.
Perverting the course of justice is a common law offence which covers a wide variety of situations as a quick look at the first part of chapter 28...
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