R v Cotter and Others

This appeal raises the question of the ambit of the common law offence of perverting the course of justice and whether its constituents are sufficiently certain to comply with the requirements of certainty required by Article 7(1) of the European Convention on Human Rights.

On the 8 ^th June 2001 in the Crown Court at Birmingham before HHJ Orme, the appellants were convicted of conspiracy to pervert the course of justice. The appellant Clair was also convicted of attempting to obtain property by deception. They were each sentenced to 2 years imprisonment in respect of the conspiracy count; Clair was sentenced to 12 months imprisonment consecutive in respect of the deception count.

The appellant Cotter was at the relevant time the boyfriend of the Olympic athlete Ashia Hanson. Their relationship was, however, not secure. There had been difficulties. On the 21 ^st March 2000, they had arranged that he should visit her for a meal. He did not arrive when she was expecting him. She looked out for him, and noticed a dark blue estate car with a number of people in it, drive away from near her house without any lights on. About two minutes later she saw the appellant approaching, bent and holding his head. She went to the door where she found him bleeding from a cut to his head and from what appeared to be stab holes in his tee-shirt. He said that he had been mugged. A 999 call was recorded at 10.29 pm. The police and the ambulance service arrived within a short time. The police described finding him on the door step of Ashia Hanson's address with a serious head wound and three stab wounds in his back. He told the police that after he had parked and locked his car, he was approached by a number of men whom he believed to be white. One of them said "We want to get it"; another said "Where is the bitch?". He was then attacked. He was accompanied to the hospital by the police and told them that amongst other things that were said was that he "should not mix". He took that to be a reference to his relationship with Ashia Hanson, because she was black.

At the hospital he was found to have an 8 cm long wound to his forehead which required 10 to 15 stitches. Without treatment it could have been life threatening. He had three wounds to his back with bruising to the trunk and arms. Two of the wounds were superficial being about 1 to 1.5 cms long, but the third was 3 cms deep. One of those wounds was close to the abdomen, which could, of itself, have been dangerous.

The appellants were friends. There was evidence that there had been a number of phone calls between their respective mobile phones during the evening of the 21 ^st March. The appellant Wynn was the owner of an estate car which matched the description given by Ashia Hanson, and one other witness who noticed such a car in the vicinity at the relevant time. The appellant Clair had, on a number of previous occasions, given information to the press, in particular to Mr Gallagher of the Daily Express. There was a phone call timed at 11.47 p.m. on the evening of the 21 ^st March from the appellant Wynn's mobile to Mr Gallagher which was consistent with Mr Gallagher's evidence that he had received a phone call from the appellant Clair at about that time. In subsequent telephone conversations between Mr Gallagher and the appellant Clair, the appellant Clair maintained that the attack was a racist attack. He considered that the information was such as to justify a significant payment of up to �6,000 for the story.

Meanwhile the appellant Cotter over a lengthy period of interviews with the police, asserted that it was a racist attack. A few days after the incident, Ashia Hanson received a letter which said:

"Last night you were lucky. Next time we won't make a mistake"

It contained other offensive remarks. Four other black athletes received similar letters all posted at the same time. The prosecution handwriting expert, Mr Metcalfe considered that there was moderate evidence to show that the letters had all been written by the appellant Clair, although this was disputed by the defendant's expert, Mr Hughes.

The prosecution case was that the attack on the appellant Cotter was a charade designed to illicit the sympathy of Ashia Hanson and to re-establish the appellant Cotter's relationship with her. It was also intended to enable them to obtain money from the press for the story. Although those were the appellants' motives, the prosecution's case was that in order to achieve them the appellants intended to, and did, set in train a police investigation into a serious, racially motivated assault, which resulted in wide spread police investigations, and put individuals at risk of detention, arrest, charge and even prosecution.

The relevant charge in the indictment of which the appellants were found guilty was in the following terms:

"Christopher James Cotter, Surgit Singh Clair and Craig Alan Wynn on diverse days between the 15 ^th day of March 2000 and the 18 ^th day of May 2000 conspired together with intent to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice in that they falsely represented to the West Midlands Police there existed a racially motivated conspiracy to commit violent attacks on black athletes and their immediate associates."

At the end of the prosecution the case appellants submitted that they had no case to answer. The basis of the submission was, as set out in the Judge's ruling:

"The prosecution did need to establish that it would be within the contemplation of these defendants that there would be judicial proceedings; and there needed to be established acts which had a tendency in that context to pervert the course of public justice �� How could the jury infer, in particular, that what the defendants embarked upon was likely to lead to any sort of criminal proceedings or investigation which would have a tendency to pervert and bring about an injustice?"

The judge after a careful review of the authorities to which we pay tribute, held:

"I have concluded that there is here if they accept it, evidence upon which the jury might convict the defendants in respect of Count 1. It seems to me � that it is open to the jury here to say that it must have been within the contemplation of these defendants that if they did indeed fabricate an attack upon Mr Cotter involving serious wounding, including stabbing to the back, and if they agreed to report that matter to the police as being a genuine attack with racist undertones, together with the other actions of sending threatening letters and leaking the matter to the press, then there must have been some contemplation that that would lead to police investigation and thereafter to criminal proceedings. Or, put it another way, and indeed put in the way that it is framed in the indictment, that was a series of acts which not only had the tendency to pervert the course of public justice, but in respect of which the defendants must have had the necessary intention."

The judge having concluded there was a case to answer. The defendants gave evidence. Their evidence was to the effect that the attack on the appellant Cotter was genuine. The appellant Clair accepted that he had sought to obtain money from the Daily Express for the story, but asserted that the story was genuine. They all accepted that they were friends who had been in contact with each other at the relevant time. But they denied emphatically that there was any collusion between them, in particularly that they had devised a plan to cause injury to the appellant Cotter and dishonestly to present it as a genuine attack. As far as they were concerned, the circumstances were such as to justify the conclusion that it was indeed a racist attack.

The judge in directing the jury, took them to the indictment and as to Count 1, said as follows:

"Let me go through the ingredients. � During that two month period, the prosecution allege that these defendants conspired together with the intention of perverting the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, in that they falsely represented to the West Midlands Police that there existed a racially motivated conspiracy to commit violent attacks on black athletes and their immediate associates. The Prosecution must prove �.. first of all the prosecution must prove an agreement between the defendants to pervert the course of public justice. It is immaterial it does not matter if there were other involved apart from the defendant, provided at least two of the defendants were in agreement together. �..

What is a course of public justice? I have set down here for you for our purposes what it is. A police investigation which may lead to criminal proceedings is a course of public justice. The prosecution say that is precisely what was undertaken here � a police investigation which might have lead to criminal proceedings. They don't have to prove that any criminal proceedings would definitely have taken place. They...