R v Kellett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON |
| Judgment Date | 20 June 1975 |
| Judgment citation (vLex) | [1975] EWCA Crim J0620-1 |
| Docket Number | No. 2755/C/74 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 June 1975 |
[1975] EWCA Crim J0620-1
Lord Justice Stephenson
Lord Justice Orr
and
Mr. Justice Kenneth Jones (in absentia)
No. 2755/C/74
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. N. BLAKER, Q.C. and MR. R. MILLER appeared as Counsel for the Appellant.
SIR PETER RAWLINSON, Q.C. and MR. C. WILSON-SMITH appeared as Counsel for the Crown.
The judgment I am about to give is the judgment of the Court, including Mr. Justice Kenneth Jones who is unable to be here to-day.
On 20th June, 1974 at the Plymouth Crown Court the Appellant was convicted on two counts of attempting to pervert the course of justice, contrary to common law. The Lord Chief Justice ordered him to be conditionally discharged on each count. The Lord Chief Justice told the Appellant that he was taking that lenient course and lenient it was for he had been fined £100 for subornation of perjury in 1972 because the law was highly obscure and it was perfectly possible that he thought there was no unlawful character in what he did. The Lord Chief Justice offered to grant him a certificate of appeal and has certified that the case is a fit case for appeal on the ground that "it raises novel points as to the extent to which a person may threaten to do an (otherwise) lawful act in order to induce a witness not to give evidence".
The undisputed facts which gave rise to the convictions under appeal are these. The Appellant and his wife were living in Staverton, Devon. They had as next door neighbours a Mr. Keys and his daughter Mrs. Glanville. The Appellant did not get on well with his wife or with those neighbours. In October 1972 Mrs. Kellett took divorce proceedings against the Appellant. On 22nd January, 1973 her solicitors sent an enquiry agent named Boland to take statements from Mr. Keys and Mrs. Glanville, and on a date which was not precisely fixed and for reasons which may not be altogether clear her solicitors sent copies of those statements to the Appellant. On 25th March, 1973 the Appellant sent a friend named Mrs. Clark, posing as the wife of a naval officer who might consider becoming a tenant of the Appellant and armed with a tape recorder concealed in her shopping bag, to question Mr. Keys and Mrs. Glanville about him and to record their answers on tape. "I did it (the Appellant told the police later) to get information. I knew he would spout". What exactly he (or they) "spouted" is not known because the tape recording was unintelligible. But after Mrs. Clark had reported to the Appellant and handed over the tape recorder he wrote Mr. Keys a letter dated 2nd April, 1973 from Old School, Staverton, Totnes, Devon, in which as the Lord Chief Justice told the jury, "the whole hard core of the matter lies". It read as follows: "Dear Mr. Keys, For many years I have known how two-faced and slanderous and malicious you have been behind my back. You have caused difficulties in the past, and others, with your evil gossip and rumours. At the very beginning of my second marriage your slanderous gossip was there for those who wanted to hear and to relay it. Frankly I little care what delights your idle tongue, as long as my life is not affected by it. But you in your malice have been determined that it should be "so. You have more recently chosen not only, you and your daughter, to make slanderous written statements defaming me but have spoken in slanderous and defamatory terms of me to an agent of mine and we now have a tape recording of your conversations. I am proposing to sue you and your daughter for the damage you have done to my life and marriage. You must know well of the slander but if you need reminding I will play some of it over to you. Why, or what pleasure people like yourself get out of causing misery and unhappiness I cannot imagine. The amount of damages etc., I will discuss with my solicitor, but firstly you might like to withdraw your statements made to Mr. C. Boland, and if so let me have your notes to that effect delivered to the 'Old School' by 6 p.m., Tuesday 3rd April. Yours faithfully, A. R. Kellett."
Mr. Keys took no action with the Appellant on the latter either in writing or in two telephone conversations initiated by the Appellant after the time for his "notes", (presumably notice), of withdrawal had expired. But he made a complaint about the Appellant to the police. As a result the Appellant was interviewed by police officers on 17th and 29th May and on 29th May he made a written statement which ended with this account of his actions after receiving the two statements. "When I got note of the statements taken by an enquiry agent on behalf of my wife and her solicitors, I realized how evil, damaging and slanderous George Keys was and that something ought to be done about such people, so happy to interfere and damage other people's lives. I knew that he would very readily revel in slandering me, and I asked Mrs. Clarke to act in her freelance capacity as an agent for me, to interview George Keys and his daughter, if possible take a tape recording, to confirm their conversations so that I could take proceedings against them. In order to draw the kind of thing we wanted comment upon I asked Mrs. Clarke to question Deirdre Glanville and George Keys as to what kind of opinion they could give as to my associations, character, and to me as a landlord, and particularly in regard to women, and any allegations of violence knowing that they would be likely to give a most slanderous false account. Mrs. Clarke had really no difficulty in obtaining these statements and did the job quite successfully. I "told my solicitor of all this and showed him the copy of a letter I wrote afterwards to George Keys. In fact I telephoned my solicitor before sending the letter and read it over the phone. His only comment was that while understanding what evil this man Keys had brought about, the costs of the slander actions are great. I suggested to Keys that he let me have a note to say so if (he) wished to withdraw the statements, by 6 p.m. the following day, as a possible mitigating factor in my suing him. I had to go up to London the following day and had in mind being away for a week or so. I telephone (d) him that evening, saying so, but Keys replied by saying 'you go and do what you like'. I do propose to proceed in suing Keys and his daughter, but I have a disinclination to engage in so much non-constructive action, and find that my impending divorce is more than sufficient to deal with at the moment."
In July 1973 Mr. Keys gave evidence for Mrs. Kellett in her contested suit for divorce, Mrs. Glanville was not called, and Mrs. Kellett obtained her decree.
The particulars of the first count were that the Appellant "between the 21st March, 1973 and 4th April, 1973 in the County of Devon did unlawfully attempt to pervert the course of justice by attempting to dissuade one George Keys from giving evidence in the then impending divorce suit between Margaret Kellett and the said Alan Rex Kellett in accordance with a statement which he the said George Keys had made." The particulars of the second count were the same in relation to Deirdre Susan Glanville.
After prosecuting Counsel's opening speech there was a discussion in the absence of the jury on the essential elements of the offence. At the end of the case for the prosecution defending Counsel made a submission. He did not say then that it was a submission that there was no case to answer, but in answer to the Lord Chief Justice he said that the jury might remain; and in consequence they heard an argument on the law which ended in a submission based particularly upon the case of Webster v. Bakewell R.D.C., 1916 1 Ch. 300, that the prosecution had "not made out a prima facie case of an intention to pervert the course of justice."
The Lord Chief Justice ruled against the submission. He said at page 15'F' of the transcript: "On the evidence so far before the Jury there is a prima facie case that the accused's intention when threatening to sue for defamation was to cause Mr. Keys and his daughter to refrain from giving evidence in the divorce trial. Accordingly, it seems to me there is a case to answer and the matter will proceed." Counsel for the Appellant then called no evidence. The jury heard Counsels' speeches and the summing-up of the Lord Chief Justice and convicted the Appellant on both counts.
The Lord Chief Justice told the jury at page 16'E' that he had to leave them "a very short and narrow issue to decide". The first statement of that issue was this (18'H'): "You will have to decide whether in that letter Exhibit 3 the accused is threatening to bring a slander action against Mr. Keys and whether, secondly, he is doing that with the intention of causing Mr. Keys to not give the evidence which he had mentioned in his statement to Mr. Boland. Are you satisfied beyond any reasonable doubt and so that you are sure that in writing this letter Mr. Kellett is threatening to bring slander proceedings against Mr. Keys and doing so with the intention of using those proceedings as a lever to stop Keys from giving evidence in Court. Exactly the same considerations apply to Mrs. Glanville on the second count. You must be satisfied, as I say, so that you are sure that that is the purpose and motive of this letter before you can convict." The second statement (22'G') put the two points in this way: "I will say it once more, you cannot convict him unless you are satisfied so as to be sure (1) that the defendant really did not mean to sue for slander and was making an empty threat only, and (2) that he did that in order to persuade Keys and his daughter to withdraw their statements and not give evidence against him....
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