Public Justice Offences incorporating the Charging Standard
- Key Points
- Charging Standard - Purpose
- General Charging Practice
- Charging Practice for Public Justice Offences
- Perverting the Course of Justice
- Misrepresentation as to Identity
- Perjury by a Prosecution Witness
- Perjury by a Defendant
- Perjury by a Defence Witness
- Offences Akin to Perjury
- 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
- Interfering or Harming Witnesses - Civil Proceedings
- Section 39 - Intimidation
- Section 40 - Harming
- Interference with Jurors
- Offences Committed by Jurors - Section 20 of the Juries Act 1974, (as amended)
- Public Interest Considerations
- Permission to Interview Jurors
- Offences Concerning the Police
- Obstructing a Police Officer - section 89(2) Police Act 1996
- Wasting Police Time - section 5(2) Criminal Law Act 1967
- Misrepresentation as to Identity
- Impersonating a Police Officer
- Refusing to Assist a Constable
- Offences Concerning Prisoners and Offenders
- Failing to Surrender to Bail
- Escape/Breach of Prison
- Harbouring Escaped Prisoners
- Assisting an Offender - section 4(1) Criminal Law Act 1967
- Offences Concerning the Coroner
- Obstructing a Coroner - Preventing the Burial of a Body
A large number of offences cover conduct, which hinders or frustrates the administration of justice, the work of the police, prosecutors and courts.
This guidance sets out the key provisions in relation to perverting the course of justice. It also covers perjury, offences concerning witnesses and jurors; offences involving the police (such as obstructing the police and wasting police time); offences concerning prisoners and offenders; and those involving coroners.
- There is separate guidance in relation to perverting the course of justice - charging in cases of rape and/or domestic violence allegations - and referral to HQ is required.
- Wasting police time requires the consent of the DPP.
- Where police wish to interview jurors an application via the Crown Court to the Court of Appeal should be made by the CPS having first notified the AGO .
The charging standard below, provides guidance concerning the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met. The purpose of charging standards is to make sure that the most appropriate charge is selected, in the light of the facts, which can be proved, at the earliest possible opportunity. This will help the police and Crown Prosecutors in preparing the case. Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police and the Crown Prosecution Service.
The guidance set out in this charging standard:
- should not be used in the determination of any investigatory decision, such as the decision to arrest;
- does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning or conditional cautioning;
- does not override the principles set out in the Code for Crown Prosecutors;
- does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest; and
- does not remove the need for each case to be considered on its individual merits or fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.
This standard covers the following offences:
- Perverting the Course of Justice
- Offences akin to perjury
- Offences Concerning Witnesses and Jurors
- Intimidation - criminal proceedings
- Intimidation - civil proceedings
- Offences committed by jurors
- Offences Concerning the Police
- Obstructing a police officer
- Wasting police time
- Impersonating a Police Officer
- Refusing to assist a constable
- Offences Concerning Prisoners and Offenders
- Assisting an offender
- Prison Mutiny
- Offences Concerning the Coroner
- Preventing Burial of a Body
Prosecutors should always have in mind the following general principles when selecting the appropriate charge(s):
- i) the charge(s) should accurately reflect the extent of the accused's alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately; and
- ii) ensure the clear and simple presentation of the case particularly when there is more than one accused;
iii) there should be no overloading of charges by selecting more charges than are necessary just to encourage the accused to plead guilty to a few;
- iv) there should be no overcharging by selecting a charge which is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.
The following factors will be relevant to all public justice offences when assessing the relative seriousness of the conduct and which offence, when there is an option, should be charged. Consider whether the conduct:
- was spontaneous and unplanned or deliberate and elaborately planned;
- was momentary and irresolute or prolonged and determined;
- was motivated by misplaced loyalty to a relative/friend or was part of a concerted effort to avoid, pervert, or defeat justice;
- whether the activities of the defendant drew in others;
- was intended to result in trivial or 'serious harm' to the administration of justice;
- actually resulted in trivial or 'serious harm' to the administration of justice.
Examples of 'serious harm' include conduct which:
- enables a potential defendant in a serious case to evade arrest or commit further offences;
- causes an accused to be granted bail when he might otherwise not have;
- avoids a police investigation for disqualified driving or other serious offences;
- misleads a court;
- puts another person in real jeopardy of arrest/prosecution or results in the arrest/prosecution of another person;
- avoids a mandatory penalty such as disqualification
- results in the police losing the opportunity to obtain important evidence in a case.
In some cases there may be public interest factors against a prosecution; however, prosecutions for public justice offences should usually go ahead and those factors should be put to the court for consideration when sentence is being passed.
For guidance on charging in cases involving rape and/or domestic violence allegations, please refer to the separate Perverting the Course of Justice legal guidance in cases involving rape and/or domestic violence allegations.
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 offence is contrary to common law and triable only on indictment. It carries a maximum penalty of life imprisonment and/or a fine. 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;
- investigations which could/might bring proceedings have actually started; or
- proceedings have started or are about to start.
In R v Cotter and Others  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. 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 92 Cr. App. R. 158 CA. The offence of perverting the course of justice overlaps with a number of other statutory offences. Before preferring such a charge, consideration must be given to the possible alternatives referred to in this Charging Standard and, where appropriate, any of the following offences:
- corruption: Prevention of Corruption Act 1906 and Public Bodies Corrupt Practices Act 1889;
- agreeing to indemnify a surety: s.9 Bail Act 1976;/li>
- making false statement: s.89 Criminal Justice Act 1967, s.106 Magistrates' Courts Act 1980 and s. 11(1) European Communities Act 1972;
- using documents with intent to deceive: s.173 Road Traffic Act 1988;
- impersonating a police officer: s.90 Police Act 1966;
- acknowledging a recognisance or bail in the name of another: s.34 Forgery Act 1861; and
- concealing an arrestable offence: s.5 Criminal Law Act 1967.
Perverting the course of justice covers a wide range of conduct. A charge of perverting the course of justice should, however be reserved for serious cases of interference with the administration of justice. Regard must be had to the factors outlined in General Charging Practice, above in this guidance and in Charging Practice for Public Justice Offences, above in this guidance, which help to identify the seriousness of the conduct.
If the seriousness of the offence can properly be reflected in any other charge, which would provide the court with adequate sentencing powers, and permit a proper presentation of the case as a whole, that other charge should be used unless:
the facts are so serious that the court's sentencing powers would be inadequate; or
- it would ensure the better presentation of the case as a whole; for example, a co-defendant has been charged with an indictable offence and the statutory offence is summary only.
Note that in R v Sookoo (2002) EWCA Crim 800; the Court cautioned against adding a count of perverting the course of justice when the conduct could properly be treated as an aggravating feature of the principal offence. However, consecutive sentences may be imposed when the conduct is a separate and subsequent act, in which case a count of perverting the course of conduct should be considered.
The following are examples of acts which may constitute the offence, although General Charging Practice, above in this guidance and Charging Practice for Public Justice Offences, above in this guidance should be carefully considered before preferring a charge of perverting the course of justice:
- persuading, or attempting to persuade, by intimidation, harm or otherwise, a witness not to give evidence, to alter his evidence or to give false evidence;
- interference with jurors with a view to influencing their verdict;
- false alibis and interference with evidence or exhibits, for example blood and DNA samples;
- providing false details of identity to the police or courts with a view to avoiding the consequences of a police investigation or prosecution;
- 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 concerning a police investigation to avoid arrest;
- assisting others to evade arrest for a significant period of time; and
- making a false allegation which wrongfully exposes another person to the risk of arrest, imprisonment pending trial, and possible wrongful conviction and sentence.
In deciding whether or not it is in the public interest to proceed, consideration should be given to:
- The nature of the proceedings with which the defendant was trying to interfere;
- The consequences, or possible consequences, of the interference.
A prosecution may not be in the public interest if the principal proceedings are at a very early stage and the action taken by the defendant had only a minor impact on those proceedings.
It is likely that perverting the course of justice will be the appropriate charge when:
- the acts wrongfully expose another person to risk of arrest or prosecution;
- the obstruction of a police investigation is premeditated, prolonged or elaborate;
- the acts hide from the police the commission of a serious crime;
- a police investigation into serious crime has been significantly or wholly frustrated or misled;
- the arrest of a wanted person for a serious crime has been prevented or substantially delayed, particularly if the wanted person presents a danger to the public or commits further crimes;
- the acts completely frustrate a drink/drive investigation thereby enabling the accused to avoid a mandatory disqualification;
- the acts strike at the evidence in the case. For example, influencing a vital witness to give evidence/altered evidence/false evidence, or destroying vital exhibits or frustrating a scientific examination;
- the acts enable a defendant to secure bail when he would probably not have otherwise secured it;
- the acts strike at the proceedings in a fundamental way. (For example, by giving a false name so as to avoid a mandatory disqualification or a 'totting' disqualification: giving false details which might significantly influence the sentence passed; giving details which may result in a caution instead of prosecution);
- concerted attempts to interfere with jurors; attacks on counsel or the judge; or conduct designed to cause the proceedings to be completely abandoned);
- a concerted attempt has been made to influence significant witnesses, particularly if accompanied by serious violence;
- the sentencing powers of the court for an alternative offence would be inadequate.
Cases involving an allegation of rape or domestic violence in which consideration is given to prosecuting the complainant for perverting the course of justice or for an alternative offence such as wasting police time should be handled by a prosecutor with the appropriate levels of skill and experience in light of the complex and sensitive issues that are likely to fall to be considered.
Whilst there is no central referral requirement with regards to such cases, the Principal Legal Advisor is happy to be consulted on any difficult issues arising.
In line with the Casework Quality Standards, prosecutors should record and explain as fully as possible the evidential considerations and public interest factors they have taken into account when making their decisions.
To ensure consistency of approach, charging decisions in all cases should be approved by a Chief Crown Prosecutor or Deputy Chief Crown Prosecutor.
The most common example is when a suspect provides false details to an officer - whether it involves giving a false name, date of birth, address or a combination of the three. Usually in such cases the facts of the basic offence (often motoring) are not in dispute.
In the absence of any other aggravating features, it is unlikely that it will be appropriate to charge perverting the course of justice in the following circumstances:
- Giving a false name in circumstances in which no-one else is exposed to the risk of prosecution.
- The attempt to avoid prosecution is inevitably doomed to failure.
- The misrepresentation is discovered before a significant period of time has elapsed.
In these circumstances, the alternative offences of wasting police time and obstructing the police should be considered, but may not be necessary in the public interest depending upon the nature of the misrepresentation and the circumstances of the offence.
Regard should be had to the case of R v Sookoo (2002) EWCA Crim 800, which cautioned against adding a charge of perverting the course of justice when the conduct could properly be treated as an aggravating feature of the principal offence, and R v Cotter (2002)EWCA Crim 1033, which suggests the use of offences other than perverting the course of justice when other individuals are not exposed to risk.
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 1991. 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.
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.
The offence is triable only on indictment and carries a maximum penalty of seven years' imprisonment and/or a fine.
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.
Perjury is regarded as "one of the most serious offences on the criminal calendar because it wholly undermines the whole basis of the administration of justice": Chapman J in R v Warne (1980) 2 Cr. App. R. (S.) 42. It is regarded as serious whether it is committed in the context of a minor case, for example a car passenger who falsely states that the driver did not jump a red light as alleged, or a serious case, for example a false alibi witness in a bank robbery case.
In most cases, an offence of perjury will also amount to perverting the course of justice. If the perjury is the sole or principal act, then it will be normal to charge perjury. If the perjury is part of a much more significant series of acts aimed at perverting justice, then a charge of perverting the course of justice would be more appropriate.
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 s.13: Tsang Ping Nam v R 74 Cr. App. R. 139 PC.
Proceedings against a prosecution witness for perjury will depend on an assessment of the material effect of the perjured evidence. If a wrongful conviction is believed to have occurred because of the perjured evidence, a prosecution should follow, unless there are exceptional circumstances. If the witness has lied to protect his or her own interests rather than with an intent to pervert the course of justice, a prosecution may be unnecessary.
If a defendant is convicted despite giving perjured evidence, the decision to prosecute must take note of the sentence imposed for the original offence. If you think a conviction for perjury is unlikely to result in a substantial increase in sentence, then the public interest probably does not require a prosecution.
Consider also the possible consequences to the original conviction of an acquittal of the defendant on a charge of perjury arising out of the earlier proceedings. Prosecutors should, therefore, be satisfied that the evidence of perjury is exceptionally strong before instituting proceedings.
Evidence of premeditation is an important factor in coming to a decision on whether or not to prosecute. If the defendant's deceit has been planned before the hearing as opposed to arising on the spur of the moment during cross-examination, the public interest in prosecuting will be stronger.
Where a defendant is acquitted, wholly or partly because of false evidence given by him or her, a prosecution for perjury might be appropriate. Where there is clear evidence of perjury, which emerges after the trial, and which goes to the heart of the issues raised at the trial, a prosecution for perjury may be appropriate. A prosecution should not be brought, however, where it may give the appearance that the prosecution is seeking to go behind the earlier acquittal: see dicta by Lord Hailsham L.C. in D.P.P. v Humphrys  AC.
The decision to prosecute a defence witness for perjury partly depends on whether the defendant in the earlier trial was convicted:
- If the defendant was convicted, and there is no clear evidence of collusion, a prosecution would not usually be appropriate;
- If the defendant was convicted and there is clear evidence of collusion between the witness and defendant to give perjured evidence, a prosecution may be appropriate. Where it is in the public interest to prosecute for perjury others involved in fabricating false evidence with the defendant, then the defendant should also be prosecuted, except in exceptional circumstances;
- In the event of an acquittal, in the absence of clear evidence of collusion, the evidential test for a prosecution is unlikely to be met. Where there is clear evidence of collusion, and where the perjured evidence is sufficiently material to the case, then careful consideration should be given to a prosecution.
There are a number of offences akin to perjury in the perjury act 1911 which, though not detailed in this charging standard, should be considered, including:
- false statements on oath made otherwise than in a judicial proceeding: s.2;
- false statements etc with reference to marriage: s.3;
- false statements as to births or deaths: s.4;
- false statutory declarations and other false statements without oath: s.5;
- false declarations etc to obtain registration etc for carrying on a vocation: s.6;
- subornation of perjury: s.7;
- false statements with reference to civil partnerships: s.80 Civil Partnership Act 2004.
These offences may overlap with other criminal offences, such as forgery or deception. The more flagrant the breach of the appropriate section of this Act, the more likely it will be that the defendant should be prosecuted for an offence under the Act as well as any other offences that arise.
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. If the false evidence is tendered in written form under Section 5 Magistrates' Courts Act 1980, an offence is committed under s.106 of that Act.
The Perjury Act does not cover making an untrue statement to obtain a passport. It is an offence contrary to section 36 Criminal Justice Act 1925 and there is discretion whether to charge under section 36 or whether to charge for attempting to obtain a passport by deception. Where the defendant has not succeeded in obtaining a passport charging the offence under section 36 should usually be preferred.
Section 11 of the European Communities Act 1972 creates an offence of making a false statement (which is known to be false or not believed to be true) in sworn evidence before the European Court.
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.
Attempts are often made to threaten or persuade a witness not to give evidence, or to give evidence in a way that is favourable to the defendant. Such offences go to the heart of the administration of justice. If there is sufficient evidence the public interest requires that normally such cases be prosecuted.
Section 51 Criminal Justice and Public Order Act 1994 creates two offences:
- s.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
- s.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.
The offences are triable either way. In the magistrates' court, the maximum penalty is six months' imprisonment and/or a fine to the statutory maximum. In the Crown Court, the maximum penalty is five years' imprisonment and/or a fine.
Section 51 is concerned with the protection of persons who are involved with criminal, as opposed to civil, investigations and/or trials. The section is not concerned with protecting evidence from being tampered with or fabricated, which may amount to an offence of perverting the course of justice, or one of the other statutory alternatives relating to written or other forms of evidence, referred to elsewhere in this Charging Standard.
A person commits an offence contrary to s.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.
Note, 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 R v Singh (B) and Others (1999) CLR, Aug, 681-682. In a case in which the Defendant believed (wrongly) that there was an investigation underway, it may be appropriate to charge him with attempting the s.51(1) offence
If a person does an act which intimidates another with the requisite knowledge or belief then he is presumed to have done so with the necessary intent unless the contrary is proved (s.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.
There is an overlap between conduct which amounts to an offence contrary to s.51(1) and conduct which amounts to the more serious offence of perverting the course of justice. Regard must be had to the factors outlined General Charging Principles, above in this chapter and Charging Practice for Public Justice Offences, above in this chapter, which help to identify conduct too serious to charge as s.51.
There may be an overlap between intimidating under s.51 and contempt in the face of the court. A s.51 offence should be considered unless the court deals with the behaviour as a contempt. When it does so, the court will act of its own motion.
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.
Note, 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, he is presumed, unless the contrary is proved, to have done so with the necessary motive. (For definition of "the relevant period" see Section 51(9)).
Harm done or threatened may be financial or physical, whether to person or property. Such cases apart, harm in this context is to be given its ordinary meaning of "physical harm" (R v Normanton 1998, CLR, May 220). In that case the harm alleged was spitting in the face of the victim. Whilst that amounted to an assault, it was held the impact of the spittle would not, in itself, cause harm as required under the Act.
The Section 51(2) offence is directed at acts committed after an investigation or trial is concluded and is aimed at those who wish to take revenge against witnesses, jurors and those involved in the investigation of offences. It is unlikely, therefore, there will be an overlap with other public justice offences.
Examples of post trial conduct appropriate for 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.
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, 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.
Two new offences were created by Sections 39 and 40 of the Criminal Justice and Police Act 2001:
- Section 39 creates the offence of intimidating a witness in the course of civil proceedings. An offence is only committed where an act of intimidation occurs after proceedings have been commenced;
- Section 40 creates the offence of harming a witness in civil proceedings. For this offence the act must be committed after the commencement of proceedings and within a year of proceedings being finally concluded.
The offences are triable either way. In the magistrates' court the maximum penalty is six months' imprisonment and/or a fine to the statutory maximum. In the Crown Court the maximum penalty is five years' imprisonment and/or a fine.
A person commits an offence contrary to Section 39 when doing to another person:
- An act which intimidates, and is intended to intimidate another person (the victim)
- Knowing or believing that the victim is, or may be a witness in any relevant proceedings, and
- Intending by his act to cause the course of justice to be obstructed, perverted or interfered with, and
- The act is done after the commencement of those proceedings.
It is immaterial:
- Whether the act is done in the presence of the victim.
- Whether the act is done to the victim himself or to another.
- Whether or not the intention to cause the course of justice to be obstructed, perverted or interfered with is the predominant intention of the person doing the act.
A witness is defined as a person who provides, or is able to provide information or documentation which might be used in evidence in proceedings, or might confirm other evidence which will or might be admitted in those proceedings, be referred to in the course of evidence given by another witness in those proceedings or be the basis for any cross-examination during those proceedings
There is a presumption that the Defendant intended to pervert, obstruct or interfere with the course of justice if it is proved that he did an act that intimidated and was intended to intimidate another person, and did the act knowing or believing that the person in question was, or might be a witness in relevant proceedings.
A person commits an offence contrary to Section 40 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, he threatens to do an act, which would harm that other person.
The offence is committed where the offender does the act knowing that the person harmed or threatened has been a witness in relevant proceedings, and he does or threatens to do that act because of that knowledge or belief. The act must be committed after the commencement of proceedings and within a year of proceedings being finally concluded.
It is immaterial whether the act in question is carried out in the presence of the person who it is intended to harm, or whether a threat is made in the presence of that person; whether the motive set out in the offence is the predominating one, or whether the harm done or threatened is physical, financial or harms a person or property.
For the purpose of Section 40 a witness is defined as a person who has provided information, a document or something else which was, or might have been used in evidence in the proceedings, or which tended or might have tended to confirm other evidence which was, or could have been given in those proceedings; was or might have been referred to in the course of evidence given by another witness in those proceedings; or was or might have been the basis for cross-examination during those proceedings.
For both Section 39 and 40, relevant proceedings are defined as proceedings in or before:
- The Court of Appeal;
- The High Court;
- The Crown Court;
- Any County or magistrates' court,
which are not proceedings for an offence and which were commenced on or after the date these provisions came into force (1st August 2001).
Interference with jurors can be treated as acts intended to pervert the course of justice. Section 51 Criminal Justice and Public Order Act 1994 should be considered. General Charging Practice guidance can be found above and Charging Practice for Public Justice Offences guidance can be found above.
If it is alleged that a jury member has been approached with a view to influencing the verdict, and a full scale investigation is needed to investigate the matter, the CCP should be consulted before further enquiries are made. This applies whether the allegation is in the form of a request by a Trial Judge for a Police investigation, or arises from any other source.
Allegations of jury interference which do not involve an attempt to influence the verdict, but are simply improper contact with a juror should be reported to the Judge. He or she can then be reminded of the Court's powers under the Contempt of Court Act 1981. Where the alleged interference is of a relatively minor nature the Court's powers to dispense immediate justice under the 1981 Act may avoid the necessity for such an enquiry.
This section creates a range of summary offences that may be committed by persons summoned for jury service. Examples include making false representations for the purposes of evading jury service or enabling another to do so; failure, without reasonable excuse, to answer questions under section 2(5) or deliberately or recklessly giving false answers; and of serving on a jury when ineligible, disqualified or not qualified
The offence under section 20(5)(a) of serving when disqualified (for instance because of a previous conviction) carries a fine not exceeding level 5 on the standard scale: all the other offences carry a fine not exceeding level 3 on the standard scale.
A prosecution should follow (unless there are exceptional circumstances) where there is clear evidence that:
- a defendant has knowingly made a false declaration as to disqualification by virtue of a previous conviction; and
- is part of a deliberate attempt to serve on a jury.
Where the false declaration is made knowingly, but with a genuine belief that the disqualifying period has elapsed, then the following factors may be taken into account in deciding whether a prosecution is in the public interest:
- what steps the defendant took to clarify the position.
- whether the defendant's belief was sincere.
- how long was the disqualifying period;
- how much of it was still to run.
Where police wish to interview jurors, the CPS should make an application to the Court of Appeal. Although there is no legal requirement to do so a practice has been agreed with the Court of Appeal that where there is a suggestion of a tainted acquittal or jury intimidation, an application for such interviews should be made to the Court of Appeal.
The CPS should notify the AGO before making the application, which should be made via the Crown Court and passed to the Court of Appeal for consideration. The Court of Appeal may draft questions in order to elicit the information required. This requirement still applies where the trial judge has purported to give permission for such enquiries or even directed they take place.
The purpose of the procedure is to protect the sanctity of jury deliberations and the basis for their decisions in any case. It also ensures that section 8 of the Contempt of Court Act 1981 is not breached.
The offence of obstructing a police officer is committed when a person wilfully obstructs:
- a constable in the execution of his duty, or
- a person assisting a constable in the execution of the constable's duty.
It is a summary only offence carrying a maximum penalty of one month's imprisonment and/or a level 3 fine.
A person obstructs a constable if he prevents him from carrying out his duties or makes it more difficult for him to do so.
The obstruction must be 'wilful', meaning the accused must act (or refuse to act) deliberately, knowing and intending his act will obstruct the constable: Lunt v DPP  CLR 534. The motive for the act is irrelevant.
Many instances of obstruction relate to a physical and violent obstruction of an officer in, for example, a public order or arrest situation. This standard only deals with conduct which can amount to an obstruction in the context of an interference with public justice.
Examples of the type of conduct which may constitute the offence of obstructing a police officer 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 motorist or 'shoplifter' who persists in giving a false name and address;
- a witness giving a false name and address;
- a partner who falsely claims that he/she was driving at the time of the accident but relents before the breathalyser procedure is undertaken;
- an occupier inhibiting the proper execution of a search warrant (if the warrant has been issued under the Misuse of Drugs Act, see also s.23 of that Act);
- refusing to admit constables into a house when there is a right of entry under s.4(7) of the road Traffic Act 1988 (arrest for driving etc while unfit through drink or drugs).
Regard must be had to the factors outlined General Charging Practice, and the Charging Practice for Public Justice Offences, above in this guidance chapter, which identify conduct too serious to charge as an obstruction. Then consideration should be given to charges of assisting an offender, or perverting the course of justice. If applicable, refer to Misrepresentation as to Identity, elsewhere in this guidance.
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.
It is a summary only offence carrying a maximum penalty of six months' imprisonment and/or a level 4 fine.
Proceedings may only be instituted by or with the consent of the Director of Public Prosecutions: s.5(3). Consent may be granted after charge but must be before a plea of guilty is entered or summary trial. Consent must be obtained before proceedings are started by way of summons.
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.
The public interest will favour a prosecution in any one of the following circumstances:
- police resources have been diverted for a significant period (for example 10 hours);
- a substantial cost is incurred, for example a police helicopter is used or an expensive scientific examination undertaken;
- when the false report is particularly grave or malicious;
- considerable distress is caused to a person by the report;
- the accused knew, or ought to have known, that police resources were under particular strain or diverted from a particularly serious inquiry;
- there is significant premeditation in the making of the report;
- the report is persisted in, particularly in the face of challenge.
There are statutory offences which involve wasting police time and which should be used instead of s.5(2) when there is sufficient evidence. For example:
- perpetrating a bomb hoax - s.51(2) Criminal Law Act 1977;
- false alarms of fire - s.49 Fire and Rescue Services Act 2004;
- fraudulent insurance claims based on false reports of crime - deception.
There is an overlap between the offence of wasting police time and other, more serious offences. Regard must be had to the factors outlined in General Charging Practice, above in this chapter and Charging Practice for Public Justice Offences, above in this chapter, which help to identify conduct too serious to charge as wasting police time, when consideration should be given to a charge of perverting the course of justice.
In R v Cotter and Others EWCA Crim 1033 it was held that 'the course of public justice included the process of criminal investigation following a false allegation against either an identifiable or unidentifiable individual.' In that case, the actions of the defendants in making the false allegations amounted to conspiracy to pervert the course of justice. See also R v Bailey  NI 15 and Rowell  1 WLR 132 where it was held that section 5(2) of the Criminal Law Act 1967 could be invoked where police time and resources had been wasted but where individuals (identified or otherwise) had been exposed to the risk of arrest, imprisonment, pending trial and possible wrongful conviction and punishment that would amount to perverting the course of justice.
Section 90 Police Act 1996 creates several offences relating to the impersonation of police officers or the possession of articles of police uniform, namely:
- impersonating a police officer (including a special constable
- making a statement or doing any act calculated falsely to suggest membership of a police force;
- wearing a police uniform calculated to deceive;or
- possessing an article of police uniform.
The circumstances of the case may disclose more than one of these offences. It will seldom be necessary to charge more than one offence. You should select the most appropriate.
You should consider the motive of the defendant. Where the impersonation involves a threat to the safety of any person, or to property, or is done with a view to financial gain, then a prosecution should follow.
At common law it is an offence to refuse to assist a constable when called on to do so.
To establish the offence you need to prove that:
- the constable saw a breach of the peace being committed;
- there was a reasonable necessity for calling upon the defendant for assistance;
- when called on to do so the defendant, without any physical impossibility or lawful excuse, refused to do so.
The offence is triable on indictment but is rarely used.
Refer to Bail, elsewhere in the Legal Guidance.
A person who, being in lawful custody either in prison or elsewhere on a criminal charge, escapes without the use of force commits the common law offence of Escape. Where any force is used, the common law offence of Breaking Prison should be considered. In this context, force can include damage to property such as locks or fences. For sentencing guidelines see: R v Coughtrey  2 Cr. App. R.(S) 269, CA.
Section 39 Prison Act 1952 makes it an offence to assist a prisoner to escape. Unlike escape or breach of prison, this particular offence only applies to persons in prison, not, for example, making a remand appearance at a magistrates' court. Section 39 of the Act also makes it an offence to take things into prison or to send things in by post to facilitate an escape.
Where the defendant was in custody facing only summary offences (or either way offences where he has consented to summary trial) you should consider the availability of other charges, such as assault or obstruction.
However, where force has been used to break out of prison, the public interest will usually require a prosecution for Breaking Prison.
In relation to Escape, the following factors are among those to be considered before deciding whether to prosecute:
How successful was it?
- What were the charges the defendant originally faced?
- How carefully planned was the escape?
Where the escape is from prison a prosecution should normally follow but, you should also consider:
- administrative prison procedures such as loss of remission, and
- any lack of security, for example, an open prison.
Assisting a prisoner to escape is a serious matter and will usually require a prosecution in the public interest.
The offence of harbouring is created by section 22(2) Criminal Justice Act 1961. You need to prove that the person harboured had escaped from prison or detention in a remand centre or Young Offenders' Institution and such provisions are construed strictly: see Nicoll v Catron (1985) Cr App R 339; Moss (1985) 82 Cr App R 116. The offence, therefore, cannot be committed in respect of a person who escapes from custody whilst in transit to or from prison, or from court etc. In serious cases, however, an offence of Perverting the Course of Justice might be considered.
When considering the public interest in prosecuting a person accused of harbouring, you should always bear in mind:
- What was the motive for harbouring?
- How serious was the offence for which the escapee was imprisoned?
Often, the public interest will not demand proceedings against a wife or parent who has been put under pressure to harbour a husband or son, especially if the offence for which the prisoner was incarcerated is not serious.
The offence of assisting an offender ("the principal offender") is committed when:
- the principal offender has committed an arrestable offence;
- the accused knows or believes that the principal offender has committed that or some other arrestable offence;
- the accused does any act with intent to impede the apprehension or prosecution of the principal offender; and
- the act is done without lawful authority or reasonable excuse.
It is an offence triable only on indictment unless the principal offence is an either way offence, in which case the offence of assisting a principal offender is also triable either way. The maximum sentence for the offence varies from three to ten years' imprisonment, depending on the punishment applicable to the principal offence: s.4(3).
Proceedings may only be instituted by or with the consent of the Director of Public Prosecutions: s.4(4). Consent may be granted after charge but must be before committal proceedings (indictable offences) or mode of trial (either way offences). Consent must be obtained before proceedings are started by way of summons. It is not an offence to attempt to commit an offence under section 4.
Examples of the type of conduct appropriate for a charge of assisting an offender include:
- hiding a principal offender;
- otherwise assisting a principal offender to avoid arrest;
- assisting a principal offender to abscond from bail;
- lying to the police to protect principal offenders from investigation and prosecution;
- hiding the weapon used in an assault/robbery;
- washing clothes worn by a principal offender to obstruct any potential forensic examination.
There may be an overlap between the offence of assisting an offender and obstructing a constable, wasting police time, concealing arrestable offences (s.5(1) Criminal Law Act 1967) and perverting the course of justice .
The courts have made it clear that assisting an offender is a serious offence and, if the statutory offence of assisting an offender can be charged, it should normally be preferred over common law offences.
However, the common law offence of perverting the course of justice should be considered when:
- the assisting is aimed at preventing or hindering the trial process (as opposed to the arrest or apprehension of an accused);
- the facts are so serious that the court's sentencing powers for the statutory offence are considered inadequate;
- admissible evidence of the principle offence is lacking.
Assisting an offender is sometimes not an easy offence to prove since it requires proof that the principle committed an arrestable offence and that the accused knew or believed this. In the absence of such proof, other public justice offences, such as obstruction or perverting the course of justice, can provide alternative charges.
Any disposal of a corpse with intent to obstruct or prevent a coroner's inquest, when there is a duty to hold one, is an offence. The offence is a common law offence, triable only on indictment and carries a maximum penalty of life imprisonment and/or a fine.
The offence of preventing the burial of a body (indictable only, unlimited imprisonment) is an alternative charge. Proof of this offence does not require proof of the specific intent required for obstructing a coroner.
The offences of obstructing a coroner and preventing the burial of a body may arise for example, when a person decides to conceal the innocent and unexpected death of a relative or friend or prevent his burial. Such cases inevitably raise sensitive public interest factors which must be carefully considered.
When the evidence supports a charge of involuntary manslaughter, it may be necessary to add a charge of obstructing a coroner or preventing a burial if the disposal of the body is more serious than the unlawful act which caused the death.
Obstructing a coroner may also amount to an offence of perverting the course of justice. Regard must be had to the factors outlined in General Charging Practice, above in this guidance and Charging Practice for Public Justice Offences, above in this guidance, which help to identify conduct too serious to charge as obstructing a coroner, when consideration should be given to a charge of perverting the course of justice.