Perverting the Course of Justice (PCoJ) & Witness Intimidation
The Sentencing Council has begun the consultation process on the Sentencing Guidelines for Perverting the Course of Justice (PCoJ) and Witness Intimidation.
Currently, no guidelines exist for PCoJ and the guidelines for Witness Intimidation only apply to Magistrates Court cases.
Once the guidelines come into force they will assist in removing some of the uncertainty for defendants by making it easier to understand what sentence they may receive. The purpose of Sentencing Guidelines is to bring together and build on all of the case law that currently governs sentencing. During the consultation process the Sentencing Council will seek the views of Judges and anyone else who uses the Sentencing Guidelines.
Perverting the course of justice (PCoJ) is a common law offence (meaning it is based on case law rather than legislation) and is when a person acts in a way that has the tendency to pervert the course of justice and with the intention of doing so. This means intentionally doing something that might frustrate an investigation or alter the outcome of a prosecution.
Some examples include providing incorrect driver details to the police for a driving matter, hiding or disposing of evidence or helping someone avoid arrest.
PCoJ is similar to the offence of Assisting an Offender , however a person can be guilty of Perverting the Course of Justice in relation to their own case whereas this is impossible with Assisting an Offender.
Witness intimidation is based on legislation and is when someone does an act that is intimidating and is intended to intimidate another person, with the knowledge that the person is assisting an investigation/prosecution and with the intention that the course of justice be obstructed, perverted or interfered with.
The fact that the words ‘perverting’ and ‘the course of justice’ appear in the definition of Witness Intimidation, demonstrates that the two offences are closely linked. It therefore makes sense that the Sentencing Council are consulting on both simultaneously.
The existing case law tells us that PCoJ is that it is an offence that will generally attract a prison sentence without it necessarily being a lengthy one. This has the effect of making a suspended sentence for PCoJ less common than with some other offences, despite the fact that many PCoJ sentences are ‘suspendable’ (less than 2 years). The reason is that PCoJ ‘strikes to the heart’ of the justice system and so prison is necessary to act as a deterrent. Similarly, case law also dictates that the sentence for PCoJ will generally be consecutive to any underlying offence. Precedent also gives us the factors that should be considered when considering the seriousness of the offence and these are incorporated into the proposed guidelines, explained below.
As with many other offences the proposed PCoJ Sentencing Guidelines seek to place offenders in Categories of Culpability and Harm.
Those placed into A – Higher Culpability may have exhibited sophisticated offending or conducted it over a sustained period or the underlying offence was very serious.
Those placed into C – Lesser Culpability will be unsophisticated or lack planning in their offending and/or the underlying offence is not serious. They may also have been involved through coercion, intimidation or exploitation or be suffering from a mental disorder or learning difficulty.
Offenders in B – Medium Culpability will have features that fall in between A and C.
The proposed factors determining Harm are the level of distress caused to an innocent party or the level or the impact or delay caused to the administration of justice.
A Category 1 Harm offence will cause serious consequences for an innocent party or significant delay / disruption to the administration of justice. A Category 2 Harm offence will have caused some consequences to an innocent party or some impact or delay on the administration of justice. A Category 3 Harm offence is one that has a limited effect.
The highest sentences will go to Defendants placed into Category A Culpability and Category 1 Harm. The starting point is 4 years with a potential range of 2-7 years. The lowest will go to Category C Culpability and Category 3 Harm, with a community order being the recommended sentence. Proposed guidelines on Witness Intimidation will do something very similar.
An A – high Culpability case some or all of the following factors will involve the actual use or threat of violence, deliberately seeking out witnesses, breaching bail conditions, conduct over a sustained period or sophisticated nature of offending. A C – Lower Culpability case will involve little or no planning, an offender involved through coercion intimidation or exploitation or an offender who’s responsibility is substantially reduced by mental disorder or learning disability. A B – Medium culpability case will involve non-violent conduct amounting to a threat or culpability factors that fall in-between A and C.
Category 1 Harm will involve contact made at the victim’s home or serious distress caused to the victim or a serious impact on the administration of justice. Category 2 Harm will have some impact on the administration of justice or some impact on the victim. Category 3 is reserved for offending that has limited effect.
The most serious offences Category A Culpability and 1 Harm will lead to a starting point of 2 years in custody with a range of 1-4 years. The least serious Category C Culpability and 3 Harm will attract a mid-level community order.
Both sets of guidelines then go on to outline aggravating and mitigating features. These will serve to slide sentence up and down the range given with the starting point.
The proposed guidelines go on to implore judges to consider other factors such as a reduction for an early guilty plea and the totality factor before coming to their final decision. This is a standard feature of all sentencing guidelines and is a process that judges are well used to applying in every sentence.
It is important to bear in mind that these guidelines may be subject to change following the conclusion of the consultation process. However, it is likely that the substance of the guidelines will remain the same and in future those facing sentence for PCoJ and Witness Intimidation will have more certainty over their fate.