Perverting the course of justice sentencing guidelines

The guidelines on perverting the course of justice are both bad news and good news, criminal Barrister Quentin Hunt explains why.

If you wish to read about perverting the course of justice generally, please read Quentin’s other blog post here.

Perverting the course of justice is a common law offence which is indictable only, meaning that such cases can only be tried and sentenced in the Crown Court. The Courts have always taken this offence very seriously as it is what is called an ‘administration of justice’ offence- meaning that it is an offence which effects and hampers the smooth running of the justice system. 

Prior to October 2023 sentencing for the offence was guided by case law, meaning that a myriad of different Court of Appeal cases would guide the Court as to the appropriate sentence for a particular case. It was often up to the skill of the defence advocate to select the most favourable cases that were factually close to the case being sentenced in order to try to persuade the Court towards leniency.

This all changed on 1 October 2023 when a Sentencing Guideline for the offence, published by the Sentencing Guidelines Council came into force. This guideline can be found here.

So, what is the effect of the Sentencing guideline? Comparing it to previous case law it seems that the guideline is more tough in respect of what sentence would be handed down, take for example, a case where someone gets a friend to accept penalty points on their behalf. A typical example of such a case, pre guidelines would be R v Henderson and Metcalfe  [2012] 1 Cr. App. R. (S.) 18. In that case the Court of Appeal reduced a sentence of 6 months immediate imprisonment to 4 months in a case where a lorry driver persuaded a friend to take penalty points on his behalf. Such a case under the guidelines would most likely be catagorised as a category 2B offence with a starting point of 12 months imprisonment. With a discount of 1/3 for a guilty plea this comes to some 8 months- nearly double what the Court of Appeal felt was appropriate in Henderson.

Is this all bad news though? In short answer- no.

Previous case law was abundantly clear that nearly all cases of perverting the course of justice crossed the custodial threshold, but not only that, the sentence of imprisonments should nearly always be immediate- i.e. not suspended. This was confirmed in one of the last Court of Appeal cases before the guidelines came into force - R v Wilson [2023] EWCA Crim 673. In this case the Court of Appeal approved a previous authority of Attorney General's Reference No 93 of 2009 [2009] EWCA Crim 1375, where it was stated that there is a longstanding principle that perverting the course of justice is so serious an offence that it is almost always necessary to impose an immediate custodial sentence, unless there are exceptional circumstances. That is because such actions as giving a false account of events to investigating authorities undermines the very system of criminal justice which is thereby impeded in its function. Therefore, even in cases relating to driving offences, immediate custody, albeit sometimes of short duration, can be expected for such offences.

What of the position under the guidelines? As there is a guideline in force it is inappropriate to refer to old case law, this principle was outlined by the Court of Appeal in R v Kenneth Thelwall {2016] EWCA Crim 1755 (PDF) . As such, it can be argued that the old authorities fall away and the Court should consider the question of suspension according to the imposition of community and custodial sentence guidelines. As can be seen, the threshold for suspension is a lot lower under these guidelines than it is under the old case law for perverting the course of justice.

This has certainly been my experience in dealing with cases since the imposition of the guidelines.

The takeaway from the sentencing guidelines is that while it is likely that there will be a stiffer sentence imposed upon a defendant, it is more likely that the defendant will not go to prison. This is good news for 90% of defendants who face this sort of charge.

Quentin Hunt is a Criminal Defence Barrister of over 24 years’ experience and has reputation for tenacious and effective representation of his clients, He specialises in dealing with perverting the course of justice cases.  If you require an experienced and skilful advocate who will fight to help get you the best result in your case, you may contact Quentin for a no obligation conversation about your case. Quentin accepts instructions both through solicitors and directly from members of the public but does not accept instructions though the legal aid scheme.