Hardy, R v

THE VICE PRESIDENT: On 19th November 2004 at the Nottingham Crown Court this appellant, who appeals by leave of the Single Judge, pleaded guilty to an offence of perverting the course of justice, and on 25th November he was sentenced by His Honour Judge Cole to two-and-a-half years' imprisonment. Another count of perverting the course of justice was left on the file on the usual terms.

The facts were that, on 2nd August 2004, there began a trial of two men at the Nottingham Crown Court. They were charged with causing grievous bodily harm. The victim was a man called Dodd.

During the two days that Dodd was giving his evidence, the appellant sat in the public gallery. It appears, although this was not an offence for which the appellant was to be sentenced, that the appellant's presence made Dodd apprehensive.

On the second day of the trial a juror was approached by the appellant. In consequence, the following day, 4th August, the juror made a complaint to the usher about what had happened at 4 o'clock on the afternoon of 3rd August, as the juror had left court, namely, the appellant had approached him at a shopping centre immediately across the road from the court. The appellant had asked him if he was a juror and if he thought that the verdict would be guilty or not guilty. The juror refused to pass any comment on that but the appellant, who the juror commented was a large man, with a closely shaven head, said: "Find them not guilty" and shook the juror's hand. Because of what had happened and the complaint made by the juror the following day, the trial had to be aborted.

Thereafter, the appellant was arrested and in interview denied speaking to the juror. However, as we have indicated, the appellant pleaded guilty and he did so on a written basis of plea, which included that the encounter had been accidental rather than planned. The appellant accepted that, during his conversation with the juror, he had tried to influence the juror in relation to the case which he was trying.

In passing sentence, the judge said that this was a very serious offence, the jury system was the cornerstone of the criminal justice system, and jurors had to be able to go about their service without hindrance. The judge went on to say that the appellant was entitled to credit for his plea, and the judge also found that the appellant had been remorseful. The judge referred to the appellant's previous convictions, which had been a long time ago. There had been nothing since 1988. The judge also went on to refer to the fact that the trial had had to be aborted, which meant that considerable public money had been wasted. He went on to pass the sentence to which we have referred.

The appellant is 41 years of age.

On his behalf Mr Spens QC advances four submissions on the basis of which he challenges the sentence passed by the learned judge as being manifestly excessive. First, he says that this was not an offence of intimidation a juror contrary to section 51(1) of the Criminal Justice and Public Order Act 1994. Secondly, he says there were no aggravating features and the nature of the offence placed it at the bottom of the scale of offences of this kind. Thirdly, there were a number of mitigating features, including those accepted in the basis of plea, and fourthly, the appellant had pleaded guilty at the earliest possible opportunity.

Mr Spens submits that, even if a deterrent element were appropriate in the sentence passed, there must still be a degree of proportionality between the sentence passed and the particular offence. Mr Spens points out that no direct threat was made and no money was offered to the juror. He also stresses the fact that the encounter was not, according to the basis of the plea, accepted by the learned judge, planned.

The Court has been referred to a number of authorities: R v Williams [1997] 2 Cr App R(S) 221, where 2 years was upheld on a guilty plea, in relation to an offence accompanied by a threat of violence; R v Mitchell-Crinkley [1998] 1 Cr App R(S) 368, 12 months was upheld on a guilty plea, for an offence of contempt, where the defendant had made a telephone call to a juror; R v Watmore [1998] 2 Cr App R(S) 46, a term of 4 years was upheld following a trial; R v Baxter [2003] 1 Cr App R(S) 50, a term of 3 years was reduced on appeal to 2 years, in relation to a defendant who had followed, by car, a juror for a considerable distance before he was apprehended; R v Bowen [1996] 1 Cr App R(S) 63, a term of 3 years was imposed, consecutively, to a sentence of 9 years' imprisonment, following a trial for conspiracy to pervert the course of justice; R v Boodhoo [2002] 1 Cr App R(S) 9, a sentence of 4 years' imprisonment was upheld on a plea of guilty, by a member of a jury who had accepted a bribe. Finally, in R v Goult 4 Cr App R(S) 355, a sentence of 18 months was reduced to 9 months, in relation to an appellant who attempted to intimidate jurors by staring at them in court and accosting them outside court.

The submission which is made in essence by Mr Spens, by reference to principle and authority, is that a term of two-and-a-half years, following a plea of guilty to this offence, the circumstances of which we have outlined, was excessive. There is no doubt, as Mr Spens rightly accepts, that jurors are entitled to perform their public service unimpeded by threat or encounter, designed to dissuade them from the proper performance of their task in accordance with the oath which they have taken. As the authorities have repeatedly made plain, custody and sometimes substantial periods of custody is inevitable for those who interfere with jurors.

That said, regard must be paid to the nature and degree of inference. Fortunately, this juror resisted the implicit threats made to him and, very properly, reported the matter as soon as practicable the following day. The consequence, namely the aborting of the trial, was a serious matter to which the judge was fully entitled to have regard.

But taking all the other circumstances of this matter into account, including the plea of guilty, we take the view that the sentence of 30 months was too long. Accordingly, that sentence will be quashed and we substitute for it a sentence of 21 months' imprisonment. To that extent this appeal is allowed.