Iaquaniello, R. v

LORD JUSTICE MAURICE KAY: On 10th December 2004 in the Crown Court at Croydon, the appellant was convicted by a majority of 10 to 2 of doing an act, or acts, intending and intended to pervert the course of public justice; at a later date, she was sentenced to 2 years and 6 months' imprisonment. The jury acquitted her of a count of dangerous driving, which was count 2 in the indictment, pursuant to the judge's direction. No verdicts were entered on the remaining counts (3 to 8) which comprised one count of attempting to obtain a money transfer by deception, four counts of obtaining a money transfer by deception and one count of damaging property. As we should explain, counts 2 to 8 had been left to the jury as alternatives to count 1.

The appellant now appeals against conviction and sentence by leave of the single judge. The case is, in many ways, a tragic one; the appellant had been a serving police officer in the Kent constabulary for six years before transferring to the Metropolitan Police in October 2001. Thereafter, she was stationed at Bexleyheath police station. Four months after she started at Bexleyheath, she began to report incidents of harassment. These consisted of attacks on her property in and around the police station, together with the theft of personal items of property from the police station. Her complaints were investigated, but no culprit was identified. She also, at that time, reported incidents occurring at home including obscene and silent telephone calls and damage to her car.

As a consequence of those events, she took a period of sick leave due to stress, from March 2002. She returned to work in September 2002 and she then reported a continuation of the kind of incident to which she had earlier referred. At trial, the prosecution conceded that the earlier incidents might have occurred as described by the appellant; the case for the prosecution was that from 6th October 2002 onwards, further reports of incidents were all untrue and fabricated by the appellant. The intention attributed to her by the prosecution was either to support a civil claim against the Metropolitan Police Commissioner or to provoke significant police investigations.

Count 1 of the indictment charged the appellant with doing an act or acts intending and intended to pervert the course of public justice. The particulars of offence were pleaded as follows:

In a sense, that list of particulars gives more than a flavour of the kind of allegation which the appellant had made and the charge against her of doing an act or acts intending and intended to pervert the course of public justice. However, it is necessary to say a little more about at least some of the ten itemised particulars. As regards the first one, what had happened on that occasion is that the appellant reported that a missile had been thrown at her car while she had been driving it. The missile was said to have smashed through the offside window, bounced off her head and exited through the nearside window. The police had attended the scene and noticed damage to the two windows and the front nearside indicator. Three rocks were recovered from the vicinity. The appellant had a large bump on her forehead, as was noted by a forensic medical examiner who saw her at Bexleyheath police station on that day. The doctor also noticed fragments of glass in her hair and tenderness to her right knee.

A second examination by a different doctor in hospital on 8th October resulted in the appellant telling that doctor that she had been attacked by an unidentified assailant who smashed the front windscreen of her vehicle. She was noted to have bruising and superficial scratching to her right eye socket, a corneal abrasion to the right eye and a painful right knee. She was given painkillers and eye ointment. At that stage, the police who attended the scene of the car had had no reason to believe that the incidents had been other than genuine. An accident investigator examined the scene and the vehicle; he found damage consistent with a collision between the front light of the vehicle and a 'Give Way' sign at a low speed of 5 to 10 miles an hour, he also found two patches of glass in the road opposite each other. The position of the glass appeared to indicate that both windows were broken when the vehicle was in the same place, either stationary or barely moving.

The appellant was interviewed about her allegation on 7th October 2002 and 13th November 2002. She described moving her vehicle from one side of the road to allow another vehicle to overtake her, whereupon that vehicle had pulled level but rather than overtake her had slowed or stopped sufficiently for someone to have thrown an object through her window with the results to which we have referred. The outcome was that she had driven into the 'Give Way' traffic sign.

A forensic expert in accident reconstruction concluded from the position of the debris, and the account given by the appellant, that the vehicle had been travelling between 5 and 10 miles an hour at the time of impact with the sign. He had conducted experiments about throwing various projectiles at the toughened glass windows of a car, but it proved difficult to throw a stone with sufficient momentum from the interior of a car to smash the glass, and he concluded that it was unlikely that a stone thrown from another vehicle would maintain sufficient momentum to smash a second window, because it would have been slowed significantly as a result of breaking the first. A catapulted ball bearing was capable of passing through both windows in the manner described by the appellant. The damage was described as unlikely to have been caused by any of the rocks or stones which had been uncovered by the police.

The second particularised incident was a complaint of receipt of a threatening typewritten letter. As far as that letter was concerned, a check was made on the IT account of each user in the police station in an attempt to trace the author, but this was unsuccessful. Nor could the system administrator reproduce the letter on any of the printers that were available in the police station.

The third incident was the first of three complaints of burglary. When the police attended the appellant's house, there was no sign of a forced entry. She indicated that a panic alarm button, a driving licence and her passport had been stolen. In fact the passport was later found in a wardrobe at her home, following her subsequent arrest and her driving licence later materialised from a financial services company, to whom she had sent it in connection with an application.

On 22nd October 2002, security cameras were fixed to the front and rear of her house. The fourth allegation was that someone had cut the brake pipes to her vehicle on 5th November 2002 causing her to lose control of it so that she mounted the kerb and ended up in a ditch; she suffered an injury to her wrist. She indicated to an officer who attended the scene that she had suffered previous incidents, and was annoyed that no-one had been caught. Examination of the vehicle disclosed that the front brake pipe had been cut, but that the handbrake was in working condition. In interview, she described how the brakes had not been working as she approached a T-junction. She described the route she had taken from home and ending up in the ditch so as to avoid an oncoming car. An examination of the scene and the vehicle suggested that it had not been travelling at speed when it mounted the kerb, perhaps at a speed of about 5 miles an hour. It was also found to have come to a halt in first gear.

The forensic evidence suggested that the brakes had been cut somewhere between the appellant's home and the final resting place of the vehicle. Video footage from the CCTV at the appellant's garage recorded nothing to suggest that the vehicle had been tampered with at her home. PC Ostler, a forensic examiner, concluded that the brakes had been deliberately cut but that the braking described by the appellant was inconsistent with the brake pipe damage. That event also was the foundation for count 2 in the indictment, the allegation of dangerous driving, upon which the judge directed an acquittal in circumstances that we shall come to describe. Count 3 related to an insurance claim arising out of the same incident.

The fifth itemised particular related to a report on 22nd November 2002 that someone had deliberately rewired a light fitting at the appellant's home so as to render the fitting dangerous. An electrician discovered that the earth wire to the ceiling light beside the back door had been removed, rendering the metal based fitting permanently live, after the appellant asked him to change the bulb. He noticed damage to the back door, which either the appellant told him, or he assumed, had been caused in a burglary.

The sixth itemised particular was a second report of a burglary, this time on 11th January 2003, resulting in some damage and the theft of some personal items. The appellant had indicated a small downstairs window to a toilet at the rear of the property as a possible point of entry as it had been left open. This would have deactivated the alarm system. Two fingerprints were discovered on the toilet cistern but these were of insufficient detail for identification purposes. There was no sign of forced entry, although a security camera had been moved and the security video stolen. The appellant reported a loss of her passport, passport application, insurance papers and approximately £300. Threatening messages had been written on the staircase wall in the main bedroom, and items of furniture had been damaged, as had a panic alarm. Following that event, a more sophisticated alarm system was installed.

Counts 4 to 7 on the indictment related to insurance claims made by the appellant arising out of that alleged burglary. The seventh itemised particular related to a report of the throwing of a stone which hit the windscreen and bounced on to the bonnet of her vehicle whilst she was driving home from a public house on 6th February 2003.

The eighth particular was again one of burglary of the appellant's home on 19th February. She telephoned the police station to report that the alarm had been activated. The officer who attended the address saw no marks consistent with forced entry. The appellant pointed to a strip of plastic which she said had been removed from the rear door, and an upstairs rear window and the downstairs toilet window were open, which the appellant said had been shut. She said that the latter had been kept shut since the earlier burglary on 11th January. No relevant fingerprints were found. The appellant was offered relocation to another address but declined. A check of the alarm system records for that date revealed that the alarm had been armed and disarmed on a number of occasions. A covert video camera -- which had been put in place without the appellant's knowledge -- recorded the appellant herself opening the downstairs toilet window at 5.31pm (that is after her report to the police station but before the arrival of the first police officer).

The ninth matter was again an allegation of a missile thrown at her car, this time whilst she was driving on country lanes.

The tenth item related to the scratching of the word "Die" into the paintwork of a Vauxhall Astra, which the Metropolitan Police had hired for the appellant's use. She said that she had parked the vehicle that morning in Mayplace Road East and returned in the evening to find it damaged. She found a screwdriver near the vehicle. The vehicle had in fact been kept under police observation; it had been checked at 6.50am and was found to be undamaged. The appellant had parked the vehicle in Mayplace Road East at 8.51, the vehicle was examined at 8.52 and was found to have the word "Die" scratched into the bodywork. This matter also forms the basis of count 8 on the indictment. Following her arrest on 5th March 2003 as a result of this very incident, the appellant subsequently admitted that she had herself scratched the word "Die" into the car on that occasion in an attempt to force the issue of the investigation of her complaints.

Immediately following her arrest, for the most part, she declined to answer questions at the police station after taking legal advice. Her evidence at trial was essentially that all the allegations which she had made were true, save that the last one had resulted from her own scratching of the car for the motive which we have described. She said she had never made a civil claim against the police and no such proceedings were in her contemplation. She only wished the incidents would stop and had vigorously pursued her seniors so as to bring this about. She said that she reported all the incidents because she had been told to report any incidents.

Save to say that in relation to the first nine particulars, the appellant provided an innocent explanation for her allegations, that explanation being that the allegations were entirely true, it is not necessary for us to recite what she said about each and every one of them. Nor is it necessary for us to recite the other evidence in the case. Other witnesses were called on her behalf, either to add to evidence of good character, or to firm up explanations which she had given for one aspect of the case or another. Nevertheless, the jury convicted her of count 1 and in so doing plainly rejected her explanations.

We now turn to the grounds of appeal against conviction.

At the forefront of the appeal against conviction there lies a group of submissions which separately and together take issue with the amendment of the indictment at the commencement of the trial so as to add, as a new count 1, the allegation of doing an act or acts tending and intended to pervert the course of public justice. We have already set out the way in which that count was expressed.

It is undoubtedly true that leave to amend the indictment was only sought at a late stage. The appellant had been arraigned on 15 December 2003 on the original seven count indictment. Following the amendments, the original seven counts became counts 2 to 8 of the trial indictment. There had been procedural hearings on 29 March and 22 April 2004 but nothing had been said about any proposed amendment of the indictment. Indeed, the matter had been listed for trial soon after that later date, but the fixture had been broken. What eventually precipitated the late application was a change of prosecuting counsel. When Mr Dunn-Shaw became involved he took the view that a count of perverting the course of justice reflected the overall criminality which the prosecution were seeking to prove. He communicated his intention to apply for leave to amend two working days before the commencement of the trial. Miss McAtanasey objected and there was a lengthy hearing upon the issue before the trial judge who gave his ruling on 23 September 2004. In that ruling the judge observed that the prosecution were not seeking to rely on any fresh evidence. He then considered at length whether the defence would suffer genuine prejudice as a result of the late amendment in relation to any of the particularised allegations. He went through each of them in the light of the information that had been provided by counsel. He concluded that there was no "genuine prejudice". He then addressed the question of whether the amendment was bad for duplicity. He decided that it was not. Accordingly, he granted leave. He rejected a further submission on behalf of the defence to the effect that the prosecution should be put to its election as between count 1 and the other seven counts. The way in which the case was conducted thereafter was that the jury were invited to consider count 1 and only to move in the other seven counts in the event of an acquittal on count 1. In other words, counts 2 to 8 were presented on the basis that they were alternatives to count 1. Miss McAtanasey groups her attack on the amendment under a number of sub-headings. There is inevitably an overlap between them but we shall address them in the same way.

The first complaint is about the sheer lateness of the application. The trial judge had this well in mind when he said:

He added that the chronology in this case was such as to call for careful scrutiny by the judge so as to ascertain whether the defendant would be genuinely prejudiced by the amendment. What followed was manifestly careful scrutiny in which all the arguments which had been advanced were carefully considered in relation to each of the particularised allegations. Although the lateness of the amendment was regrettable, it cannot be said that to have allowed it was an erroneous exercise of discretion.

Duplicity is a matter of form, not evidence: see Greenfield 57 Cr App R 849. The question is whether, as a matter of form, a count charges a defendant with having committed two or more separate offences. Miss McAtanasey concedes that the reference in the statement of offence to "doing an act or acts tended and intended to pervert the course of public justice" is not duplicitous. She accepts that the offence can be committed either by a single act or by a series of acts or course of conduct. We do not accept that where a plurality of acts is alleged, the indictment is bad for duplicity by particularising them as "an act or series of acts". It is not necessary to make each act in the series the subject of a separate count as insurance against the possibility that, ultimately, the jury will find only a single act to have been proved. Moreover, the fact that the offence can be evidenced by a series of acts renders it unobjectionable that 10 specific acts are then particularised. We are satisfied that the argument based on duplicity, in the pure sense, cannot succeed. As a matter of form, count 1 was not duplicitous.

The more difficult question arises under this sub-heading. At its highest, the argument is put in this way. The prosecution asserted that the appellant had carried out the several acts either to precipitate criminal investigations by the police or to build a civil claim which she might pursue against the Metropolitan Police Commissioner. In these circumstances, some of the alleged acts might be said to relate to one rather than the other objective. There is, in Miss MaAtanasey's word, a "blurring". She complains that not only did this depart from the way in which the case had been opened (namely as a "course of conduct" or "a sustained campaign of dishonesty"). More significantly it has inappropriately placed before the jury alternative intentions on the part of the defendant. It is common ground that the offence is committed where a person: (a) acts or embarks upon a course of conduct, (b) which has a tendency to, and (c) is intended to pervert, (d) the course of public justice: see Vreones 1891 1 QB 360. It is submitted that it is incumbent on the prosecution to clarify what particular manifestation of public justice is intended to be perverted. In particular, is it criminal justice or civil justice?

The learned judge dealt with this contention in the following passage:

Mr Dunn-Shaw submits that this argument confuses intention and motive. The relevant ingredient of the offence is an intention to pervert the course of public justice. It is a single ingredient and does not fall to be divided as between criminal and civil justice. He seeks to derive support from the case of Sinha [1995] Crim LR 68 (the transcripts of which is dated 5th July 1994, case number 94/2811/Z2). There the appellant was a doctor who had falsified some records following an error on his part which had resulted in a death. He appealed against conviction for attempting to pervert the course of justice on the ground that there were three possible types of judicial process in which the falsified records might have become relevant: an inquest, a trial of a civil action and a criminal trial. It was suggested that there should have been separate counts in relation to each possibility or, at the very least, the prosecution ought to have nailed its colours to one of the three masts. Giving the judgment of this court Glidewell LJ said (at pages 19 to 20):

We too derive assistance from that passage. In our judgment, what the prosecution had to prove in relation to a particular act what that it tended and was intended to pervert the course of public justice. It was not necessary for the prosecution to be more specific than that. It was not necessary to prove that a particular act would pervert the course of criminal rather than civil justice. In these circumstances there was no "blurring" in relation to the essential ingredients of the offence. If, for example, a man makes a false allegation that his house has been burgled and in making a statement to the police describes not only the burglary but also seeing a named adversary leaving the premises just before the burglary was discovered, his motives may be to prepare the ground for a fraudulent insurance claim or to incriminate the adversary or some combination of the two. It would not be necessary for a charge against him to specify which motive predominated or prevailed. Provided the prosecution could prove an intention to pervert the course of public justice, that would suffice. The same applies here. In our judgment no unfairness flowed from the possibility of differential motives. The judge made it clear that in relation to each act the prosecution had to prove its tendency to pervert the course of public justice and the intention that it should.

In the course of her submissions, Miss McAtanasey further suggested that it was unfair that the case was left to the jury, as it was, on the basis that the prosecution had succeeded if it had established the essential ingredients of the offence in relation to one or more of the particularised incidents. Even if that was a dilution of the "course of conduct" basis upon which the case had been opened, we do not consider that it gives rise to any sustainable complaint about the safety of the conviction. It was not an inappropriate direction.

The final complaint about the amendment is that, once it had been permitted, the prosecution ought to have been put to its election as between count 1 and counts 2 to 8. An application to that effect was made to the trial judge but he rejected it. He did not accept that the indictment had become overloaded and he did not consider that there would be injustice in the defendant standing trial with the case put on the alternative basis to which we have referred. It was a factor, and Miss McAtanasey accepts a relevant factor, that if the appellant had been acquitted on count 1, the prosecution would have proceeded to a second trial on the other counts. That is understandable given the nature of the appellant's employment. There is no rule of law or practice putting the prosecution to its election in a case of this sort, as opposed to the situation where a conspiracy is charged along with substantive counts based on the same allegations. We find no error in the approach of the trial judge to this issue.

We have dealt with the interlocking arguments which Miss McAtanasey places at the front of her submissions. In addition she referred to other matters in relation to each of which she accepted that, standing alone, they did not render the conviction unsafe. However she invited us to consider them as a group and alongside the matters which we have already considered. We now do so.

Miss McAtanasey criticises prosecution counsel for two occurrences during the trial. The first related to the allegation that the appellant had cut the brake pipes of the car which she had been driving. The appellant had given the police a detailed account of the route she had taken from her house to the end of the journey when the car crashed. The case had been opened on the basis that that description had been correct. During the cross-examination of PC Ostler, a road collision forensic investigator, it occurred to Mr Dunn-Shaw the appellant might have not been describing the actual route because, if she had driven that route without brakes, she would probably have come to grief earlier. In re-examination of the officer, Mr Dunn-Shaw obtained evidence of an alternative theory as to the route. The officer confirmed that such an alternative route would have been possible. When the appellant gave evidence she maintained the route had been as she originally described. The criticism now made of Mr Dunn-Shaw is that he had, without justification, floated a theory (referring to it as such) and it had then come into the case with the apparent authority of counsel as a possible basis for disbelieving the appellant. Such was Mr Dunn-Shaw's attachment to the theory that it led him to abandon count 2 which alleged dangerous driving along the route described by the appellant. That is what resulted in the judge directing an acquittal on that count. We view this criticism of counsel as hypersensitive. He continued to refer to the alternative route as "my theory" and no doubt Miss McAtanasey was able to pour scorn on it in her closing speech. We do not consider that it affects the safety of the conviction in any way.

The second matter is that, in his final speech, Mr Dunn-Shaw invited the jury to identify the word "die" on the wall of the appellant's house, following the second of the alleged burglaries, as being typical of female writing and, in effect, inviting a comparison with the writing of the same word which the appellant had by then admitted in relation to the scratching of the car in connection with Particular 10. This criticism is justified. Counsel ought not to have sought to make good the absence of expert evidence by proffering a suggestion such as he did. However, it was a small matter in the context of a trial which lasted two and a half months and in our judgment neither by itself nor when taken in conjunction with anything else can it be said to affect the safety of the conviction.

When summing the case up to the jury the judge gave a direction under section 34 of the Criminal Justice and Public Order Act 1994 in relation to the possibility of adverse inferences being drawn from the failure of the appellant to answer questions in a police interview which had been concerned with the final scratching of the car. He made it clear that the direction only applied in the context of count 8 (Criminal Damage). The complaint now is that it would have been difficult for the jury to divorce count 8 from Particular 10 of count 1 which related to the very same matter. It would require "mental gymnastics". The direction was given only in relation to count 8 and not in relation to count 1 because the interview was specifically concerned with an allegation of criminal damage, rather than with an attempt to pervert the course of justice. We do not consider that there was any risk of the jury being confused or perplexed by the clear direction that was given and we find nothing in this ground of appeal.

Following a long trial and a long retirement, the judge gave the jury a majority direction. He did so exclusively by reference to count 1. Miss McAtanasey submits that to do so was a misdirection because the law does not provide for sequential majority directions in relation to different counts. Her criticism is undoubtedly justified. However, we do not consider that it can affect the safety of the conviction on count 1. The suggestion is that one or more jurors who had previously been reluctant to convict might have been constrained to convict on count 1 after that direction. We do not see that as a realistic possibility. We see no reason to believe that the ten jurors who convicted did so otherwise than in accordance with their oaths and the directions which they had been given. No doubt problems would have arisen if the verdict on count 1 been one of acquittal and the jury had then moved to remaining counts. However, that is not the position with which we are faced. So far as count 1 is concerned, we are satisfied that the jury returned a valid verdict and its safety is not undermined by the defect in the majority direction.

We emphasise that we have considered all the grounds of appeal against conviction on a cumulative as well as a separate basis but in our judgment the safety of the conviction is not in doubt.

We now turn to the appeal against sentence. In due course, following the receipt of the reports, the learned judge sentenced the appellant to a term of 2-and-a-half years' imprisonment. Miss McAtanasey submits that that was, and is, manifestly excessive. We agree with that submission. The basis upon which the appellant was sentenced was that the earlier incidents preceding the dates set out in the indictment were genuine incidents about which the appellant had made genuine complaint. We have been referred to sentencing authorities in relation to this offence, and in cases where no victim has been identified or has suffered loss of liberty as a result of the false allegation, the sentences consistently fall substantially below that which was imposed by the judge.

There are features of this case which dispose us to extend a degree of leniency to this appellant, notwithstanding the absence of mitigation which would have flowed from a plea of guilty. We have read the psychiatric report that was before the judge; it found no mental illness, as such, and no justification for any disposal under the Mental Health Act. That remains the position. However, the report is persuasive about the general state of the appellant's health through this period of time following her return to work, after the period of stress and depression which had necessitated her absence. It is a serious aspect of the case that the appellant was, at the time, a serving police officer but that should not be allowed to add inappropriately to her sentence because her position as a serving police officer brings with it previous impeccable character. It also brings into the picture the consequence of the conviction for her which is immense: the loss of a career, security and respectability in an obvious and pronounced way.

We also take into account the hardship to the appellant of the sentence of imprisonment. We view a custodial sentence as having been inevitable. It was predictable that the appellant would suffer hardship in custody as a result of her previous employment. However, material before us, which of course was not before the trial judge, shows just how great that hardship has been. The appellant has, for her part, behaved entirely well in prison. Others, however, have persecuted her: she has been attacked on several occasions, both of her arms have been broken and indeed both are in plaster at the present moment. She has suffered other injuries, photographic evidence of which we have seen. We therefore take into account the hardship of a prison sentence in relation to the particular appellant; that can only go so far but it is a matter of some significance.

Finally we take into account her family circumstances. She is a single parent, has a son of 13 and he has suffered considerably as a result of the absence of his mother, and this has imposed additional burdens and difficulties upon the family as a whole. We should add that the family as a whole are visibly supportive of the appellant and we have read the documents emanating from the appellant's mother and from various other people who attest to the appellant's decency absent this serious conviction.

Taking all these matters into account, we have come to the conclusion that the sentence of 2 and a half years was too long. In our judgment, the appropriate sentence is one of 12 months' imprisonment and accordingly we quash the former sentence and impose instead the latter. To that extent, the appeal is allowed.