Her Majesty’s Advocate v. Graham Cameron Turner [2020] HCJ 12

Plea to the relevancy:- The accused has been indicted in the High Court in relation to two charges:- (1) causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988; and (2) attempting to pervert the course of justice as a consequence of stating his defence to charge 1 in stating to various persons that a deer had run out onto the road causing him to have to swerve or take other evasive action to avoid the deer. The accused challenged the relevancy of the second of the two charges by way of a preliminary plea. It was submitted on behalf of the accused that in relation to a charge of attempting to pervert the course of justice there were two parts to a relevant charge:- (a) there had to be a criminal investigation, in other words the course of justice needed to have begun; and (b) the accused required to have done something to interfere with the course of that investigation. It was submitted on behalf of the accused that in speaking to passing motorists following the collision no investigation had commenced as he had simply been asked what had happened by those attempting to provide assistance. It was submitted that the accused was not informed of any enquiry until the point when he was spoken to by the police and cautioned that he may be subject of an investigation and it was not until that point that a course of justice had commenced. It was further submitted that nothing that the accused had said was done with the intention of interfering with the course of justice and the charge did not contain any averment as to how the words spoken by the accused amounted to any form of interference with the course of justice and all the accused had done was to provide an account of what had happened and an accused could not competently face a charge of attempting to pervert the course of justice by stating his defence. On behalf of the Crown it was submitted that the course of justice commences at the point it is suspected that a crime has occurred and an investigations is underway and in the present case that was at the point when the vehicle driven by the accused crashed causing the deaths. It was submitted that the accused knew that he was responsible for causing the death of his two passengers and deliberately informed those present of a false set of circumstances. Here the court sustained the plea to the relevancy of charge 2. The court considered that what was said by the accused to the passing motorists and ambulance personnel were not made in the course of justice as at that stage none of those involved thought they were reporting a crime. The court considered that by the time the police attended and cautioned the accused, the course of justice had commenced, however, the court considered that what the accused said to the police officers at that stage did not amount to the crime of attempting to pervert the course of justice. The court did not consider that what was said by the accused to the police was so stark, as had been suggested by the Crown, that it should be treated differently to other situations where an accused provided an account to the police/others which was considered to be false. The court gave an example of an accused providing a detailed position of consent in a case alleging sexual offences and that then forming the basis of a further charge of attempting to pervert the course of justice. The court observed that it was unaware of any previous case prosecuted by the Crown in which what was said by an accused in providing an account in relation to a principal charge provided a basis for an offence of attempting to pervert the course of justice. The court noted that there was no authority or legal analysis provided by the Crown in response to the plea to the relevancy which suggested to the court there had been an absence of “mature consideration” in relation to the libelling of the second charge. The court referred to examples of relevant charges of attempting to pervert the course of justice involving conduct which comprised of a positive effort to disrupt or frustrate an enquiry, for example, taking steps to destroy evidence. The court referred to examples of where what an accused said to police could amount to a relevant charge of attempting to pervert the course of justice, for example, providing the police with false details in a road traffic investigation, however, those examples are different as what was being said was not an accused stating his defence. The court distinguished the situation where an accused gives a false name to prevent a prosecution and a situation where an accused gives an account of innocence. The court stated that simply because an accused person gives an account which is inconsistent with the Crown case does not constitute an interference with what would otherwise be expected to have come to pass in the ordinary and uninterrupted course of justice in the particular case. The court considered that part of the course of justice includes the assessment of an accused’s defence and the course of justice is not interfered with by having to take account of an accused’s claim to be innocent.