Marc Hanley v. Her Majesty’s Advocate [2018] HCJAC 29

Note of appeal against conviction and sentence:- The appellant was indicted to Glasgow High Court in relation to two charges of attempted murder (Charges 1 and 3) and a charge of attempting to pervert the course of justice (charge 2). The appellant was convicted of an amended charge 3 relating to conduct at Barlinnie Prison on 20 and 21 June 2016 in the following terms:- “knowing that Agnes Boyd ... or another female witness who had provided a statement to the police, was a witness against you and that she was due to attend an identification parade on 21 June 2016 at which she could identify you as being responsible for an alleged assault on Jay Fraser ... did contact Robert Duncan and Daniel Baxter ... by telephone and did instruct them to induce or coerce said Agnes Boyd or another female witness who had provided a statement to the police, not to identify you or anyone else as being responsible for said crime at said identification parade, and this you did with intent to pervert the course of justice and you did thus attempt to pervert the course of justice.” The words “whereby Agnes Boyd attended said identification parade and did not identify you or anyone else having been induced or coerced to do same” which were included in the original charge prior to the words “and this” were deleted by the Crown following the granting of motion to amend the charge. It was unsuccessfully argued on behalf of the appellant that the amended charge:- (1) was irrelevant; and (2) that there was insufficient evidence to prove the charge were repelled by the trial judge. The trial judge considered that the libel was relevant in that it contained “clear specification that the appellant attempted to eliminate evidence which might tend to incriminate him in a future criminal charge” referring to the case of Dalton v HMA 1951 JC 76. In relation to the sufficiency of evidence the trial judge considered that the appellant had gone beyond preparation to perpetration in that he had done some positive act towards executing his purpose by instructing, via telephone from prison, persons to offer money and drugs to a witness to fail to identify the perpetrator of a serious offence at an identification parade. The appellant was sentenced to 4 years imprisonment. The appellant appealed against his conviction and also his sentence. Here it was submitted on behalf of the appellant that the amended charge did not relevantly aver the crime of attempting to pervert the course of justice as there was no averment that steps were taken in furtherance of the original instructions from the appellant to engage the course of justice by attempting to influence the witness. It was further submitted that in the event the amended charge was relevant there was insufficient evidence to convict in light of the absence of evidence of any steps having been taken to act on the appellant’s instructions. On behalf of the Crown it was submitted that the actus reus of the offence was the conduct which constituted an attempt to impede, obstruct or hinder the course of justice and the crime was not dependent upon the instructed steps being taken by the individuals contacted by the appellant. Here the court refused the appeal. The court considered the development of the crime of attempting to pervert the course of justice and the essential elements of it. The court described the essence of the charge as “...the 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 the requisite intent was displayed by the appellant in the present case and the necessary actus reus had also been established. The court considered that the course of justice had commenced and the appellant sought to frustrate it by his instruction to induce or coerce one or more witnesses to fail to identify the appellant as being responsible for an alleged crime knowing that the witness had previously identified the appellant as being responsible to the police. In relation to the actus reus the court considered that the repeated phone calls made in advance of the identification parade amounted to a sufficiently distinct act for the purpose of the offence. In relation to the contention that there was insufficient evidence of an overt act on the part of the appellant the court also rejected that. The court listed the following pieces of evidence which amounted to a sufficiency to the relevant charge:- (1) the appellant knew the identity of the witness who identified him to the police; (2) the appellant knew the identification parade was to be held; (3) the appellant repeatedly instructed associates to offer inducements to the witness not to identify him; (4) at no stage prior to the identification parade did the appellant recall the previously given instructions; (5) the appellant in subsequent telephone calls to his associates berated them for failing to carry out his previously given instructions; and (6) the appellant, given he was in custody, had done everything in his power to complete the conduct. In relation to the appeal against sentence it was submitted that the sentence was excessive. It was submitted that the sentence had only been backdated to the date of conviction rather than when he had first been remanded in custody. Here the court allowed the appeal to the extent of back dating the sentence to 10 August 2016 being the date he appeared on petition in relation to the second attempted murder charge.