Damian Wall represented a solicitor charged with Perverting the Course of Justice in relation to an allegation that, whilst defending a man on trial at Burnley Crown Court. Alleged our client whilst defending a man on trial at Burnley Crown Court tried to communicate to his client whilst he was giving evidence from the witness box.
Queens Counsel was instructed and stated to the court that, on its facts, it was a novel case.
The witnesses included two jurors. Jurors are secured lifetime anonymity by way of their position and therefore permission was required from the President of the Court of Appeal to allow the investigators to speak to the witnesses.
The jurors and a dock officer, guarding the defendant whilst he was in the witness box, said that they saw the Solicitor gesturing to his client. The gestures ranged from the clasping of fingers to thumb in front of mouth as in ‘shutting beak’, to palms out as if to get him to ‘stop or slow down’, or raising hands to get witnesses attention and then ‘glares’. All 3 claimed they saw different gestures, and in their statements said they thought it was with the intention to get him to shut up as he was, as one juror put it, ‘getting himself in a pickle’.
The Crown sought to adduce evidence of motive for the offence suggesting his relationship with his client went beyond the usual ‘client/solicitor’ relationship and, instead, they were friends. The Crown claimed that they had been to the same school, that the address where the client lived was a property owned by the Solicitor’s brother, and on the day, just before he gave evidence, another juror saw them together at lunchtime enter a bookmakers in Burnley town centre.
Queen’s Counsel successfully argued that all of these points were inadmissible, with the Judge commenting that it was irrelevant and prejudicial.
During the Crown’s case, the witnesses were called to give evidence.
Queen’s Counsel, defending, made a submission of no case at the close of the Crown’s case on the basis that whilst there were acts as described by the witnesses, they did not tend to pervert the course of justice as is required.
At the outset, it had been submitted that whilst the acts (gestures) as asserted by the witnesses were admissible, their opinion as to what they were seeking to achieve was not. The witnesses were not specific in relation to exactly what was being said at the time of the gestures, nor in what way the witness/defendant was ‘getting in a pickle’.
There was an interesting argument about the admissibility of ‘opinion’, i.e. ‘parol’ evidence. Witnesses cannot give evidence of anything which is not within their immediate knowledge; the exceptions are ‘expert evidence’ or where it is necessary on questions of the identity of identity of things or persons. Obviously it is often allowed, for example the witness who describes seeing a car ‘driving too fast’. However, in this case, it was submitted that to allow it was dangerous as it was not in context. The car scenario can be contextualised – life experiences, other cars on the road, conditions, etc . In this case, none of the witnesses in their statements gave any context to their observations or opinions.
During the investigation the police obtained the transcript of the trial including the evidence from the witness/defendant so one could see exactly what he said and importantly when he said it. The transcript recorded that on approx. 6 occasions the witness was asked to slow down or stop by his counsel or another party as he was speaking to quickly or not clearly.
The submission of no case to answer was made on the basis that even if the Solicitor had made the gestures, there was no evidence to show that they had ‘a tendency to pervert the course of justice’. The jurors could not say what area of the case the witness was having difficulty with 18 months later during this trial and they agreed that they had never been asked by the police. The Judge agreed that there was no case to answer and a not guilty verdict was recorded.
It is not overstating to say that had he been found guilty the consequences for this client would have been catastrophic; custody would have been inevitable and he would have been unable to continue to practice as a solicitor.