Crime – Common law offence – Attempt to pervert course of justice – Defendant informing potential witnesses of intention to sue for slander – Whether offence to intend or threaten to exercise legal right to prevent witnesses giving evidence: REGINA v KELLETT [COURT OF APPEAL]

[1976] QB 372

REGINA v KELLETT
[COURT OF APPEAL]
[1976] QB 372
HEARING-DATES: 17, 18, April 20 June 1975
20 June 1975

CATCHWORDS:
Crime – Common law offence – Attempt to pervert course of justice – Defendant informing potential witnesses of intention to sue for slander – Whether offence to intend or threaten to exercise legal right to prevent witnesses giving evidence

HEADNOTE:
The defendant received from solicitors acting for his wife in divorce proceedings copies of disparaging statements made about him to an inquiry agent by the defendant’s neighbours, who were potential witnesses in the proceedings. The defendant sent a friend, posing as a prospective tenant of the defendant, to ask the neighbours their opinion of him as a prospective landlord. Having obtained the information the defendant wrote a letter to the neighbours stating that he intended to sue them for slander; that the question of damages would be discussed with his solicitor and that they might like to let the defendant have by the following day written notification of the withdrawal of the statements made to the inquiry agent. One neighbour gave evidence in the divorce proceedings, the other neighbour was not called.

The defendant was charged on two counts of an indictment with attempting to pervert the course of justice. The judge directed the jury that the defendant was guilty if he was threatening to bring a slander action against his neighbours with the intention of causing them not to give evidence in the divorce proceedings. The judge added that the jury had to be sure that the defendant was not intending to bring an action and was merely making an empty threat to persuade them not to give evidence. The defendant was convicted.

On appeal by the defendant: –

Held, dismissing the appeal, that a threat or promise made to a witness with the intention of persuading him to alter or withhold his evidence was an attempt to pervert the course of justice even if the threat or promise related to a lawful act or the exercise of a legal right; that, accordingly, it was immaterial whether the defendant intended to bring an action for slander, but, since the jury had been properly directed that they had to decide whether the defendant’s letter constituted a threat to bring an action with the intention of causing his neighbours not to give evidence in the divorce proceedings, he had properly been convicted of the offence (post, pp. 392A-E,393A-C, H – 394A).

Rex v. Johnson (1678) 2 Show. 1; Shaw v. Shaw (1862) 6 L.T. 477. Chapman v. Honig [1963] 2 Q.B. 502, C.A. and Reg. v. Mohan [1976] Q.B. 1, C.A. applied.

Rex v. Bishop of Lincoln (1637) 3 State Tr. 770 considered.

Webster v. Bakewell Rural District Council [1916] 1 Ch. 300 distinguished.

Per curiam. The offence of attempting to pervert the course of justice would not necessarily be committed by a

person who tried to persuade a false witness, or even a witness believed to be false, to speak the truth or to refrain from giving false evidence, but, however proper the end, the means must not be improper (post, p. 388C).

INTRODUCTION:
APPEAL against conviction.

On June 20, 1974, at Plymouth Crown Court (Lord Widgery C.J.) the defendant, Alan Rex Kellett, was charged on two counts of an indictment with unlawfully attempting to pervert the course of justice by attempting to dissuade George Keys and Deirdre Susan Glanville from giving evidence in the then impending divorce suit between Margaret Kellett and himself, in accordance with statements which they had made to an inquiry agent. The defendant was convicted and conditionally discharged for 12 months on each count. He appealed against

conviction on the grounds that, inter alia, the jury should not have been directed (1) that a threat to do an otherwise lawful act in suing for defamation made to potential witnesses was unlawful and/or an attempt to pervert the course of justice; (2) that a threat to do an otherwise lawful act in order to induce witnesses not to give evidence was unlawful and/or an attempt to pervert the course of justice; and (3) that there was evidence on which the jury could infer the intent to prevent witnesses from giving evidence and no genuine intent to sue for defamation and that the jury might have regard to the fact that there had previously been no action for defamation, whereas there was no such evidence.

The facts are stated in the judgment of Stephenson L.J.

COUNSEL:
N. R. Blaker Q.C. and Robin Miller for the defendant. At the trial, Lord Widgery C.J. was unaware that the defendant would not call evidence, and at the close of the prosecution’s case the jury were allowed to remain in court during the submission, based on Webster v. Bakewell Rural District Council [1916] 1 Ch. 300, that the prosecution had not made out a prima facie case of an intention to pervert the course of justice. The principles laid down in Reg. v. Falconer-Atlee (1973) 58 Cr.App.R. 348 were contravened because matters of fact for the jury were raised in their presence when Lord Widgery C.J. commented on the contents and interpretation of the letter to the neighbours, held that the defendant had a prima facie case to answer and declined to accept the point that one purpose of the letter was to save the neighbours from heavy damages. Those were matters of fact for the jury. The jury were not instructed to disregard what they had heard during the submission on the letter mitigating damages.

The jury were told to convict if they were satisfied that the letter was merely an empty threat. They were not told that the letter might have meant: “if you are prepared to withdraw the slanderous allegations, damages will be mitigated.” The defendant had already consulted solicitors and there would have been nothing wrong if they had written such a letter: see Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, c. VI, s. 15. If the defendant has committed an offence, it may well be that he is guilty of contempt of court, but he has not attempted to pervert the course of justice: see Reg. v. Odhams Press Ltd., Ex parte Attorney-General [1957] 1 Q.B. 73.

The defendant had no intention of interfering with the course of justice, neither was the letter “calculated” to interfere: see Shaw v. Shaw (1862) 6 L.T. 477, a “contempt” case which was a “perversion” because of the use of threatening language. See also In re B. (J. A.) (An Infant) [1965] Ch. 1112, 1122, where Cross J. made it clear that, whether the evidence had been given or not, a despicable threat was still contempt, and that the contemnor need not know whether the evidence had been given. It was sufficient if he knew that a potential witness was involved. To persuade a witness to alter evidence already given is an offence: see Rex v. Greenburg (1919) 63 S.J. 553.

[STEPHENSON L.J. Is conspiracy to defeat the ends of public justice the same as perverting the course of justice?]

It may constitute contempt, but it is not perverting the course of justice. The charge against the defendant concerns a person trying to exercise a

legal remedy: see Rex v. Silverman (1908) 17 O.L.R. 248, in which it was held to be an offence to attempt to dissuade a witness from giving the same evidence at the final trial, although there was a real belief that the witness had not been telling the truth. The accused sincerely believed that the evidence was incorrect and attempted to obtain proper evidence.

Where there is persuasion to give different evidence, the nature of the evidence is not the factor. The offence consists of persuading by corrupt means. Once an accused has by threat, bribe, etc., attempted to persuade a witness, the offence is complete. The essence of Rex v. Silverman, 17 O.L.R. 248, is corrupt means. If the defendant had been tried on that basis he would have been acquitted. He has done nothing unlawful. On the question of what protection there is for a witness who has given evidence, see Hargreaves v. Bretherton [1959] 1 Q.B. 45; Watson v. M’Ewan [1905] A.C. 480; Marrinan v. Vibart [1963] 1 Q.B. 528; and Roy v. Prior [1971] A.C. 470. For the proposition that pressure can be put on a litigant or witness to drop an action: see Webster v. Bakewell Rural District Council[1916] 1 Ch. 300.

Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, 319 is authority for the proposition that pressure put on a litigant may sometimes be justifiable. Nevertheless, it must be conceded that the defendant in this case was probably in contempt, but he was not attempting to pervert the course of justice: see Chapman v. Honig [1963] 2 Q.B. 502, 518. “Contempt” has to be considered separately on the facts of each case.

It is accepted that a letter such as the defendant wrote should not be written to a potential witness, but it can constitute nothing more than “contempt.” In divorce proceedings a common form solicitors’ letter may be to the effect that, “we understand from our client that you and your mother are telling tales about our client….” That cannot be “contempt” and is not an attempt to pervert the course of justice. In the absence of unlawful means, the threat to exercise a legal right cannot amount to “contempt”: see Rex v. Silverman, 17 O.L.R. 248. “Contempt” does not require the element of intent. “Perversion” does. The defendant never had the intent to commit the offence with which he was charged and his conviction should be quashed.

Sir Peter Rawlinson Q.C. and Christopher Wilson-Smith for the Crown. What Lord Widgery C.J. discussed with counsel in the presence of the jury is in the transcript, and it is on his charge to the jury that the matter comes before this court. Lord Widgery C.J. told the jury: “A jury is a predominant factor in these proceedings. I shall leave you a short and narrow issue.” Lord Widgery C.J. gave the jury the facts. He then explained the nature of the charge to the jury, namely unlawfully attempting to dissuade the neighbours from giving evidence, and emphasised that the prosecution had to prove its case. The jury were told that they had to decide whether the defendant threatened a slander action with the intent of using those proceedings to stop Keys and his daughter from giving evidence in court. The jury had to be satisfied that the accused intended to use that threat as a lever on Keys and his daughter. The jury were reminded that anyone could sue for slander, but that was not the answer to this case. The summing up and directions to the jury were correct or, if wrong, were

indeed too favourable to the defendant. It was rightly emphasised that if the purpose of the letter was to frighten the witnesses off. the offence was committed.

Dealing with the reference to damages in the letter, Lord Widgery C.J. asked the jury: “what was the defendant after?” The question for decision was whether the writing of the letter constituted the general exercise of a legal right or an attempt to get on record a threat so that evidence would not be given against the defendant. “Perversion” requires intent. “Contempt” does not. Interfering with a witness requires intent. The defendant had that intent.

“Contempt” cases are useful in regard to interference with witnesses which is taken very seriously by the courts: see Reg. v. Panayiotou [1973] 1 W.L.R. 1032; Reg. v. Abrahams (unreported), April 5, 1974 and Reg. v. Grimes (Note) [1968] 3 All E.R. 179. The principles underlying “contempt” are applicable to interference with witnesses. But to convict of “perversion” the jury must be satisfied of intent. Even if the intention of the person interfering with a witness is to prevent perjury or injustice, the offence of attempting to pervert the course of justice is committed if the means employed are unlawful: see Rex v. Bishop of Lincoln (1637) 3 State Tr. 770.

The ingredients of the charge against the defendant are (1) interference with a witness; (2) interference on such a scale that it amounts to “perversion” and (3) an intention to “pervert,” so that the accused does something which he would not otherwise have done, or abstains from doing something which he would otherwise have done. The offence consists of trying to threaten a person not to give evidence. If the exercise of the legal right to issue a writ for slander is not supported by the intention to bring proceedings, that could amount to a threat. The defendant was not exercising a legal right. Lord Widgery C.J. said that he did not accept the defendant’s point that the letter was written in mitigation of damages. He did not refer to that matter in his summing up because it was unnecessary. The ingredients of the offence charged were given to the jury and there can be no criticism of the manner in which they were given. The defendant was properly convicted.

Blaker Q.C. in reply. If an inquiry agent tells friends in a public house that a well known person has been visiting a man’s wife who is taking divorce proceedings, she would be right to get the gossip stopped. Accordingly, there can be a good cause for interfering with a witness. As to the contention that the interference must be “on a scale calculated to pervert the course of justice,” there must also be the intention and the purpose to c interfere: see Attorney-General v. Butterworth [1963] 1 Q.B. 696, 723, 726, where there was a question of mixed motives. The defendant had neither the intention nor the purpose to interfere.

If the doing of an act is lawful, it cannot be carried out by corrupt means. Intent is irrelevant when the act is lawful. The commission of a lawful act cannot involve the commission of a crime. It is not unlawful to ply a woman with drink even if the intent is to rape her. The defendant was exercising a lawful right and the charge can be sustained only if the means employed were corrupt. They were not corrupt.

The defendant may be in technical contempt, but the charge as drawn should not have gone to the jury. Lord Widgery C.J. was thinking more of “contempt” cases because they are so interwoven with perverting the course of justice. The interpretation of the letter was for the jury alone. The matter of mitigation of damages should have been left with them. It was not. There is no authority for the proposition that the exercise of a legal right can amount to the offence of attempting to pervert the course of justice. The means employed must be unlawful. The means employed by the defendant were not unlawful and the conviction cannot stand.

Cur. adv. vult.

June 20.

PANEL: Stephenson and Orr L.JJ.and Kenneth Jones J

JUDGMENTBY-1: STEPHENSON L.J

JUDGMENT-1:
STEPHENSON L.J: read the following judgment of the court. On June 20, 1974, at Plymouth Crown Court the defendant was convicted on two counts of attempting to pervert the course of justice, contrary to common law. Lord Widgery C.J. ordered him to be conditionally discharged on each count. Lord Widgery C.J. told the defendant that he was taking that lenient course – and lenient it was for he had been fined oe100 for subornation of perjury in 1972 – because the law was highly obscure and it was perfectly possible that he thought there was no unlawful character in what he did. Lord Widgery C.J. offered to grant him a certificate of appeal. and has certified that the case is a fit case for appeal on the ground that:

“It raises novel points as to the extent to which a person may threaten to do an (otherwise) lawful act in order to induce a witness not to give evidence.”

The undisputed facts which gave rise to the convictions under appeal are these. The defendant and his wife were living in Staverton, Devon. They had as next door neighbours a Mr. Keys and his daughter, Mrs. Glanville. The defendant did not get on well with his wife or with those neighbours. In October 1972 Mrs. Kellett took divorce proceedings against the defendant. On January 22, 1973, her solicitors sent an inquiry agent named Boland to take statements from Mr. Keys and Mrs. Glanville, and on a date which was not precisely fixed, and for reasons which may not be altogether clear, her solicitors sent copies of those statements to the defendant. On March 25, 1973, the defendant sent a friend named Mrs. Clarke, posing as the wife of a naval officer, who might consider becoming a tenant of the defendant and armed with a tape recorder concealed in her shopping bag, to question Mr. Keys and Mrs. Glanville about the defendant and to record their answers on tape. “I did it,” the defendant told the police later, “to get information. I knew he would spout.” What exactly he (or they) “spouted” is not known because the tape recording was unintelligible. But after Mrs. Clarke had reported to the defendant and handed over the tape recorder, he wrote Mr. Keys a letter dated April 2, 1973, from Old School, Staverton, Totnes Devon, in which, as Lord Widgery C.J. told the jury, “the whole hard core of the matter lies.” It read as follows:

“Dear Mr. Keys, for many years I have known how two-faced and slanderous and malicious you have been behind my back. You have

caused difficulties in the past, and others, with your evil gossip and rumours. At the very beginning of my second marriage your slanderous gossip was there for those who wanted to hear and to relay it. Frankly, I little care what delights your idle tongue, as long as my life is not affected by it. But you in your malice have been determined that it should be so. You have more recently chosen not only, you and your daughter, to make slanderous written statements defaming me, but have spoken in slanderous and defamatory terms of me to an agent of mine, and we now have a tape recording of your conversations. I am proposing to sue you and your daughter for the damage you have done to my life and marriage. You must know well of the slander, but if you need reminding I will play some of it over to you. Why, or what pleasure people like yourself get out of causing misery and unhappiness I cannot imagine. The amount of damages etc., I will discuss with my solicitor, but firstly you might like to withdraw your statements made to Mr. C Boland, and, if so, let me have your notes to that effect delivered to the ‘Old School’ by 6 p.m., Tuesday, April 3. Yours faithfully, A. R. Kellett.”

Mr. Keys took no action with the defendant on the letter, either in writing or in two telephone conversations initiated by the defendant after the time for their “notes,” (presumably notice), of withdrawal had expired. But he made a complaint about the defendant to the police. As a result, the defendant was interviewed by police officers on May 17 and 29 and on May 29 he made a written statement, which ended with this account of his actions after receiving the two statements:

“When I got note of the statements taken by an inquiry agent on behalf of my wife and her solicitors, I realized how evil, damaging and slanderous George Keys was and that something ought to be done about such people, so happy to interfere and damage other people’s lives. I knew that he would very readily revel in slandering me, and I asked Mrs. Clarke to act in her freelance capacity as an agent for me, to interview George Keys and his daughter, if possible take a tape recording, to confirm their conversations so that I could take proceedings against them. In order to draw the kind of thing we wanted comment upon, I asked Mrs. Clarke to question Deirdre Glanville and George Keys as to what kind of opinion they could give as to my associations, character, and to me as a landlord, and particularly in regard to women, and any allegations of violence, knowing that they would be likely to give a most slanderous false account. Mrs. Clarke had really no difficulty in obtaining these statements and did the job quite successfully. I told my solicitor of all this and showed him the copy of a letter I wrote afterwards to George Keys. In fact I telephoned my solicitor before sending the letter and read it over the phone. His only comment was that while understanding what evil this man Keys had brought about, the costs of the slander actions are great. I suggested to Keys that he let me have a note to say so if wished to withdraw the statements, by 6 p.m. the following day, as a possible mitigating factor in my suing him.

I had to go up to London the following day and had in mind being away for a week or so. I telephoned him that evening, saying so, but Keys replied by saying ‘you go and do what you like.’ I do propose to proceed in suing Keys and his daughter, but I have a disinclination to engage in so much non-constructive action, and find that my impending divorce is more than sufficient to deal with at the moment.”

In July 1973 Mr. Keys gave evidence for Mrs. Kellett in her contested suit for divorce, Mrs. Glanville was not called, and Mrs. Kellett obtained her decree.

The particulars of the first count were that the defendant

“between March 21, 1973, and April 4, 1973, in the county of Devon did unlawfully attempt to pervert the course of justice by attempting to dissuade one George Keys from giving evidence in the then impending divorce suit between Margaret Kellett and the said Alan Rex Kellett in accordance with a statement which he, the said George Keys had made.”

The particulars of the second count were the same in relation to Deirdre Susan Glanville.

After prosecuting counsel’s opening speech, there was a discussion in the absence of the jury on the essential elements of the offence. At the end of the case for the prosecution defending counsel made a submission. He did not say then that it was a submission that there was no case to answer, but in answer to Lord Widgery C.J. he said that the jury might remain; and in consequence they heard an argument on the law which ended in a submission, based particularly on Webster v. Bakewell Rural District Council [1916] 1 Ch. 300, that the prosecution had not made out a prima facie case of an intention to pervert the course of justice. Lord Widgery C.J. ruled against the submission. He said:

“On the evidence so far before the jury there is a prima facie case that the accused’s intention when threatening to sue for defamation was to cause Mr. Keys and his daughter to refrain from giving evidence in the divorce trial. Accordingly, it seems to me that there is a case to answer and the matter will proceed.”

Counsel for the defendant then called no evidence. The jury heard counsel’s speeches and the summing up of Lord Widgery C.J. and convicted the defendant on both counts.

Lord Widgery C.J. told the jury that he had to leave them “a very short and narrow issue to decide.” The first statement of that issue was:

“… you will have to decide whether in that letter exhibit 3 the accused is threatening to bring a slander action against Mr. Keys and whether, secondly, he is doing that with the intention of causing Mr. Keys not to give the evidence which he had mentioned in his statement to Mr. Boland. Are you satisfied beyond any reasonable doubt and so that you are sure that in writing this letter Mr. Kellett is threatening to bring slander proceedings against Mr. Keys and doing so with the intention of using those proceedings as a lever to

stop Keys from giving evidence in court. Exactly the same considerations apply to Mrs. Glanville on the second count. You must be satisfied, as I say, so that you are sure that that is the purpose and motive of this letter before you can convict.”

The second statement put the two points in this way:

“I will say it once more, you cannot convict him unless you are satisfied so as to be sure (1) that the defendant really did not mean to sue for slander and was making an empty threat only, and (2) that he did that in order to persuade Keys and his daughter to withdraw their statements and not give evidence against him. If you are sure that you can answer both those points adversely to Mr. Kellett it seems to me that you must convict him but if you have any doubt about these matters then you certainly must acquit him.”

It is obvious to us that in that restatement Lord Widgery C.J. is introducing a further matter; the threat to sue for slander must not merely be made with the intention of causing Mr. Keys and his daughter not to give evidence, but it must also be made with no genuine intention of suing for slander: the jury could not convict unless satisfied that the defendant never intended to sue for slander at all. That this was what Lord Widgery C.J. meant, and what the jury must have understood him to mean, is clear from the direction which he gave them in dealing with the point of law which Mr. Miller had submitted while they were in court:

“He put this point, he said if a man is minded to dissuade the witness from giving evidence, he cannot be said to commit a criminal offence by so doing if the only threat that he makes is the threat to do something which he has a perfect right to do. I think you follow that, because the point being made was that the only threat here one can find is a threat to sue for slander and Mr. Miller says quite rightly, anybody can sue for slander if he wants to; it is the right of a citizen. If he is being slandered he has the right to sue for it, and it was submitted to me that was the complete answer to the whole case. If you are satisfied so that you are sure that this threat of a slander action was an empty threat which Kellett never really intended to follow through, and put it up with the sole purpose of persuading Keys not to give evidence, then this charge is made out and he shall be convicted. If you are satisfied so that you are sure that this threat of a slander action was an empty threat, and Kellett never intended to bring a slander action at all, and was merely using the threat of it as a lever to persuade Keys not to give evidence, if you are satisfied that is right, then you ought to convict this man on these two charges. If, on the other hand, you are not satisfied that is right, then you certainly ought to acquit him. How are you going to set about deciding? I suggest to you that really the material for you is in a very small compass and that you have to ask yourselves, as I have indicated, whether this was a bona fide threat of action or whether it was an empty, false one.”

Lord Widgery C.J. went on to ask the jury to consider what material the

defendant had got on which to sue for slander and why he had not yet sued. He said:

“All these are pointers which you must have regard to in deciding whether he really meant to sue or whether he was using it and abusing it as an empty threat.”

In other words the jury were directed that the defendant was guilty only, if in threatening to bring an action, his “sole purpose” was to persuade them not to give evidence, and he was “merely using the threat of it as a lever to persuade them not to give evidence.” If his purpose or intention was partly that, but partly also a warning that he was going to bring an action whether they gave evidence or not, he would be just as much entitled to be acquitted as if he intended only to warn them that he was going to sue and never intended to dissuade them from giving evidence at all.

Mr. Blaker for the defendant contends that Lord Widgery C.J.’s directions were wrong and should have been more favourable to the defendant. Sir Peter Rawlinson for the prosecution submits that they were correct or, if wrong, wrong only in being too favourable to the defendant. The defendant’s written grounds of appeal are as follows:

“(1) That the learned Lord Chief Justice erred in rejecting defence submissions that (a) the letter of April 2, 1973, was not capable of constituting a threat to the witnesses Keys or Glanville to withdraw as witnesses in the divorce suit or be sued for defamation; (b) that the letter of April 2, 1973, was not capable of constituting a threat to the witnesses Keys or Glanville to withdraw their intended evidence or be sued for defamation. (2) That the learned Lord Chief Justice erred in directing that the truth or falsity of the intended evidence of the witnesses was not a material issue. (3) That the learned Lord Chief Justice erred in directing that the defendant’s belief as to whether the intended evidence was true or false was not a material issue. (4) That the learned Lord Chief Justice erred in directing the jury that a threat to do an otherwise lawful act (viz: to sue for defamation) made to a potential witness was unlawful and/or an attempt to pervert the course of justice. (5) That the learned Lord Chief Justice erred in directing the jury that a threat to do an otherwise lawful act in order to induce a witness not to give evidence was unlawful and/or an attempt to pervert the course of justice. (6) That the learned Lord Chief Justice erred in directing the jury that there was evidence upon which they could infer the intention to prevent witnesses giving evidence and no genuine intent to sue for defamation, and that they might have regard to the fact that there had previously been no action for defamation, whereas there was no such evidence.”

To those we gave Mr. Blaker leave to add at the hearing two further grounds:

“(1) That the learned Lord Chief Justice erred in that he permitted the jury to remain in court during submissions made on behalf of the defendant contrary to Reg. v. Falconer-Atlee (1973) 58 Cr.App.R.

348. (2) That the learned Lord Chief Justice erred in that he failed adequately to direct the jury that questions of fact were solely a matter for them.”

The certificate of Lord Widgery C.J. and the conflicting submissions made to us compel us to consider the nature of the offence which the defendant was charged with committing, both the act and the intention necessary to constitute an attempt to pervert the course of justice of the character with which he was charged, and also what he was proved to have done and intended. What he did was to write the letter, and since he gave and called no evidence, there was nothing but the letter, except the surrounding circumstances and the police officers’ evidence of what he told them, from which the jury could infer his state of mind when he wrote and sent it, his intentions, his motives, or his beliefs in the truth or falsity of what Mr. Keys and his daughter had said in their statements to Mr. Boland, or in their answers to Mrs. Clarke.

It was, in our judgment, for the jury to say what the letter meant and what the defendant intended it to mean, what Mr. Keys and his daughter would reasonably have understood it to mean and whether what they understood it to mean was what the defendant in fact intended to convey to them by it. Section 8 of the Criminal Justice Act 1967 required the jury to be sure of the defendant’s actual intention, even if he did not express it in his letter. They had also to apply their common sense in deciding what the letter did express and would convey to the recipient. The most that the judge could do was to direct them to exclude meanings which the letter was not reasonably capable of bearing; but he could not have directed them that some such impossible meaning could not have been what the defendant intended if the defendant had given evidence that he in fact had intended just that. As, however, he had given no evidence of his intention, the judge was not obliged to trouble the jury with fanciful interpretations of reasonably plain language.

Lord Widgery C.J. made plain to the jury that it was for them to be satisfied that the letter was a threat of a particular kind and a threat made with a particular intention. He directed the jury that the main submission for the defence that the threat was to sue for slander was not an answer to the charge. It is true that counsel for the defence had submitted a subsidiary point, that in writing the letter the defendant was giving Mr. Keys and his daughter an opportunity to withdraw their statements for the purpose of mitigating the damage they had done him and the damages they would have to pay to him. It is true also that Lord Widgery C.J. had said in the jury’s presence:

“I must say I do not accept the point about damages. I am looking at this at the moment, subject to argument as being a clear intention that, ‘I am going to sue you for damages unless you withdraw the statements made to Mr. Boland,’ as it seems to me that is what he is saying in about ten words. The statements to Mr. Boland are the divorce statements. On the other hand you are arguing, and it may well be right, since the only threat is pursuing a right to sue for defamation which you lawfully have, that cannot be enough to amount to it, that is really your submission.”

And he did not refer to the mitigation of damages point in his summing up. A reference, doubtless unfavourable, to this point would have prevented the defendant from raising his two additional grounds of appeal but would not have helped the defendant, and we do not think that he was really harmed by the omission. Assuming that the jury appreciated the point and Lord Widgery C.J.’s opinion of it and regarded him as having ruled it out of their consideration, we consider it no more than a make-weight in support of the defence that the defendant genuinely intended to sue for slander, whether the statements were withdrawn or not. We agree that it is generally undesirable that discussion on a submission of no case should take place in the presence of the jury, even with the agreement of counsel making the submission, one reason being that the judge may express a view on a matter of fact which is within the province of the jury, as was pointed out in Reg. v. Falconer-Atlee(1973) 58 Cr.App.R. 348, 354. But it is important that the jury should be left out of no more of a trial than is necessary for justice, and we do not consider any injustice resulted from the jury’s hearing the discussion on defence counsel’s submissions in this case. Mr. Blaker concedes that the two additional grounds go together and we reject them both.

Lord Widgery C.J. rightly left to the jury the question what the defendant did and what his intention was in doing it. It is well established law that intent is an essential ingredient of the offence of attempt; and the intent to be proved is

“a specific intent, a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence which it is alleged the accused attempted to commit, no matter whether the accused desired that consequence of his act or not,”

and no matter whether the offence attempted itself requires a specific intent or not: see Reg. v. Mohan [1976] Q.B. 1, 11 and the authorities there cited. Did Lord Widgery C.J. then rightly describe to the jury the act and intention – the actus reus and the mens rea – necessary to constitute the offence charged?

Perversion of the course of justice is per se an offence against the public weal. An attempt (or incitement) to pervert (or defeat) the (due) course of justice is an offence against the common law and no less than a conspiracy to pervert it was a punishable misdemeanour: Reg. v. Grimes (Note) [1968] 3 All E.R. 179, 181, per Kilner Brown J.; Reg. v. Vreones [1891] 1 Q.B. 360, 367; Rex v. Tibbits and Windust [1902] 1 K.B. 77; Rex v. Greenburg (1919) 63 S.J. 553; Reg. v. Andrews [1973] Q.B. 422, 425 and Reg. v. Panayiotou [1973] 1 W.L.R. 1032. Those cases show also that tampering with evidence, inducing a person to give false evidence, or not to give evidence, for reward are instances of this common law offence, whether the evidence is to be given in criminal or in civil proceedings and whether the inducement is effective or, as in this case, not. But they were all concerned with the manufacture of false evidence or the withdrawal of a true complaint. They do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or

reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of the intentions, of him who approaches the potential witness is to exercise such a right or to see that justice, or what he believes to be justice, is done to himself or another.

It would seem repugnant to justice and to common sense if in every one of these cases the “offender” could be said to be attempting to pervert or defeat or obstruct the course or the ends of justice. But there is some authority for supposing that any interference with a witness is such an offence, and no clear guidance in the authorities on the limits within which such interference with a witness may not be an attempt to pervert the course of justice – or a contempt of court. Because, as Lord Widgery C.J. recognised, there is no clear authority for the limitations by which his directions to the jury defined the offence, we have to see what, on authority and on principle, the offence is and what it covers.

In Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, c. VI, s. 15, dealing with “Contempts against the King’s Courts ” the author states:

“Also all who endeavour to stifle the truth, and prevent the due execution of justice are highly punishable; as those who being examined before the Privy Council concerning their knowledge of a crime whereof a third person is accused, disclose what passed in such examination; and also those who dissuade, or but endeavour to dissuade a witness from giving evidence against a person indicted etc. or who advise a prisoner to stand mute upon his arraignment etc….”

Blackstone’s Commentaries, 15th ed. (1809), vol. 4, c. 9, p. 126 ends his chapter on “Misprisions and Contempts” with these words:

“Lastly, to endeavour to dissuade a witness from giving evidence; to disclose an examination before the Privy Council; or, to advise a prisoner to stand mute (all of which are impediments of justice); are high misprisions, and contempts of the King’s courts, and punishable by fine and imprisonment…”

Serjeant Stephen prefaces his reproduction of Blackstone’s words with these:

“Another species of offence… is that of intimidation or other improper demeanor practised towards the parties and witnesses in a court of justice”: see Commentaries on the Laws of England, 1st ed. (1845), vol. IV, book VI, c. IX, p. 252.

Sir James Fitzjames Stephen in article 191 of his Digest of the Criminal Law, 9th ed. (1950), says:

“Everyone commits a misdemeanour who… (b) in order to obstruct the due course of justice, dissuades, hinders, or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so;…”

Russell on Crime, 12th ed. (1964), vol. 1, p. 312 has this passage on “Interference with witnesses”:

“It is an offence at common law to use threats or persuasion to witnesses to induce them not to appear or give evidence in courts of justice, even if the threats or persuasion fail, or to endeavour to persuade a witness to alter the evidence already given by him. The offence is a misdemeanour punishable by fine and (or) imprisonment on indictment or information; or, if committed with reference to a case in a superior court of record, by summary proceedings for contempt…”

With this should be read what is said of criminal conspiracy in vol. 2, p. 1484:

“3. Conspiracies to interfere with the fair trial of proceedings, civil or criminal, are indictable. The interference itself is in many, if not in all, cases summarily punishable as contempt of court, if the proceedings are pending in a superior court of record, and is indictable in whatever court the proceedings are pending. The following conspiracies have been held criminal:… To dissuade or prevent witnesses from giving evidence, or to prevent a witness from attending the trial, or to prepare witnesses to suppress truth…”

Compare Archbold Criminal Pleading Evidence & Practice, 38th ed. (1973), p. 1534, para. 4066, on “Conspiracy to prevent, obstruct, pervert, or defeat the course of public justice,” words which are taken from section 29 of the Criminal Procedure Act 1851 (repealed by the Criminal Justice Act 1948) making that conspiracy punishable by imprisonment with hard labour.

Paragraph 3451 of Archbold, 37th ed. (1969), dealing with this mis demeanour of interfering with witnesses has been dropped from the current 38th edition, where such interference now comes to be treated as a contempt in paragraph 3463. But in Smith & Hogan, Criminal Law,3rd ed. (1973), p. 589, there is this short statement:

“It is a common law misdemeanour to attempt to dissuade or prevent a witness from appearing or giving evidence, or to alter evidence previously given in a preliminary inquiry.”

To these extracts should be added the even shorter statement in Glanville Williams, Criminal Law, 2nd ed. (1961), p. 416, para. 139: “Interfering with witnesses is a misdemeanour at common law…” and the form of indictment for dissuading a witness to give evidence in Chitty, Criminal Law, 2nd ed. (1826), vol. II, p. 235, of which the material words are:

“… that A.B. late of, etc. being an evil-disposed person, and contriving and intending to obstruct and impede the due course of justice, on, etc. at, etc. unlawfully and unjustly dissuaded, hindered, and prevented the said I.K. from appearing before the said justice at the said sessions of the peace, holden as aforesaid, to testify the truth and give evidence before the said grand jury on the said bill of indictment, so preferred against the said A.B. as aforesaid, (and the said I.K. in consequence thereof, did not so appear and give evidence according to the exigency of the said writ,) to the great obstruction, hindrance, and delay of public justice, in contempt, etc. to the evil, etc. and against the peace, etc….”

To which is added a count for endeavouring to dissuade which omits the allegation between the brackets.

The early authorities do not distinguish the offence of which the defendant was convicted from contempt of court. Mr. Blaker conceded that the defendant was guilty of contempt. But was he guilty of this offence?

The reported cases where this offence has been considered all, as far as our researches go, were cases where the attempted interference was by means of a threat or a reward and with an intent to prevent justice being done. And indeed that is true too of cases of criminal contempt with the exception of those which consist of publishing matter likely to interfere with the fair conduct of a trial: there and there alone, if anywhere, is ignorance no excuse and intention irrelevant: Reg. v. Odhams Press Ltd., Ex parte Attorney-General [1957] 1 Q.B. 73. In so far as a passage in the judgment of the five judges in the Court of Criminal Appeal given by Lord Alverstone C.J. in Rex v. Tibbits and Windust[1902] 1 K.B. 77, 88 states the contrary, it “would appear to be almost certainly wrong,”: see Report of the Committee on Contempt of Court, December 1974 (Cmnd. 5794), Appendix II, p. 106, para. 10. That report regards the intent necessary for the offence which we have to consider as implicit in its name:

“… that the intended interference is improper or wrong. Thus, a person who encourages a witness to come forward, or a solicitor who advises against taking or defending legal proceedings may be described as intending to interfere, but is clearly doing no wrong, and cannot be liable; and we have recommended that even the bringing of moral pressure on a party in order to influence his attitude in the proceedings, as happened in Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, should not be penalised”: see paragraph 67, p. 29.

That report also points out that the offence “has never been precisely defined by the courts,” perhaps because its name is assumed to describe it sufficiently and it is impracticable to define it further: see Appendix II, paragraphs 5 and 8, pp. 104 and 105. But the report itself does not attempt to define what intentional interference with a witness is wrongful or improper. It does, however, point out that a witness will have discussed with friends and acquaintances the facts which will be the subject of his evidence before the case comes on for trial, and may have had questions or alternative versions put to him, and that varying degrees of pressure may be put on him to change or qualify his evidence, ranging, for example, from a suggestion that his part in the affair was not to his credit to outright bribes or threats: see paragraph 54, p. 24.

First, we do not consider it fortuitous that there is no case in the books, as far as we know, which supports the extreme view indicated by some of the textbook statements that any interference with a witness is an attempt to pervert the course of justice. That would make a man guilty of this offence if he went privately to a witness who had made a false statement and by reasoned argument supported by material facts and documents tried to dissuade him from committing perjury and to persuade him to retract lies and tell the truth. There are indications

in the transcript of some observations made by Forbes J. in Reg. v. Abrahams (unreported), April 5, 1974, at Cardiff Crown Court, that he may have approved that extreme view. It can be justified by emphasising that it is the course of justice to which the conduct is directed, and that is what must be protected in every case, not the justice of the result in the particular case. Once legal proceedings have set the course of justice in motion, it is important that it should be allowed to flow unobstructed and undiverted, and that perjury should be exposed and truth ascertained only by examination and cross-examination of witnesses in open court, and justice should be administered in the way which is ordinarily pursued: see Skipworth’s Case (1873) L.R. 9 Q.B. 230, 233, per Blackburn J. It is, on this view of the matter, as much an offence to influence a witness who is going to tell lies in the witness box before he has told them as to denounce a guilty man who is going to be tried before he has been convicted: to excuse it by claiming that the truth is on your side is to confuse the course of justice with the result arrived at, as Lord Alverstone C.J. put it in Rex v. Tibbits and Windust [1902] 1 K.B. 77, 88.

There is, however, no warrant in the cases for going so far. In Rex v. Bishop of Lincoln (1637) 3 State Tr. 770 one of the charges was tampering with the King’s witnesses, which the Attorney-General, Sir John Banks, summarised in this way, at p. 782:

“… a heap of offences, all tending to the subversion of public justice; a labouring, tampering, suborning, seducing and sending away of the King’s witnesses to suppress the truth, to swear against the truth, and to cause witnesses to make retractation…”

The speeches in the Star Chamber bear out what was there said: the truth of what the witnesses were to say was not irrelevant to the charges. The Archbishop of Canterbury, for instance, said, at p. 794:

“The matter is ill, and howsoever it perhaps be not subornation of perjury, yet to tamper with witnesses, to threaten, deter, affright, corrupt, or to silence, or absent those that are to witness a truth, and to give evidence in a court of justice, are ejusdem naturae, a very foul crime and a most odious and detestable fault, in any man of what condition soever he be:…”

And Lord Coventry (who was, ironically, the bishop’s successor in the office of Lord Keeper) used words, which are worth quoting at some length, at p. 802:

“Now it may be, said he, may not a man meddle, nor question with a witness? Yes, but with certain limitations, for else, if the witnesses be made and corrupted, the jurors and judges both of them may be abused; and if that witnesses may be led and instructed by questions, or the like, it comes all to one as subornation. – A solicitor may warn witnesses to come in, he may incite them, and enforce them, and one as well as the other: but for a stranger to labour a juror or a witness, is not so allowable. – But a solicitor must not instruct a witness, nor threaten him, nor carry letters to him to induce him this way, or that; yet he may discourse with him,

and ask him what he can say to this or that point, and so he may know whether he be fit to be used in the cause or no: by which means this court is freed from the labour of asking many idle questions of the witnesses to no end, if they can say nothing to them, and so spend good time to no end nor purpose; yet he may not persuade him, or threaten him to say more or less, than he of himself was inclined unto, and was by his conscience beforehand bound to deliver as truth… So that in the point it is plain, that when a man shall alter the testimony of a witness, and cause him to decline from the truth, whether it be by threats, promises, or rewards, it hath ever been much disallowed, and he that attempts the same is censurable, though perhaps he effects it not…”

With this authority in mind we would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence.

Secondly, with this among other authorities in mind, we think that however proper the end the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means.

Threats and bribery are the means used by offenders in the cases, and any pressure by those means – or by force, as for example by actually assaulting or detaining a witness – would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it “through affection, fear, gain, reward, or the hope or promise thereof” (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.

Perhaps the most extreme illustration of the end not justifying the means is to be found in the sad case of the attorney in Rex v. Johnson(1678) 2 Show. 1, who agreed with another to give him oe350 to prove that a deed. with which Lady Ivy had obtained a verdict against Dr. Whitchcott’s lady and her tenants, was forged. It was argued that any man may agree with another to give him money to do a lawful act, as to prove a deed to be forged. But the Court of King’s Bench thought it a great offence. “for witnesses ought to come unbiassed and not affected with money,” and Johnson was heavily fined. The reporter adds this mournful note, at p. 5:

“Johnson, being in custody, was upon this bailed; but it broke his heart, and he died soon after, much lamented and without reproach; for every one thought this an hard case; and this crime was committed in order to the detection of a forgery of the Lady Ivy’s deed, which, in a trial at the King’s Bench bar, many years after this, was proved forged, in Neal’s suit against her.”

A more modern instance is the Canadian case of Rex v. Silverman(1908) 17 O.L.R. 248. There the defendant was convicted of attempting

by corrupt means to dissuade one Weller from giving evidence against the defendant’s brother, contrary to section 180 (a) of the Criminal Code. Weller had given evidence for the prosecution on the preliminary trial: the defendant, believing that it was not true, tried to get Weller to correct it in an affidavit and suggested that he would reimburse him for some monetary loss. The Criminal Code made it an indictable offence to dissuade or attempt to dissuade any person by threats, bribes, or other corrupt means from giving evidence in any cause or matter, civil or criminal. All the judges of the Court of Appeal treated the offence against the Code as a common law misdemeanour and the appeal against conviction was dismissed, one judge dissenting on a point which is not relevant and is inconsistent with what was said in Rex v. Greenburg, 63 S.J. 553. Osler J.A. said, at p. 250:

“That is plainly an attempt to dissuade the witness from giving evidence, and, having been corruptly done, is within the very words of the section. Whether the accused was honest in his belief or not is immaterial. It would not have been unlawful for him, by argument or explanation to have attempted to dissuade the witness from giving what the accused may have honestly believed to be an untrue account of the transaction, and to give what may have appeared to him to be the true one…”

MacLaren J.A. said, at p. 251:

“Even the most desirable end cannot justify the employment of corrupt means. The fountain of justice should be kept pure and not be corrupted at its source. It was quite open to the accused, believing, as he did, in the innocence of his brother, to shew to Weller, if he could, such evidence or facts as might convince him that he had been mistaken in his previous testimony. He did not, however, rely upon such means, but, on the contrary, chose to attempt to accomplish his end by bribery, and thereby brought himself within the very language of the statute…”

Mr. Blaker submitted that the Ontario Code did enact the common law misdemeanour of attempting to pervert the course of justice by interfering with a witness. There is a similar enactment in the New Zealand Criminal Code: see Rex v. Gray (1903) 23 N.Z.L.R. 52. We agree that it does express the offence with fair accuracy. We might substitute “unlawful means,” or “improper means,” for “corrupt means” because we do not lay down in an exhaustive list the acts which constitute improper pressure and make such interference unlawful, but they would include the use of threats or force which might not be regarded as “corrupt.” We also agree, as, we think from what was said in argument in the court below, did Lord Widgery C.J., that such interference as the two judges regarded as lawful in the illustrations just quoted would not necessarily have been attempts to pervert the course of justice. But we have in this appeal to deal with an interference with a potential witness, and the limits of legitimate approach to a witness who has actually given his evidence, or some part of it, in a court of law may be stricter and require further argument and separate consideration. Although we have

considered the general nature of the offence of which the jury convicted the defendant, the particular question raised by this appeal is this: granted that a threat to induce a witness to refrain from giving evidence or to alter or retract evidence which he is intending to give is an unlawful interference, is any threat unlawful, including a threat to do a lawful act, namely, to exercise a legal right such as to sue for defamation?

It was submitted that the answer to this question, favourable to the defendant, was to be found in the decision of Neville J. in Webster v. Bakewell Rural District Council [1916] 1 Ch. 300. There a yearly tenant of a cottage sued the local authority for an alleged trespass. His landlord’s solicitor and agent, who wanted to settle the dispute with the local authority over the trespass on her behalf, wrote letters threatening to turn the tenant out of his cottage if he went on with his action. Neville J. refused to commit the solicitor for contempt because he was only saying on the landlord’s behalf:

“if you… assert what you allege to be your legal rights in that way, I on my part shall give effect to the legal rights I possess and resume possession of my cottage.”

If it had been a weekly tenancy, it could have been determined before the action in respect of the property could be tried. Neville J. said, at p. 303:

“and I cannot see that there is anything to prevent a landlord exercising his legal rights in that way, if he does it honestly to protect the rights he has in the property.”

That was a case of interfering with a litigant, not a witness, and there may be a material difference between the two cases. At least Lord Simon of Glaisdale thought so. Speaking of private pressure on a litigant to deter him from exercising his legal rights, he said:

“The only difference is that private pressure on a litigant (in contradistinction to violence or bribery or public execration) might sometimes be justifiable, while private pressure on the tribunal or witness never would be so…”: Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273, 319.

He went on to say at p. 320 that once the proceedings are concluded the tribunal and witnesses, unlike the litigant, may still need protection:

“Witnesses in future cases must be able to give honest and fearless testimony, so witnesses in past cases must not be victimised…”

That was a case of public pressure on a litigant and Lord Simon Of Glaisdale was considering whether such pressure constituted a contempt of court. It was contempt of court by private pressure which was considered by Neville J. in Webster v. Bakewell Rural District Council [1916] 1 Ch. 300 and by this court in the victimisation cases of Attorney-General v. Butterworth [1963] 1 Q.B. 696 and Chapman v. Honig [1963] 2 Q.B. 502. But we think it significant that in those two cases a different answer was given in respect of witnesses who had given evidence from that which was given in Webster’s case in respect of a litigant who had started proceedings.

In Butterworth’s case this court held it to be a contempt of court to deprive a man of his offices in a trade union because he had given evidence against it, even though punishment was not the fundamental motive. In Chapman v. Honig [1963] 2 Q.B. 502 this court held it to be a contempt to give a man notice to quit for giving evidence against his landlord. It was conceded that if the notice to quit was prompted by the wish to punish the tenant it was a contempt. In Chapman’s case both Lord Denning M.R. and Davies L.J., at pp. 513 and 524, put the case of a servant dismissed for giving evidence against his master in a divorce suit in terms which indicated that the master would be in contempt, though he was acting lawfully in giving a month’s notice. The exercise of a legal right to dismiss or to evict a person who has given evidence does not excuse interfering with the administration of justice by deterring persons who might wish to give evidence in other cases, or prevent such interference from being a contempt.

So, in our judgment, the exercise of a legal right or the threat of exercising it does not excuse interfering with the administration of justice by deterring a witness from giving the evidence which he wishes to give before he has given it. If Mr. Keys had been the defendant’s tenant and the defendant had given him or threatened to give him notice, he would have been equally guilty. In Shaw v. Shaw (1862) 6 L.T. 477 the respondent to a divorce suit called on a former servant and threatened her with prosecution for perjury if she gave evidence of his cruelty to his wife. The Judge Ordinary found that the respondent went with the intention of intimidating the servant and preventing her from giving evidence, and the respondent was saved from committal by apologising and paying costs. That was clearly not only a contempt but an attempt to pervert the course of justice; and even if the servant’s evidence had been false and the respondent had believed that she might be prosecuted for perjury after giving it, the threatening language he used would, in our opinion, have been enough to convict him of the attempt.

Our opinion that threatening a witness is an attempt to pervert the course of justice is in line with the intention of the legislature expressed in section 2 of the Witnesses (Public Inquiries) Protection Act 1892, which sets out the acts of reprisal or victimisation against witnesses who have given evidence at public inquiries which are thereby made a misdemeanour, “unless such evidence was given in bad faith.” The acts which constitute the statutory offence after the evidence is given may be a guide to those which make interference illegal at common law before the evidence is given: anyone who “threatens, or in any way punishes, damnifies or injures, or attempts to punish, damnify or injure any person” after the evidence is given commits an offence against the statute. He would, we think, be guilty of an offence against the statute whether that with which he threatened the witness who had given evidence was otherwise lawful or unlawful, and he is likewise perverting or attempting to pervert the course of justice contrary to common law if he commits any of those acts before the evidence is given.

Where the attempt is to get a witness positively to give false evidence, the offence is an offence against section 7 of the Perjury Act 1911. Where

the attempt is to restrain a witness from giving evidence it may be necessary to indict for the offence charged in this case. Where it is made with threats – or promises – it is committed notwithstanding that the threat is a threat to do a lawful act, provided that one of the motives which activates the accused in making the threat is to intimidate the witness into altering or withdrawing evidence. This last proviso follows from the general law as to attempts expounded in Reg. v. Mohan[1976] Q.B. 1 and is supported by what was said in the judgments of Lord Denning M.R. and Donovan L.J. in Attorney-General v. Butterworth [1963] 1 Q.B. 696, 723, 727, about mixed motives in victimising a witness. If the defendant’s intention in threatening an action for slander was to make Mr. Keys and his daughter withdraw their statements and not give evidence in accordance with them, he was guilty of the offence charged, whether he had in mind any other consideration or whether he intended to go on with the action in any event. It was not necessary for his threat to be empty or not bona fide, in the sense that he would have abandoned all idea of suing if the statements had been withdrawn. A demand with menaces may be blackmail even if the blackmailer has no intention of carrying out his threats. If the defendant had threatened to expose some skeleton, real or imaginary, in his neighbours’ cupboard, he would have been guilty of this offence provided that one object of his threat was the withdrawal of their statements.

In that respect we think that the second direction of Lord Widgery C.J. was too favourable to the defendant and we prefer his first direction to his second.

Sir Peter Rawlinson for the Crown, while asking us to approve both directions, as we understood him, submitted that the prosecution had to prove (1) interference with the witnesses, (2) on such a scale as to pervert the course of justice, (3) with that purpose, that is with the intention to make the witnesses do what they would not otherwise have done.

We understand (1) and (3) to mean that there must be an attempt to make the witnesses do what they would not otherwise have done, with that intention, whatever the means used; but we are not sure what (2) added to the ingredients of the offence. We have already given our opinion that some means of attempting to influence witnesses are outside the limits of this particular offence. But subject to the qualification that the means must be unlawful or improper, such as force or a threat of force, a reward or the promise of a reward, we accept his general submission that an intentional interference with a witness is enough.

There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function. The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given. Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What

may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority. But it is for the judge to direct the jury that some means of inducement are improper and if proved make the defendant guilty, and this was such a case. A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld.

If our understanding of the law is correct, there was nothing in the directions of Lord Widgery C.J. to the jury of which the defendant can complain. There was no error in his direction that the truth or falsity of the intended evidence, or the defendant’s belief as to whether it was true or false, was not a material issue. These would only have been material issues if the defendant had used no threat or other improper means of dissuasion. He was also correct in directing them that a threat to do an otherwise lawful act in order to induce a potential witness not to give evidence was unlawful and an attempt to pervert the course of justice.

It has been pointed out in a commentary on this case in [1974] Crim. L.R. 553 that the speech of Earl of Halsbury L.C. in Watson v. M’Ewan[1905] A.C. 480 is authority for the proposition that preliminary statements to a solicitor and to a party are equally privileged and that therefore the defendant may have had no legal right to sue the two witnesses in this case for defamatory remarks either in their statements to Mr. Boland or in their answers to his agent Mrs. Clarke. It may be that the defendant had enough knowledge of the law to believe that his right to sue them was at least doubtful and it may be that he had no chance of suing them successfully. But no such point was taken at the trial and we find it unnecessary to decide it now. We are content to assume that he had a right to sue in respect of their slander of him to Mrs. Clarke, whether or not privilege was claimed, and believed that he had it.

Since this judgment was written the Law Commission has published its Working Paper No. 62, Criminal Law Offences relating to the Administration of Justice. We have not found anything in its interesting pages which makes us wish to alter our judgment. Paragraph 75, p. 38 supports our opinion that Webster v. Bakewell Rural District Council[1916] 1 Ch. 300 is distinguishable and gives the defendant no real help.

Lord Widgery C.J. was, in our judgment, right in directing the jury that they had to decide whether (1) in the letter the defendant was threatening to bring a slander action against Mr. Keys (and his daughter), and whether (2) he was doing that with the intention of causing them not to give the evidence mentioned in the statements to Mr. Boland. The letter was capable of constituting such a threat and the jury were entitled, if not bound, to infer that that was his intention. He was therefore

properly convicted of an offence of which he was clearly guilty and his appeal is dismissed.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Solicitors: Foot & Bowden, Plymouth; Director of Public Prosecutions.

[Reported by A. &. B. HELM, ESQ., Barrister-at-Law]

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