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#Post#: 32596--------------------------------------------------
Perverting by pleading guilty - discussion
DIR By: andy_foster
Date: August 7, 2024, 12:43 pm
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This has been discussed before, possibly back in the PePiPoo
days, but to the best of my knowledge ending up with the
majority consensus it started with, rather than what I would
consider a satisfactory conclusion...
It is common ground that a person has an constitutional right to
plead not guilty to any offence that he is charged with, and to
require the prosecution to prove his guilt. This however is not
an "absolute" right insofar as he can be punished more harshly
if he is found guilty at trial than if he enters an early guilty
plea.
American law has decided that the converse is not true - there
is no constitutional right to plead guilty to an offence you
know/believe you did not commit - which would typically be done
variously to avoid the hassle of a trial or to obtain a lighter
sentence than if convicted at trial. Obviously the relevant
authority would not be binding on UK courts, but might well be
persuasive. N.B. I am unable to cite the case.
Scenario 1 -
A was not the driver, has failed to name the driver (and has no
defence) and is dual charged. At trial, which is outwith the 6
months, he pleads guilty to the speeding and the s. 172 is
dropped.
AIUI, the "hive mind" is firmly of the opinion that he has
perverted the course of justice by pleading guilty to an offence
he did not commit in order to avoid a harsher punishment. This
is regardless of whether any deal was done, who instigated any
such deal, or whether he simply pled guilty to the speeding in
the hope that the s. 172 would be dropped as a result.
Scenario 2 -
A received a NIP/s. 172 which was served (delivered) 2 months
after posting, returned the form immediately naming the driver,
and us charged with the s. 172 offence only. He pleads guilty as
he has little faith that the court will accept his defence and
wishes to avoid a harsher punishment.
AIUI, the "hive mind" is firmly of the opinion that he has not
perverted the course of justice.
In both cases, he has not prevented the (presumably) guilty
driver being prosecuted by entering a "false" guilty plea. The
only distinction that I can see is that the s. 172 offence in
scenario 2 would have required a defence, so he could be
convicted of it anyway if he chose to sit on his hands - which
he would have been entitled to do.
Entering a guilty plea is a positive action, as opposed to
sitting on your hands, so the apparent distinction on the basis
that he could have been convicted without perverting the course
of action in scenario 2 seems somewhat contrived.
Is there a more meaningful distinction that I have missed, or is
it more a case that if the court was likely not going to believe
him anyway, there is little public interest in taking up more of
the court's time?
#Post#: 32636--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: The Rookie
Date: August 8, 2024, 2:54 am
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Having given some thought on how to structure the reply, this is
how I see it.
In Scenario 1, the accused/charged person is pleading guilty to
an offence which they not only haven't committed but which there
is prima facie insufficient evidence to charge or convict them
for (there is no driver ID established*). As such they are
using a falsehood to escape a more serious punishment and that
to me is clearly perverting the course of justice (noting that
absent a 'confession' it may be almost impossible to prove -
though some like Vicky Pryce have been happy to provide similar
'confessions', all be it under slightly different circumstances
of course).
In Scenario 2, the accused has prima facie committed the
offence, without a defence being presented they would be
convicted, while the accused may have a statutory defence (in
this case the 'reasonably practicable' as he couldn't reply
until the S172 was served) with a possibility that it succeeds,
nothing requires him to use a statutory defence and as such
pleading guilty IMO isn't perverting.
Of course the more likely (to occur) scenario 2 is that the
keeper didn't ID the driver and chooses not to present his
reasonable diligence defence that he couldn't. Which would be
mush more of a grey area than your presented scenario 2 (which
is why, I suspect, you chose the more defined scenario?) and
even less likely to be perverting.
*On the face of it that secondary charge is 'bad practice' in
that the police know they can't prove the case so shouldn't
really be charging it, it is offered as a 'benefit' only to the
accused and while I wouldn't seek to stop them doing that, in
fact I'd encourage it, that remains my view on dual charging.
That may mean the guidance for charging isn't always correct but
that's not the question here." - seemingly well considered
quote - but meaningless with attribution - Andy
#Post#: 32654--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: BertB
Date: August 8, 2024, 5:30 am
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Furthermore, in scenario A, when the driver insists they do not
know who was driving at a particular time in the day, we suggest
the most pragmatic approach is to name who was most likely
driving based on who drives that vehicle more. If this is
accepted as not PCOJ, where is the level of investigation
happening to stop someone who knows they weren't driving taking
the deal?
At S.172 stage, nominations are sometimes asked to be
reconsidered where the pictures clearly show a male over a
female for example. But I'm guessing by the time this becomes a
SJPN for FTF, that level of scrutiny has disappeared?
If the prosecution wants to offer the speeding offence as an
alternative charge to FTF, and shout 'gotcha' when the accused
does just that, would that not seem a little dodgy if that was
the only reason?
#Post#: 32674--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: andy_foster
Date: August 8, 2024, 6:38 am
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Interesting point Bert. I probably included that one last time
and probably should have also had it in mind this time.
For practical purposes, guessing who was the driver, tossing a
coin, or choosing the most convenient driver if unsure, seems to
avoid a lot of hassle and likely reduce the eventual punishment.
However, subject to the wording of the s. 172 notice (and
interpretations thereof), the respondent is effectively falsely
making a statement to the effect that they "know" that the named
driver was driving. And they are not "providing any information
that is in their power to give and that might lead to the
identification of the driver", so if they have not
coincidentally named the actual driver, they have also committed
the s. 172 offence and negated the possibility of any defence.
Some regulars are absolutely adamant that naming the most likely
driver is absolutely fine, but that naming the most convenient
potential driver is perverting the course of justice. In both
cases, the person making the statement that he neither knows to
be true or untrue. The difference appears to the the probability
that it is correct.
Simon's response appears to mostly be using more words to
restate the distinction I noted in the OP. Perverting requires a
positive action, so sitting on your hands and being convicted
cannot constitute perverting. The argument that pleading guilty
- which is a positive action - cannot constitute perverting when
you know you did not commit the offence because you would be
convicted if you simply sat on your hands, albeit with a higher
punishment, seems to be somewhat perverse. Effectively, if
something would otherwise be perverting, but the result could be
achieved without a positive action, that negates an offence of
perverting which included a positive action.
As a hypothetical example, A is the RK and B was the driver. B
intercepted A's NIP and responded as A naming "himself" (A) as
the driver. A discovers this and for some reason is keen to
avoid throwing B under the bus. A receives a summons (or SJPN).
A is faced with the practical choice of pleading guilty to the
speeding, pleading not guilty and sitting on his hands, or
pleading not guilty and defending himself - which would throw B
under the bus.
As A would be convicted of the speeding offence that he did not
commit if he sits on his hands, the argument appears to be that
he is entitled to plead guilty to an offence that he knows he
did not commit in order to lessen the eventual punishment (and
effectively to protect the very guilty).
I would suggest that the majority of the hive mind would say
that the position above "cannot be right", and I would agree.
However, legal principles apply to the facts, rather than the
other way around. If A cannot plead guilty when framed, do the
same principles apply when he wasn't framed?
I would strongly suggest that for the purposes of this
discussion and general sanity, we assume that something is
either known or not known - A knows that he was driving, knows
that he was not driving, or is unsure which of the possible
drivers, A, B or C, was driving.
I have also semi-deliberately avoided potentially complicated
the issue by inviting discussion on what the course of justice
actually is.
#Post#: 32757--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: The Rookie
Date: August 9, 2024, 2:19 am
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In 99.99% of cases there will be a most likely driver based on
time, location/direction and even speed (e.g. if it we between
me and my wife odds on a speeding allegation would be me - all
else being equal - as I tend to 'push my luck' a little more of
the two of us).
Naming the most likely driver (on balance of probabilities)
cannot be perverting, there is no positive action taken to
pervert, naming a driver based on the one who can 'take the
points' creates a risk (noting that that is IF all that
information comes out, no need that it should). Obviously if
the 'wrong' person is named that would be an S172 offence. That
said, if the photos are looked at and some degree of reasonable
diligence performed and the keeper can't be certain of ID it's
hard to see how the Police would have any suspicion, let alone
proof beyond reasonable doubt, that that offence was committed.
My first reply was indeed agreeing 'in more words' as I was
trying to explain my thought process and rationale in reaching
the same conclusion. That allows people to challenge my process
(remembering at school how you were always told to 'show your
workings) rather than just conclusion.
#Post#: 32763--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: andy_foster
Date: August 9, 2024, 3:03 am
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--- Quote from: The Rookie link ---
>
> Naming the most likely driver (on balance of probabilities)
cannot be perverting, there is no positive action taken to
pervert
--- End Quote ---
Other than because you say so, how is deliberately providing a
statement stating that X *is* the driver, when you don't know
whether or not X is the driver, with the intention of X
receiving a fixed penalty for speeding rather than having to
defend an s. 172 charge, not a positive action which tends to
pervert the course of justice?
There is no intent for the unknown driver to avoid liability for
the speeding offence, but there is an intent for the recipient
of the NIP to avoid liability for a potential s. 172 conviction.
--- Quote ---
> naming a driver based on the one who can 'take the points'
creates a risk (noting that that is IF all that information
comes out, no need that it should). Obviously if the 'wrong'
person is named that would be an S172 offence. That said, if the
photos are looked at and some degree of reasonable diligence
performed and the keeper can't be certain of ID it's hard to see
how the Police would have any suspicion, let alone proof beyond
reasonable doubt, that that offence was committed.
--- End Quote ---
Once again, your argument appears to be that guessing the most
convenient driver, rather than the most likely would be
perverting the course of justice (regardless of whether or not
the guess was correct?), based on the well established legal
principle of "because you say so", but that that is only a
problem IF (your emphasis) there is evidence to show that the
nomination was incorrect.
--- Quote ---
> My first reply was indeed agreeing 'in more words' as I was
trying to explain my thought process and rationale in reaching
the same conclusion. That allows people to challenge my process
(remembering at school how you were always told to 'show your
workings) rather than just conclusion.
>
--- End Quote ---
You didn't and it doesn't.
#Post#: 33040--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: The Rookie
Date: August 12, 2024, 4:55 am
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WEll clearly if the nomination is correct, even if it was best
guess, it complies with that statement.
As for if the best guess is wrong, I'd refer to the CPS guidance
(acknowledging not the law)
--- Quote ---
> Perverting the Course of Justice
> The offence of Perverting the Course of Justice is committed
when an accused:
>
> does an act or series of acts;
> which has or have a tendency to pervert; and
> which is or are intended to pervert;
> the course of public justice.
--- End Quote ---
I don't see a genuine 'best guess' meeting that standard.
HTML https://www.cps.gov.uk/legal-guidance/public-justice-offences-incorporating-charging-standard
#Post#: 33052--------------------------------------------------
Re: Perverting by pleading guilty - discussion
DIR By: andy_foster
Date: August 12, 2024, 5:42 am
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If we take the view that the course of justice when the
recipient is genuinely unsure who was driving after exercising
reasonable diligence is to state as much and to provide any
information that is in his power to give and that might lead to
the identification of the driver, and then letting the court
decide, then
not responding to the s. 172 notice would not be a [positive]
act, but
responding naming the best guess as "the driver" would meet the
quoted criteria - which mirrors the law.
I note that you quoted the test for whether something
constitutes perverting, but merely provided a link for the
guidance for the decision to charge without indicating what
part(s) of that document you feel support your argument.
I further note, that you appear to be relying on the CPS
guidance for the decision to charge. Is your point that, if
making a best guess was perverting, it is still fine to advise
posters to commit the offence on the basis that the guidance
apparently says that it is too trivial or otherwise not in the
public interest to charge them?
N.B. I am not talking about cases where the named driver is sure
it would have been him but simply does not have a specific
recollection of driving at that time/place, but where a poster
opens with "we genuinely do not know which of us was driving".
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