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Royal Courts of Justice

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE BROOKE

MR JUSTICE McCULLOUGH

HIS HONOUR JUDGE RIVLIN

(Sitting as a Judge of the CACD)

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R E G I N A

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PAUL O'LOUGHLIN

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR M STEEN appeared on behalf of the Appellant.

The Crown did not attend.

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J U D G M E N T

(As approved by the Judge)

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©Crown Copyright

JUDGMENT

LORD JUSTICE BROOKE: Mr Justice McCullough will give the judgment of the court.

MR JUSTICE McCULLOUGH:. Paul O'Loughlin, who is now aged 47, appeals with the leave of the full court, which we gave last week, against a sentence of 12 months' imprisonment imposed on 19 May 1995 after he had been convicted of conspiracy to pervert the course of justice. He was already serving a sentence of four years' imprisonment imposed the Gloucester Crown Court on 21 February 1994 for wounding with intent. The 12 months sentence was ordered to run consecutively to this. His application for leave to appeal against conviction was refused by the full court on 19 May 1996.

The facts relevant to the present conviction were set out by this court in its judgment of 11 October when leave to appeal against sentence was given. They need not be repeated in detail. The appellant, together with his wife, Jane O' Loughlin, and Tracey Johnson, the sister of Daniel Johnson, were out of the eight people charged, the only ones to be convicted of the count of conspiracy to pervert the course of justice.

The substance of the case against them was that they tried to persuade a Mrs Nugent to make a statutory declaration (or swear an affidavit) to the effect that she had not seen Daniel Johnson participating in two very serious assaults involving the use of a hammer - assaults inflicted with the intention to cause really serious bodily harm.

Paul O'Loughlin came into the picture at a relatively late stage after other members of his family, together with one or more others, had spoken to Mrs Nugent about the evidence that she could give in relation to those assaults. The upshot was that Mrs Nugent, largely at the appellant's behest, whether by dictation or drafting does not perhaps matter, swore a statement to the effect that she could not say whether Daniel Johnson had participated in either of the assaults.

The judge left the case to the jury on count 4, the relevant count, by pointing out to them that one basis upon which they could convict would be if a defendant agreed to persuade Mrs Nugent to change her evidence from a version which that defendant believed to be false to a version which that defendant believed to be true, provided that the means of persuasion adopted were not lawful and proper. The judge said if improper pressure or threat were used to that end then it remained an offence, even if a defendant genuinely believed he was persuading the witness to tell the truth. It is submitted by Mr Steen, who appears before us, as he did in the court below, that the proper basis upon which the appellant should have been sentenced was that one. The judge appears to have accepted this in that he said nothing to indicate the contrary.

In sentencing the three appellants, he began:

"Paul O'Loughlin you, in my view, took the lead by intimidating the witness and getting her to write out a statutory declaration in direct contradiction to the evidence given by this witness on oath at the trial."

It was never the case for the prosecution that the appellant, or any of the others charged in the relevant count, had threatened physical violence to Mrs Nugent or anyone whom she might hold dear. The case for the Crown was that she was intimidated by the pressure put upon her, not least by the appellant, in persuading her to make the statutory declaration (or affidavit).

The appellant is a man with a very bad criminal record but, despite the number of convictions upon it and the terms of imprisonment that he has served, this was his first conviction for an offence of this kind. It can also be said in his favour, and indeed in favour of the others who were convicted, that the attempt to pervert the course of justice failed. Contrary to what must be assumed to be the appellant's belief, the statutory declaration or (affidavit) did not set out the true version of the facts of which Mrs Nugent would speak. She spoke in court of seeing Daniel Johnson committing at least the first of these assaults. Justice was done in that both Daniel Johnson and the man with him were convicted of both offences.

As we explained on 11 October, the appellant's renewed application for leave to appeal against sentence was not before the court when it dealt with his appeal against conviction on 10 May 1996. So it was that his wife's sentence alone was considered by the full court on that date. Her sentence, which had been one of six months' imprisonment, was halved to three months. Although a number of the facts are by no means clear, the overall impression which we have is that, if this man's appeal against sentence had been considered by the full court at the same time as that of his wife, having regard to his assumed belief that the version appearing in the document Mrs Nugent was to sign was the truth, we think that the full court would in all probability have halved his sentence as well. In that somewhat rough and ready way, we have reached the conclusion that we should do the same. The 12 month sentence consecutive to the four year term will be reduced to one of six months, but it will remain consecutive to the four years. The appeal succeeds to that extent.