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Mcbratney, Luke (2018) Perverting the Course of Justice. LL.M(R) Thesis

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Mcbratney, Luke (2018) Perverting the Course of Justice. LL.M(R) Thesis McBratney, Luke (2018) Perverting the course of justice. LL.M(R) thesis. http://theses.gla.ac.uk/81721/ Copyright and moral rights for this work are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This work cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Enlighten: Theses https://theses.gla.ac.uk/ [email protected] Perverting the course of justice Luke William McBratney, LL.B, Dip.LP Submitted in fulfilment of the requirements of the degree of LL.M by Research School of Law College of Social Sciences University of Glasgow September 2018 Abstract This thesis is concerned with the Scottish offence of perverting the course of justice. Perverting the course of justice is a well-established and commonly charged offence, but one which is poorly understood and whose development has been the subject of sceptical treatment in the major work on Scottish criminal law. This thesis traces that development, from the institutional writers to the modern day, and asks whether it was in accord with the norms of Scots law. It also asks whether that development has resulted in an offence, the elements of which can be described with confidence, or not. Drawing on comparisons with corresponding offences from other jurisdictions, this thesis sets out where the Scottish offence is unclear on certain questions and suggests possible answers. This thesis concludes that the manner in which the offence developed in Scotland, rather than being notable for its abnormality, is best understood as a typical example of the development of Scottish criminal law, and as an offence which serves an essential function in upholding the rule of law. Declaration I declare that this thesis is my own work, and has not been plagiarised. Where information or ideas are obtained from any source, this source is acknowledged in the footnotes. Luke McBratney, 25 September 2018 Contents INTRODUCTION ......................................................................................................................................... 1 Perverting the course of justice ............................................................................................................ 1 A note on terminology ................................................................................................................... 3 Scope of the thesis .......................................................................................................................... 4 Literature ......................................................................................................................................... 4 WHAT WAS THE LAW OF PERVERTING THE COURSE OF JUSTICE? ....................................... 6 Doubts over the origins of the offence ................................................................................................ 6 The questions raised by Harris ..................................................................................................... 6 The origins of the offence ...................................................................................................................... 9 The institutional writers ................................................................................................................ 9 The emergence of the offence ..................................................................................................... 12 The development of the offence until 1961 ............................................................................... 19 The modern development of the offence .................................................................................. 25 Wasting police time ...................................................................................................................... 29 Relationship between perverting the course of justice and wasting police time ................ 33 The development of the offence ......................................................................................................... 34 Answers to the questions raised by Harris ............................................................................... 34 An unacknowledged exercise of the declaratory power ........................................................ 37 Conclusions about the development of the offence ................................................................ 44 WHAT IS THE LAW OF PERVERTING THE COURSE OF JUSTICE?........................................... 47 The modern consensus on the offence .............................................................................................. 47 Introduction................................................................................................................................... 47 The draft criminal code and the Stair Memorial Encyclopaedia ........................................... 48 Gordon ........................................................................................................................................... 49 Textbooks ....................................................................................................................................... 50 Legislation ..................................................................................................................................... 51 The modern understanding ........................................................................................................ 53 What is a ‘course of justice’? ............................................................................................................... 53 Offences against the administration of justice ......................................................................... 53 The course of justice ..................................................................................................................... 59 England and Wales ....................................................................................................................... 62 Australia ......................................................................................................................................... 64 United States .................................................................................................................................. 66 Whether a course of justice is necessary .................................................................................... 67 What sort of ‘attempt’ is required? .................................................................................................... 69 Whether part of the law of attempt ............................................................................................ 69 An offence of pure intention? ...................................................................................................... 74 A tendency to pervert the course of justice ............................................................................... 77 Tendency: practical and theoretical risk .................................................................................... 80 Tendency: whether a necessary element ................................................................................... 83 Tendency: the level of risk, practical impossibility and legal impossibility ......................... 87 United States: endeavours ........................................................................................................... 90 Conclusions about the conduct elements of the offence ......................................................... 91 What does it mean to ‘pervert’?.......................................................................................................... 95 Perverting, obstructing, impeding, preventing, influencing, defeating … .......................... 95 How specific can the meaning of ‘to pervert’ be? .................................................................... 99 WHAT SHOULD BE THE LAW OF PERVERTING THE COURSE OF JUSTICE? ..................... 101 Conclusions ......................................................................................................................................... 101 The state of the offence in Scots law ......................................................................................... 101 A duty to cooperate with justice institutions .......................................................................... 102 The state’s positive obligations under article 6 ...................................................................... 105 What should Scots law do? ........................................................................................................ 108 BIBLIOGRAPHY ....................................................................................................................................... 110 Cases ......................................................................................................................................................... 110 Legislation ............................................................................................................................................... 112
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