No: 2009/2195/A7 
Neutral Citation Number: [2009] EWCA Crim 2100
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Friday, 9 October 2009

B e f o r e:

LORD JUSTICE KEENE 

MR JUSTICE BLAIR 
 
HIS HONOUR JUDGE ROGERS QC
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

JANETTE MERCER
 
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Mr N Power appeared on behalf of the Applicant
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J U D G M E N T
1.	MR JUSTICE BLAIR:  On 16th February 2009 in the Crown Court at Liverpool, before the Recorder of Liverpool, His Honour Judge Globe QC, the applicant pleaded guilty to doing an act tending and intended to pervert the course of public justice.  On 1st April 2009 she was sentenced to three years' imprisonment.  She renews her application for leave to appeal against sentence after refusal by the single judge.  She has been represented at this hearing by Mr Nigel Power who appears on a pro bono basis.
2.	The application arises out of the murder of Rhys Jones, who was an 11‑year‑old schoolboy at the time.  On 22nd August 2007 near the Fir Tree Public House in Croxteth, Liverpool, he was caught in the cross fire as Sean Mercer, who was 16 at the time, tried to shoot a rival gang member.  The applicant is Sean Mercer's mother.  
3.	After the killing the police believed that the killer had cycled to the Fir Tree Public House and cycled away afterwards.  CCTV evidence showed a distinctive silver Specialised Hard Rock bike.  In fact what had happened was this.  After the murder Sean Mercer was joined by other young men.  Two of them collected this bike and took it to some playing fields. However, his cousin recognised the bike and, being unaware of its significance, returned it to Sean Mercer's home.  The bike was then taken by accomplices (unknown) to the Kirkby Industrial Estate where it was abandoned.  It was found the next day by a witness who was out cycling.  He recognised that the frame was quite expensive and he took it home to renovate it, totally unaware of its significance in the murder enquiry.
4.	Sean Mercer was a suspect in that enquiry.  On 25th August 2007 his home was searched.  The applicant was present and she was aware that the police were interested in locating a silver bike.  Two other bikes were found at the property, neither of which fitted the one seen on the CCTV.  
5.	Sean Mercer was interviewed.  The applicant was present as his appropriate adult.  He produced a prepared statement which said:
"I own a mountain bike.  It is black, cream and orange.  The police have taken possession of it.  I don't ride any others and have no other access to mountain bikes." 
He was released from custody.
6.	On 7th September 2007 the applicant provided the police with a statement in which she said as follows: 
"I have been asked about Sean's bicycle.  He only had one bicycle.  I have no idea how long he had this bicycle.  I can only say it was a mountain bike and had a beige colour on it.  That is all I can remember about the bicycle." 
It was the Crown's case that every aspect of that statement was deliberately and misleadingly false and was designed to be tailored to her son's account in interview.
7.	In fact the truth was that from February 2007 the applicant had pursued an insurance claim after her son had had a previous bike stolen.  This ultimately led in April 2007 to the delivery to their home of a replacement, namely a silver Specialised Hard Rock bike.  
8.	It was not until October 2007 that police received information that Sean Mercer had in fact been in possession of the relevant bicycle at the time of the killing.  They then became aware of the insurance claim made by the applicant.  
9.	In February 2008 police were given the bicycle after the witness who found it read press publicity about it.  The applicant was arrested in April 2008 and made no comment in interview.  
10.	In due course she entered an agreed basis of plea which stated as follows:  
1.  She had been involved in negotiations in relation to the replacement of her son's stolen bike which resulted in the silver Specialised mountain bike being delivered to her home.  
2.  She was present during her son's interview on 25th August 2007 when he signed a statement saying that the only bike he owned was black/cream.  
3.  She admitted that in her statement of 7th September she said:  "He only had one bicycle, I have no idea how long he had this bicycle.  I can only say it was a mountain bike and had a beige colour on it."  
4.  In those circumstances she admitted that in failing to mention the silver bike and mentioning another bike she gave information which she knew could mislead the enquiry and in doing so intended to pervert the course of public justice.
11.	The applicant was born on 13th June 1959 and so is now aged 50 and until these events was of good character.  
12.	In his sentencing remarks, the Recorder of Liverpool said that Rhys Jones had been killed as Sean Mercer was trying to kill members of an opposing gang, in pursuance of the gang conflict which had brought shame and discredit to so many young people in the Croxteth and Norris Green areas of the City.  It was, as he said, a terrible deed in which the life of an innocent boy had been ended in the midst of a futile gang war.  The complexity of the police investigation, he said, was such that no one was charged for many months.  All the while grieving relatives had waited anxiously for justice.  The offending of the applicant and others who were charged with her for similar offences had to be seen against that background.  They had mislead the police, frustrated the investigation, wasted police time and undermined the whole criminal justice process.  In the meantime the family of Rhys Jones had to wait for justice.  The applicant, he said, had made a false statement regarding her knowledge of her son's bike.  She knew the importance of the bike in the police investigations.  She had been aware that the prepared statement provided by her son on 25th August 2007 was a pack of lies.  She knew what she was doing at the time when her son was a key suspect in the murder and backed him up with more lies.  She could not be given maximum credit for her eventual plea of guilty, but was still given credit of 25 per cent.  No complaint is made as to the sentence in that respect.
13.	There is no dispute as to the test to be applied in cases like this one.  As this court recently said in Attorney General's Reference No 35 of 2009 [2009] EWCA Crim. 1375: 
"... it is a longstanding principle that perverting the course of justice is so serious an offence that it is almost always necessary to impose an immediate custodial sentence unless there are exceptional circumstances..." 
In assessing the gravity of the offence in a case like this the most relevant factors are identified in the case of R v Tunney [2007] 1 Cr.App.R (S) 565.  They are the seriousness of the substantive offence, the degree of persistence in the misleading conduct and the effect of the attempt to pervert the course of justice on that course of justice.
14.	With that in mind we come to consider the applicant's submissions in this case.  Mr Power has argued that the sentence imposed was manifestly excessive given certain factors as follows.  He says that the applicant genuinely believed that her son was innocent.  He says that she was in a difficult position when confronted by the police given that Sean was her son.  He points out that she had no part in the murder, that she was a mature woman of hitherto impeccable character and that she was a family woman, and any kind of custody would be hard on her parents who were very ill at the time, and hard in particular her young son.  There was of course also the plea of guilty.  
15.	We do accept that in themselves these matters may be considered to amount to substantial mitigation.  But in refusing leave, the single judge pointed out that if one takes the three factors identified in Tunney, each counts heavily against the applicant in this case.  First, and this is accepted by Mr Power, the substantive offence ‑ in other words the murder of Rhys Jones ‑ was a heinous one.  Second, the deception was persisted in because the applicant did not subsequently tell the police that she had given them false information and allowed them for several months to act on that information.  It is argued that she made a simple declaration that was never expanded on.  It is further argued that it did not involve the concealing or destruction of evidence.  That may be, but the silver bike was a crucial element in the police investigation of this murder and its importance must have been fully evident to the applicant at the time.  A simple declaration was all that was required to deceive the police.  Third, and perhaps more important, is the effect of the deception.  In that regard it is argued by Mr Power that the declaration never persuaded the police from the singular view, as he puts it, that Sean Mercer was the gun man.  It is argued that by early October it had become clear that the bike had indeed been in the possession of Sean Mercer.  So, it is said, the amount of delay that can actually be laid at the door of the applicant is comparatively short.
16.	We reject that argument.  The crucial matter is not simply the length of time that the deception operates for, although the period in this case was far from being trivial.  Given the nature of the crime it was quite a substantial period.  The point as regards effect is that the deception undermined the due administration of justice, and indeed was intended to do so.  We accept the way the matter was put by the Recorder who said that the applicant knew what she was doing at the time, her son was a key suspect in the murder, she knew the importance of the silver bike and that he had told lies about it, yet she backed him up with more lies.  It was not until many weeks later when the police obtained other evidence that the puzzle about what had happened to the bike was able to be solved.
17.	In written argument on her behalf, the applicant has placed reliance on R v Gonsalves [2008] 1 Cr.App.R (S) 14 in which a sentence of two‑and‑a‑half years was reduced to 18 months on a woman who pleaded guilty having given a false account of an incident to the police in order to exculpate her partner who had committed murder.  But, as the single judge said, that was a case decided on its own facts.  It was not a guideline case.  The facts in the present case, he said, were considerably more serious.  We agree.  Despite the mitigating factors that have been raised in argument, we are firmly of the view that the sentence passed by the Recorder was not manifestly excessive.  This renewed application for leave to appeal against sentence must be dismissed.