In court
| DOI | 10.1177/0264550508097476 |
| Published date | 01 September 2008 |
| Date | 01 September 2008 |
| Subject Matter | Articles |
In court
The Journal of Community and Criminal Justice
Copyright © 2008 NAPO Vol 55(3): 313–325
DOI: 10.1177/0264550508089123
www.napo.org.uk
http://prb.sagepub.com
Nigel Stone, Senior Lecturer in Criminology in the School of Social Work and
Psychosocial Sciences, University of East Anglia, reviews recent appeal judgements
and other judicial developments that inform sentencing and early release.
General sentencing issues
The following two cases illustrate the ambit of judicial discretion on the boundary
between community and custodial sentencing.
Firearm threat: Community sentence unduly lenient
In pursuit of an ongoing dispute the offender, aged in his late 30s, entered a
public house and confronted the man with whom he felt aggrieved, pushing a
hand gun against his head and shouting ‘What does it feel like to die?’. This
caused commotion and panic among others present, including a woman accom-
panied by her two young children. The perpetrator was heard to say: ‘You’re all
going to die’. When challenged by a customer who disputed that the gun was real,
the offender pointed it at his forehead, asking if he wanted to die too, the unfazed
customer responding: ‘Pull the trigger; I dare you’. The offender left, issuing a final
threat to his main target that ‘I’m going to kill you’. When the police arrived shortly
afterwards they found the offender still in the vicinity, no longer armed but clearly
drunk. The gun was recovered from the home of the associate he had borrowed it
from and was found to be a carbon dioxide powered repeating air pistol, designed
to be a faithful replica of a military pistol. Though intended for target practice and
vermin control it was capable of inflicting a severe wound and possible fatal injury
to a human target. However, the offender had borrowed only the main body of
the gun, not the magazine or ammunition, and so the gun had not been capable
of being fired when he brandished it at the pub.
The defendant’s criminal record had almost entirely been incurred up to age
25, featuring relatively minor matters though including one instance of possession
of an offensive weapon in public. The pre-sentence report (PSR) assessed him to
pose a medium to low risk of re-offending and some risk of driving with excess
alcohol. The report noted the offender’s claim that he and his partner had been
313
314 Probation Journal 55(3)
attacked three days prior to the pub episode by the man he had confronted there,
in the context of longer-running conflict. Prior to going to the pub he had attended
the funeral of a close friend and had subsequently attended the wake, drinking
heavily for around 10 hours and allowing his anger to build. Following his guilty
plea to possession of an imitation firearm with intent to cause fear of violence,* he
was made subject to a community order comprising 100 hours unpaid work. The
sentencing judge had observed that the offender was normally a hard-working,
decent member of society whom he did not wish to send to prison.
On reference by the Attorney General on grounds of ‘undue lenience’, the
Court of Appeal acknowledged that there had been an element of provocation so
that this was not a case of entirely gratuitous violence. Further, the offender held
secure employment and had a good work record. He had only limited prior
convictions, none being comparable to the present case. He had been assessed
as a moderate or low risk of any further violence and there were real indications
that he had learned from the experience and shown remorse. However, having
regard to previous decisions of the Appeal Court regarding imitation firearms and
the fear that these can cause, the Court in this instance reaffirmed the view previ-
ously adopted in appeal cases that in cases of this kind any sentence of less than
two years would be inappropriate. Given that the offender was facing the ‘double
jeopardy’ caused on Reference by the Attorney General and taking into account
that the offender had already completed a substantial part of his community order,
a term of 12 months was substituted. ATTORNEY GENERAL’s REFERENCE No. 35
of 2007 (R v HIRD) [2008] 1 Cr. App. R.(S.) 126.
* This offence is specified by section 16A of the Firearms Act 1968 and is not one of
the firearms offences that attract a statutory minimum custodial term (five years in
respect of an adult) under the amendment to the 1968 Act introduced by CJA 2003.
Police officer’s misuse of data
A serving constable with Derbyshire Constabulary, aged 28, was friendly with a man
with a range of criminal convictions that included some violence, their friendship
having begun before he joined the police eight years previously. Having attended
a stag weekend in 2003 with his friend and other convicted men, the officer had
faced disciplinary proceedings for associating with criminals, being warned as to
his future conduct and advised to cut all ties with his friend. He had opted to
continue seeing him regularly. In 2006 his friend sought his help in two matters,
wanting details of others from police sources: first, information about two young
men who were suspected of stealing £350 from the public house where the friend’s
partner was the landlady, wanting to recover the money; second, information about
a man who the friend said had attacked him. Covert police surveillance observed
him to be meeting the friend at the pub and subsequently accessing/downloading
information about the three individuals from the police computer system. In a
bid to avoid incriminating himself he arranged for his partner to copy and hand
over that information to his friend, this also being observed by the surveillance
In court 315
investigators. The officer and his friend were arrested before any harm resulted
to any of the three men (though it was open to speculation what might have other-
wise ensued).
The officer pleaded guilty to misfeasance in a public office. The pre-sentence
report recorded his claimed belief that though he was aware of his friend’s convic-
tions for violence and he had been initially concerned for the safety of the indi-
viduals whose details he had passed on, he nevertheless believed that his friend
would restrict himself to talking to them. As regards the alleged thieves, he told the
probation officer that he knew them to be heroin addicts who were responsible
for considerable acquisitive crime in the area. As regards the alleged attacker, he
said that he doubted whether the police would take any complaint seriously, given
his friend’s criminal record. In both instances he claimed that he felt that justice
needed to be done and justified his actions on the basis that this would contrib-
ute to that end. It was accepted that he had not acted for or in the expectation of
financial gain. He had a ‘lingering sense of resentment that police service was not
what he expected it to be’.
Though fully alert to the likelihood that the officer’s conduct would erode public
confidence in the police, the sentencing judge noted the particular difficulties posed
to a former police officer in prison. He considered that the defendant had already
inflicted enough punishment on his family and himself, having thrown away a prom-
ising career, brought shame on himself, jeopardized his employment prospects and
sustained major loss of his pension rights. The judge felt able to avoid imposing an
immediate custodial sentence, opting instead to make a suspended sentence order
of 28 weeks for two years, with a requirement of 300 hours unpaid work. Arguing
that this sentence was unduly lenient for such gross breach of trust, perpetrated
despite earlier reprimand and warning against comprising himself by associating
with criminals, the Attorney General invited the Court of Appeal to review the case.
After reviewing earlier decisions in cases of this nature the Appeal Court con-
cluded that this offence had required immediate imprisonment, notwithstanding
the mitigating factors. Lord Phillips CJ observed that ‘it must have been obvious
to the offender that there was a serious risk that (the friend) would subject those
men to physical violence’. Further, personal mitigation such as previous good
character and adverse financial consequences and loss of reputation is likely to
apply in any case of this nature. The Lord Chief Justice added:
This is one of those offences where it is realistic to include a deterrent element in a
sentence. Accessing police computer information...
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