In court
| Date | 01 December 2014 |
| DOI | 10.1177/0264550514555308 |
| Published date | 01 December 2014 |
| Subject Matter | In court |
In court
The Journal of Community and Criminal Justice
Probation Journal
In court
2014, Vol. 61(4) 446–459
ª The Author(s) 2014
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DOI: 10.1177/0264550514555308
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Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform sen-
tencing and early release.
General sentencing issues
Community order complications
When P. appeared at court in respect of sexual offending, handcuffed to a prison
officer, his mother sought to intervene, shouting that it was not his fault. Becoming
agitated, P. stood up and lunged at the escorting officer, head-butting him to the
side of his forehead, causing slight swelling. When P. was taken to the ground and
restrained by other escort staff, that officer sustained a fractured wrist. After what the
Appeal Court later described as ‘inexcusable delay’, in part caused by P.’s transfer
to a secure psychiatric unit because of mental health problems, he was eventually
charged with ABH assault upon the officer, The prosecution accepted a basis of
plea that his actions had been reckless, not premeditated or intentional. Having
pleaded guilty 13 months after the incident, P. incurred a community order with a
24-month supervision requirement and a requirement to attend the General Offend-
ing Behaviour Programme, though the latter was to be contingent on the probation
service taking the view that this was appropriate. He had meanwhile been sen-
tenced to imprisonment for his sexual offences, together with imposition of a SOPO.
But for the outstanding ABH prosecution he would have been released on licence,
subject to additional conditions, three months prior to the making of the community
order, with the licence running for a further year beyond the date of the community
sentence. In making that order the judge had observed that assaulting a prison offi-
cer in the exercise of his duties was extremely serious, but noted that the incident
was ‘a matter of some antiquity’ and expressed concern about the delays. Having
regard to the guilty plea and taking account of the delays the judge had not consid-
ered in the circumstances that a custodial sentence, immediate or suspended, was
appropriate but considered that there was a need for some public protection and
that P. should have the opportunity of ongoing guidance.
On P.’s appeal against sentence it was argued on his behalf firstly that the
sentence was unlawful with respect to the programme requirement because
the judge had left it to the probation service to decide whether it was appropriate for
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447
the offender to undertake that programme or not. LASPO Act 2012 had amended
CJA 2003 s202(1) so as to give the responsible officer a wide discretion as to the
appropriate programme to follow and the place where it must be undertaken.
Further, it is no longer necessary to go back to court with an application for a
programme to be changed, where the original identified programme proves to be
inappropriate. However, this variation has not relieved the sentencing court of the
duty to specify that an accredited programme needs to be undertaken. That decision
cannot be delegated. The Court of Appeal thus determined that the failure by the
Crown Court to specify (a) that a programme needed to be complied with, and (b)
the number of days for which the offender was bound by this obligation was a defect
in the order so to that extent the order had been unlawful. In fact no programme had
been identified by the probation service.
Secondly, it was argued that a community order had simply not been justified,
placing P. at risk of being re-sentenced for the ABH offence if he infringed the terms
of the order. In so far as the judge had sought to justify this by reference to the need
to protect the public, P.’s counsel submitted that the danger to the public did not
result from that assault but from his sexual offending and the proper way to deal with
that risk was by the imposition of an appropriate sentence in relation to those
offences. That was what had been done. Although the judge had intended to
impose a less onerous penalty than he would otherwise have done, as a result of the
delays, in fact it was a more onerous outcome. P. had spent 91 days in custody
pending sentence and was at risk for an extended period of being returned to
prison. His counsel submitted in the circumstances the appropriate order would
be an absolute discharge.
The Court of Appeal was not persuaded of that outcome; an absolute discharge
would not properly reflect the gravity of the attack on this prison officer. In the
Court’s view the appropriate sentence for this offending, given in particular the
basis of plea and the fact that he was suffering from certain mental health problems,
would have been one of six months’ imprisonment. The Court had in mind the
statutory provision specifying that, ‘taking the case as a whole’ an appellant should
not be more severely dealt with on appeal than he was dealt with by the court
below. However, it concluded pragmatically that to impose a sentence of impri-
sonment here was actually less onerous in this instance than the community sentence
would be and was the right way to resolve the appeal.
R v PRICE, [2014] 1 Cr App R(S) 36 at 216.
Prisoner and prison officer illicit relationship
Whilst a serving prison officer K. had met T., a prisoner serving sentence for sex
offences. On her promotion to senior prison officer K. was transferred to a different
prison. Following T.’s release, they met again, apparently by chance, became
friendly and pursued a sexual relationship. Though the code of conduct for prison
officers discourages relationships between serving prison officers and ex-prisoners
and requires such a relationship to be disclosed, K. failed to do so. Following T.’s
arrest for serious drug offences, K.’s home and her mother’s home were searched,
448
Probation Journal 61(4)
a large sum of money being found at the latter, forensic evidence indicating that K.
had handled that money. Following his remand into custody T. obtained an illicit
mobile phone, having very frequent telephone contact with K. that continued while
she was on bail and after her first appearance at the Crown Court. She obtained
top-ups for T.’s phone so that contact could continue. In due course K. pleaded guilty
to three counts of misconduct in public office and a further count of concealing crim-
inal property, the latter on the basis that she had been unaware that the money had
anything to do with drug dealing. Her case, accepted by the Crown, was that she
had understood that T. was dealing unlawfully in motor vehicles. Of previous good
character K. was a single mother of two young daughters. It was accepted that she
had at no stage pursued a relationship with T. when he was incarcerated in a prison
where she was a prison officer. In passing sentence totalling three years’ imprison-
ment the judge referred to her grave breach of trust over an extended period.
Though she had been unaware of his drug dealing (he incurred an eight year term),
her willingness to top up his phone after she became aware of the charges he was
facing had enabled him to circumvent prison security controls. The judge accepted
that there was an element of vulnerability because her relationship with T. had
begun shortly after a previous long term relationship had come to an end.
On K.’s appeal against sentence it was argued on her behalf that the sentence
had been wrong in principle because it exceeded by a considerable margin the
maximum sentence of two years which could be imposed under the Prison Act 1952
for the analogous offence of smuggling a phone into prison. Her counsel claimed
that the sentence was manifestly excessive when compared with other sentences
passed on prison officers who, in broadly analogous situations, have formed rela-
tionships with prisoners, failing to take sufficient account of the devastating effect of
an immediate prison sentence on her two daughters. They had separate fathers and
the father of at least one of them was insisting that he would look after only his own
daughter. The effect of the prison sentence was therefore to separate the two young
girls from each other as well as from their mother. It was asserted that K. should have
received a suspended sentence of two years or less.
The Court of Appeal immediately concluded that K.’s pattern of offending
required an immediate prison sentence. Suspension was thus wholly unrealistic.
However, the Court considered it significant that at no stage did she pursue a
relationship with T. when she was a prison officer at the prison where he was
detained. ‘When there is such an overlap, the danger of the prison officer being
subjected to pressure or blackmail either from the person with whom she has a
relationship or some other prisoner is obvious. That risk at least was not present.’
A term of 27 months was substituted.
R v KING, [2014] 1 Cr App R(S) 73 at 462.
Carer’s breach of trust
While employed as one of the carers responsible for looking after a 96 year-old
very frail man in his own home, F., aged 26 and of prior good character, stole a
blank cheque from the victim’s chequebook, later describing this as a ‘moment of
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449
madness’. Two weeks later he made out the cheque to his partner in the sum of
£8,000, forging the...
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