England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 16th June 2009

1. MR JUSTICE GRIFFITH WILLIAMS: This is an appeal against sentence by leave of the single judge.
2. The appellant, who was born on 6th November 1981, was employed in October 2005 as a prison officer at HMP Walton. As a prison officer she knew it was inappropriate to form a personal or sexual relationship with a serving prisoner because such a relationship might compromise prison security. She was also aware that serving prisoners were not permitted to hold or use mobile telephones within the prison and such items were regarded by the prison service as contraband. She also knew the possession of a mobile telephone by a prisoner inevitability gave rise to disciplinary proceedings against that prisoner.
3. At the relevant time a Roy Hickman was serving a sentence of imprisonment at the prison. In or about July 2006 the appellant formed a relationship with him. Subject to the matters to which we will refer, the extent of that relationship is not clear. It came to the notice of the prison service and when the appellant reported for duty on the evening shift of 16th November 2006, she was asked to subject herself to a search. She became agitated and produced a mobile telephone from her blouse pocket and asked if she could return it to her car, but permission for that was refused. The telephone was seized and she was allowed to continue with her duties.
4. That telephone was subsequently examined forensically. Among images stored on it were images sent by Hickman of his face and of a penis. It was established that between 3rd and 17th October 2006, her phone had made contact with Hickman's telephone 264 times for more than 25 hours in total. One call lasted in excess of an hour. She had in addition sent him 435 text messages. Hickman had contacted her 249 times for merely 29 hours in total. The longest of his calls was just over an hour and he had sent her 229 text messages.
5. The appellant was charged with three counts of misconduct in public office. Count 1 related to the taking of the mobile phone into the prison. Count 2, to her telephone calls and text messages to Hickman and count 3 to her failure to take action in relation to Hickman's use of the mobile telephone.
6. At the plea and case management hearing on 27th August 2008, she pleaded not guilty but some days before the case was listed for trial, she indicated she would plead guilty and so on 24th February 2009 she pleaded guilty to counts 2 and 3. Those pleas were accepted by the prosecution and count 1 was ordered to lie on the file on the usual terms.
7. On 20th March 2009 in the Crown Court at Liverpool she was sentenced by His Honour Judge George to concurrent sentences of 10 months' imprisonment. In his sentencing remarks the learned judge said that her relationship with Hickman was "inappropriate and potentially a matter that might compromise prison security" and that the possession of the mobile telephone by Hickman jeopardised the appellant's security and put her own position which would make her liable to blackmail and would put other prison officers in danger. The learned judge observed that was why the offending was so serious. He said that following conviction the appropriate sentence would have been one of 15 months' imprisonment, but he took into account the delays between November 2006 and her arrest in June 2007, and then between the date of her arrest and the proceedings in the Crown Court.
8. He also mentioned that he had regard to the problems that she would face in prison as a former prison officer. He had regard to her contrition and her remorse. He then said, referring to the matters of mitigation:

"It is easy to look at those matters and let them show undue importance in this case but I go back to the situation of mobile phones in prison. Unfortunately you have caught yourself in a very difficult area where the integrity of the prison walls as regards mobile phones and knowledge that mobile phones were there was jeopardised. That is why it is so serious that only custody can be justified."

He allowed a discount of some 3 months for matters of personal mitigation and a further discount of 2 months to reflect the late change of plea and so arrived at the total sentence of 10 months' imprisonment.

9. On her behalf Mr Barton, who appeared for her both in the Crown Court and in this court submitted that, whereas a custodial sentence was undoubtedly right in principle, the term of that sentence should have been no more than 12 months and so should have been suspended. If the sentence could not be suspended his submission is that the sentence of 10 months' imprisonment discounted, as we have described, was itself manifestly excessive and should be further reduced. Now that the appellant is subject to home curfew detention, and so has been released from prison, he does not in this court pursue his submission that there should have been a suspended sentence rather that he invites this court to substitute a sentence of imprisonment of such a length as would make her no longer subject to any licence conditions.
10. An unusual feature of this case was that it was the appellant's father, himself a prison officer of 27 years service, who when he discovered from his younger daughter that the appellant was communicating with a prisoner, informed the prison service by means of a prison hot line of his concerns. That information was apparently communicated in July 2006 or thereabouts. He did so in the hope that the prison service would take the necessary steps to prevent any further communication. We observe that whilst his daughter did not know that he had taken those steps, she did know of his concerns and yet continued her association with the prisoner.
11. The presence of a mobile telephone in prison provides prisoners with opportunities to communicate which they would not otherwise have and in particular to avoid monitored telephone calls. The possession of telephones in those circumstances clearly undermines the security of the prison, as the sentencing judge observed, and has the potential to undermine as well the rehabilitation of the offenders and the course of justice.
12. We bear in mind that there is no evidence that Hickman's use of a mobile telephone in fact prejudiced prison security and that the appellant displayed an error of judgment prompted by her affections for him. But that said, she compromised her position of authority in the prison, not only towards Hickman but also towards other prisoners. A feature of the evidence that Hickman was heard on the morning following the detection of the appellant's mobile telephone to shout to another prisoner "she's got caught coming in with the phone." So clearly it was, if not common knowledge about the prison, certainly common knowledge to Hickman's associates that she had been using a mobile phone to communicate with him.
13. Although the provisions of section 4A(3) of the Prison Act 1952 (as amended) making it an offence to bring or convey a mobile telephone into a prison were not in force until 1st April 2008, we observe that for such offending the maximum sentence is one of 2 years' imprisonment. On 3rd June this constitution of the court dismissed an appeal against sentence in the case of R v Boyton and upheld a starting point of 9 months' imprisonment in respect of an offence committed by Boyton who was found in possession of a mobile telephone when he was searched on arrival at a prison following his remand in custody. The culpability of a prison officer who turns a blind eye to possession and use of a mobile telephone by a prisoner is clearly significantly greater and any misconduct by a prison officer, which has the potential to jeopardise prison security, must be regarded as a serious matter requiring significant punishment. In the judgment of this court, there had to be an immediate custodial sentence and a custodial sentence of significant length.
14. Mr Barton, in his submissions to this court, placed particular reliance upon the actions of the appellant's father. He submitted that those actions were to be commended, a submission with which we agree. He further submitted that they should have been reflected by the sentencing court in mitigation of sentence, because such behaviour is to be encouraged so not to deter others from taking similar steps should they be aware of misconduct on the part of other prison officers. He submitted that, by reference to the sentencing remarks, that it would not appear that that was a factor to which the sentencing judge had regard. In our judgment, the sentencing remarks read as a whole and in particular those at page 2A-C clearly indicate that the learned judge had very much in mind the actions taken by the father. In the view of this Court those were matters which he took into account in reducing the sentence from the starting point of 15 months to 12 months before a deduction for the mitigation of a late plea of guilty.
15. We observe that while the father had behaved very responsibly, the fact is that the appellant, with her knowledge of his concerns continued her association with the prisoner and continued to use her mobile phone and to encourage the use by him of his mobile phone for some months until her possession of the mobile phone was detected. Even though this was not an offence committed for financial gain, in the judgment of this court, the starting point adopted by the sentencing judge cannot be criticised. We are of the view that he took into account all the mitigation available to the appellant and that the sentence of 10 months' imprisonment cannot be said to have been manifestly excessive. The appeal against sentence is accordingly dismissed.