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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Richardson & Anor, Re Attorney General's Reference (Numbers 5 & 6 of 2009) [2009] NICA 41 (30 June 2009)
URL: http://www.bailii.org/nie/cases/NICA/2009/41.html
Cite as: [2009] NICA 41
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| Neutral citation No. [2009] NICA 41 | Ref: | MOR7564 |
| Judgment: approved by the Court for handing down | Delivered: | 30/6/09 |
| (subject to editorial corrections)* |
MORGAN J
[1] This is a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 in respect of sentences imposed on Darren Leslie Richardson and Aaron Hill at Belfast Crown Court on 20 February 2009. On 23 May 2008 both offenders were arraigned. Richardson pleaded not guilty to four counts of collecting information of a kind likely to be useful to a person committing or preparing an act of terrorism, one count of possession of information of a kind likely to be useful to a person committing or preparing an act of terrorism, one count of possession of ammunition under suspicious circumstances and two counts of aiding and abetting, counselling or procuring wilful misconduct of a public officer. Hill pleaded guilty on that date to three counts of collecting information of a kind likely to be useful to a person committing or preparing an act of terrorism and one count of wilful misconduct in public office. Richardson's case came up for trial on 14 January 2009 at which time he was re-arraigned and pleaded guilty to the counts set out above. He was sentenced to 12 months imprisonment concurrent on each count. Hill was sentenced to 12 months imprisonment suspended for two years. The Attorney General submits in each case that the sentences are unduly lenient.
Background
[2] Richardson and Hill were both members of a Loyalist band. Richardson's home and his wife's car had been attacked some years before these offences. As a result of these incidents he had been warned by police in respect of his personal security. He claimed at interview that he subsequently started to keep a record of any vehicle registration number of which he was suspicious.
[3] On 11 April 2007 police were called to Richardson's place of work where they discovered in his desk a plastic bag with forty 9 mm cartridges in good condition of a type normally fired in self loading pistols and submachine guns. A further search of his briefcase disclosed documents containing vehicle registration numbers together with the names and addresses of the registered owners which appeared to have been gathered as a result of a computer search. In addition to this there was another document containing 33 vehicle registration numbers gathered by Richardson. The vehicle registration numbers related to those who had attended a community social event. Richardson claimed that he had received this information from a named third party who was then arrested and held for approximately 24 hours. In fact this person was entirely innocent and the material had been provided to Richardson by Hill. Hill was a crime inputter who worked for the PSNI. He had accessed the police computer system to provide the names and addresses of the registered owners of the vehicle registration numbers supplied and requested by Richardson. There were two large batches of inquiries on 18 and 29 December 2006 and at interview Hill admitted that he had engaged in this activity intermittently for 2 1/2 years prior to detection and believed that he had searched approximately 100 names.
[4] At interview Richardson claimed that he had bought the ammunition at a market and brought it into work because of a shared interest with another employee in military memorabilia. That explanation has not been corroborated and was not accepted by the trial judge. The making of inquiries in large batches is inconsistent with the case made by Richardson at interview that he was noting vehicle registration numbers on an occasional basis. His plea recognises that this was an untruthful account. The clear inference is that he targeted the taking of vehicle numbers at the community social event because of the religious background of those attending and that he asked Hill to carry out the search for names and addresses for the same reason. As a result of this detection 67 people had to be alerted to a possible risk to their security and advised to take appropriate precautions. Many of them installed extra security features at their houses as a result of this and it is clear that the gathering of this information has been responsible for substantial distress in the community.
The sentencing remarks
[5] In his sentencing remarks the learned trial judge identified the aggravating factors in relation to Richardson as follows:
(i) the prolonged period over which he collected the registration numbers in question;
(ii) the large number of checks involved and of individuals affected;
(iii) the premeditation involved; and
(iv) the way in which he met the charge, in particular his effort to throw blame on an innocent party.
In relation to Hill the aggravating factors included:
(i) the prolonged period over which the checks were carried out and provided;
(ii) the large number of checks made and of individuals affected;
(iii) the premeditation involved; and
(iv) the gross breach of trust by abuse of his position akin to that of a police officer because of his access to this information.
In each case it is also necessary to take into account the significant effect the offences had on the feeling of safety and security that a large number of people felt even within their own homes.
[6] In mitigation Richardson did eventually enter a guilty plea although this came very late in the day. The trial judge accepted that the purpose behind the collection of the information was not to enable it to be used by paramilitaries. Although there was no evidence to suggest that the information had been disseminated in any way it remained a matter of speculation as to what the intent of Richardson was in gathering the information. The pre-sentence report described him as a family man and expressed the view that there was no indication that he might commit any other type of crime. In respect of Hill he had no previous convictions, admitted his involvement at interview and had pleaded guilty at the first opportunity. The pre-sentence report noted that he had freely engaged in this risk-taking behaviour although the trial judge accepted that the provision of the information to Richardson was made without any belief that it would be used to endanger anyone. There was no explanation other than naivety advanced for Hill's involvement. On his behalf it might also be said that there was no financial gain in this series of transactions and he lost his employment as a result of his detection.
[7] In considering the appropriate sentence for Richardson the learned trial judge considered the imposition of a sentence of 18 months imprisonment but took the view that since he had already served six months in custody on remand little purpose was to be served by a return to custody for a short period of months and he therefore imposed a sentence of 12 months imprisonment concurrent on each charge. In relation to Hill the learned trial Judge considered the appropriate sentence to be one of 12 months imprisonment. He stated that it was not appropriate to suspend such a sentence in the majority of cases but he noted that this had occasionally occurred. He took what he described as a big decision in Hill's case and suspended the sentence.
Discussion
[8] The Attorney relied on three cases to sustain the submission that the sentence in each case was unduly lenient. The first is R v Keyte [1998] 2 Cr App R (S) 165. The offender had provided information about the registered keepers of vehicles on 192 occasions over a 12 month period. He was convicted after a trial. There was no suggestion that members of the public were put at risk as a result of the disclosure. A sentence of two years imprisonment was upheld and the court made the following observations about the offence:
"… the integrity of the police national computer is of absolutely vital importance and it goes without saying that the public must have faith and confidence in it and a belief that private information relating to them will not be released by police officers for ulterior motives….
The applicant was a serving police officer. He was in a position of trust and expected to serve the public. Police officers are given considerable powers and privileges which are necessary for the proper performance of their duties. If they dishonestly abuse their position and do so for profit, then not only must a prison sentence follow but it must of necessity in our view be a severe one."
R v Kassim [2006] 1 Cr App R (S) 4 was a case in which a serving police officer provided information to a foreign diplomat for reward. In upholding a sentence of 2 1/2 years imprisonment the court said:
"It seems to us that, especially nowadays, the preservation of the integrity of information regarding members of the public held on databases like those maintained by the police is of fundamental importance to the well-being of society. Any abuse of that integrity by officials including the police is a gross breach of trust which, unless the wrongdoing is really minimal … will be necessarily met by a severe punishment, even in the face of substantial personal mitigation."
[9] Both of these cases were considered in Attorney General's Reference No 1 of 2007 (James Andrew Hardy) [2007] EWCA Crim 760. The offender was a police officer who had provided information to a known criminal with a history of violence from the police national computer. The provision of the information carried some risk to the person concerned although much of it was already in the public domain. The Court of Appeal held that a sentence of 28 weeks imprisonment suspended for two years was unduly lenient and considered that the minimum sentence on a plea was 18 months imprisonment. The sentence was reduced to nine months imprisonment because of double jeopardy. The reasoning of the court was encapsulated in paragraph 26.
"26 We have concluded that this offence required an immediate sentence of imprisonment. The seriousness of the offence left no proper alternative to this course. Furthermore, this is one of those offences where it is realistic to include a deterrent element in a sentence. Accessing police computer information for an improper purpose is an offence that involves deliberation. It must be quite clear to police officers that if they commit this offence they risk dire consequences. We consider that the minimum sentence that would have been appropriate, giving credit for the guilty plea, was one of 18 months' imprisonment. The sentence imposed was not merely unduly lenient, it was wrong in principle."
[10] Counsel for the offenders relied on 2 decisions in this jurisdiction. The first is the decision of Hart J in R v Stewart and others [2008] NICC 24. In that case the defendant Stewart was a retired police officer who set up business as a private detective agency. He was carrying out checks for an insurance company in relation to those who benefited from the motability scheme. It was accepted that there was a very high level of fraud within the scheme. Stewart approached a co-defendant, Kelly, a serving police officer, to obtain details of the criminal convictions of various individuals as well as information of an intelligence nature from the police computer. Stewart paid Kelly £1000 for this information. Unhappily Stewart's eldest son was gravely injured in a road traffic accident in July 2007 as a result of which a sustained a traumatic brain injury and required 24-hour care which could only be provided by the offender and his wife. It was accepted that an offence of this nature invariably results in a period of imprisonment. In light of the particular circumstances relating to the severe and tragic disabilities of the son Hart J extended a degree of mercy to him and imposed a sentence of six months imprisonment suspended for two years. The learned trial judge found that there was no distinction between Stewart and Kelly who was a full-time carer for his wife and imposed the same sentence in his case. This decision was a merciful decision having regard to the particular circumstances of these offenders but does not in any way detract from the proposition that those who in breach of trust access the police computer to disseminate personal information must expect to receive an immediate custodial sentence.
[11] The most recent case is R v Griffiths [2009] NICC 23. The offender in that case was a retired police officer who was operating as a private investigator. In November 2005 he was approached by an English agency to trace the registration details of a specific private vehicle. He obtained the information from a police officer known to him and passed it on to the English agency. The significance of the information was that the vehicle in question was being used by Northumbria police in an undercover operation concerning the detection of serious drugs offences and the English agency passed this information to those committing the drugs offences. Fortunately one of the undercover police officers learned of the request and the operation was not compromised. McCloskey J placed emphasis on the fact that the drug detection operation had proceeded successfully and also took into account that the police officer who actually accessed the computer would have been more culpable by reason of his breach of trust. He imposed a sentence of 12 months imprisonment suspended for three years on a plea.
[12] It is appropriate to start with the offender Hill. He was placed in a position of trust in relation to his access to the police computer. His position is similar to that of a serving police officer with the same access. This is a case in which there were significant consequences as 67 people had to be advised of a possible impact on their personal security and it is clear that many were distressed as a result of this and took active steps to improve security around their homes. The offender has no previous record and has suffered significantly as a result of losing his job but these features are common in offending of this kind since those with access to this type of information will normally of good character. The need for the public to have confidence that private information relating to them will not be released from police computers is particularly important in this jurisdiction because of concerns about personal security. This is a case which required an immediate custodial sentence and the suspended sentence imposed was, therefore, unduly lenient. If the case had been contested the minimum sentence that could have been imposed was one of two years imprisonment. Taking into account the plea and the manner in which the offender met the charges at interview and making an appropriate allowance for double jeopardy the sentence imposed will be quashed and a sentence of nine months imprisonment will be substituted. We direct that the offender shall surrender himself to custody within 72 hours.
[13] In relation to Richardson he was the initiator of the criminal conduct. The gathering of the vehicle registration numbers at the community social event indicates a planned and premeditated approach to the acquisition of this information. In addition to that he also has to bear responsibility for the fully effective ammunition found in his desk. The applicant contends that it is open to this court to review that sentence since it is the case which has been referred. The offender submits that since the offence can be tried summarily it cannot now be referred and relies on AG Reference (No 1 of 2006) [2006] NICA 4 where that approach was accepted. In this case as it happens it is not necessary to determine this point and it shall not be considered further. On Richardson's behalf the point is made that the ammunition was in an unlocked desk at work and there is nothing to suggest that it was held for any sinister purpose. In this case his culpability is similar to that of Hill but he does not get the credit to which Hill was entitled by reason of his plea and his conduct at interview. It is clear, however, that having regard to the anxiety which this hearing has inevitably produced and the risk to Richardson's new employment the principle of double jeopardy would come into play. In those circumstances it is not appropriate to interfere with the sentence imposed by the learned trial judge in his case.