R v Kefford [1998] EWCA Crim 1306

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON
(HIS HONOUR JUDGE BURFORD QC)
[2002] EWCA Crm 519Case No Case No: 2001/6796/Y1Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
RRespondentKeffordAppellant
Before
Lord Chief Justice of EnglandLord WoolfLord Justice RoseLord Justice JudgeMr Ian Hope for the AppellantDate 5 March 2002

Lord Woolf CJ: This is the judgment of the Court. The constitution of this Court, consisting of three of the most senior judges in England and Wales who sit in the Court of Appeal (Criminal Division), demonstrates the general importance of this judgment which is on an appeal against sentence.

[2]The judgment has to be seen against the background of a further recent upsurge in the prison population. The latest figures available to the court indicate that the population is at the highest figure yet recorded. The latest figure which we have is 69,892. This increase is over 2,000 inmates higher than the figure forecast in November 2001. That figure has to be compared with the figure at the time of the Strangeways prison disturbances in 1990 when the population was just over 45,000 and falling. The present prison population has also to be compared with the uncrowded capacity of the prison estate which is 63,653 and is worryingly close to the over crowded capacity of 70,834 inmates.[3]The prison system should not have to operate so close to its over crowded capacity. This is because at any one time there will be a number of cells out of commission for operational reasons. In addition, frequently the places where prison space is available are not where the accommodation is required. The stage has now been reached when it would be highly undesirable if the prison population were to continue to rise.[4]The overcrowding of the prison system is not only a matter for grave concern for the Prison Service, is also a matter of grave concern for the criminal justice system as a whole. Prison sentences are imposed by the courts normally for three purposes: to punish the offender concerned, to deter other offenders and to stop the offender committing further offences in the future. The ability of the Prison Service to tackle a prisoner's offending behaviour and so reduce reoffending is adversely affected if a prison is overcrowded. The ability of the Prison Service to service the courts is impeded if prisons are overcrowded, since the Prison Service is unable to ensure that prisoners arrive at courts at the appropriate time. In the past attempts have been made to relieve overcrowding by using police cells but this is a wholly unsatisfactory remedy. Apart from being extremely expensive, it prevents the police performing their duties in tackling crime.[5]The present situation has arisen notwithstanding a significant prison building programme. The cost of that programme has been substantial. In the three years ending April 2002, the cost has been respectively, £155 million, £135 million and £175 million. Next year the budgeted cost is £240 million. It is to be hoped that the planned programme of prison building in the future will alleviate this situation. However any relief will be short lived if the prison population continues to grow. In addition to the prison building expenditure, there is the cost of a prison place which is £36,651 per annum.[6]Those who are responsible for imposing sentences have to take into account the impact on the prison system of the number of prisoners the prison estate is being required to accommodate at the present time. The courts are not responsible for providing prison places. That is the responsibility of the government. However, the courts must accept the realities of the situation. Providing a new prison takes a substantial period of time and in the present situation it is of the greatest importance to the criminal justice system as a whole and the public who depend upon the criminal justice system for their protection against crime, that only those who need to be sent to prison are sent to prison and that they are not sent to prison for any longer than is necessary.[7]Nothing that we say in this judgment is intended to deter courts from sending to prison for the appropriate period those who commit offences involving violence or intimidation or other grave crimes. Offences of this nature, particularly if they are committed against vulnerable members of the community undermine the public’s sense of safety and the courts must play their part in protecting the public from these categories of offences. There are, however, other categories of offences where a community punishment or a fine can be sometimes a more appropriate form of sentence than imprisonment.[8]What we have said here is of particular importance to magistrates because they deal with a great many cases where the decision as to whether a prison sentence is necessary is frequently made. When this category of offending comes before the Crown Court, what we have said is equally relevant. We are not breaking new ground in saying this. The same message has been given repeatedly since at least 1980. In R v Bibi [1980] 1 WLR 1193 at p. 1195 Lord Lane CJ said:
“but this case opens up wider horizons because it is no secret that our prisons at the moment are dangerously overcrowded. So much so that sentencing courts must be particularly careful to examine each case to ensure, if an immediate custodial sentence is necessary, that the sentence is as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter the criminal.”
[9]Very much the same thing was said more recently by Rose VP in R v Ollerenshaw [1999] 1 Cr App R (S) 65, [1998] EWCA Crim 1306. We also draw attention to the even more recent decision of this Court in R v Mills (unreported 14 January 2002, [2002] EWCA Crim 26 ) where the same guidance was repeated in the context of the dramatic increase of the female prison population.[10]In the case of economic crimes, for example obtaining undue credit by fraud, prison is not necessarily the only appropriate form of punishment. Particularly in the case of those who have no record of previous offending, the very fact of having to appear before a court can be a significant punishment. Certainly, having to perform a form of community punishment can be a very salutary way of making it clear that crime does not pay, particularly if a community punishment order is combined with a curfew order. In the appropriate cases, it can be better that an offender repays his debt to society by performing some useful task for the public than spending a short time in prison. The recent Halliday Report makes clear the limits of what can be achieved during a short period of custody. It is preferable that the prison service is in a position to deal effectively, uninhibited by the corrosive effects of overcrowding, with those cases for whom imprisonment is necessary.[11]The present appeal, which is made with leave of Mr Justice Aikens, is against a sentence imposed at the Crown Court at Southampton on 31 October 2001. The appellant, who is now aged 26, at the time of the first offence was 23. He pleaded guilty at the first opportunity to 12 offences of theft and nine offences of false accounting. He was sentenced to 12 months imprisonment on each count concurrent. A further 11 offences were taken into consideration.[12]The offences were committed by the appellant while he was employed by a building society. The building society was the Bristol & West Building Society which merged with the Bank of Ireland in July 1997. As a result of the merger, customers of the building society were entitled to a windfall payment. In the case of customers who did not have an active account, new accounts were opened which could be credited with the windfall payment. Some of the new account holders would not be aware of the credits which had been made.[13]Whilst working as a cashier the appellant would make withdrawals from this class of account from time to time. He would sign the name of the customer without attempting to reproduce the customer’s signature. The withdrawal form would be witnessed by an employee who was unaware that a transaction was not taking place. Although the appellant was meant to photograph the customer who was making the withdrawal, in those cases where he took a photograph no customer was shown.[14]The appellant stopped committing the offences in November 2000. He then remained in the Building Society's employment for a further five months before he left for reasons unconnected with the offences. Altogether the amount involved was £11,120 (including offences taken into consideration). The offences came to light as a result of a query on an account which triggered a branch investigation of records. On 26 July 2001 the appellant was arrested and when interviewed made an immediate full and frank confession. He had no previous convictions and that he genuinely regretted what he had done is not in dispute. After the offences were discovered, the appellant sold his home so that he would be in a position to repay the sums he had taken. The judge made a compensation order in the sum of £11,120 and that sum has been repaid. The appellant did not suggest he had any excuse for committing the offences. His explanation was that he was under financial strain because of the payments he had to make in connection with a house he was purchasing. When his salary improved, his offending stopped of his own volition.[15]The appellant’s position is different from that of the appellant in Mills because he was in a position of trust and, though in her case the sum involved was substantial, there was not the repetition of dishonesty. In addition she was the sole provider of her children. Mr Clive Webster, who appears on the appellant’s behalf, accepts that a sentence of imprisonment was inevitable. He argues, however, that the sentence of 12 months imprisonment was excessive.[16]The sentencing judge, His Honour Judge Burford QC, in his sentencing remarks made it clear that he was giving the appellant credit in relation to all the mitigating features of the case. He indicated that he was adopting the guidance given in this Court in R v Clarke [1998] 2 Cr App R 137. In that case Rose VP, in giving the judgment of the court, updated the guidelines in Barrick (1985) 81 Cr. App. R. 78 and indicated that in a theft involving breach of trust, the appropriate sentence, where the amount was not small but was less than £17,500, terms of imprisonment from very short up to 21 months would be appropriate. Even in the present circumstances in cases involving breach of trust where the sum involved is not small this guidance is still applicable even where it is a first offence. However, the guidance in the Bibi line of decisions is still highly relevant in relation to making the sentence no longer than is necessary.[17]The judge took as his starting point, 18 months. Mr Webster criticises that figure as being too high. We consider that 12 months would have been the preferable starting point. The appellant was then entitled to credit for immediate admissions and for pleading guilty. He was also entitled to credit for making arrangements to repay and for repaying the total of the sums which he stole. We are also impressed by the fact that he stopped offending of his own volition. In the circumstances, we reduce the sentences from 12 months to four months imprisonment concurrent. As the appellant has already served three months this means he can be released. He would, in any event, be eligible for release on 24 March next under the Home Detention Curfew Scheme.[18]An additional report has been prepared by the probation service which was not available to the trial judge. This report makes it clear that not only has the appellant lost his good character as a result of these offences, he will find it more difficult to obtain employment in the future although he has had excellent references in the past. His punishment will continue notwithstanding his release.[19]We trust all courts will heed the message which the Court is giving today. That message is imprisonment only when necessary and for no longer than necessary.[20]The sentences of 12 months are quashed and replaced by sentences of four months imprisonment. To that extent the appeal is allowed. We do not make a Recovery of Defence Costs Order.