Holliday & Anor, R. v [2004] EWCA Crim 1847

No: 2004/1802/A4 & 2004/1898/A4[2004] EWCA Crim 1847
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 9 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE HENRIQUES
MR JUSTICE BEATSON
Between
R E G I N ACrown- v-
Between
PAUL HOLLIDAYPAUL LEBOUTILLIER
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P COSGROVE QC appeared on behalf of HOLLIDAYMR M GEORGE appeared on behalf of LEBOUTILLIER
J U D G M E N T
[1]MR JUSTICE HENRIQUES: These are renewed applications by Paul Hammond Holliday, aged 38, and Paul Leboutillier, aged 44, for permission to appeal against sentences of 18 months' imprisonment and five years' imprisonment passed by Judge Hoffman at the Crown Court at York on 26th February 2004, both applicants, albeit indicted separately, having pleaded guilty to causing a public nuisance. It is significant in the case of the applicant Holliday that he pleaded guilty on 2nd May 2003 but was not sentenced until 26th February 2004 by reason of the fact that Leboutillier had earlier pleaded not guilty and had only changed his plea on 8th December 2003 shortly before a jury was to be empanelled. The appellants were separately indicted but for obvious reasons it was appropriate to sentence in both cases at the same hearing and it is equally appropriate to deal with the two applications concurrently today.[2]Between December 2000 and February 2001 letter bombs were sent to a number of people in the agricultural, pet and fish industries. It is important to state immediately that neither applicant had anything whatsoever to do with the sending of such bombs.[3]Some of those targeted in that campaign thereafter received malicious telephone calls. A number of other people also received annoying calls either at work or at home. The applicants were particularly involved telephoning employees and shareholders connected with Covance and Huntingdon Life Sciences. A number of calls were traced to Leboutillier's mobile phone. Itemised billing showed over 1,000 calls to Covance Laboratories, Huntingdon Life Sciences and a variety of individual's home phones. When his home was searched large numbers of documents relating to animal liberation were found. The documents detailed not only the names and addresses of those contacted but also their phone numbers. He had a list of the internal telephone numbers of Covance Laboratories and a shareholder list for Huntingdon Life Sciences. His calls to employees at Covance were plainly nuisance calls designed to jam the telephone lines, but many of the calls to individuals at their homes were more threatening in nature. Some of the threats during the phone calls referred to the fact that letter bombs had been sent and included references such as "Watch your mail" or "Watch yourself". The calls were abusive and intimidatory. Some included death threats and a reference was also made to where the individuals lived. The calls were made between November 2000 and 6th April 2001 when Leboutillier was arrested. When interviewed he denied making any calls of any harassing or threatening nature and only pleaded guilty at the last moment.[4]Holliday for his part made over 1,000 nuisance calls between 8th August 2000 and 9th August 2001. None of the calls he made contained any reference to letter bombs or any threat in relation to them, although many of them took place during the course of the letter bomb campaign. The vast majority of calls he made were intended to jam switchboards. When arrested he denied making any of the calls.[5]It is convenient to deal with Holliday's case first. A lengthy document entitled "Basis of plea" was placed before Judge Hoffman. Holliday accepted that he had made the nuisance telephone calls. He pleaded guilty on the basis that whilst some complainants received junk mail and threatening letters, he played no part in that. Most of the nuisance telephone calls that the complainants received were not from the defendant's telephones. The defendant played no part in leaving any message that contained any direct or indirect reference to bombs being used. There was no evidence of any link with bombs. None of the calls from the defendant's telephone made any reference to the Animal Liberation Front. The calls were not in an aggressive tone or voice. The calls were of a nuisance nature but not of a threatening type. The defendant never engaged in direct conversations with the complainants. Where a home phone was called the defendant left telephone messages. His home was searched, no telephone numbers were found or were ex- directory and therefore not accessible to the public. No directors' home addresses were found. There were no lists of telephone numbers to anyone associated with animal experimentation. The majority of nuisance calls were made to Covance Laboratories. The defendant was jamming the switchboard thus preventing access for potential or existing customers. He used no words when jamming the switchboard, no names addresses or telephone numbers of potential targets were found at Holliday's home. Whilst there were references to other matters in the basis of plea, we have mentioned the critical matters.[6]That basis of plea was given to the prosecution on 4th April 2003 for their consideration. When the case was relisted on 2nd May 2003 the basis was entirely acceptable to the prosecution and a guilty plea was entered on that date.[7]Holliday had originally been indicted together with Leboutillier. However, the latter was charged with a separate count of public nuisance which involved nuisance telephone calls. The Crown did not allege any conspiracy between the two defendants but asserted, and this was accepted by Holliday, that they both offended at the same time as part of a wider campaign by those who felt strongly about animal rights.[8]On behalf of Holliday it was indicated that an application would be made as to the indictment being wrongly joined as the links between the two defendants was not sufficient to amount to a nexus in law. Accordingly, the prosecution agreed to prefer two new indictments, one for each defendant. Since Leboutillier maintained his not guilty plea, this meant that sentence was not possible until 26th February 2004.[9]The mitigation covered the following factors, on Holliday's behalf: the plea of guilty, tendered almost a year earlier; the contents of three supportive letters, two short letters from Mr Holliday's general practitioner, a psychiatric report from Dr Mendelson and a pre- sentence report. The features of the basis of plea already referred to, the nature of the defendant himself, namely he had cut links with all organisations and persons involved in these campaigns, he was already disillusioned and had turned his undoubted but vulnerable and previously misguided good intentions to helping people through the Citizens Advice Bureau. He was a vulnerable individual with mental health weaknesses, having suffered depression and anxiety. Dr Mendelson described him as a passive, retiring person greatly lacking in social or assertive skills. He was diagnosed as having a dependent personality disorder and was all too easily overwhelmed by stress and intimidated by others. He had fallen under the influence of the more militant members of the animal rights movement. He greatly regretted the offences and rued his involvement. This was a submission accepted by the learned judge. Further, he was a low risk of reoffending. Given his vulnerability he would be at risk a deterioration in his mental health position if sent to prison again according to Dr Mendelson.[10]It is to be noted that in his sentencing remarks the judge observed that there was no evidence that Holliday was depressed at the material time of offending. Reference should however be made to Dr Turner's letter of 8th April 2003 in which it is said:
"In the past he has suffered from mental health problems, typified by depression and anxiety."
Dr Mendelson referred to longstanding depression. He also stated that he suffers from depression and is under treatment from his doctor. He informs me that he suffers from anxiety and panic attacks as well as agoraphobia. His court case has, I understand, exaggerated these symptoms.[11]Turning to the case of Leboutillier, it is submitted in his case that in arriving at the sentence of five years the judge must have taken a figure of about seven years as appropriate in the event of conviction after a trial. Such a starting point, it is submitted, is far too high. Whilst the judge noted that the phone calls were threatening and intimidating, it is submitted he failed to give proper weight to the absence of other aggravating features. The phone calls were not repeated to any particular victim. No actual violence was offered to anyone. No property was damaged and no one was the object of demonstrations outside their homes.[12]The aggravating features referred to in the case of Schilling [2002] EWCA Crim. 3198 were absent, namely the appellant never followed up threats by taking any action, no one who received a phone call was subject to any other harassment, there were no demonstrations outside their homes and no criminal damage was caused to any of their property. It is said the judge failed to give adequate credit for the applicant's previous good character and hardworking life and the fact that he had previously conducted himself appropriately in over 10 years of campaigning on the issue of animal rights. There was insufficient credit if any for the plea of guilty, albeit tendered on the first day of the trial. The judge, it is said, found himself being influenced by what he thought was a connection between the appellant and the person responsible for the campaign of letter bombs when in fact there was no such connection. The Crown in fact indicated that they accepted that there was no such link. For his part the judge did make it clear in these terms:
"I further accept, and the Crown have made clear, that there is no suggestion that you were an associate of the bomber, but, if I may borrow the words of your learned counsel, you were riding on the coat tails of the bomber or his activities. There was a confluence of timing, as counsel has put it, and you took advantage of it happening."
[13]We have been referred not only to the case of Schilling but also to the case of Harley [2002] EWCA Crim. 2650 in which the appellant had made some 4,845 nuisance telephone calls to over 1,000 people. Some were silent, some were explicitly and unpleasantly sexual, and to that extent the facts cannot properly be compared. The great majority of those telephoned were women, the conduct lasted for three months, two months later the appellant was arrested, he was of good character, psychiatric report indicated he had sustained a moderate depressive episode after sustaining multiple jaw fractures and in his depressed state he took to telephoning. He pleaded guilty to public nuisance and was sentenced to 21 months' imprisonment, which was reduced on appeal to this court to nine months' imprisonment. In Schilling, the appellant had pleaded guilty to three offences, contrary to section 4 of the Protection from Harassment Act 1997. She was sentenced to four- and- a- half years' imprisonment reduced on appeal to this court to three- and- a- half years' imprisonment.[14]Had the prosecution brought proceedings under the Protection from Harassment Act the case against Holliday would necessarily have been pursuant to section 2, there having been no threats of violence. Such an offence is triable summarily only and thus carries a maximum sentence of six months' imprisonment. It is to be noted in Holliday's case that in September 1998 for an offence of violent disorder and criminal damage, committed at a business operating at a farm which had attracted considerable attention from animal rights campaigners, he was sentenced to a term of 12 months' imprisonment. He had no other relevant or significant convictions.[15]We do not suggest that the Crown Court was restricted to the maximum sentence for harassment. We do however consider that the court should have had that factor well in mind. We also in appropriate cases commend that form of prosecution rather than prosecution for public nuisance since there is power to make a restraining order to protect any victim from further conduct pursuant to section 5 of that Act.[16]Taking all matters into consideration, we have concluded that the appropriate sentence in Holliday's case would have been one of nine months' imprisonment.[17]In Leboutillier's case the submission that a starting point of seven years would be manifestly excessive is well made. He is also a man of good character and was not in a conspiracy with the bomber. Of course this was a serious matter. Many members of the community had been put in fear. There was no actual violence nor criminal damage sustained. The facts are less grave than the facts in Schilling's case. We bear in mind that under section 4 of the Protection from Harassment Act 1997 the maximum sentence would have been five years. In Leboutillier's case we have concluded that the appropriate sentence is one of 30 months' imprisonment. Accordingly, the sentences of nine months and 30 months' imprisonment will be substituted in the absence of any representation to the contrary to this court within the next seven days.[18]MR GEORGE: In the case of Leboutillier, would your Lordships grant a representation order for today in the light of the decision of the court?

LORD JUSTICE CLARKE: Yes.

[20]MR COSGROVE: My Lord, I make a similar application. It is right to point that I am here because very sadly junior counsel died during the course of the proceedings. Otherwise this would have been dealt with by junior counsel.

LORD JUSTICE CLARKE: We grant your application too, to leading counsel.

[22]MR COSGROVE: My Lord, I am grateful.

LORD JUSTICE CLARKE: We would just like to add that we were very impressed by the advices in both cases.

Cited in 1 later judgment