Attorney General Reference No 140 of 2004 [2004] EWCA Crim 3525

Case No 200406618/A7[2004] EWCA Crim 3525
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 16th December 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE JUDGE
(Deputy Chief Justice England and Wales)
MRS JUSTICE RAFFERTY DBE
MRS JUSTICE DOBBS DBE
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 140 OF 2004
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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MR M HEYWOOD appeared on behalf of the ATTORNEY GENERAL
MISS R TROWLER appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE JUDGE:

This

[1]is a reference by HM Attorney General under section 36 of the Criminal Justice Act of a sentence imposed on the offender, Barry Saul Dickinson, on 25th October 2004 by His Honour Judge Warner sitting at the Crown Court at Stafford. On 27th September the offender pleaded guilty to a general count of misconduct in a public office. The general count identified 13 individual occasions, which particularised the misconduct alleged, and related to obtaining the personal data of the keepers of 13 motor vehicles without the consent of the controller of the data, contrary to section 55(3) of the Data Protection Act 1998.[2]The facts are very simply summarised. The offender was employed as a full-time administrative officer at the Driver and Vehicle Licencing Agency. In the course of his employment he obtained the names and addresses of 13 individuals who visited by car a set of premises where animal breeding took place under Home Office licence. These events occurred in January 2002, on two days of that month.[3]Having obtained that information, the offender then passed it on to animal rights activists. They then used the information to target individuals by way of general harassment and intimidation, individuals who were simply visiting those premises. One, for example, became the victim of criminal damage. She received malicious telephone calls and hate mail. Her car and some of the outbuildings at her home were vandalised with paint. Another found a group of people, wearing dark clothing and balaclava hats, shouting abuse at her outside her home. She, too, was the victim of hate mail and malicious phone calls. There were a number of similar cases.[4]Naturally, once they were involved, the police were extremely concerned about what was happening and began investigating how it was that these particular individuals had been targeted in this way. Eventually they were able to trace the disclosure of the information to the offender.[5]He initially denied any improper use of what we shall describe as the DVLA computer. He was re-interviewed in April 2004, when he continued to deny any involvement. However, when the case came on for hearing, he pleaded guilty on 27th September and a written basis of plea was produced. The plea of guilty was put forward on this basis:
"1. I committed the offence believing that the data I obtained and passed on would be used to facilitate lawful protest against those directly involved in breeding animals for experimentation."
We underline "lawful protest". Continuing:
"2. I did not myself attend any of the protests at the homes of the relevant vehicle owners, nor was I involved in any other way in the campaign against the breeding of animals at the farm. 3. This was a one-off offence which I deeply regret."
[6]This was not part of the basis of plea, but we were told today that he had been approached a second time and asked to pass on further information and that he had decided that he should not do so. That was because, having committed these offences, he had immediately recognised the folly of what he was doing. The basis of plea was there for the judge to consider, taking account of the fact that, in any event, the offender had stopped voluntarily and had not repeated his conduct after January 2002.[7]The pre-sentence report noted the virtually certain loss of the offender's long standing employment and recommended a non-custodial sentence.[8]It is submitted to us that the actual sentence imposed by the judge was not simply lenient, but unduly lenient.[9]It is clear that there are aggravating features of this case. The offender was in a position of trust. His activity has damaged confidence in the way in which DVLA records are kept and maintained. The information at the DVLA is confidential. The unauthorised disclosure of information held in any records kept and maintained only for public purposes should always be regarded as a serious offence. The amount of private information about each and ever single citizen in this country, available to public servants, has increased, and with modern technology continuing increase is virtually inevitable. Citizens are entitled to assume that the information so kept will only be made available to those who are entitled to see it, and only for the express purposes permitted by law. Wrongful disclosure sometimes works to the benefit of someone who is not entitled to the advantage so provided. Sometimes wrongful disclosure causes damage. Even if an offender has not fully anticipated the consequences of disclosure, it will be very unusual for him to be entirely ignorant of the possible consequences, and, even if those consequence are unforeseen, the impact of disclosure on any individual whose privacy has been betrayed is a critical ingredient of the sentencing decision. It seems to us that those are essential principles which should be noted by any judge facing a sentencing decision in this class of case.[10]The application of those principles to the facts of this case requires us to begin by noting that the ramifications in the locality with which this particular disclosure was concerned are notorious. There is evidence of some profoundly disturbing incidents. We are perfectly well aware of them. It is, however, not suggested, and there would be no evidence to support any suggestion if it had been made, that these incidents and the wider ramifications of what has happened are attributable to the disclosures made by this offender. If they had been, different considerations would have applied to this decision.[11]The judge here rightly decided that a prison sentence was appropriate. When he was assessing its length he had to bear in mind the mitigation, which included the fact that the activity by the offender appeared to have ceased voluntarily in January 2002, and, as we are told, was not repeated notwithstanding a request that it should. It was not far short of three years from the date of the offences to the sentencing decision. The judge had, further, to reflect on the basis of plea, which was uncontroverted, and, in particular, that the offender anticipated no more than lawful process against those directly involved in experimentation with animals.[12]The judge, therefore, had a difficult balancing exercise to perform. He was right, as we have already said, to conclude that a prison sentence was appropriate. He reminded himself of a decision of this Court in Keyte, a case which proceeded as a trial and involved a police officer making a small profit by nearly 200 occasions of disclosing of confidential information in police documents or files over a period of 12 months, and who was sentenced to two years' imprisonment. We note that case. We note the differences between that case and the facts of the present case, not only the extent of the criminality but also the available mitigation and the fact that this case proceeded as a plea.[13]Having done that, we suggest that the appropriate principle to be observed -- once the considerations to which we have already made reference have been taken account of by the judge -- is that cases of this kind are fact specific. Attention has to be paid to the extent of the disclosure and the consequences of the disclosure in the way that we have indicated.[14]Our conclusion is that the sentence imposed on this offender can properly be described as a lenient sentence. It was however, in our judgment, within the appropriate bracket, albeit at the lower end of the appropriate sentence for this particular offence. In the circumstances, therefore, we do not conclude that it was unduly lenient. Accordingly, the reference will be dismissed.

Cited in 2 later judgments