Voice, R v [2008] EWCA Crim 953

Case No 200801708/A2[2008] EWCA Crim 953
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 14th April 2008
Strand
London, WC2A 2LL
B e f o r e:
MR JUSTICE DAVID CLARKE
MR JUSTICE FOSKETT
Between
R E G I N ACrownv
Between
ALDOUS VOICE
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Belger appeared for AppellantMiss T Salaklo appeared for Crown
J U D G M E N T
[1]MR JUSTICE DAVID CLARKE: On 12th February 2008 in the Crown Court at Snaresbrook before His Honour Judge Freeland QC, the appellant pleaded guilty to count 2 of an indictment alleging that he recklessly endangered the safety of an aircraft. On 28th March he was sentenced to 4 months' imprisonment for that offence. Count 1, making a similar allegation related to another date, and to which he pleaded not guilty, and was left to lie on the file.[2]The facts of this case are these. At about 7 o'clock in the evening on 24th October 2006 a pilot was flying his helicopter towards the Vanguard landing site in the Docklands area of London. The site is very clearly illustrated in aerial photographs which are before us. As the pilot was about 200 feet short of his landing and was about to commit his helicopter to the landing, a bright light was shone into the cockpit. It was dark outside and the cockpit was dimly lit. This light was so bright that the pilot was unable to see the instruments inside the cockpit, nor was he able clearly to see the landing site, although it was itself well lit. The shining of the light made it difficult for him to land the helicopter. The light shone into his cockpit for about 10 seconds. The pilot, it was asserted, was required to take evasive action and he moved the helicopter away from the light in order for him to land safely. To be more precise, we are told that that meant he flew beyond the area in which the light was shining onto him. In other words, the light did not follow his movement. This was a light, a very bright light, that had been hazardous to him in the flying of the helicopter. He reported it to the Civil Aviation Authority. Furthermore, people working at the landing site observed his approach and they noticed that as the helicopter approached the site there was an open window in a top floor flat close to the landing site. One employee of a local warehouse, who saw the light emanating from the flat, took a short video film of it with his mobile telephone. We have looked at a video clip containing that footage. It shows through the moving camera, namely the mobile telephone, a very bright light in a window, which clearly was quite exceptional in brightness compared with any of the other lights visible on that footage. Following the pilot's complaint a police investigation was commenced. The source of the light was pinpointed as the appellant's flat.[3]On 25th October the appellant was arrested. In the flat the officers recovered a large torch light, called a super bright halogen bulb with 5 million watt candle. This is a very large handheld light, which has been brought to court for us to view. It measures some 20 inches in length and the light bowl and reflector are of a diameter of 16 inches. This is exceptionally bright for a handheld light.[4]The appellant, when interviewed, said that there had been a disturbance outside the block of flats on the evening in question. He accepted that he had shone a torch out of the window around the property to find the cause of the disturbance. He had heard the helicopter approaching. He accepted that the light could have shone on to it.[5]When he was re-interviewed with the video footage on a later date, he declined to comment.[6]In due course, on 12th February, after some extensive discussion between counsel and the judge, the appellant pleaded guilty on a written basis of plea which we shall read:
"A plea would be on the basis that: (i) The defendant shone the torch from his window at Ferguson close on one occasion, as indicted in Count 2, the 24th October 2006. (ii) This was a one-off offence. (iii) That his actions were reckless. (iv) That his behaviour, which constituted the danger, was not directed specifically at the helicopter but it nonetheless undoubtedly affected the pilot who was approaching the heliport and coming in to land. (v) The offence was committed against a background of anti-social behaviour on the estate which had been the subject of Residents' Meetings involving the police. (vi) Gangs of youths were causing problems and congregating on the estate in order to deal drugs and commit offences. There were persistent problems for the residents from the impact of this anti- social behaviour such as drug dealing, harassment, intimidation and criminal damage to property. Despite police patrols on the estate in order to target these issues, the problems continued. (vii) The defendant was effected by this behaviour, much on which went on directly beneath or nearby his flat on Ferguson Close. (viii) He purchased a torch with a powerful beam in order to thwart and drive away the youths who were congregating below his flat and others causing problems on the estate. (ix) He accepts that on 24th October he shone the torch from his window to direct a beam of light to those causing noise outside his flat but that in using the torch in this way, he was reckless about the danger his behaviour posed to the helicopter coming in to land at the nearby heliport."
That basis of plea, as we have indicated, was discussed in detail and, indeed, before it was entered the judge was asked to and did give a sentence indication in accordance with Goodyear, following which the appellant entered his plea in the knowledge that he would face the likelihood of a prison sentence of up to 6 months. We have been much assisted by a full note of that hearing prepared by the appellant's solicitors and agreed by counsel for the Crown.[7]The Single Judge, who did not have that last material, granting leave to appeal but refusing bail on 4th April, a week after the sentence was passed, was clearly troubled by the basis of plea. We understand his difficulty because the case had been opened to the judge on the basis that the pilot was blinded by the bright light shone at him for about 10 seconds, which might be taken to mean that the light must have been deliberately pointed at the helicopter for that length of time. This would be impossible to reconcile with that basis of plea.[8]But the issue is now very much clearer to us. It was accepted by the defence that the glare of the torch was blinding to the helicopter pilot. However, the torch does not produce a confined beam of light in the nature of a spot light but illuminates in a wide arc more akin to a flood light. This negates the inference that might otherwise have been drawn, that the light must have been deliberately shone at the helicopter for a significant period. We are told that it was not. The fact that as the helicopter flew out of the beam it did not follow him, is a very important element of the argument before us.[9]The correct procedure was followed in the Crown Court in this case by counsel and the judge. This was therefore, despite the misgivings of the single judge, not one of those cases which so often trouble this court, where unrealistic bases of plea have been wrongly accepted on the ground that the Crown cannot gainsay the facts alleged. As Thomas LJ remarked in the recent case of R v Hogg, that word "gainsay" should pass out of the vocabulary of the Crown Court.[10]We turn to this appellant himself. He is 31. He is a well paid and hard working exchange dealer with a bank based in Docklands. There was a pre-sentence report and many personal testimonials before the judge. The appellant did however have a number of previous convictions. All but one of these, including an offence of having an offensive weapon in the form of a stun gun, stemmed from his period at university in London, when he was away from home for the first time, some 8 to 10 years earlier and in the vernacular "went off the rails" for a time. But with family support, he made a fresh start at another university outside London, in Sussex. He achieved a first class degree and went on to the successful career to which we have referred. He and his girlfriend have moved from Brighton to set up home together in the riverside flat. It is noticeable, in the context of this basis of plea in particular, that he had involved himself as a local resident in local neighbourhood activities. The chairman of the Residents' Association of the flats expresses his appreciation for the part that the appellant has played in that community.[11]The pre-sentence report set out the appellant's concern and his remorse that his behaviour had recklessly endangered an aircraft. He blamed himself for not realising the consequences of his actions. There was, according to the author, a low risk of re-offending. A community sentence with an unpaid work requirement would be an appropriate course for the court to consider.[12]The learned judge took very great care over this case. His sentencing remarks were lengthy and clear. He expressly accepted the basis of plea and the testimonials. He referred to the previous convictions. He expressed some concern about the stun gun offence in particular, but it does not appear to us that he allowed his decision to be affected by it. But he did conclude, for a number of reasons, that an immediate prison sentence could not be avoided. Those reasons were, firstly, the level of maximum sentence, 5 years for the offence. Secondly, the recklessness element of the offence. Thirdly, the potential for catastrophe only averted by the pilot's skill. Fourthly, the fact that this conduct was blatant enough to be observed and photographed by others, and fifthly, the proximity of the flat to the heliport where, as the appellant knew, helicopters came into land.[13]The judge asked counsel for assistance as to any previous decisions of the courts. He received assistance and we have received more, for all of which we are grateful. The only comparable cases in which lights have been shone at aircraft so as to endanger their safety are instances of which we have press reports only. Before we turn to them we should add that we have been referred to some of the air rage cases in which prison sentences of some length have been imposed on aircraft passengers for drunken or violent, or otherwise potentially dangerous conduct on board aircraft. Those decisions demonstrate the seriousness with which such conduct is regarded. The potential consequences of endangering an aircraft by whatever means do not need to be spelt out. These air rage cases do not give us any real help in approaching the facts of the present case. Nor does the case of Evans, in which a prison sentence was imposed in 2001 on a helicopter pilot giving rides at a carnival who did not ensure that children were properly restrained in their seats.[14]We turn to the three instances of torch cases. In October 2004, in the Crown Court at Teeside, Stephen Orr received a community punishment order and was directed to pay costs on his plea of guilty to a similar offence. What he did was to shine a power beam into the eyes of a pilot about to land the police aeroplane at Teesside airport. That landing was aborted. The plane left the scene to conduct some other operation but 20 minutes, coming into land again, the beam was shone at the plane again. The defendant was with his car. He drove off. The police plane followed him from the air until officers on the ground arrested him finding his powerful torch in the footwell of the car. The report does not reveal how powerful it was. The defendant pleaded guilty on the basis of recklessness. He said that he wanted to test the power of his torch which he had bought to pursue his interest in wildlife and its behaviour at night. He had not shone it at the plane out of malice.[15]The learned judge, His Honour Judge Bryant, a highly experienced judge, described the defendant as "a dangerous idiot", as he clearly was, and passed the community sentence to which we have referred.[16]In November 1995 a Mr Symons, aged 56, appeared before the Swindon Magistrates for endangering the safety of an aircraft. He had been irritated by the noise of a police helicopter overhead and had shone his torch at it for a number of minutes. He was committed to the Crown Court, but at a preliminary hearing the prosecution was withdrawn and he received a police caution, having evidently admitted that offence. There was a marked distinction with the present case, the torch was said to be 45 watts.[17]The third instance was a recent one, decided in November 2007 in the Magistrates' Court at Cheltenham, where a man called Babbage shone a high powered laser pen at a police helicopter hovering above the town on Bonfire's Night. He pleaded guilty on the basis of negligence rather than recklessness, even though it was acknowledged by him that he had read the warning on the laser device, making clear it should not be used near aircraft. He maintained that he was directing it, not at the helicopter but the smoke from the fireworks. He received a community order with an unpaid work requirement.[18]Thus, this is, it appears, the first occasion on which such a sentence has been considered by this Court. We have considered it with anxious care. It has been cogently argued that a custodial sentence was not justified on the particular facts of this case and on this basis of plea. The judge, for reasons which he clearly gave, considered that it was. He added that if he had been dealing with the case of the basis of deliberate shining of the light at the helicopter pilot, his sentence would have been measured in years rather than months.[19]We do not criticise the judge in any way for taking this view. It was one which he was entitled to take and which he explained in detail. But it is not a view which we share. In our view the crucial factor here is the express acceptance by the Crown that this light was not shone directly or deliberately at the helicopter but was being shone out of the window for another reason altogether. It would be wrong to speculate as to the outcome of a trial if this issue had to be decided on by a jury. But it must be clearly understood by anyone who considers or reports this judgment that the appellant was sentenced on the express basis set out in the written document which we have read. On this factual basis, and with the personal mitigation which has been urged upon us, it is our view that a prison sentence was not required and that either a very substantial fine or a significant community penalty was the appropriate disposal of this case.[20]Since the appellant has now served 18 days in custody, we shall not now impose a community penalty or a fine. A community penalty could only have been in the form suggested by the probation officer, of an unpaid work requirement and the loss of liberty which the appellant has suffered makes it, in our view, inappropriate now to make such an order. There is no other form of community penalty considered to be appropriate or necessary.[21]We shall therefore, only because of the time served, make an order of conditional discharge for 12 months. The appellant having waived his right to attend, we leave it to his legal advisers to ensure that he is fully aware of the consequences and meaning of such an order.[22]We are minded to make an order of costs against him which the learned judge would, we think, have done had he not imposed a prison sentence. We seek further assistance as to the costs that are sought before we finalise that order and we leave it to counsel. If the figure is below £1,000 that is sought, we shall make it in the amount of that sum. If it is greater, we shall order a contribution of that sum.[23]MR JUSTICE DAVID CLARKE: Would counsel, please, hand in the result of that discussion in which event no further appearance before us is necessary.[24]MR BELGER: Would your Lordships make a defendant's costs order in relation to the appeal. He is not in receipt of legal aid.

MR JUSTICE DAVID CLARKE: We leave him to pay his own costs. (The sum of £548.44 was agreed)