Turner, R. v [2009] EWCA Crim 2219

[2009] EWCA Crim 2219Case No 2009/04140/A9
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 15 October 2009
Between
R E G I N ACrown
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE PENRY-DAVEY
and
MR JUSTICE KEITH
ATTORNEY GENERAL'S REFERENCE No. 68 of 2009
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
_______________
- v -
Between
MARK SIMON TURNER__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4ATelephone No: 020 404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr P Wright QC appeared for Attorney GeneralMr R L Thomas QC and Mr M Singh appeared for Offender__________________J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which she considers to be unduly lenient. The sentence was imposed on 13 July 2009 by His Honour Judge Howard Morrison QC sitting in the Crown Court at Birmingham. We grant leave.[2]The offender is Mark Simon Turner. He was born in April 1984 and so he is now 25 years old. The offences with which we are concerned were committed while he was a serving police officer.[3]On 8 July 2009, when the case was listed for a trial estimated at something like six weeks, with two other co-defendants, the offender pleaded guilty on a written basis of plea to counts 1 and 2 (misconduct in a public office) and to count 8 (conspiracy to defraud), which was a wholly different and unconnected offence.[4]In summary, from April 2004 the offender was a serving officer with the West Midlands Police Force. During a period of about 18 months, from about April 2006 until his arrest in October 2007, on a large number of occasions the offender accessed records held on police computers for his own purposes. On occasions he passed the information he had obtained to friends of his who were criminals. The information included police records which related to them and also details held in respect of other members of the public. Some of the details were used by others further down the chain to commit fraud.[5]Count 8 involved one of the two criminal contacts who had been involved in the computer offences. The offender defrauded a banking and financial institution by providing false personal details of the criminal contact to a bank, with a view to opening an account in the false name. An account was opened with a bank in the false name. The offender had access to a debit card. From that he made six withdrawals in cash of £200 each.[6]We turn to the facts in more detail. At the time when the offender joined the West Midlands Police Force he knew Simon Haycock and Anthony Palmer. Haycock and Palmer are criminals with previous convictions. Haycock is 29 years old. In 1999 he was sentenced to twelve months' detention in a young offender institution for twelve months for an offence of wounding. In 2001 he was sent to prison for four months for conspiracy to defraud. In January 2002 he changed his name by deed poll from Simon Moazami to Haycock. In 2006 and 2007 he obtained three passports, one in the name of Moazami and two in the name of Dean Phillips. The offender countersigned the application for the passport in the name of Dean Phillips, asserting that he had known Dean Phillips as a friend for three years.[7]Palmer is 30 years old. He has convictions in 2006 and 2007 for fraud. The offender knew of his conviction in 2007. In that year Palmer changed his name to Anthony Clarke. In May he went to the passport office in Peterborough to obtain a passport in his new name. The offender accompanied him and signed documentation in relation to the change of name and passport.[8]In his capacity as a police officer, the offender had access to the West Midland Police computers. On occasions he logged on when he should not have done so, using the details of brother officers in order to conceal his own misconduct.[9]The facts relating to count 1 are that in May 2006 Haycock was found in possession of anabolic steroids. In June he was cautioned for a supposed offence. However, a few days later it was appreciated that possessing anabolic steroids did not amount to an offence. That fact was recorded. A crime report had been generated. When in May 2007 police officers conducted a search of Haycock's home, they found various police documents which related to him. The crime report in relation to the supposed offence of possession of the steroids was among them. The report bore the offender's fingerprints. It was accompanied by a further document which contained two paragraphs of printed material which summarised police intelligence on Haycock. Haycock's fingerprints were found on the documents. Thereafter, an audit on the computer system was conducted. This revealed that the offender had accessed this information either in his own name or using the names of other officers on fourteen occasions between March 2005 and 8 May 2007. When police officers searched Haycock's home following the arrest of the offender in October 2007, they found yet another police intelligence log which related to Haycock.[10]On 27 August 2007, examination of telephone records revealed that the offender had been in contact with Haycock and Palmer throughout the evening of 26 August. He was captured on CCTV arriving at the Vyse Street Police Station shortly before 10pm, and maintaining contact frequently with Palmer during the early hours of 27 August and while he was on duty. At 2.41am he logged on to the police computer using the details of another officer. During the ensuing session, he made no less that 108 search or retrieve actions. Many of the searches related to addresses in Sutton Coldfield. While using the computer, the offender sent Palmer a text and made a telephone call to him. He logged off at 3.11am. At 3.10am he was recorded on CCTV retrieving a document from the printer area at the police station. When he was arrested, a document containing the information which he had viewed was found at Haycock's home. It contained personal details.[11]A few days later, on 30 August 2007, the offender viewed details relating to a number of different people. Again he used the identity of the same brother officer to access the computer. He made 67 search or retrieve actions. Many of these searches again related to addresses in the area of Sutton Coldfield. Again he was caught on CCTV carrying documents from the printer. He left the police station carrying an A4 envelope. When he was arrested a document containing information matching that which he had examined on the computer was found in Haycock's home. There were a number of handwritten documents with it. Some of the handwriting on the documents was the offender's handwriting.[12]On 11 September 2007, Haycock received a text message from a man called Wasseem which contained the name, date of birth and address of another individual named Shazad Mushtaq. Within one minute of receiving that text Haycock contacted the offender by telephone. Later that evening the offender arrived at Vyse Street Police Station. He logged on to the computer again using the details of the same officer he had used previously. He made 16 search or retrieve actions. He viewed custody records and intelligence records relating to the named man and the sender of the text (the link with Wasseem and Mushtaq). In the early hours of the morning he left the police station and again contacted Haycock.[13]On 29 September 2007, Haycock received a text message from the partner of a man named Jarrett. Jarrett has convictions for robbery. He has twice been the target of an attempted murder. The text using Jarrett's alias "Chambers" enquired as to developments in respect of a police check. Haycock responded with a message which requested the full name and date of birth of the individual in whom interest had been expressed. On 23 September Haycock received a text message from Jarrett with details of a man named Walker. This time Haycock and the offender were together in Spain. On 29 September the offender was at Steelhouse Lane Police Station. In the early hours of the morning he used the same brother officer's details to log on to the police computer, where he viewed custody and intelligence records relating to Walker. He also viewed intelligence records relating to Wasseem, the sender of the text in respect of the incident on 11 September, in respect of another named criminal. He was later captured on CCTV leaving the computer room carrying a piece of paper. Shortly before midnight on the same day the offender returned to the police station and again logged on to the computer, viewing intelligence records relating to Walker and 65 separate intelligence logs before he left that police station and returned to his own station at Vyse Street. Within an hour he logged on to a computer at Vyse Street Police Station. He viewed records relating to Jarrett (via the alias Chambers), using the details of the same officer as he had before. Three hours later, using the same details, he viewed records relating to Haycock's girlfriend and her address. On 1 October Chambers (Jarrett) sent Haycock a text message. That evening the offender left Vyse Street Police Station early. He drove to Haycock's home. On 5 October he and Haycock met Jarrett (alias Chambers) in a club in Birmingham, where they were observed to be in conversation together.[14]Finally, in relation to count 1, on 19 October the offender accessed the police computer at Vyse Street Police Station using the same officer's details. On this occasion he viewed records relating to three men suspected of involvement, together with others, in the supply of Class A drugs. He printed details relating to one of them. Later he logged on to the computer, again using the same false details as before to gain access the computer. On this occasion he viewed records relating to addresses in the Sutton Coldfield area and Lloyds TSB Bank. He was arrested when he left the police station. When searched he was found to have an envelope in his possession. This contained four printed pages of sensitive police intelligence relating to the men suspected of involvement in the supply of Class A drugs. A search of his locker revealed a piece of paper bearing the names and dates of birth of these three suspects.[15]Count 2 is connected with Palmer. On 11 and 12 April 2006 the offender viewed records relating to a number of people, including a man named Kevin Turner. A few days later he logged on to the police computer at Vyse Street Police Station, again viewing records relating to the same man. On 24 April 2006, Palmer attended a mobile phone shop in Shrewsbury. He asserted that he was Kevin Turner and he provided details purporting to be Turner's details. He obtained two mobile phones valued at £800. He then tried to use the same deception at a nearby Vodaphone shop. He was arrested. Later he was convicted of deception and made the subject of a twelve month community order and was fined. Two days after his arrest the details of another police constable, who was in fact off duty, were used to log on to the police computer at Vyse Street Police Station. It was the offender who was on duty. Again he examined details relating to Kevin Turner.[16]On 14 March 2007 (nearly twelve months later), the offender logged on to the computer using the details he had used in connection with the first four or five of these transactions while his brother officer was on annual leave. This time he viewed records belonging to a man named Christopher Bolton. Whilst viewing that information he sent a text message to Palmer. Later, logging on in exactly the same way, he again returned to view records relating to Bolton. Within a few minutes he sent a text message to Palmer which contained details of this man, including his date of birth and his address in the Manchester area.[17]Shortly afterwards, the offender viewed details relating to Palmer and others associated with him, including the brother of his own girlfriend and the owner of the gym he frequented. Although he was on annual leave, he attended the police station. He made an excuse that he had come in to catch up on his paperwork.[18]On 12 May 2007 the offender viewed details relating to Kevin Thornton. On this occasion he examined no less than 421 records, which included a number of addresses, the addresses of Haycock and Palmer, and some records relating to his own car. When he was arrested, a document relating to two of these addresses was found in his car. A search in Palmer's house revealed a document relating to Thornton and two of the viewed addresses. The document bore the offender's handwriting and fingerprint. Thornton's details were used in a fraudulent application for a clothing catalogue account.[19]On 28 August 2007, using the same police officer's details, the offender accessed the Vyse Street Police Station computer to view records relating to Wasseem and a bank in Birmingham. On this occasion CCTV captured him walking to the front office where the printer was located and then leaving the premises carrying an A4 envelope in his hand. During the course of this accessing of the computer, the offender was in contact with Haycock by telephone. Haycock was in contact with Palmer. Later, the offender was in direct contact with Palmer.[20]We turn to count 8, conspiracy to defraud. On 14 March 2007 the offender witnessed Palmer sign a deed to change his name to Clarke. On 15 May 2007 the offender was with Palmer when he obtained the passport in the name of Clarke. Palmer then used Clarke's name to open five bank accounts with three different banks. The offender accepted that he assisted Palmer to change his name to Clarke in order to help him open an account at Barclays Bank. Both Palmer and the offender used the card issued on the account at Barclays Bank. When he was arrested, the card was found in the offender's possession. A letter sent with the PIN code for the card was found at his home. In all, so far as this dishonest transaction was concerned, there were six cash withdrawals of £200.[21]The offender was arrested on 19 October 2007. As the narrative of these events indicated, effectively he was caught red-handed in possession of four printed pages of police intelligence. He denied that he had committed any offence. He asserted that his use of the computer was for the purposes of his performing his duty as a police officer. He was not forthcoming in answer to the many questions he was asked.[22]Haycock was arrested on the same day. He denied having asked the offender for any information. His interview consisted of "No comment".[23]Palmer denied receiving any information from the offender. He asserted that he had given the bank card in the name of Clarke to the offender because he (Palmer) owed the offender money.[24]The investigation was huge. We are told that 8,000 pages were accumulated in the papers prepared for trial purposes, and no doubt that was a small proportion of the many documents that were originally prepared. It would have been a very substantial trial. It is apparent from what we are told that counsel on all sides sought to make efforts to reduce the length and bulk of the trial, but also to see whether it might be possible for the defendants to offer pleas which would be acceptable to the Crown. No suitable date was able to be made with the court. In the end, following discussions, the prosecution and the defence suggested that the offender should plead to counts 1, 2 and 8. However, the defence required that the plea should be accepted on a somewhat limited basis. The basis of plea was reduced into writing. It records:
"COUNT 1 (1) The defendant admits accessing police computer systems to view police intelligence material in relation to Simon Haycock, Marcus Walker, Richard Jarrett and Shazad Mushtaq. (2) The information concerning Marcus Walker and Richard Jarrett was provided verbally to Simon Haycock. (3) The defendant provided a printed police crime report relating to Simon Haycock. (4) The defendant admits checking various addresses in Sutton Coldfield and providing details of the addresses to Simon Haycock. (5) This was done out of bravado and nosiness. (6) There is no evidence that the information was used or was intended to be used in furtherance of any criminal activity. COUNT 2 (1) The defendant admits accessing police computer systems to view police intelligence material in relation to Anthony Palmer, Christopher Bolton and Kevin Thornton for reasons other than policing purposes. COUNT 8 (1) The defendant accepts assisting Anthony Palmer to change his name to Clarke to open an account in Barclays Bank. FURTHER: (1) There is no evidence that the defendant received a direct financial payment as a result of his activities. (2) No police operation was compromised."
The document is signed by leading counsel on both sides.[25]Haycock and Palmer entered guilty pleas after seeking and being given a Goodyear indication. Palmer was sentenced to six months' imprisonment suspended for two years, with a supervision order of twelve months and a requirement to perform 120 hours' unpaid work. He was further ordered to pay compensation in the sum of £3,500. Haycock was sentenced to ten months' imprisonment suspended for two years, with a supervision order for twelve months and a requirement to perform 120 hours' unpaid work. That order was made on the basis that he had spent 137 days in custody on remand.[26]When the judge came to deal with the offender, he examined in very close detail the situation as it stood before him. He took the view that of the three men before him for sentence, the offender was in the most serious position. The judge acknowledged that he had no previous convictions and that there were a number of positive, commendable aspects to the service he had given as a police officer. That said, the judge recorded, entirely correctly, that the offender had demonstrated that he was unworthy of the trust that had been put in him. The judge then examined some of the further aspects of the case. He said that the damage caused by this misconduct was "relatively light although it was blatant and persistent". He also took account of the fact that there had been a plea of guilty (albeit late). He also recognised that when a police officer receives a custodial sentence the stresses and strains on him are usually greater than they are for most prisoners. In this case there had been evidence before the judge that during the time after his arrest, when the offender had been in custody for 137 days, he had had more than his fair share of troubles.[27]The judge set out in meticulous detail his thinking process. He decided that the appropriate sentence, allowing for all the circumstances, would have been one of 18 months' imprisonment. He reflected on the fact that the period of 137 days already spent in custody on remand in effect meant that four and a half months of the eighteen month sentence had been served. Having examined the facts further, he decided that the custodial sentence that would be appropriate would be fifteen months' imprisonment. Then, examining that in the context of the practical realities of what such a sentence would involve, he decided that that would mean that the offender would return to custody for "something in the order of twelve weeks". He therefore decided that, rather than pass an immediate custodial sentence, he should reduce the sentence of fifteen months to twelve months (because a suspended sentence is not available for a sentence of fifteen months). Having done that, he made the order of twelve months' imprisonment and suspended it, and then made the further orders for supervision and unpaid work that we indicated at the start of this judgment.[28]The judge's sentencing decision was lengthy and carefully structured. The criticism of it is that the sentence was inadequate to reflect the seriousness of the criminality of which the offender was guilty. By contrast, the argument on behalf of the offender is that this was an entirely appropriate sentence -- at any rate a sentence which was well within the appropriate range of sentencing and sufficiently reflected the offender's criminality.[29]The significant features of this case are these. The offender was a serving police officer. Serving police officers are permitted access to police computer records for the purpose of fulfilling their responsibilities to serve the public. However, those records are confidential. They must never be used for personal purposes. Their misuse for any purpose is always very serious. Deterrent sentences are appropriate. That is well established in previous sentencing decisions of this court, and we endorse the principle. Thus in R v Kasim [2006] 1 Cr App R(S) 12, in a constitution presided over by Rose LJ, the Vice President of the Court of Appeal, Criminal Division, this observation was made:
"It seems to us that, especially nowadays, the preservation of the integrity of information regarding members of the public held on data bases like those maintained by the police is of fundamental importance to the wellbeing 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 necessarily be met by a severe punishment, even in the face of substantial mitigation." 30. "
The seriousness of the offence left no proper alternative to this course. Further, 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."[30]We respectfully adopt that approach to the sentencing decision which we have to make in the light of the argument that this was an unduly lenient sentence. We remind sentencing judges that the principle of deterrence in this type of case is crucial.[31]In this case the records were accessed repeatedly. At least some of the purpose was to pass confidential information to others, including known criminals, for their own purposes. It is true that the offender provided rather than sold the information. It is also true, and we bear it in mind, that no police operation was compromised or hindered by the offender's criminality. Nevertheless, some of the information he provided was ultimately deployed for criminal purposes, although again, fortunately, the actual damage caused by his misconduct was in relative terms minor. The offences constituted a gross breach of trust. Quite separately from these offences, the offender also committed a quite separate offence which involved a fraud on a bank. It was not a huge fraud; it was not on its own a major case. But it was an offence of deliberate dishonesty from which he made some financial benefit. Accordingly, sentence had to be passed for what may be described as ordinary dishonesty, which was committed by a police officer who unlawfully and deliberately, and for his own purposes, had abused his position of trust as a police officer to provide himself and others with confidential information.[32]Examining the matter in this way, looking at the basis of plea and appreciating what was advanced to the judge on behalf of the offender, but looking at the overall criminality as disclosed by the narrative account which we have taken some time to explain, in our judgment this was an unduly lenient sentence. It failed to reflect the gravity of the offender's criminality. We recognise as one feature of the reasoning which led the judge to suspend the sentence that he imposed was the sad reality that police officers who go into custody are almost inevitably subjected to extreme pressures. That said, any police officer knows perfectly well that that is the regime which he will endure if, as fortunately very few police officers do, he lets down his colleagues and the police generally by committing criminal offences, and in particular by committing this sort of offence.[33]We note the complicating factor that the offender, a former police officer who had been detained effectively for three months in these difficult circumstances and was then released so that he remained at liberty for many months before the case came to trial, would, if sentenced to an immediate custodial sentence, now serve two sentences. That is one way of looking at any order that we might make which would require him today to return to prison. We therefore allow for that. However, allowing for all the circumstances, not least of which is the element of deterrence, a sentence of eighteen months' imprisonment, not fifteen months as the judge thought (although the mathematics are not of great importance), would have been appropriate. Such an order, however, would now be inappropriate because we have to take account both the work actually carried out by the offender to fulfil the order for community punishment, and also the fact that, having served some time in custody and having been released, and having appeared in the Crown Court, he was not then immediately ordered into custody. As always sentencing courts must take all relevant matters into consideration.[34]In the end our analysis is this. There was no sufficient justification for suspending the effect of the sentence. We take account of all the facts, but the order that the sentence should be suspended was unduly lenient. The right way for us to approach it, making every allowance that we can for all the matters that we have endeavoured to summarise, is that justice would now be done if the order for suspension were in effect removed. That means that the offender must now return to custody to finish a sentence of twelve months' imprisonment, which is the sentence which we now impose.[35]The message must be clear. At the risk of repetition, police officers who access records and computers kept by the police for police purposes must be deterred, and deterrent sentences will be passed.[36]The offender is not here. He must surrender to King's Heath Police Station in Birmingham by not later than 1pm tomorrow. The order of twelve months' imprisonment will run from the time he surrenders to custody. Credit will be given to him for the 137 days which he spent in custody on remand.[37]Mr Thomas, would you please make sure that the court has the offender's current address?

Cited in 1 later judgment