Phelps, R. v [2017] EWCA Crim 2403

[2017] EWCA Crim 2403Case No 201703352 A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
Venue Royal Courts of JusticeDate Tuesday, 5 September 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE HOLGATE
SIR KENNETH PARKER
Between
R E G I N ACrownv
Between
DAVID ROBERT PHELPS
Computer Aided Transcript of the Stenograph Notes ofWordWave International Ltd trading as DTI,190 Street London EC4A 2AG,Tel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Jarvis appeared for Attorney GeneralMr K J Baumber appeared for Offender
J U D G M E N T
[1]The Attorney General applies under section 36 of the Criminal Justice Act 1988 for leave to refer a sentence passed on David Phelps as being unduly lenient.[2]The offender is aged 42. The offence was one of doing an act tending and intended to pervert the course of public justice. At the time of the offence he was a police officer, a detective constable with Suffolk police.[3]The particulars of the offence charge that between 8 March and 30 April 2016, he had coached a man named Bradley Tanner as to the account that he should give in a police interview under caution, so as to explain the presence of another person's DNA on wraps of controlled drugs and account for money seized by the police.[4]On 2 June 2017, in the Crown Court at Norwich, he was convicted of the offence following a trial.[5]Following conviction, the sentencing hearing was adjourned and the offender's bail conditions were varied so as to provide for a qualifying curfew between 9.00 pm and 6.00 am.[6]On 30 June, he was sentenced to a term of 28 days immediate imprisonment. However, in view of the time he was subject to the qualifying curfew, 14 days counted towards the sentence, with the result that the offender did not serve any time in custody. He was ordered to pay a victim surcharge of £80.[7]In summary, the offender was a police officer with 15 or so years' service. In March 2016, a man, Bradley Tanner, was arrested at his home address. Another man, Michael Wingrove, was also present. A search of the address revealed four wraps of class A drugs (heroin and cocaine) as well as cash and drug paraphernalia. Tanner was arrested and interviewed later that day by the offender and another officer. He gave no comment answers to questions. The offender then became the investigating officer. Forensic tests on one of the wraps found traces of DNA from Wingrove. The offender went to the home address of Tanner's father to speak to Tanner. Their conversation was secretly recorded by Tanner's father. The offender sought to persuade Tanner to re-attend the police station for interview so that he could admit being in possession of the wraps, to explain why he had the cash in his home (the profits of gambling) and to account for the presence of Wingrove's DNA on one of the wraps (he must have touched it when it fell to the floor). If he did that, the offender said Tanner would receive a police caution for simple possession and there would be no need for him to arrest Wingrove or investigate the case any further. The offender followed his conversation up with a letter to Tanner's solicitors. When the recording came to light the offender was arrested on suspicion of perverting the course of justice by coaching Tanner.[8]The facts in more detail are as follows. In March 2016, the offender was serving at Lowestoft Police Station. On 9 March, Tanner was arrested at his home address on suspicion of burglary. At the time of his arrest, another man called (Wingrove) was also present in his home. When the arresting officers entered Tanner's bedroom they saw Wingrove, who was in the process of trying to swallow what turned out to be a small amount of cannabis. The officers then carried out a search of the house and found four wraps containing diamorphine and cocaine, along with clingfilm, carrier bags, £230 in cash, and a mobile telephone and SIM card belonging to Tanner. As a result of the search, Tanner was arrested on suspicion of being concerned in the supply of class A drugs. Wingrove was spoken to at the scene, but he was not arrested.[9]The police took Tanner into custody. At this point the offender became involved. He and another officer interviewed Tanner. By this stage, the police had been able to access the mobile telephone taken from Tanner's address. They found text messages on the device that were consistent with him using it to supply drugs to others. Those messages were put to Tanner in his interview by the offender's colleague. Tanner answered no comment to all questions. Following the interview, he was released on police bail.[10]The offender became the officer in the case charged with investigating the suspected involvement of Tanner in the supply of class A drugs. On 4 April 2017, the offender was informed of the results of a forensic examination of the wraps containing the class A drugs. No DNA attributable to Tanner was found on those wraps but DNA from Wingrove was detected on one wrap.[11]Some time prior to 8 April 2017, the offender spoke to Tanner about the possibility of him providing the police with a witness statement. On 8 April, the offender attended the home address of Tanner's father. His father, Steven Tanner, was present. Unknown to either Tanner or the offender, Steven Tanner set up a device to record the conversation that was to take place between his son and the offender before leaving them alone in the house.[12]In the course of the conversation, the offender told Tanner that the contents of his mobile telephone were "like a fucking dream", although the offender was later to admit that he had not read the reports of the contents of the phone. He said that Tanner could be charged with possession of class A drugs with intent to supply and that there was enough evidence to arrest Wingrove as well. The offender said to Tanner, "If say, for instance, you told me that (the drugs) were yours and purely yours and whatever evidence I might have would just be a pure fluke, then I'd be able to deal with it quite quickly and you'd get charged with possession only". In such an event, the offender added, "It would be done and finished and I wouldn't have to go out searching for Wingrove". He also said, "I'm trying to, like, not help ya, but it could be easier, if you wanted it to be easier it can be. Erm, if you [inaudible] and said it was for my fucking use only, erm, it can be dealt with".[13]Tanner initially denied that the class A drugs had anything to do with him. He asked whether the offender was suggesting that if he admitted the drugs were his he would only be charged with simple possession. The offender said, "I can guarantee that. That's come from my DS (Detective Sergeant Bracey)".[14]The offender said he would need to conduct "a quick interview under PACE conditions". In order to account for the presence of Wingrove's DNA on one of the wraps, the offender suggested that unless there was some innocent explanation for that he would be forced to arrest Wingrove. He asked Tanner whether there was a chance the wraps had been knocked onto the floor and Wingrove "might have fucking picked it up or something?", to which Tanner agreed.[15]In relation to the cash found during the search, the offender said that if Tanner admitted it was his money he could have it back, otherwise it would permanently be taken from him. Tanner admitted it was his. The offender then asked him how he came by the money in this way:
"Just ... I'm not putting words in your mouth but how did you get the money?"
Tanner said:
"Er, I won it at the bookies"
. To which the offender said "Well done, happy?"[16]The offender also explained that if Tanner admitted simple possession of the drugs, he could have his mobile telephone back when he answered his police bail, and the offender would not need to go "sniffing around" inside the phone to find other incriminating evidence against him.[17]The offender made it plain to Tanner that if he admitted simple possession of the drugs, then the matter could be dealt with by the police, but if he denied it then the offender would be forced to carry out further enquiries, which would include arresting Wingrove, and the file of evidence would then have to be presented to the Crown Prosecution Service, which could result in both Tanner and Wingrove being charged with possession with intent to supply.[18]Tanner said he wanted to speak to his solicitor about the offender's proposal. The offender said that was fine and he could come back another day but he counselled Tanner not to mention their conversation to his solicitor. The offender added, "What I'm trying to do is just save you a bit of fucking hassle". The offender then left and Tanner’s father returned about an hour later.[19]On 26 April 2016, the offender sent an email to Tanner's solicitor, copying in Detective Sergeant Bracey, in which he wrote that the contents of Tanner's mobile telephone "fully supports the supply side of things" but "it is not entirely in everyone's interest to put this to the CPS for a decision on PWITS [possession with intent to supply], as this would only seek to add further time that [Tanner] remains on bail". He added that his DS was prepared to authorise charging Tanner with simple possession. The offender referred to his conversation with Tanner at his home address and how he, the offender, advised Tanner to discuss the matter with his solicitor. Taking this proposed course would, the offender wrote, "bring this to a conclusion swiftly, which I am sure your client would want".[20]The solicitor did not respond to this email and so the offender sent a chasing email on 6 May 2017.[21]On 12 May 2017, the offender was arrested on suspicion of perverting the course of justice. In his interview, he said his experience of investigating drugs cases was rather limited. He said he had never seen any report into the contents of the mobile telephone taken from Tanner. His knowledge of what was on that device came from what other officers had told him. He said he spoke to his detective sergeant about the case when the forensic results came back at the beginning of April. They talked about the possibility of Tanner receiving a caution if he admitted simple possession.[22]The offender admitted there was enough evidence for him to have arrested Wingrove. He agreed he went to Tanner's home to speak to him about the whereabouts of Wingrove so he could arrest him. In error, he mentioned that the police had DNA evidence against Wingrove. They also talked about the possibility of a police caution. He was asked why he was "not pursuing two potential drug dealers who could be locked up for quite a substantial time". He said he had a large workload and probably saw a police caution for Tanner as a means to reduce the stress he was under at the time.[23]At the conclusion of the first interview, the offender was informed that his conversation with Tanner had been recorded. He was unaware of this fact earlier. During the second interview, which took place later that day, he answered no comment to all question on the advice of his solicitor. Following that interview, the offender was released on police bail. He was re-interviewed on 16 August 2016, and again answered no comment. He was then charged.[24]As a result of the investigation into the offender, his detective sergeant was also interviewed on suspicion of perverting the course of justice. He explained in his interview that the offender told him that the mobile telephone taken from Tanner was locked and could not be accessed. No further action was taken against the detective sergeant.[25]At his trial the offender maintained that he acted at all times in good faith. Any shortcoming in his investigation was down to his inexperience or poor judgment. He denied trying to take a 'short cut'. The judge directed the jury that in order to convict the offender they had to be sure that at the time of his conversation with Tanner the offender deliberately intended to coach him to give a misleading account as set out in the particulars in the indictment.[26]As a result of the offender's arrest, a further investigation into Tanner and Wingrove was undertaken. A full evidential download of Tanner's mobile telephone revealed strong evidence of his involvement in the supply of class A drugs. Further forensic tests carried out on the clingfilm and carrier bags found during the search of his home revealed traces of DNA from Wingrove. Both Tanner and Wingrove were later charged with possessing class A drugs with intent to supply and were convicted of those offences at Ipswich Crown Court. They were each sentenced to 5 years' imprisonment for these offences.[27]The offender was a man of previous good character and there was no pre-sentence report in his case.[28]At the sentencing hearing, prosecution counsel referred the judge to the cases of R v Tunney [2007] 1 CR App R (S) 91 and submitted that in deciding on sentence three matters were of particular relevance. First, the seriousness of the main offence. Secondly, the persistence of the offender's conduct. Thirdly, the effect of that conduct on the course of justice. Defence counsel then, as on this application, Mr Baumber, drew the judge's attention to the case of R v Nazir [2003] 2 Cr App R (S) 114. He had also prepared a document consisting of cases drawn from his search of the internet with sentences ranging between 6 months' imprisonment and a conditional discharge in cases where police officers committed similar offences.[29]Defence counsel advanced the following mitigation on the offender's behalf. First, he was a man of good character and there were a number of character references that spoke warmly of his work both inside and outside of the police force. Secondly, the offender was dismissed without notice from the police service on 22 June 2017 for gross misconduct and so his career was now over. Without a job he was unable to provide financial support for his ex-wife and their children. Thirdly, his father had died in 2013 and his relationship with his partner broke down at about this time. His mother was diagnosed in 2014 with a chronic illness and his relationship with his sister had broken down as a result of disagreements between them about how to care for their mother. The offender was now solely responsible for looking after her. Fourthly, in consequence of this troubled family background, the offender had been diagnosed with depression. His condition deteriorated markedly in May 2016 following his arrest. By October 2016, he was on an increased dose of anti-depressant medication and he was receiving ongoing counselling.[30]In his sentencing remarks, the judge observed that the jury rejected the offender's case that he had acted in good faith and that he was not trying to take "an underhand shortcut in this enquiry". The judge concluded that there was no corrupt motive on the offender's part; he was "trying to save time". The verdict of the Ipswich jury showed in relation to Tanner and Wingrove that "the evidence sustained a different and more serious view of the matter" that the offender had been tasked with investigating.[31]The judge noted that there was no definitive guideline for the offence and cases must necessarily turn on their own facts. He felt that a measure of deterrence in the sentence was inevitable so that other officers "are not tempted to take shortcuts in that you were proven to have done".[32]In the circumstances of the case, the judge felt that whilst a sentence of immediate custody was inevitable, he could "keep that sentence a short one" and so he imposed a term of 28 days' custody less time served on qualifying curfew, which amounted to 14 days.[33]For the Attorney General, Mr Jarvis submits that the sentence in this case was unduly lenient.

(S) 66, the Court of Appeal said this at [1]:

"Conspiring to pervert the course of justice is treated seriously by the courts. That is hardly surprising. As the Attorney General's Reference (No. 35 of 2009) (R v Binstead) [2010] 1 Cr App R (S) 61 shows the offence 'undermines the very system of criminal justice'. It is especially serious when the defendant is a serving police officer. Someone who is supposed to be upholding the law is undermining it instead. But the courts have to strike a balance between marking the severity of what the police officer has done and reflecting the police officer's true culpability."
[34]In that case, the appellant was a serving police constable and had been for about a year before committing the index offence. He was on patrol when he saw what he believed to be a drugs deal taking place. He stopped and approached two men who appeared to be dealing drugs to a woman. He searched the woman and found three wraps on her. He arrested her and took her into custody. She was very upset. She explained she was a solicitor from Australia working in London. She was concerned about the effect a conviction would have on her career and her immigration status. A civilian employee at the police station was tasked with subjecting the wraps to an examination to see if they contained drugs. The tests came back positive. The appellant spoke with the civilian and explained the difficult position the woman was in. Between them they agreed to record the test as negative. The appellant passed this false information on to senior officers who decided that in the circumstances no further action should be taken against the woman. Before his shift ended that evening the civilian employee confessed what he had done. He and the appellant were arrested and interviewed. The employee admitted what he had done but the appellant blamed the employee. The woman was later invited to return to the police station and then cautioned for possession of cocaine.[35]The appellant and the civilian employee were charged with conspiring to pervert the course of justice. The civilian employee pleaded guilty at his first appearance in the Crown Court. The appellant pleaded guilty on the first day of his trial. The civilian employee was sentenced to 12 months' imprisonment suspended for 2 years and the appellant was sentenced to 2 years' imprisonment. On his appeal against sentence, the court drew attention to "a lot of personal mitigation available to" the appellant, but added that "the seriousness of the case made a sentence of imprisonment of immediate effect absolutely inevitable" (paragraph 10).[36]The court observed that by the date of sentence, the appellant "had admitted that he had made a terrible mistake". He had let his conscience get the better of him. "That encapsulates what makes the case so unusual. It was not, for example, a case of a police officer making a false allegation against an innocent person. Nor was it a case in what was done was done for personal gain or advantage. It was Evans-Keady's spontaneous reaction to his sympathy for someone whose actions were likely to have had what he thought would be disproportionate and serious consequences for her immigration status and her career" (paragraph 11). That sympathy was, in the court's view, misplaced "because it was not for him to decide, in effect, that she be put in a position where a prosecution of her would be less likely".[37]We note that in the event the court reduced the sentence from 2 years to one of 12 months' immediate imprisonment.[38]The Attorney General submits that in the present case the offender's conduct was very serious. He set out to ensure that instead of two men being charged with, and prosecuted for, their involvement in the supply of class A drugs, only one of those men would receive a caution and even then only for simple possession of those drugs. Had his plan worked then two drug dealers would have remained at large to carry on their harmful activities. Possessing class A drugs with intent to supply is properly regarded as a very serious offence, carrying a maximum sentence of life imprisonment. Although the offender acted alone (unlike the appellant in Evans-Keady), as a result of his actions his detective sergeant was also interviewed on suspicion of being complicit in the offender's crime. His plan involved not only having what turned out to be a covertly recorded conversation with Tanner, but also sending two letters to Tanner's solicitor and so there was, submits the Attorney General, a degree of persistence here as well. The offender's motivation was selfish and not selfless (unlike the appellant in Evans-Keady). The offender wanted to reduce his own workload thereby securing an advantage for himself. While there was substantial personal mitigation available to him, a sentence of 28 days' imprisonment was, submits Mr Jarvis, far too low. It should have been significantly longer.[39]For the offender, Mr Baumber accepts that the sentence was lenient and merciful but he submits that it was not unduly so. He reminds the court that the sentencing judge was in the best position to assess the culpability of the offender, having presided over the trial and seen the offender giving evidence. The judge had noted that there was no wider corrupt motive than to save time and that the case had had considerable impact on the offender and his family.[40]Secondly, he submits that the case was unusual in a number of respects. During the recorded conversation, the offender had repeatedly advised Tanner to speak to his father and his solicitor. He was subsequently transparent about securing the disposal to simple possession; and, there was no personal gain.[41]Thirdly, Mr Baumber draws attention to the offender's personal mitigation. He had suffered traumas and stresses in the period leading to the crime. His father's illness and death in 2013, the fallout from which the offender had to deal with alone; his diagnosis of depression and separation from his partner the same year and a frail reconciliation following which the house had to be sold, and separation from his son; the chronic illness of his mother; and a breakdown in his relationship with his sister.[42]Occupational health records available for the sentencing judge showed that he was suffering recurrent depression with a range of systems aggravated by the pressures of this case, which the Reference was bound to exacerbate. The notes record that his greatest fear was prison and the observation made by the manager was that "the thought of prison is intolerable and I am very concerned as to what would happen if this was to occur". It also showed that he has since received help, taking counselling and medication, and engaging with the psychological well-being service. The records also capture the remorse and the fact that the offender was extremely upset, feeling he had let himself, his family and his colleagues down.[43]Fourthly, he submits that the sentencing process necessarily had to take into account the catastrophic consequences of the conviction on the offender's career and on his family; the impact on the life and emotional well-being of his 11-year-old son, as testified to by the child's mother; also, separately, on his 6-year-old son, whose mother explained the devastating impact of the financial losses alone, and her particular concerns relating to the child's special needs; and his elderly mother, who is "completely reliant upon him" due to her physical illness, his financial support and his practical support where there is no-body else to step in.[44]Fifthly, Mr Baumber draws attention to the case of R v Khalid Nazir [2003] 2 Cr App R (S) 114, where a police officer who also had welfare problems at the time of the offending obtained a fixed penalty notice which had been issued to a driver friend by a probationary police constable with a view to destroying it. In that case, a sentence of 3 months' imprisonment following a plea to a charge of misconduct in public office was reduced to a term of 1 month.[45]Mr Baumber, sixthly, submits that the court should take into account the double jeopardy principle; that is to say the practice of this court when considering whether to impose an increased sentence and, if so, the length of such sentence, to have regard to the fact that the procedure subjects the offender to distress and anxiety (see Attorney General's Reference (Nos 14 & 15 of 2006) (French & Webster) [2006] EWCA Crim 1335 at paragraph 57). He reminds this court that the principle may still apply in certain circumstances (see R v Afzal & Malik [2014] EWCA Crim 1566) and submits that it does so in the present circumstances.[46]We note that Mr Jarvis accepts that it does in the present circumstances.[47]We have considered the submissions. We should start by saying something about two of the cases to which we have been referred. We do not consider that the case of Khalid Nazir, relied on by Mr Baumber, provides very much assistance. The offence was not charged as perverting the course of justice, the underlying offence was very much less serious and there was no persistence.[48]We note that in the case of Evans-Keady, which is closer to the facts of the present case, the appellant's sentence was reduced to 12 month on the basis of his late plea. Here, there was no mitigation of a plea.[49]There are no guidelines to this offence and so the sentencing court must approach sentencing on the conventional basis of an assessment of seriousness by reference to harm and culpability. As has repeatedly been said, the offence of perverting the course of justice when committed by a police officer who is there to uphold and apply the law is particularly serious.[50]As was observed in the passage in Binstead, quoted in Evans-Keady at [1], a police officer who commits this offence is subverting the law instead of upholding it.[51]In the present case, the particular harm was that the offender was not simply taking a shortcut, as the sentencing judge described it, he was proposing that instead of the proper investigation of offences of possession with intent to supply class A drugs against two offenders, an investigation should be concluded on the basis of a caution for simple possession by one offender. The intent and effect of the offence was that not only would Tanner be cautioned for simple possession, but the incriminating evidence on his phone would be hand back to him, together with cash that had been seized. The offences that were not pursued were serious offences which resulted, in the event, in sentences of 5 years' imprisonment.[52]So far as culpability is concerned, we accept there was no element of corruption but neither was the offence committed out of a genuine and spontaneous sympathy for a third party, as in Evans-Keady. Furthermore, the offence involved not merely witness coaching but the giving of a false account that would exculpate Wingrove. It also involved lying to his detective sergeant by saying that the phone seized from Tanner could not be accessed. It was committed so as to save the offender the trouble of properly carrying out his duty as a police officer.[53]In our view, the sentencing judge was right to say that a measure of deterrence was required to discourage other police officers pursuing this type of criminal conduct for this reason.[54]We also accept the Attorney General's submission that there was an element of persistence in the letters sent to the offender's solicitors and a further aggravating feature of him saying that his detective sergeant had authorised the deal, at least as described, which resulted in that officer being interviewed.[55]So far as mitigation is concerned, we accept the crime must be seen in the context of the offender's previous exceptional good character and his good record in the police service over 15 years, the consequences of his dismissal, the impact on his family and the effect of immediate custody for a police officer. We also accept there was an element of double jeopardy in this case, since there are no guidelines issued by the Sentencing Council for two offences, and there was no complainant as such. In these circumstances we recognise that because a non-custodial sentence was imposed, considerable anxiety would have been caused by the Reference.[56]Taking all these matters into account, we have concluded that the sentence of 28 days' imprisonment was unduly lenient. Accordingly, we grant leave.[57]In our view, the starting point for this offence was of the order of 15 month, which we reduce to a term of 11 months to reflect the mitigation identified by Mr Baumber. First, the very considerable personal mitigation and, second, a deduction to reflect what we accept is an element of operative double jeopardy.[58]Accordingly, we quash the sentence of 28 days and substitute a term of 11 months.