Twizell [2019] EWCA Crim 356
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**R v Michael Twizell** [2019] EWCA Crim 356 concerned an appeal against an immediate custodial sentence imposed for perverting the course of justice by use of a laser-jamming device, which the Court of Appeal (Lord Burnett of Maldon LCJ, Whipple and Farbey JJ) found manifestly excessive and replaced with a suspended sentence.
On 21 January 2019 Mr Twizell pleaded guilty in the Crown Court at York on what had been due to be the first day of his trial to one count of doing an act intending and intended to pervert the course of public justice. On 11 February 2019 His Honour Judge Hickey sentenced him to three months’ imprisonment.
On 15 February 2018 a civilian traffic officer deployed a speed detection device on the A658 on the outskirts of Harrogate. When the officer attempted to measure the speed of Mr Twizell’s car, the first three readings failed. On the fourth attempt a speed of 21mph was recorded. There was no evidence that Mr Twizell had been driving in excess of the speed limit. The officer suspected that the vehicle had been fitted with a laser-jamming device. On 25 February 2018 a police officer attended Mr Twizell’s home and examined the car. He noticed a black box which had been fitted underneath the registration plate. Under caution Mr Twizell said that it was a parking sensor. He maintained that account when subsequently interviewed.
In passing sentence, the judge commented that the police operate such devices to protect the public from the dangers caused by drivers who exceed the speed limit. He concluded that Mr Twizell was trying to avoid, either at the time of the offence or at some other time, being caught speeding on public roads for which he could have been prosecuted. He noted that Mr Twizell had incurred three penalty points for speeding as recently as 2017. On the other side of the scales, the judge described Mr Twizell as a 58 year old man of impeccable character who had never troubled the law in the past. He took into consideration the character references from family and friends as powerful mitigation. He expressed the view that Mr Twizell was unlikely to offend again in the future. The judge remarked that the offence was a serious one and that the sentence should have a deterrent element. He would have imposed four months’ immediate custody after a trial. Taking account of all the personal mitigation and applying a ten per cent discount for the late guilty plea, he reduced the sentence to three months’ imprisonment.
Ms Barlow, appearing for Mr Twizell, submitted that the sentence was manifestly excessive and that the exceptional circumstances ought to have led to a suspended sentence order. The effects of the offending were limited because the indictment period was restricted to the use of the equipment on one day and because there was no evidence that Mr Twizell was speeding or otherwise driving poorly. She further submitted that the judge was wrong to impose a deterrent element when there was no evidence that the use of laser-jammers was a persistent or a prolific problem, whether nationally or locally.
The court had no hesitation in saying that the use of such jamming devices amounts to a serious offence, whether or not accompanied by other bad driving. These devices prevent the police from detecting crime and hinder the important role of the police in keeping road users safe. The judge was entitled to conclude that the custody threshold was met. The court did not regard the judge’s reference to deterrence as going further than laying down a marker that the court will treat as serious those offences which seek to undermine the processes of justice, even where an offender has no previous convictions.
However, the court noted that the judge did not apply the definitive guideline on the imposition of community and custodial sentences. The court took into account the factors under the guideline which should be weighed in considering whether it is possible to suspend the sentence. The court was persuaded that an immediate sentence of three months’ imprisonment, after a guilty plea, was manifestly excessive in light of the strong personal mitigation advanced to the judge. The court took the view that this was not a case where appropriate punishment could only be achieved by immediate custody. Were it not for the fact that Mr Twizell had spent around sixteen days in custody, the court would have imposed a suspended sentence order with a curfew and a fine. Given that Mr Twizell had served sixteen days in prison, the court ordered the sentence to be suspended without other requirements or a fine. The court granted leave, quashed the sentence of three months’ immediate imprisonment and substituted for it a sentence of three months’ imprisonment suspended for two years. In short, the use of a laser-jammer was serious and warranted custody, but the judge failed to consider suspension properly and the immediate term was manifestly excessive given the personal mitigation.