Barry Veysey & Others [2019] EWCA Crim 1332

R v Barry Terrence Veysey & Others [2019] EWCA Crim 1332 concerned three unrelated appeals raising issues concerning so-called “potting” – prisoners throwing or smearing urine, faeces or a mixture of the two at prison officers – charged as offences under section 24 of the Offences against the Person Act 1861 (unlawfully and maliciously administering a noxious thing with intent to injure, aggrieve or annoy).

Mr Veysey was convicted after trial of three section 24 offences and one count of racially aggravated intentional harassment and sentenced to four years six months’ imprisonment. He applied for leave to appeal both conviction and sentence. Mr Beardshaw pleaded guilty to a section 24 offence and was sentenced to three years’ imprisonment consecutive to his existing sentence; he appealed sentence by leave. Mr Munroe pleaded guilty to a section 24 offence and was sentenced to 16 months’ imprisonment consecutive to his existing sentence; he applied for leave to appeal sentence.

Veysey’s offending occurred whilst he was serving a sentence for threats to kill and harassment imposed in July 2015. On 4th June 2016 he subjected a BAME prison governor to repeated racial abuse, calling him a “dirty black bastard” and threatening to have him and his children shot. On 11th and 13th July 2016 he threw cupfuls of urine into the face of an officer who had refused him a smoker’s pack, the urine entering the officer’s eyes and mouth on the first occasion. On a subsequent date he threw urine in another officer’s face at a different prison. Despite his previous convictions, which included 111 offences over 39 occasions and prior incidents of potting, Veysey denied the charges. His defence was that whilst he had thrown urine at officers on other occasions, he had not done so on the dates charged. He was convicted of all counts.

Beardshaw committed his offence on 30th November 2017 whilst serving seven years’ imprisonment for robbery, dangerous driving and driving whilst disqualified. He threw a cup containing a mixture of urine and faeces into the face of Officer Richard Woolgrove. The officer required a precautionary hepatitis injection and gave evidence of significant psychological impact. When interviewed Beardshaw initially made no comment but later admitted the offence, though he did not plead guilty at the first opportunity.

Munroe committed his offence on 12th September 2018 whilst on remand charged with wounding with intent (for which he was later sentenced to an extended sentence of 10 years’ custody plus five years’ extended licence). He threw urine into the face of a senior officer, also splashing a nurse. His explanation was that he feared for his life because a man who had previously shot him was detained in the same prison.

On the appeals against conviction, Veysey advanced two grounds. First, he contended that urine could not as a matter of law constitute a noxious thing within the meaning of section 24 of the 1861 Act. Mr Rule submitted that the substance must have the capacity to cause some impairment or harm to a person’s faculties or functioning, either because of its intrinsic quality or the quantity administered. He relied on defence expert evidence that urine is 95 per cent water and not intrinsically harmful, and on the etymology and statutory context of the word “noxious” to support a narrow interpretation requiring proof of harmfulness. He argued that the word had a consistent meaning across various statutes including recent anti-terrorism legislation and that a wider interpretation would have unintended consequences, such as rendering spitting chargeable under section 24.

Mr Cray QC for the respondent relied principally on R v Marcus [1981] 1 WLR 774, in which the Court of Appeal held that whether a substance is noxious depends on both its quality and the quantity and manner in which it is administered, and that “noxious” bears a wide meaning extending beyond substances harmful to health to include things that are unwholesome. The court in Marcus had specifically approved the dictionary definition of “noxious” as meaning “injurious, hurtful, harmful, unwholesome” and held that even putting an obnoxious or unwholesome thing into food or drink with the requisite intent would constitute the offence.

The Court of Appeal rejected Mr Rule’s submissions. Lord Justice Holroyde, giving the judgment of the court, held that the decision in Marcus was binding authority that the word “noxious” is not confined to substances capable of causing injury to health. The court emphasised that Marcus made clear that where a substance is administered in a manner and quantity that is in fact harmful, and with the requisite intent, the offence is made out even if the same substance in a lesser quantity or administered differently would not be harmful. Importantly, the court in Marcus had not merely decided the case on the basis that the adulterated milk was harmful, but had expressly accepted the wider dictionary definition including “unwholesome”. The Court of Appeal held that it is for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner shown by the evidence, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be so regarded, it is then a matter for the jury. The judges below had been entitled to find that a cupful of human urine from an unknown source thrown at the face of a victim was capable of being regarded as unwholesome and therefore noxious. The jury were accordingly entitled to convict.

Veysey’s second ground challenged the refusal by Her Honour Judge Miller QC to stay the proceedings. Mr Rule advanced three reasons why a stay should have been granted: unfair prejudicial delay and/or breach of the reasonable time guarantee in article 6 of the European Convention on Human Rights; procedural irregularity or improper prosecutorial discretion in bringing the case to the criminal courts rather than dealing with it as prison disciplinary matters; and oppression in that proceedings were delayed until after Veysey’s release from his previous sentence to maximise his loss of liberty.

The court noted that the incidents could have been dealt with under the Prison Rules, which allow a governor to impose penalties including up to 42 additional days’ custody for breaches of prison discipline. Mr Andrew Graham, a governor and head of security, had explained in a witness statement that prosecution was appropriate because of the recent increase in violence and indiscipline, Veysey’s frequent offending and constant risk to staff, the seriousness of his premeditated attacks, and the fact that Veysey had accumulated so many additional days that any further adjudication could result in at most 30 additional days before the sentence ended, which would not be an adequate penalty.

Mr Rule pointed to the lack of contemporaneous records of the decision-making process and argued that the decisions to prosecute were irrational or showed bias or involved a failure to exercise discretion properly. He emphasised that Veysey was never interviewed about the incidents and therefore had no opportunity to give his account whilst matters were fresh, nor was there opportunity to investigate the scenes or locate witnesses. He relied on the fact that a warrant had been issued in April 2017 but not executed for almost a year despite Veysey being in custody throughout and making various court appearances on other matters. He submitted that it was unfair to prosecute Veysey after he had completed his previous sentence and been acquitted of another matter, such that he was arrested and remanded in custody when he would otherwise have been at liberty.

The Court of Appeal held that there was no possible basis for challenging the governor’s decision to refer the offences for prosecution. The governor’s reasons were obvious and required no lengthy consideration: Veysey’s extraordinarily long record of adjudications, his repeated breaches of prison discipline, the seriousness of the present offences and the modest time remaining before the existing sentence was completed made this an overwhelming case for prosecution rather than internal discipline. The court cited R v A (RJ) [2012] EWCA Crim 434, [2012] 2 Cr App R 8 for the proposition that where the prosecuting authority has conscientiously exercised its discretion, the court has no power to substitute its own view and the sole question is whether the offence has been committed. The court found that whilst the delay was unfortunate, possibly due to Veysey’s frequent moves between prisons and proceedings in different areas, Judge Miller QC had been entitled to reach her conclusions. Mr Rule had not identified any actual prejudice that significantly affected Veysey’s ability to defend himself or any actual disadvantage suffered by reason of delay. The trial process was equipped to cope with any difficulty, and there was no submission of actual unfairness. The applications for leave to appeal against conviction were accordingly refused.

On sentence, the court took the opportunity to provide guidance on the appropriate level of sentencing for potting offences, noting that such cases came before the courts sufficiently frequently to make guidance desirable. The court emphasised that it was addressing only assaults by prisoners on prison officers and others employed in or providing services to prisons by throwing and smearing urine and faeces, not other forms of assault on prison officers or other circumstances in which section 24 charges might be appropriate.

The court considered the statutory maximum of five years’ imprisonment and noted that this had to accommodate the full range of seriousness that section 24 offences might cover. The court identified the statutory purposes of punishment, the reduction of crime by deterrence, and the protection of the public (particularly those who work in prisons) as being of greatest importance. It held that the court must pass a sentence commensurate with the seriousness of the offence, having regard to the offender’s culpability and any harm caused, intended or which might foreseeably have been caused.

The Court of Appeal concluded that offences of this nature generally involve a high level of culpability for five reasons. First, they are committed by persons justly detained against public servants performing a difficult and important role. Secondly, the offence requires proof of intent to injure, aggrieve or annoy. Thirdly, there will almost always be significant planning and premeditation in preparing a cup or container of urine or faeces in advance. Fourthly, the use of urine and faeces is similar to the use of a weapon. Fifthly, the repellent and unhygienic nature of the offence shows a desire to humiliate, demean and distress the officer, to inhibit the proper performance of public duties and thus to undermine good order and discipline within the prison, carrying an obvious and serious risk of giving rise to wider disorder and disobedience.

As to harm, whilst recognising that in many cases the victim will not suffer actual physical or psychiatric injury, the court held that the harm is nonetheless serious. The effect on the victim is significant in itself, but the particular seriousness lies in the intended or likely effect on prison discipline and order and on the deployment of resources. The victim is likely to be inhibited in future performance of duties. The authority of those responsible for maintaining order is undermined and jeopardised by the risk of wider disorder. The impact on resources may be significant because prisoners who have committed such offences may require multiple officers and protective equipment in future dealings. The risk of repeat offending cannot be easily avoided and resources must be deployed with that risk in mind. Many such offences are committed against officers attending a prisoner’s cell in response to a request for assistance, a fire alarm or for purposes connected with the safety and welfare of the prisoner.

The court considered but distinguished the Sentencing Council’s definitive guidelines for common assault, section 47 assault occasioning actual bodily harm and section 20 inflicting grievous bodily harm. Whilst those guidelines might be considered to identify relevant factors and compare appropriate levels, the court emphasised that it was not helpful to treat such comparison as an equation of like with like because the harm caused by potting is not, or not solely, physical or psychiatric injury. The court rejected the suggestion that offences of this nature should be treated as no more than common assault or minor section 47 offences or sentenced in a way not much different from the limited penalties available under the Prison Rules. Section 24 offences of this kind are serious offences intended or likely to undermine discipline and good order in prisons and which add significantly to the burdens of those maintaining discipline. The need to punish and deter makes it necessary to impose severe punishment.

The Court of Appeal concluded that offences of this nature will generally attract a starting point after trial in the range of two to three years’ imprisonment, with offences involving urine falling at the lower end and offences involving faeces at the upper end. The court identified various aggravating and mitigating factors. Statutory aggravating features include relevant previous convictions, and a record of adverse adjudications within the prison estate involving similar misconduct is also relevant. Actual physical or psychiatric harm is aggravating, as to a lesser extent is the need for the officer to seek medical advice or treatment even if no actual injury can be shown, and such factors may justify significant uplift. Evidence that the offence was motivated by a particular grudge against the officer or by a desire to manipulate the system to the prisoner’s advantage will be aggravating, as will any element of hostility based on race, religion or sexual orientation. Potential mitigating factors include young age and lack of maturity, mental disorder or learning disability relevant to commission of the offence and, in some instances, acting under severe pressure from others amounting almost to duress or being taken advantage of by others preying on weaknesses. The court emphasised that it will not generally be mitigating that the offender was put up to the offence by others or felt obliged to act at their bidding because of, for example, a prison debt.

Where the prisoner is serving a sentence at the time of conviction, a consecutive sentence will usually be necessary. Where he has been released by the time of conviction, a further sentence of imprisonment will usually be necessary. The sentencer must have regard to totality but, consistently with the Sentencing Council’s guideline on totality, in general only minimal weight can be given to that consideration: a prisoner who chooses to offend in this way must expect to receive an appropriate sentence notwithstanding that his time in custody will be substantially prolonged or that he will be required to return to custody after completing a previous sentence.

Applying these principles to Veysey’s case, the court rejected the submission that the total sentence of four years six months was manifestly excessive. The judge had imposed 18 months’ imprisonment on the racially aggravated offence (count 1), 18 months concurrent on the two offences against Officer Holmes (counts 3 and 4) but consecutive to count 1, and 18 months consecutive to the other sentences on the offence at the different prison (count 5). Although the judge did not specifically refer to delay in his sentencing remarks, he had made clear the seriousness of each offence, referred to submissions that section 24 offences involving urine were less serious than those involving faeces, and expressly referred to totality. The court acknowledged that the total sentence was substantial but held it was appropriate given Veysey’s very bad record of offending in general and offending against those in authority in particular. Having breached prison discipline time and again, he could have no legitimate complaint that the seriousness of his offending was reflected in the sentence. The application for leave to appeal against sentence was refused.

In Beardshaw’s case, the judge had concluded that a comparison with section 20 sentencing was more appropriate than with section 47, identified higher culpability, noted the high risk of disease transmission from throwing faeces into

Donoghue v Stevenson [1932] AC 562
A [2012] EWCA Crim 434; [2012] 2 Cr. App. R. 8; [2013] Crim.L.R. 240
Hibbert [2015] EWCA Crim 507

Court of Appeal Criminal Division Annual Report
F [2022] EWCA Crim 1426