Lee Pollard & Sharon Patterson [2019] EWCA Crim 1638

Regina v Lee Pollard and Sharon Patterson [2019] EWCA Crim 1638 was an appeal to the Court of Appeal, Criminal Division, presided over by the Vice‑President Lady Justice Hallett, sitting with Mr Justice Goss and Mrs Justice May DBE, in which the appellants challenged sentences of imprisonment imposed for misconduct in public office.

On 14 March 2019, following trial at the Central Criminal Court, Mr Pollard was convicted of two counts of misconduct in public office and Ms Patterson of one count. On 10 May 2019, His Honour Judge Nigel Lickley QC sentenced Mr Pollard to two years’ imprisonment and Ms Patterson to eighteen months’ imprisonment. Both appealed against sentence by leave of the single judge.

An internal review by Essex Police had uncovered serious failings in investigations conducted by members of the Child Abuse Investigation Team North (“NCAIT”) between 2011 and 2015, leading to misconduct proceedings against 30 past and present officers including the two appellants. During the relevant period, NCAIT faced critical staffing shortages, with only two of five detective sergeants working regularly, and carried a caseload greater than the other two child abuse teams combined. Morale was low and sickness levels high, particularly after the workload increased following the Jimmy Savile scandal. Budgets had been cut and experienced officers lost to retirement or sickness were not replaced.

Ms Patterson had joined Essex Police in January 2001 and moved to NCAIT as a detective constable in December 2010. Mr Pollard had joined in 1994 and transferred to the same team in August 2011. The two began an affair, left their partners and eventually moved in together with their five children.

The appellants were charged with dishonestly manipulating investigations they were responsible for, thereby bringing those investigations to a premature close. NCAIT used a historical recording method known as CAIT 18, a Word document on a shared computer system that could be edited retrospectively without the system recording who had made the alterations or deletions.

Count 2 related to Ms Patterson. She was the officer responsible for investigating historical sexual abuse alleged by a complainant, X, from the age of eight until fifteen, involving X and her sister. The allegations were first reported on 4 May 2011 by the complainant’s mother. A Detective Sergeant Potter advised that witness statements were needed from the victim and her mother. Ms Patterson was appointed case officer in June 2011. Statements were taken from the victim and her sister, but not from the mother. When the victim telephoned repeatedly for updates, she was eventually told falsely that the case had been referred to the Crown Prosecution Service and that no further action would be taken because it was the suspect’s word against hers. In fact, the file had never been sent to the CPS. Ms Patterson created false paperwork to suggest that it had, edited the CAIT 18 document to create a false impression that the investigation had been conducted as directed, obtained a blank MG3 form from Mr Pollard and created a false MG3 charging decision purportedly from a CPS lawyer. A DS Hackett reviewed the case in April 2012, noted the purported no further action decision, and a detective inspector then decided that the investigation should end.

Count 4 related to Mr Pollard. He was tasked with investigating repeated sexual abuse said to have started in the mid-1980s against an alleged victim, Y, and other young men who worked on a suspect’s farm. Y gave a detailed account but did not wish to pursue a complaint, saying he might reconsider if other victims were found. A Suffolk officer took a detailed statement from him and found him credible, although there was evidence that Y’s current partner had contacted the elderly suspect and received large sums of money before Y reported the case. During a search of the suspect’s farm in September 2013, police found four photographs of Y naked and partially undressed. Despite this, Mr Pollard never interviewed Y. He did interview the suspect, but in an inappropriate fashion, with a possible witness present, and with a clear view to taking no further action. It was said at trial that he was more intent on questioning the suspect as a victim of possible blackmail and expressed disappointment when the suspect declined to present himself as such. Mr Pollard removed and destroyed the four photographs, failed to contact Y, and created a false entry on the case file to suggest that he had made attempts to find Y but had failed. When the case was re-investigated, Y was traced easily and quickly.

Count 6 also related to Mr Pollard. He was given the task of investigating an allegation of sexual touching by a fifteen year old boy on an eight year old boy. There was clear evidence that the suspect had a troubled past, was sexually active and was a cause for concern, including to his mother. When a complaint was made in February 2014, Mr Pollard failed to conduct relevant enquiries as directed and falsely claimed that they had been conducted but were negative. He failed to make final checks on the suspect to see if there were any concerns about his behaviour before the case was marked no further action, and made an entirely false entry on the crime file suggesting that he had spoken with the suspect’s social worker who had assured him there were no concerns. He also created a false MG3 charging decision by a CPS lawyer.

Neither appellant had previous convictions, although Mr Pollard had been dismissed from Essex Police for accessing a colleague’s computer to take a copy of that colleague’s job application to give to a rival candidate, namely Ms Patterson.

Mr Rush, on behalf of Mr Pollard, advanced several grounds of appeal. He submitted that the judge failed to give any or any sufficient weight to the failures of management in the day to day operation of the NCAIT and their impact on Mr Pollard’s working life. Many witnesses testified to the failure of the unit. A DI Taylor described the circumstances as “a perfect storm”. Despite a vastly increased workload following the Jimmy Savile scandal, the budget had been slashed and the unit was an amalgamation of two regions covering a huge area. The caseload was meant to be approximately eight to ten live investigations, but in 2014 Mr Pollard was dealing with 40 live investigations. Graphic evidence was called of officers breaking under the strain, said to be almost daily. Mr Rush accepted the judge’s characterisation of the offences as bringing investigations to a premature end, but took issue with the suggestion that misconduct had impacted upon the decisions to take no further action. With regard to count 4, there never was a formal complaint, and when the matter was re-investigated, no complaint from Y was forthcoming. Similarly, on count 6, there was no evidence that the suspect did pose a threat to children and so the actions of Mr Pollard had not led to an incorrect decision being made.

Mr Rush took issue with the judge’s assessment that the betrayal of public trust in police officers justified a finding that the level of harm was high, as this was in any event an element of the offence of misconduct. He insisted that the level of harm could not be described as high because there had been no actual impact on the course of justice. He further criticised the judge for failing to give any or any sufficient weight to the personal mitigation. Mr Pollard had already been dismissed from the police force by the time of his trial. The fact that he had been found guilty of gross misconduct by a tribunal chaired by an Assistant Chief Constable who had also been investigated as part of the review had left him with a sense of unfairness. His partner, Ms Patterson, lost her job, they had lost their home and family life, and both had the investigation, prosecution and trial hanging over them for approximately six years. Mr Pollard’s ex-wife had written to the court explaining the desperate impact upon her and their sons following his conviction and imprisonment. The press coverage had been extensive and led to Mr Pollard’s youngest son being ridiculed by his peers and attempting suicide. The consequence of imprisonment for both appellants had been severe and they would face real difficulties on eventual release in gathering the family back together. During his time in prison, Mr Pollard had behaved impeccably and was described as a model prisoner. He had been the subject of serious physical attack. Mr Rush argued that at the time sentence was imposed the circumstances were sufficiently exceptional to justify a suspended sentence. Even if that moment had now passed, he urged the court to reduce the immediate term of imprisonment.

Ms Carey, on behalf of Ms Patterson, submitted that although the case passed the custodial threshold, it was so exceptional and the personal mitigation such that the sentence of imprisonment could have been suspended. If that moment had now passed, she urged the court to reduce the sentence to such a length as would involve Ms Patterson’s release in 2019 rather than 2020. She conceded that Ms Patterson’s offending was not linked to the crisis situation in the NCAIT, because her offending preceded the particularly difficult times. However, she urged the court to find that the judge had paid insufficient attention to the excellent work in appalling working conditions that Ms Patterson had done in late 2012 and 2013. She, too, referred to the huge workload that had taken a severe toll on the health of many officers, but particularly on Ms Patterson’s health. A combination of the workload, the conditions in the unit and a particularly distressing case where the complainant committed suicide had all led to her diagnosis of post-traumatic stress disorder, low mood and anxiety. Nonetheless, despite the impact on her health, she had continued to work, often acting up as a detective sergeant, a fact said to have been insufficiently acknowledged. The court was invited to note the delay in bringing the matter to court, which had added to the strain for the appellants and for which they were in no way responsible. Ms Carey took exception to the judge’s conclusion that Ms Patterson had failed to express any remorse and invited the court to note the findings of the author of the pre-sentence report that suggested otherwise. She emphasised that this was not a case where officers guilty of misconduct had done so for financial reward or to encourage or assist criminals. Ms Patterson was not an officer who disregarded the effect of abuse on victims; in many cases she went above and beyond her duty. Ms Carey invited the court to find that the offending was better regarded as corner cutting against Ms Patterson’s workload and personal circumstances. The court was urged to bear very much in mind the fact that Ms Patterson was the primary carer for her three children before she was sent to prison. The children had spent most of their life in her care. Two of the children had been referred for therapeutic support. The devastating emotional effect of separation from their mother had been described by their father, who was now caring for the children with his new partner and their children. Ms Carey urged the court to bear that consequence in mind when considering the length of sentence. Effectively, she accepted that a sentence of twelve to eighteen months’ imprisonment could not in itself be described as excessive, but urged the court, as an act of mercy, particularly given the consequences to the children, to reduce it. If the sentence was designed to reform or rehabilitate Ms Patterson, the conviction itself had already served that purpose. The consequences for her had been severe: she had lost her job, her home, and had no support to rebuild her life when released.

To the author of the pre-sentence report, Ms Patterson denied any wrongdoing. She accepted that some of what she had done was wrong and that she had made mistakes, but she did not believe they were sufficient to lose her job. She felt that a lowering of standards in the unit was endemic. She also described being the victim of domestic abuse from her husband. She said that as a result of what was going on in her life, she had reached the point of burnout, although it was not until late 2013 or 2014 that she started to take time off work to seek help. It was said that she had been emotionally vulnerable because she had made a suicide attempt in March 2019, and there were significant concerns for her children should she be sent to prison. A psychiatrist observed that post-traumatic stress disorder had been building up for some time and that her mental health would be liable to deteriorate if she faced a custodial sentence. In any event, she would require psychological therapy. He, too, confirmed the attempt at suicide.

The court understood why the appeals were brought. The consequences of the appellants’ misconduct for them and their families had been devastating. The conditions in the NCAIT were appalling. The court did not for one moment underestimate the impact of imprisonment upon families of offenders, nor the impact upon police officers charged with investigating allegations of child abuse in normal conditions, let alone in the conditions described. However, the judge was obliged to sentence two former police officers for misconduct in public office. Such an offence is always serious, whatever the motivation of the offender, and any sentence must not only punish the offender but must act as a deterrent to any officer tempted to betray their office.

The court found that the offending was characterised by counsel as effectively cutting corners in very difficult circumstances, but, having heard the evidence, the judge found, and the court agreed with him, that it went far further than that. The judge noted, for example, email exchanges between the appellants in March 2012, in which Mr Pollard told Ms Patterson that he was “in the book” as attending court but was in fact free and available to meet her for several days. On another occasion, in November 2011, when Ms Patterson was meant to be preparing for an appointment with a local Social Services department, she cancelled the appointment and thereby avoided many hours of preparation. She told Mr Pollard that she would have her nails done instead, and the two of them then had lunch. Furthermore, concerns about the volume of work in the NCAIT were expressed from about September 2012. The offending of which Ms Patterson was convicted was between May 2011 and June 2012, well before crisis point. In addition, Mr Pollard was prepared to access confidential material simply to assist his partner in furtherance of her career, which had nothing to do with his work in the NCAIT.

Both appellants not only failed to conduct the enquiries they should have conducted, they falsified records to show that they had conducted those enquiries and they made false entries to show that the CPS had made charging decisions when it had not. Mr Pollard destroyed evidence. All this combined somewhat undermined the suggestion that the offences were committed solely because the appellants were two police officers struggling to cope with their conditions and their workload. They may well have believed that the cases were not worth pursuing, but the decision was not theirs, and certainly not without conducting proper enquiries. Their actions brought those cases to a premature end. The judge was right to find that the court would never truly know what may have happened had they behaved differently. Whatever their intentions, their actions cast blame on to others and caused those others concern. They may not have been corrupt in the sense that they offered their services for financial reward to criminals, but they fundamentally betrayed the trust placed in them by the public, their fellow officers, and by possible victims of sexual abuse.

The betrayal of trust was but one of the aggravating features as identified by the judge. The others included the fact that the offences were planned, they were committed over a period of time, and they involved multiple acts of dishonesty to achieve an objective. In a carefully crafted and comprehensive sentencing note, His Honour Judge Lickley QC set out those features but also set out all the very powerful mitigation advanced by the defence. He acknowledged the impact of the offending on the appellants and their families, and the difficulties they faced in the NCAIT. Balancing all the aggravating and mitigating factors, he explained why, in his judgment, the immediate terms of two years and eighteen months’ imprisonment were inevitable. The court considered his sent