Warrilow [2014] EWCA Crim 2523; [2015] 1 Cr. App. R. (S) 36

Michael Henry Warrilow v R [2014] EWCA Crim 2523; [2015] 1 Cr App R (S) 36 concerned an appeal against sentence by a defendant who had been convicted of multiple offences committed partly aboard an aircraft and partly after landing. The Court of Appeal dismissed the appeal.

Mr Warrilow pleaded guilty to four offences arising from an EasyJet flight from Amsterdam to Liverpool on 21 October 2013. The most serious was assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861. He also pleaded guilty to two offences of using threatening, abusive or insulting words towards members of aircraft crew contrary to the Air Navigation Order 2009, and one offence of threatening behaviour contrary to section 4 of the Public Order Act 1986. On 14 August 2014 His Honour Judge Menary QC sitting at Liverpool Crown Court sentenced him to 10 months’ imprisonment for the section 47 assault and 5 months’ imprisonment consecutive for the section 4 offence, making a total of 15 months. No separate penalty was imposed for the two Air Navigation Order offences.

The appellant was a passenger seated in row 11. During the flight Miss Hilton, a member of the cabin crew, was serving passengers from her trolley. The appellant began searching through the trolley and when asked to stop replied “drop the fucking attitude”. He became aggressive and swore at Miss Hilton. Later, during pre-landing checks, Miss Hilton came down the aisle to collect rubbish including a pile of crisps the appellant had been using. She said she would get a bag for him to put them in but he laughed at her. When Mr Byrne, another crew member, came down the aisle with a rubbish bag the appellant said “I’m not picking that up. I’m not a fucking dog, especially not your fucking dog.” Mr Byrne asked him to stop swearing or he would alert the authorities. The appellant replied “Fine, get them. I don’t give a fuck. Get away you cunt before I hit you.” This threat of violence was reported to the Captain, who requested police attendance at Liverpool.

Three police officers boarded the aircraft at 10.20 pm after it landed and spoke to the cabin crew. PC Peatfield then spoke to the appellant, who ignored him. PC Peatfield arrested and cautioned him for acting in a threatening and abusive manner towards the crew. The appellant said “Don’t treat me like a fucking dog.” When PC Peatfield handcuffed him the appellant pulled away before the officer could check and double-lock the handcuffs. He became aggressive and said “you can fuck off” when told he would be led off the plane. He continued struggling and swearing as the three officers removed him from the aircraft. They placed him in the caged area of a police vehicle, where he continued kicking, struggling and at one point headbutted the side of the cage.

During the struggle to remove the appellant from the aircraft PC Peatfield noticed a dull pain in his right hand. Once the appellant was secured the officer checked his hand and found his right thumb shaking and bent backwards, with one joint apparently snapped. It was extremely painful and swollen and he could not move it. He attended hospital where X-rays showed that the thumb and ligaments were broken. Once the swelling subsided he required an operation. At the time of sentencing he was still experiencing pain and limited movement and was concerned about the impact on his ability to perform his duties, as set out in his victim impact statement.

In sentencing the appellant on the section 47 offence the judge concluded that it fell within Category 2 of the Definitive Guideline for assault offences. He moved towards the upper end of the sentencing range by reason of aggravating features, including the assault on a police officer in the course of his duty. After allowing a discount of 15 per cent for the late guilty plea the judge arrived at a sentence of 10 months’ imprisonment. For the three offences committed whilst the plane was in the air the judge imposed no separate penalty for the two Air Navigation Order offences but imposed 5 months’ imprisonment consecutive for the section 4 Public Order Act offence, making a total of 15 months.

The appellant advanced three grounds of appeal. First, that the 10 month sentence for the section 47 assault was excessive. Secondly, that the sentence for the section 4 offence ought not to have been consecutive. Thirdly, that as a matter of totality 15 months was excessive. Mr Cockrell, appearing for Mr Warrilow, very sensibly abandoned the first ground at the hearing. The court observed that it could not see how a sentence of 10 months’ imprisonment for an assault occasioning a really most unpleasant and long-lasting injury to a police officer who was only doing his duty could possibly be characterised as manifestly excessive. Mr Cockrell concentrated on the second and third grounds.

On the question whether the 5 month sentence should have been consecutive Mr Cockrell sought to persuade the court that the section 4 offence occurred after the plane had landed. The court rejected that submission. Lord Justice Jackson, giving the judgment of the court, held that it was clear from the facts and from the judge’s summary in his sentencing remarks that the public order offence was committed whilst the plane was in the air. Mr Cockrell nevertheless urged that it was really all part and parcel of one incident and therefore the sentence should have been concurrent.

The court did not accept that submission. Lord Justice Jackson held that the offences committed in the air fell into one category and the offence committed on the ground fell into a different category. In relation to the offences in the air the relevant public policy considerations were that there is a particular duty on aircraft passengers to behave themselves during a flight. They are all in a confined space and misbehaviour by any passenger can have devastating consequences. The lives and safety of a large number of individuals depend upon the proper and orderly conduct of the flight. In relation to the offence committed on the ground the public policy considerations were quite different. The court has a duty to protect police officers who are injured when performing their duties when apprehending offenders. The court will impose custodial sentences for such offences entirely separate from the sentence relating to an earlier crime committed in the air. The court was quite satisfied that the judge was correct to deal with the Public Order Act offence on the one hand and the assault occasioning actual bodily harm on the other hand by means of consecutive sentences.

On Mr Cockrell’s third ground of appeal, that as a matter of totality 15 months was too long, the court simply did not accept that submission. Lord Justice Jackson observed that the appellant’s conduct both during the flight and after the plane had landed was appalling. On any flight like this there would be among the passengers children and others who would be put in fear by such conduct. A sentence of 15 months’ imprisonment for this series of instances of disgraceful conduct was entirely appropriate. In short, the appeal was dismissed, the court holding that consecutive sentences were justified for offences committed in the air and on the ground reflecting different public policy considerations, and that the total sentence was not excessive given the appellant’s appalling conduct.