Adam Spears [2019] EWCA Crim 3073

**R v Adam John Spears** [2018] EWCA Crim 3073 concerned an appeal against sentence by an 80-year-old former police officer who had been convicted in the Crown Court at Maidstone on 6 December 2017 of two offences of unlawfully obtaining personal data and two offences of dishonestly disclosing personal data, contrary to section 55 of the Data Protection Act 1998. The Court of Appeal (Lord Justice Leggatt, Mr Justice Lewis and His Honour Judge Lodder QC sitting as a Recorder) dismissed the appeal.

Mr Spears had been fined £2,500 for each offence, a total of £10,000, and ordered to pay £2,500 costs. He had been given twelve months to pay. He appealed only against the imposition of the fine, with leave of the single judge.

The offending arose from the investigation of an insurance claim following a fire at a nightclub, the Voodoo Lounge, owned by Mr Cookson, on 2 December 2004. The insurer instructed Woodgate & Clark, a firm of loss adjusters, to investigate the claim. Two individuals at that firm (the third and fourth defendants) decided to investigate Mr Cookson’s personal finances. They in turn instructed Mr Spears, who worked as a private investigator. Mr Spears enlisted the assistance of Mr Summers (the first defendant), who used a technique known as “blagging” to deceive Abbey National (now Santander) and Barclays Bank into disclosing details of Mr Cookson’s mortgage, current account and loan account by pretending to be the account holder. Mr Cookson had not consented to the disclosure. Mr Spears passed the information to Woodgate & Clark and was paid for doing so; he in turn paid Mr Summers. All five defendants were convicted following trial.

The sentencing judge observed that section 60 of the 1998 Act (now section 196 of the Data Protection Act 2018) permitted only an unlimited fine. He determined the appropriate total fine for each defendant’s offending as a whole, then apportioned it between the individual offences. He had regard to culpability and harm, and adjusted fines to reflect ability to pay. In relation to the company defendant, he noted that the fine should be sufficient to bring home to shareholders the need to avoid criminal conduct.

The judge regarded the offence itself as relatively serious. The purpose was commercial: it was in Woodgate & Clark’s interests to provide the insurer with as much information as possible to retain a valued customer. Mr Spears was paid to obtain and disclose the information. The conduct was deliberate and involved multiple breaches. The judge considered harm to be limited, however, because Mr Cookson would have provided the information willingly if asked and had been compensated in civil proceedings for breach of his privacy. In mitigation, the judge noted that all defendants, including Mr Spears, were of previous good character and that the financial gain to Mr Spears and Mr Summers was relatively modest.

The judge was referred to a sentencing decision in R v Hill, Forest and Stewart at Southwark Crown Court, but considered that case involved offending on a much larger scale and in a more invasive way. He was also provided with a schedule of fines imposed in magistrates’ courts, but regarded it as of little assistance given the limited information about the facts of those cases. The judge regarded the fourth defendant, Mr Woodgate, as the most culpable and imposed a total fine of £75,000 for three offences, divided equally. The company was fined £50,000 in total for two offences. The third defendant was fined £30,000 in total for two offences. The judge considered that the appropriate fine for both Mr Summers and Mr Spears was £20,000. He found that Mr Summers had the means to pay that amount, and apportioned it as £5,000 for each of four offences. Because Mr Spears had limited means to pay, however, the judge reduced his total fine to £10,000 and divided that equally between the four offences, resulting in £2,500 for each. The costs order of £2,500 reflected his proportion of costs incurred, again reduced to reflect his limited means.

On appeal, Mr Hingston submitted on behalf of Mr Spears that the harm was negligible and that his client had made little financial gain. He accepted multiple breaches but submitted that they involved only two financial institutions and one individual, and that the information was personal but not sensitive. He submitted that the judge should have taken into account that, since committing these offences but before sentence, Mr Spears had received a custodial sentence for fraudulently obtaining personal data, representing a fall from grace and punishment already received. He referred to Mr Spears’s age (now 80), the delay of eleven or twelve years before the decision to prosecute (though an application to stay on grounds of delay had failed), and the fact that the judge had wrongly referred to Parliament proposing custody as an available sentence when in fact the 2018 Act retained only an unlimited fine. Counsel submitted that Mr Spears had limited means: an annual income after tax of £28,243.12, no capital assets and savings of approximately £2,500. The fine represented approximately four months’ income and was manifestly excessive.

In dismissing the appeal, Mr Justice Lewis (giving the judgment of the court) held that when imposing a fine for breach of section 55 of the 1998 Act a judge must have regard to the purposes of sentencing set out in section 142 of the Criminal Justice Act 2003, namely to punish offenders, reduce crime including by deterrence, reform and rehabilitate offenders, protect the public and make reparation. The judge must have regard to the seriousness of the offence, including both the culpability of the offender and the harm caused, under section 143 of the 2003 Act. The judge must also enquire into the offender’s financial means under section 164 of the 2003 Act and fix the fine so as to reflect the seriousness of the offence, taking into account all the circumstances including the offender’s financial circumstances so far as known. In relation to sentencing commercial organisations, guidance had been given in R v Sellafield Ltd [2014] Env LR 521 and reaffirmed in R v Thames Water Utilities Ltd [2015] 1 WLR 4411 at paragraph 33.

The court held that the judge had correctly followed those principles and reached conclusions he was entitled to reach on the material before him. He was entitled to regard the offence as serious. Culpability was high: the offending involved the unlawful obtaining and disclosing of personal financial information concerning different types of financial information (a mortgage, a current account and a loan account) from two separate financial institutions. The offences were deliberate and done for financial gain. In terms of harm, the judge was entitled to take the view that on the facts harm was limited, given the nature of the information obtained, the fact that Mr Cookson would have consented to disclosure to the insurer in any event, and that he had received compensation for breach of his rights.

The court considered that the judge had taken account of the mitigation available to Mr Spears, namely his age and previous good character. The court did not regard the fact that Mr Spears had been sentenced to a custodial term for other offending as a matter of much, if any, weight. Similarly, the period of time between offending and prosecution provided little, if any, mitigation, given the history leading up to the decision to prosecute and the failure of the application to stay proceedings on grounds of delay.

The judge had had regard to Mr Spears’s means and ability to pay. He had reduced the fine from £20,000 to £10,000 to reflect the information known to him about Mr Spears’s financial circumstances. Mr Spears had an annual income after tax of over £28,000 and was well able to pay a fine of £10,000, particularly given that he had been given twelve months to pay. The court held that the fine could not be said to be disproportionate or manifestly excessive.

In short, the Court of Appeal found that the sentencing judge had correctly applied the statutory framework governing fines, properly assessed culpability as high and harm as limited, taken account of mitigation and means, and that a fine of £10,000 was neither disproportionate nor manifestly excessive for an 80-year-old former police officer of previous good character who had unlawfully obtained and disclosed personal financial information for commercial gain.

R v Thames Water Utilities Ltd [2015] 1 WLR 4411