Kadiri [2017] EWCA Crim 2667
Summary
R v Afshan Meesha Kadiri [2017] EWCA Crim 2667 concerned an appeal by a former HMRC employee against an immediate custodial sentence for abusing her access to confidential databases, which the Court of Appeal allowed and replaced with a suspended sentence.
Ms Kadiri pleaded guilty at the Crown Court at Harrow on 12 April 2017 to one count of misconduct in a public office and one count of wrongful disclosure of Revenue and Customs information. On 19 May 2017 she was sentenced to four months’ imprisonment on each count, to run concurrently. The single judge granted leave to appeal and bail.
Ms Kadiri had been employed by HMRC since 2006 and had access to databases containing confidential personal and taxpayer information. In June to July 2015 she was seconded for four weeks to the Tax Credit Queries Department, gaining access to two further databases: the Taxpayer Business Service and Pay As You Earn. After that secondment ended she had no legitimate reason to access TBS and PAYE records. Between July and December 2015 she made large numbers of unauthorised accesses in search of the name and address of her husband’s new partner, identified as V. She eventually succeeded and passed the information to a private investigator whom she had already engaged. On 4 September 2015 that investigator attended V’s address posing as a window cleaner and remained there until she returned from work. V noticed he had a mobile telephone mounted above his clipboard and asked if she was being filmed. He denied it and left, but he had in fact taken photographs which he sent to the appellant, who later emailed them from her personal email address to her HMRC account. V felt unsafe and contacted the police. In December 2015 V received abusive text messages from Ms Kadiri which she also reported to the police. HMRC investigations revealed large numbers of unauthorised accesses by the appellant culminating in her viewing records for V, V’s son, V’s ex-partner and V’s brother. Each time the appellant logged on she would have been required to acknowledge a notice regarding rules prohibiting access to customer information without a legitimate business reason. She was arrested on 15 April 2016 and made full admissions in interview.
Ms Kadiri was aged 41 at sentence and of previous good character. A pre-sentence report indicated that she did not seem fully to understand the seriousness of her offending but that her risk of further offending was extremely low and she posed no risk of serious harm. A suspended sentence order with unpaid work was available.
The judge noted that the improper access had occurred between July and December but not constantly. She took account of the fact that the appellant had passed information to a private investigator who tracked V down and that the appellant had sent V abusive texts, although there was no charge relating to those. The judge accepted that there was remorse and shame, that there had been a plea at the earliest opportunity, that the conduct was out of character and that the appellant had lost her job. She accepted that the appellant posed an extremely low risk of reoffending. The judge concluded that the offending was less serious than the majority of cases involving misconduct by serving police officers. She indicated that after trial her sentence would have been nine months, reduced to six months for the early plea and further reduced by two months for personal mitigation. She concluded it was not possible to suspend the sentence. She accepted that in such cases the court must bear in mind the need for deterrence, which in many cases would result in an immediate term of imprisonment. She referred to Attorney-General’s Reference No 30 of 2010 [2010] EWCA Crim 2261, in which the court emphasised that punishment and deterrence are always important elements in such cases and that the public must see condign punishment visited on public officers who betray the trust reposed in them.
On appeal Mr Smith for the appellant referred to R v Nichols [2012] EWCA Crim 2650, a case involving a detective inspector of many years’ standing who accessed the police database to ascertain whether drug dealing was taking place as reported by his mother, in which the court substituted a community order for a sixteen-week suspended sentence. Mr Ojakovah for the Crown referred to paragraph 64 of Attorney-General’s Reference No 30, in which Leveson LJ set out principles including that punishment and deterrence are always important, that financial incentive inevitably increases seriousness, that conduct encouraging criminals or impacting police operations moves the offence into a different category of gravity, and that the public must see that condign punishment will be visited on officers who betray trust and fail to meet high standards. He also referred to R v Kassim [2006] 1 Cr App R (S) 12, in which Rose LJ observed that preservation of the integrity of information held on databases maintained by public bodies is of fundamental importance to the wellbeing of society and that any abuse of that integrity by officials is a gross breach of trust which, unless the wrongdoing is really minimal, will necessarily be met by severe punishment even in the face of substantial mitigation.
Sir John Royce, giving the judgment of the court, held that the instant case was more serious than Nichols but substantially less serious than Attorney-General’s Reference No 30 and Kassim. The appellant was aged 41 and of good character. She had held for fifteen years a good job where she was highly regarded. She had been profoundly affected by her husband’s affair and his proposal that his adopted new woman should become his second wife. She had two children aged ten and seven and was carer for her profoundly disabled brother. The court was informed that the grandparents who had taken over care of the two children were struggling to cope. The court observed that this was not a case of obtaining police information to give to criminals and there was no financial motive. The court concluded that there were powerful reasons in mitigation to lead to the conclusion that the sentence passed could and should have been suspended. In short, the appeal was allowed, the immediate custodial sentences were quashed and replaced with concurrent sentences of four months on each count suspended for twelve months.
Ms Kadiri pleaded guilty at the Crown Court at Harrow on 12 April 2017 to one count of misconduct in a public office and one count of wrongful disclosure of Revenue and Customs information. On 19 May 2017 she was sentenced to four months’ imprisonment on each count, to run concurrently. The single judge granted leave to appeal and bail.
Ms Kadiri had been employed by HMRC since 2006 and had access to databases containing confidential personal and taxpayer information. In June to July 2015 she was seconded for four weeks to the Tax Credit Queries Department, gaining access to two further databases: the Taxpayer Business Service and Pay As You Earn. After that secondment ended she had no legitimate reason to access TBS and PAYE records. Between July and December 2015 she made large numbers of unauthorised accesses in search of the name and address of her husband’s new partner, identified as V. She eventually succeeded and passed the information to a private investigator whom she had already engaged. On 4 September 2015 that investigator attended V’s address posing as a window cleaner and remained there until she returned from work. V noticed he had a mobile telephone mounted above his clipboard and asked if she was being filmed. He denied it and left, but he had in fact taken photographs which he sent to the appellant, who later emailed them from her personal email address to her HMRC account. V felt unsafe and contacted the police. In December 2015 V received abusive text messages from Ms Kadiri which she also reported to the police. HMRC investigations revealed large numbers of unauthorised accesses by the appellant culminating in her viewing records for V, V’s son, V’s ex-partner and V’s brother. Each time the appellant logged on she would have been required to acknowledge a notice regarding rules prohibiting access to customer information without a legitimate business reason. She was arrested on 15 April 2016 and made full admissions in interview.
Ms Kadiri was aged 41 at sentence and of previous good character. A pre-sentence report indicated that she did not seem fully to understand the seriousness of her offending but that her risk of further offending was extremely low and she posed no risk of serious harm. A suspended sentence order with unpaid work was available.
The judge noted that the improper access had occurred between July and December but not constantly. She took account of the fact that the appellant had passed information to a private investigator who tracked V down and that the appellant had sent V abusive texts, although there was no charge relating to those. The judge accepted that there was remorse and shame, that there had been a plea at the earliest opportunity, that the conduct was out of character and that the appellant had lost her job. She accepted that the appellant posed an extremely low risk of reoffending. The judge concluded that the offending was less serious than the majority of cases involving misconduct by serving police officers. She indicated that after trial her sentence would have been nine months, reduced to six months for the early plea and further reduced by two months for personal mitigation. She concluded it was not possible to suspend the sentence. She accepted that in such cases the court must bear in mind the need for deterrence, which in many cases would result in an immediate term of imprisonment. She referred to Attorney-General’s Reference No 30 of 2010 [2010] EWCA Crim 2261, in which the court emphasised that punishment and deterrence are always important elements in such cases and that the public must see condign punishment visited on public officers who betray the trust reposed in them.
On appeal Mr Smith for the appellant referred to R v Nichols [2012] EWCA Crim 2650, a case involving a detective inspector of many years’ standing who accessed the police database to ascertain whether drug dealing was taking place as reported by his mother, in which the court substituted a community order for a sixteen-week suspended sentence. Mr Ojakovah for the Crown referred to paragraph 64 of Attorney-General’s Reference No 30, in which Leveson LJ set out principles including that punishment and deterrence are always important, that financial incentive inevitably increases seriousness, that conduct encouraging criminals or impacting police operations moves the offence into a different category of gravity, and that the public must see that condign punishment will be visited on officers who betray trust and fail to meet high standards. He also referred to R v Kassim [2006] 1 Cr App R (S) 12, in which Rose LJ observed that preservation of the integrity of information held on databases maintained by public bodies is of fundamental importance to the wellbeing of society and that any abuse of that integrity by officials is a gross breach of trust which, unless the wrongdoing is really minimal, will necessarily be met by severe punishment even in the face of substantial mitigation.
Sir John Royce, giving the judgment of the court, held that the instant case was more serious than Nichols but substantially less serious than Attorney-General’s Reference No 30 and Kassim. The appellant was aged 41 and of good character. She had held for fifteen years a good job where she was highly regarded. She had been profoundly affected by her husband’s affair and his proposal that his adopted new woman should become his second wife. She had two children aged ten and seven and was carer for her profoundly disabled brother. The court was informed that the grandparents who had taken over care of the two children were struggling to cope. The court observed that this was not a case of obtaining police information to give to criminals and there was no financial motive. The court concluded that there were powerful reasons in mitigation to lead to the conclusion that the sentence passed could and should have been suspended. In short, the appeal was allowed, the immediate custodial sentences were quashed and replaced with concurrent sentences of four months on each count suspended for twelve months.
The appellant was an employee of HMRC, she pleaded guilty to misconduct in a public office and wrongful disclosure of information. She accessed personal information at work for her husband’s new partner and her family, she also passed information to a private investigator who she engaged. She was sentenced to six months’ imprisonment.
Held: there were powerful reasons in the mitigation to lead to the conclusion the sentence should have been suspended. The sentence was quashed and substituted for sentences of 4 months concurrent suspended for 12 months.