Nicholas Burke [2019] EWCA Crim 928

**R v Nicholas Burke** [2019] EWCA Crim 928 concerned an appeal against a sentence of immediate custody imposed for perverting the course of justice by using a laser jamming device to obstruct police speed enforcement. The Court of Appeal allowed the appeal and substituted a suspended sentence.

Mr Burke pleaded guilty at the first opportunity in the Magistrates’ Court to doing an act tending and intended to pervert the course of public justice contrary to common law. On 4 April 2019 His Honour Judge Hickey sentenced him at York Crown Court to two months’ immediate imprisonment as a deterrent sentence. The Registrar referred the application for leave to appeal against sentence to the Full Court.

On 18 February 2018 a police officer used a device to measure the speed of Mr Burke’s BMW on Greengales Lane between Weldrake and York, which the officer believed was travelling in excess of the 60 mile per hour limit. Two attempts to assess the speed failed due to the interference of a laser jammer installed in the vehicle. When confronted, Mr Burke immediately admitted fitting the device and stated in interview that he had done so because he drove for work and was worried about accumulating points on his licence, given the high mileage he covered.

A community impact statement from Andrew Tooke outlined that North Yorkshire Police had invested in mobile safety camera vans in 2011 to enforce road traffic offences and reduce collisions, which had resulted in a notable reduction in fatal and serious collisions. The statement indicated that the constabulary had detected an increasing number of vehicles fitted with laser jamming devices since the introduction of the vans. The court observed, however, that the suggested increase was not explained, either as to its extent or the scale of the problem. Counsel indicated to the judge that there had been very few such cases, something of the order of three during the preceding twelve months, with no similar cases waiting to go before the courts.

Mr Burke was aged 46 and had not previously appeared before the court. He had two endorsements for speeding: the first from November 2017, before this offence, for driving at 74 miles per hour in a 50 mile per hour zone on the M1, and the second from 10 October 2018, after this offence, for driving at 45 miles per hour in a 30 mile per hour zone. He had been in work at the time of the offence, with the same company in the motor trade for over two decades. He had expressed clear remorse from the outset and resigned his post shortly after being charged. Character references included observations by his general practitioner. The author of the pre-sentence report assessed him as posing a low risk of reoffending and low risk of serious harm, and proposed a community disposal with an unpaid work requirement. The author acknowledged that custody would act as punishment and a deterrent for others but assessed Mr Burke as suitable for management within the community.

The judge delayed passing sentence until 4 April to receive a transcript of this court’s decision on 27 February 2019 in R v Michael Twizell [2019] EWCA Crim 356. The facts of that case bore very strong similarities. Mr Twizell pleaded guilty at York Crown Court on 21 January 2019, before the same judge, and was sentenced to three months’ immediate imprisonment on 11 February 2019 for using a similar device. Notably, Mr Twizell had lied to the police about fitting the device and only admitted his guilt on the day listed for trial. In that case His Honour Judge Hickey emphasised the seriousness of such offences whilst balancing that against good character, character references and charity work, remarking that the offence was serious and the sentence should have a deterrent element.

This court’s conclusions in Twizell were that the use of laser jamming devices amounted to a serious offence whether or not accompanied by other bad driving, because they prevented the police from detecting crime and hindered the important role of the police. The judge was entitled to conclude that the custody threshold was met and the court did not regard the reference to deterrence as going further than laying down a marker that the court would treat as serious offences which sought to undermine the processes of justice, even where an offender had no previous convictions. However, the judge had not applied the definitive guideline on the imposition of community and custodial sentences. Taking into account the factors under the guideline for considering whether it was possible to suspend the sentence, the court was persuaded that an immediate sentence of three months’ imprisonment after a guilty plea was manifestly excessive in the light of the strong personal mitigation, and that appropriate punishment could be achieved otherwise than by immediate custody. Were it not for the fact that Mr Twizell had spent around sixteen days in custody, the court would have imposed a suspended sentence order with a curfew and a fine. Given that he had served sixteen days, the sentence was suspended without other requirements or a fine. The court quashed the sentence of three months’ immediate imprisonment and substituted a sentence of three months’ imprisonment suspended for two years.

In passing sentence in the instant case the judge highlighted the two endorsements on Mr Burke’s licence and the instances of speeding. He stressed the strong mitigation, the immediate plea and the effect on Mr Burke of losing his job. He addressed the guideline and expressed the view that appropriate punishment could only be achieved by immediate custody. The judge sought to distinguish Mr Burke’s case from Twizell on four grounds: first, that he had applied the guidelines in this case whereas he was rightly criticised for not doing so in Twizell; secondly, that he now had the impact statement from Officer Tooke; thirdly, that Mr Burke had a record for speeding both before and after the offence; and fourthly, that when the Court of Appeal dealt with Twizell the appellant had spent sixteen days in custody. The judge stated that he wished a message to go out that the court would treat these offences as serious because they undermined the process of justice even when the accused had no previous convictions.

Lord Justice Fulford, delivering the judgment of the court, observed that the impact statement from Officer Tooke, although useful, did not indicate that this kind of offending was prevalent within the relevant area. There may have been an increase but the extent of the increase and the baseline numbers were unaddressed. The court further observed that although the court’s determination of the appropriate sentence in Twizell was in part based on the sixteen days served, that was not a factor that contributed to the substitution of a suspended prison sentence. Instead, the sixteen days served was simply relevant as to whether the court was going to impose other requirements or a fine when it quashed the immediate sentence.

The court referred to the Overarching Guideline on Seriousness effective from 16 December 2004 which stated that the seriousness of an individual case should be judged on its own dimensions of harm and culpability rather than as part of collective social harm. Although it was legitimate for the overall approach to sentencing levels for particular offences to be guided by their cumulative effect, it would be wrong to further penalise individual offenders by increasing sentence length for committing an individual offence of that type. There might be exceptional local circumstances that might lead a court to decide that prevalence should influence sentencing levels, with the pivotal issue being the harm being caused to the community. It was essential that sentencers both had supporting evidence from an external source to justify claims that a particular crime was prevalent in their area and were satisfied that there was a compelling need to treat the offence more seriously than elsewhere. The key factor would be the level of harm being caused in the locality. Enhanced sentences should be exceptional and in response to exceptional circumstances. Sentencers must sentence within the sentencing guidelines once prevalence had been addressed.

The court held that for the reasons already set out there was no supporting evidence to justify the suggestion that the prevalence of this offending locally was such that the sentence needed to send a message out to others who were minded to use devices of this kind. The report of Officer Tooke did not give any indication as to the frequency of this kind of offending and as a consequence did not provide justification for a deterrent sentence. In material ways Mr Burke had greater mitigation available to him than Mr Twizell. The factors relied on by the judge to distinguish the present case from Twizell were neither persuasive nor substantive. The court did not downplay the seriousness of this activity but held that a sentence of immediate custody on these facts and for this applicant of good character was manifestly excessive.

The court granted leave to appeal, quashed the sentence of two months’ immediate imprisonment and substituted a term of two months’ imprisonment suspended for two years. Given the time served the court did not make a suspended sentence order with a curfew and a fine. In short, the appeal succeeded because the claimed prevalence of the offending was unsupported by evidence and the applicant’s strong personal mitigation rendered immediate custody manifestly excessive.

Twizell [2019] EWCA Crim 356