Ratcliffe, R v

A prison officer who knowingly permits or acquiesces in a prisoner’s possession and use of a mobile telephone commits serious misconduct. The potential to compromise prison security, rehabilitation and the course of justice may justify an immediate custodial sentence of significant length. Actual prejudice to prison security need not be proved.

Personal mitigation, delay, remorse and the difficulties faced in custody by a former prison officer remain relevant. They do not require suspension or reduction of a sentence where the sentencing judge has allowed proper credit and the resulting term is not manifestly excessive.

The appellant, a prison officer at HMP Walton, formed a relationship with a serving prisoner. She communicated extensively with him by mobile telephone and failed to act upon his unauthorised use of a telephone in prison.

She pleaded guilty in the Crown Court at Liverpool to two counts of misconduct in public office. A further count was ordered to lie on the file. On 20 March 2009, the judge imposed concurrent sentences of 10 months’ imprisonment.

By leave of the single judge, she appealed against sentence. She accepted that custody was justified but contended that the term should have been suspended or reduced as manifestly excessive.

1. The appeal against sentence was dismissed. Misconduct by a prison officer which has the potential to jeopardise prison security is a serious matter requiring immediate custody and a sentence of significant length.

2. The appellant’s culpability was materially greater than that of a prisoner merely found with a telephone on entering prison. A prison officer who turns a blind eye to a prisoner’s possession and use of a telephone compromises her position of authority and the security of the institution. The court took account of the comparison with R v Boyton, in which a nine-month starting point had been upheld for a remanded prisoner found with a telephone on arrival at prison.

3. There was no evidence that the prisoner’s telephone use had in fact prejudiced security. That did not remove the seriousness of conduct which enabled unmonitored communication and had the potential to undermine security, rehabilitation and the course of justice.

4. The court accepted that the appellant’s father had acted responsibly in alerting the prison service. It held, however, that the sentencing judge had taken that matter into account, together with delay, remorse, the appellant’s vulnerability as a former prison officer in custody, and her late guilty pleas. The judge’s 15-month starting point was not open to criticism, and the reductions to 10 months’ imprisonment reflected all available mitigation.

5. The later enactment of Section 4 A(3) of the Prison Act 1952, which carried a two-year maximum for bringing or conveying a mobile telephone into prison, was not in force at the time of the offending. It nevertheless reinforced the court’s assessment of the gravity of mobile-telephone misconduct in prisons.

• Court of Appeal (Criminal Division) — by [2009] EWCA Crim 1468, dismissed the appellant’s appeal against sentence.

• Crown Court at Liverpool — on 20 March 2009, imposed concurrent sentences of 10 months’ imprisonment after guilty pleas to two counts of misconduct in public office.