Phelps, R. v

In sentencing a serving police officer for perverting the course of public justice, the absence of a guideline requires a conventional assessment of harm and culpability. The breach of an officer’s duty to uphold the law makes the offence particularly serious and ordinarily requires deterrence. Harm is grave where the conduct seeks to suppress a proper investigation into serious offending. Culpability is aggravated where the officer acts from self-interest, coaches a false account, protects another suspect, or persists in the conduct.

Personal mitigation, dismissal from the police service, and the anxiety caused by an Attorney General’s reference may reduce the proper sentence. They do not prevent immediate custody where the offending seriously subverts the administration of justice.

The offender, a detective constable, was convicted at Norwich Crown Court of doing an act tending and intended to pervert the course of public justice. While investigating suspected class A drug supply, he sought to coach Bradley Tanner to admit only simple possession, to provide an explanation for another suspect’s DNA, and to avoid further investigation.

On 30 June 2017, the Crown Court imposed 28 days’ immediate imprisonment. Credit for a qualifying curfew meant that he served no time in custody. The Attorney General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient.

The central issue was whether the original sentence properly reflected the seriousness of a serving police officer attempting to curtail an investigation into serious drug offending.

1. Reference allowed. The court granted leave, held that the 28-day sentence was unduly lenient, quashed it, and substituted 11 months’ imprisonment.

2. There was no definitive sentencing guideline. The correct approach was therefore to assess seriousness conventionally by reference to harm and culpability. Perverting the course of justice by a serving police officer is particularly serious because the officer subverts the law which he or she is appointed to uphold. A deterrent element was required.

3. The harm was grave. The offender proposed ending the proper investigation of two suspected class A drug suppliers by securing a caution for simple possession from one of them. His plan would also have returned incriminating material and seized cash, while leaving serious offending uninvestigated.

4. Culpability was substantial. Although there was no corrupt motive, the conduct was not a spontaneous act of misplaced sympathy. It was designed to avoid the work of a proper investigation. It involved coaching a false account that would exculpate another suspect, misleading his detective sergeant about access to the telephone, and persistence through communications with the suspect’s solicitor.

5. The court gave substantial weight to exceptional good character, the loss of the offender’s career, family consequences, and the particular impact of immediate custody on a former police officer. It also allowed a reduction for operative double jeopardy, since the reference caused significant anxiety after a non-custodial practical outcome.

6. A starting point of about 15 months was appropriate. The mitigation and double-jeopardy reduction justified a final term of 11 months, but not the original sentence.

1. Court of Appeal (Criminal Division): On the Attorney General’s reference under section 36 of the Criminal Justice Act 1988, the court held the sentence unduly lenient, quashed 28 days’ imprisonment, and substituted 11 months’ imprisonment.

2. Crown Court at Norwich: The offender was convicted on 2 June 2017 and, on 30 June 2017, sentenced to 28 days’ immediate imprisonment. Qualifying-curfew credit meant that he served no custodial time.