REGINA v GRAHAM JOHNSON

An applicant seeking a substantial extension of time to appeal sentence must explain both why notice was not served within 28 days and why no application was made sooner. Mental ill health may explain an initial delay, but it must satisfactorily account for the full period of delay.

A short custodial term does not itself show that a community order would have been sufficient. Where the offence is so serious that custody is justified, the sentencing court must impose the shortest custodial term consistent with its seriousness. In an alleged-disparity case, the appellate court must also determine whether the sentence was wrong in principle or manifestly excessive.

The applicant, a journalist, pleaded guilty to intercepting voicemail communications during a short period of phone hacking in 2001. In December 2014, at the Central Criminal Court, he received two months’ imprisonment suspended for 12 months, with 100 hours’ unpaid work.

More than six years later, he sought an extension of time and leave to appeal his sentence. He relied on depression and anxiety, substantial personal mitigation, alleged disparity with sentences imposed on other phone-hacking offenders, and his voluntary confession and assistance to the police and civil claimants.

The central issues were whether the exceptional delay should be excused and, if so, whether the sentence was wrong in principle or manifestly excessive.

1. The application was refused. The applicant did not provide a satisfactory explanation for failing to appeal for more than six years. His mental-health evidence could explain an inability to act shortly after sentence, but not the greater part of the subsequent period, during which he had worked and assisted civil litigants.

2. The court nevertheless considered the merits. A custodial sentence was not wrong in principle. Phone hacking, even over a short period, was serious. The sentencing judge had been entitled to conclude that neither a fine nor a community order could reflect the seriousness of the offence.

3. The two-month term did not demonstrate that custody was unnecessary. A sentencing court may impose a very short immediate custodial term and may suspend imprisonment within the statutory range. Having found custody necessary, the judge properly selected the shortest term consistent with the offence’s seriousness.

4. The judge had taken account of the extensive mitigation, including the applicant’s self-reporting, co-operation, remorse and personal circumstances. He was entitled to give those matters their substantial effect by reducing the term to two months and suspending it. The applicant’s assistance did not require him to be treated as a whistleblower rather than an offender.

5. Applying the disparity approach in R v Fawcett (1972) 56 Cr App R(S) 391, and the ordinary statutory appellate test confirmed in R v Anderson (David Brian) [2018] EWCA Crim 482, there was no basis to find that the sentence was wrong in principle or manifestly excessive. Comparisons with sentences imposed by another judge on another occasion did not establish an injustice.

6. The sentencing record was to be corrected to show that no victim surcharge was payable. The erroneous entry of an £80 surcharge was a clerical error and did not make the sentence unlawful.

• Court of Appeal (Criminal Division): The court refused the application for an extension of time and leave to appeal sentence: [2022] EWCA Crim 44.
• Central Criminal Court: On 18 December 2014, the Recorder of London imposed two months’ imprisonment, suspended for 12 months, and 100 hours’ unpaid work following a guilty plea.
• Westminster Magistrates’ Court: The applicant indicated a guilty plea and was committed to the Crown Court for sentence.