R v Collins, Lewis and Jaffer 2022: Sentencing Police for Misconduct in Public Office
Last week the Court of Appeal handed down a judgment scrutinising the principles that apply when sentencing a police officer for misconduct in public office.
The decision will be of particular legal and general interest at a time when public confidence in the police has been challenged. The judgment recognises this, emphasising the sanctity of public confidence in the police force and the need for sentences to deter and punish when that confidence is breached.
The Facts
Three appeals against sentence were before the Court.
The first concerned Darren Collins, a Digital Forensics Expert working as a civilian member of the police force. Over the course of nearly five years Mr Collins transferred thousands of crime scene images from police databases to his personal devices, including numerous images of dead bodies. The sentencing judge found that he had “acted from morbid and gratuitous curiosity”. After a 10% reduction to reflect his late guilty plea, he received a 3 year sentence.
The second and third appeals concerned James Lewis and Deniz Jaffer. They were police officers tasked with protecting the scene of the brutal murder of sisters, Nicole Smallman and Bibaa Henry. The two men breached the police cordon and took photographs of the women’s dead bodies. They exchanged the photos with each other, with numerous colleagues and (in Jaffer’s case) a friend. Derogatory comments accompanied some images, referring to the victims as “two dead birds full of stab wounds”.
As a result, during the murder trial the defence were able to suggest that the crime scene may have been compromised by the officers’ actions, albeit the defendant was ultimately convicted.
Taking into account mitigation and applying a one-third discount for guilty pleas, both Lewis and Jaffer received sentences of 2 years 9 months.
The Court of Appeal held that it was unarguable that any of the sentences were manifestly excessive or wrong in principle.
Sentencing Principles for Misconduct in a public office
The judgment provides a useful overview of the legal framework that applies to sentencing in misconduct cases.
The threshold for justifying a prosecution for such an offence is high: there must be a “serious departure” from proper standards and the departure “must be not merely negligent” but an “affront to the standing of the public office held”.
The consequence is that where that hurdle has been crossed, offenders can expect to receive proportionately severe sentences. As the Court noted, “save in exceptional circumstances, the gravity of the offence and the high public interest in deterrence means that it will attract a sentence of immediate custody”.
The Sanctity of public confidence in policing
Against the backdrop of a series of recent scandals and serious criminal offending by police, one of the most striking aspects of this decision is the articulation of the harm caused by such misconduct. The factual background of each of the three appeals serves as a sobering reminder of the dual harm that results from such offences: the private and the public.
In respect of the former, the Court observed that the improper creation and distribution of images of victims of crime, particularly images of the dead, fundamentally violates the “dignity and respect” owed to them and their families.
In respect of the latter, the Court emphasised that the criminal justice system plays “a vital part in keeping the public safe” and in “ensuring that the rule of law is upheld”. It remarked that that it is “essential” that the public “should be able to trust the police to play their proper part” in the justice system.
As has been seen in the wake of the murder of Sarah Everard by serving officer Wayne Couzens, the actions of an individual in gross violation of the power entrusted to them can do irreparable damage to the public confidence in the police force more broadly.
THE RESPONSIBILITY THAT ACCOMPANIES THE PROLIFERATION OF DATA
The decision also provides useful commentary on the proliferation of data generated by criminal investigations in modern times and the responsibility that comes with that.
The Court remarked that the police are afforded “privileged access” to “large amounts of data” that may touch upon “the personal lives of victims, suspects and members of the public alike” and cited the remarks of the Court of Appeal in R v Kassim [2005] EWCA Crim 1020:
“The preservation of the integrity of information regarding members of the public held on databases like those maintained by the police is of fundamental importance to the well-being of society
Any abuse of that integrity by officials including the police is a gross breach of trust, which, unless the wrongdoing is really minimal… will necessarily be met by a severe punishment, even in the face of substantial personal mitigation.”
The Court also remarked upon the “inevitable risk” that, where an image is improperly handled, the police, the victim and their family may lose the ability to control who sees that image and in what circumstances; “the harmful effects of the misuse of electronic images may be impossible to rectify”.
THE DECISION
Beyond these broad principles, the Court made notable findings specific to each of the appeals.
In relation to Collins, the Court was unpersuaded that it was improper for the judge to refer to the sentencing remarks in another case in the way he had.
The Court also rejected the submission that Collins should be treated as any less culpable simply because he was a civilian police employee rather than a police officer. The Court held that “the public is entitled to expect the same standard of conduct” (although it did not rule out that the distinction may become relevant in other circumstances).
In relation to Lewis and Jaffer, the Court took a nuanced approach to assessing culpability. They were unpersuaded that the breach of trust had been “double counted” as an element of the offence and an aggravating feature. Rather, the officers had violated the general trust of the public to conduct themselves appropriately and the specific trust placed in them to safeguard the crime scene.
The Court found that it was highly relevant that their actions had imperilled a criminal investigation, even if the culprit had been convicted of murder regardless.
Finally, the Court were unpersuaded by mitigation suggesting the officers did not appreciate the consequences of breaching the cordon at the time. The Court held that they “ought to have known the perils of unauthorised entry to the scene of a double murder”.
The decision will no doubt serve as a stark and necessarily sobering reminder of the severity with which Courts are likely to treat offenders convicted of misconduct in public office.
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