Havell, R. v

On 21 June 2005, in the Crown Court at Bristol, before His Honour Judge Roach, the applicants were convicted on seven counts of blackmail. On 28 July 2005, the applicant Miller was sentenced to four years' imprisonment and the applicant Havell was sentenced to three years' imprisonment. They were acquitted of two other counts of blackmail. Havell was acquitted of an additional count of robbery, and not guilty verdicts were entered by direction on certain other counts. They both renew their applications for leave to appeal against sentence following refusal by the single judge. We have granted leave to appeal and Mr Mousley QC on behalf of Miller and Miss Bussey-Jones on behalf of Havell have invited us to deal with the appeal today. Havell initially applied for leave to appeal against conviction. That application was refused and he has abandoned it.

The appellants (as they now are) ran a wheel-clamping business which operated in the Portsmouth area. It was set up as Aquarius Security in May 2002 by Miller. Havell began working for the organisation in February 2004. Miller was the directing mind behind the clamping enterprise. He provided the equipment, the vans and the tow trucks. Havell carried out much of the actual clamping.

Between 4 March and 17 October 2004 it was the Crown's case that the appellants had extorted large sums of money from a number of motorists. Each of the complainants said that they had stopped on land for a short period and that often while they were sitting in their car with their engines running they would be prevented from pulling away. Having been blocked on the land they were clamped and effectively trapped. The total amount of monies demanded in relation to the counts for which the appellants were tried was in the region of £980.

The circumstances of each count were somewhat similar. The position in relation to count 2 was that a Mr Tinkner had parked partially in a parking day in Shaftesbury Road, Southsea, Hampshire, on 5 March 2004. He had gone there because about ten days beforehand when parked in the self-same bay he had been clamped by the appellant Havell. On that previous occasion he had paid £95 to have his car released, but had been told that he had a right to appeal. He had written to Aquarius Security, but had received no response and so had returned to the parking bay. As he waited with his engine running, he was blocked in by a vehicle being driven by the appellant Havell, who then proceeded to clamp his car. Mr Tinkner pointed out the purpose of his visit, but was again forced to pay £95 to have his car released.

The complainant in count 3 was Mrs Walsh. On 13 March 2004 she went to the forecourt of some disused garage premises "Click-for-Credit" in the "Hard", Old Portsmouth. She had gone to pick up her son. As she parked by the kerb on the roadside she noticed that there was a van behind her. She thought she was blocking him in and so drove across to the forecourt of the disused premises, hoping to leave by an exit into an adjoining street. When she drove onto the land, however, the van followed and was driven in such a way that she was forced to stop. Someone from the van shouted that she was going to be clamped. She got out of her car, her engine still running, to remonstrate. She saw a second man clamping her vehicle. She was told that she would have to pay for the release of the clamp. She decided to call the police. While she was explaining the situation to one of the officers, one of the appellants began to film her. Ultimately she had to pay £45 for the removal of the clamp.

The complainant on count 4 was a Mr Noble. He went to collect his brother from the same forecourt. He pulled onto the forecourt. Less than a minute later someone waved at him as if they intended to reverse. Mr Noble moved forward to allow them to do so. As he turned off his engine he saw that his car was being clamped. He spoke to the two appellants to no avail. Once again the police were called. As Mr Noble explained what had happened, the appellant spoke over him and began to film intrusively. Mr Noble had been asked for £95 and was told it would rise to £250 if his car had to be towed. After negotiation his car was released upon payment of £45.

The complainant on count 5 was Mrs Hutton who went to collect her daughter. Again there was intimidatory conduct. Her car was clamped and there was a demand for payment. On this occasion there was a demand of an increase in the payment if she wanted her car released. The particular details do not matter.

Count 6 related to Mrs De Ville. In this incident not only was she clamped and a demand for money made, but the appellant Miller filmed her in an intimidating way with a video camera.

Count 7 related to Matthew Clark. Again the details do not matter. His vehicle was clamped and there was a demand for money, and a demand for an increase in the money if he did not pay the £90. Once again he was filmed, which Mr Clark described as "unnerving". It was another of the incidents to which the police were called. They also described the filming as "intrusive and hostile".

Count 12 related to Mr Chandler, a taxi driver. The incident involved clamping and a demand for money and £95 was paid.

In his sentencing observations the judge said (accurately) that blackmail is an ugly, serious offence. Both of the appellants knew full well what they were doing. He described how they dealt with motorists in an arrogant, bullying and abhorrent manner. He described Miller as the principal architect and the leader of the two. He took into account Miller's antecedent history, which included an assault on a motorist in 2003 in the course of the wheel-clamping business. In the appellant Havell's case, the judge bore in mind his personality, his lesser role and the fact that he had not been convicted of any offence since 1996.

As far as we have been able to ascertain, and as far as counsel have been able to ascertain, there is no similar case from which direct guidance can be obtained. The court's task is to place the offence in its correct position as compared to others. We agree with the judge that the case of R v Cutbill, which was cited to him, was much lower down the scale than these offences.

We have come to the conclusion, although sympathetic with the judge's view as to the ugly nature of this offence, that he did not quite place these offences in the appropriate position in the scale. We take the view that four years' imprisonment for the appellant Miller was an excessive sentence. We take the view that the appropriate sentence in his case was one of three years' imprisonment. We would therefore replace the sentence of four years with one of three in his case

In our view the judge correctly took into account Havell's position so far as these offences was concerned, and also took account of the mitigating features in his case. Having reduced Miller's sentence to one of three years' imprisonment, Havell's sentence should correspondingly be reduced to one of two years' imprisonment.

To that extent this appeal is allowed.

MR MOUSLEY: My Lord, we are very grateful. Will the court entertain retrospective applications for a representation order so far as these applications are concerned?

LORD JUSTICE WALLER: Yes, you should have that. Thank you very much.

MR MOUSLEY: I am obliged.