McDade, R. v

MR JUSTICE MACKAY: These two appeals raise questions as to the appropriate level of sentencing when a prison officer or prison employee is corrupted by an inmate and so persuaded to break prison rules relating to security or to introduce drugs, telephones or other prohibited items into a prison.

These appellants are two women working in the prison service whose sentences passed by different courts on different days were widely divergent; the facts of each appeal are significantly different.

Contrary to popular belief the majority of prisoners want to complete their sentences as quietly and safely as possible. The minority of aggressive, dominant offenders want to continue inside prison the behaviour they exhibited when at large. The means they need to achieve this end include drugs and mobile telephones, each a form of currency within a prison. With the power and influence these things can bring they seek to disrupt the lives of others within the prison -- inmates and prison officers alike -- for their own advantage.

The easiest way to acquire these items is to procure the co-operation of a prison officer by whatever means he or she can be suborned, intimidated or otherwise corrupted, and this is what happened in these two appeals.

A corrupt prison officer is much better placed than an outsider to find ways of defeating a prison security system. The effect of this activity is twofold. First, the discipline and order of the prison is undermined and with it the safety and human rights of the inmates. One of the three key objectives of the prison service is stated in these terms: "Providing safe and well-ordered establishments in which we treat prisoners humanely, decently and lawfully." Secondly, those prison officers who are true to the trust imposed in them, and resist such attempts to corrupt them will suffer. They will come under suspicion themselves. They will be subject to closer scrutiny and checks. They will also naturally resent the rewards their corrupt colleagues enjoy.

For both these reasons, therefore, the deterrent function of sentencing as articulated in section 142(1)(b) of the Criminal Justice Act 2003 plays a prominent part in sentencing such officers when they appear in court for offences of this nature.

In the case of Bentley [2007] 1 Cr.App.R (S) 44, on a plea of guilty for which full credit was given, a six year sentence on a prison officer who had unsuccessfully attempted to smuggle into prison ecstasy, cannabis resin and other drugs, together with four mobile phones, was upheld. The court considered the earlier cases of Walker [2003] 2 Cr.App.R (S) 58 and Mills [2005] 1 Cr.App.R (S) 38. In the first of these the appellant was convicted after a trial of possessing heroin (34 grams at 69 per cent purity), 12 ecstasy tablets and a quantity of cannabis with intent to supply a prisoner and received a sentence of nine years which was upheld. In the second case the appellant pleaded guilty at the first opportunity to possessing nine grams of heroin at low purity which he was attempting to smuggle into prison for an inmate and admitted he had smuggled a similar package on an earlier occasion. His sentence of seven years' imprisonment was reduced to six years, but only to reflect the co-operation he had given on other matters within the prison and his offer to give evidence against others.

Turning to the appeal of Kelly-Anne McDade. This appellant, who had earlier pleaded guilty to two indictments, was sentenced on 13th November 2009 as follows. For misconduct in public office between 1st February and 28th August 2008, the particulars of which were that she had had an inappropriate relationship with an inmate under her care, she was sentenced by His Honour Judge Tyrer DL to 12 months' imprisonment. For conveying a list B article into a prison, namely three mobile phones on 17th March 2009, she was sentenced to 18 months' imprisonment consecutively, and for possession of a class B drug, one month's imprisonment concurrent, making a total sentence of 30 months' imprisonment.

The appellant had been employed as a prison officer at HM Young Offender Institution Aylesbury for about three years. On the night of 10th August she was the only officer on E Wing where a dangerous offender named Nelson Delgado was held. At 8 pm she used her key to open Delgado's cell door and she visited him in his cell for 10 minutes. All the cells had been locked down at 7.45 pm and were not due to be opened until 6.45 am. The incident was seen on CCTV and the following day she was suspended and in due course she resigned from the prison service. She had become pregnant during her period of employment and had originally told the prison authorities that this was the result of a relationship on holiday. In fact the father of the child was Nelson Delgado with whom she had formed a full intimate relationship. She was later to sell the story of that relationship to a national magazine called Closer, she then facing financial difficulties in gaining employment.

After her resignation, on 17th March 2009 a security officer inspected a parcel sent to another inmate, not Delgado, at HM Young Offender Institution Swinfen Hall, to which Delgado had been moved. In it were found concealed inside a stereo three mobile phones on which the appellant's fingerprints were found. The views of the Governor were that the presence of such phones in such an establishment would lead to a serious security risk and a risk to the safety of the public. Swinfen Hall held prisoners serving terms of between four years and life imprisonment, many of whom were dangerous and serving imprisonment for public protection, of whom Delgado was one.

In his sentencing remarks the judge pointed out that the appellant's training would have told her that the developing relationship with the inmate was crossing the line and she knew she should have reported it. Instead of that she had developed a sexual relationship with him with the results that we have stated. As to the importing of the three mobile phones, this took place after she had resigned and Delgado had been moved to the second establishment. The judge stressed the potential such items had for harm and the need for a deterrent element in the sentences. He gave full credit for her plea of guilty and her good character and reduced the sentence on the misconduct offence to reflect the same.

On her behalf it is argued today by Mr Germain that while a custodial sentence was inevitable there was an insufficient reduction for the charge relating to the mobile phones, the maximum sentence for which was two years. It is also argued that as a former prison officer she will have a difficult time in prison, although she has received a good prison report for her conduct to date. Her baby is now nearly one year old and was separated from her on conviction she choosing, as she was fully entitled to, not to opt for a mother and baby unit. Her motivation for this offence, it is said, was not greed but was love and she should be treated mercifully accordingly.

We have considered these arguments, but in our judgment the sentence is not even arguably one which is too long. The best description of it is that it is merciful. Looked at in its totality, as we are constantly urged to do in this court, it is only explicable on the basis that the judge quite justifiably decided to pass a consciously compassionate sentence because of the strong personal mitigation and principally the fact that a very young baby was being separated from its mother and this should be for the shortest possible time. Absent this factor the sentence on count 1 would in our judgment have had to have been significantly higher than it was. Her appeal is therefore dismissed.

The appeal of Lucy Reynolds. This appellant pleaded guilty on 7th December 2009 at the Crown Court at Worcester and was sentenced by His Honour Judge McCreath, the Recorder of Worcester, as follows. Count 1, lawful misconduct in public office, seven years; imprisonment; count 2, possession of a class A drug (heroin) with intent to supply, seven years' imprisonment concurrent; count 3, possession of a class C drug (cannabis) with intent to supply, 12 months' imprisonment concurrent. The total sentence therefore being seven years' imprisonment.

This appellant was a prison service employee rated as "operational support grade" at the maximum security prison Long Lartin in Worcestershire and she had worked there for some three years. Her mother was also in the prison service. On 1st April 2008, as a result of information, her locker was searched and there were recovered four mobile telephones and 25 grams of heroin at 46 per cent purity. In her bag were a number of receipts for mobile telephone top-ups and a diary with inmates' names recorded. There was another phone seized from her car and at her home were found SIM cards, top-up cards, receipts, documentation with inmates' names and 4.2 grams of cannabis.

When arrested and interviewed she said that a prisoner called Roberts had persuaded her by threats to supply him with such items. She claimed to be unaware of the fact that one of the phones had been packed with heroin, but her plea of guilty to count 2 was to belie that claim. She admitted that on several previous occasions between February and April she had supplied phones to another prisoner named Gordon and cannabis on occasions of a quantity the size of a fist or tennis ball. She also accepted she supplied items to a third prisoner, Abiodun, giving him mobile phones and drugs. Therefore over a three month period, approximately, prior to her arrest, she accepted having smuggled phones on two prior occasions and cannabis on five at the behest of three prisoners in all.

She said she had reached this position by having formed a relationship with a prisoner whom she visited. As a result she was then targeted by other prisoners, being seen as amenable to bring items into the prison. She was paid sums totalling some £500 or £600 over the period. She knew what she was doing was wrong.

The pre-sentence report described her as a vulnerable and naive person and not suitable by temperament or training for exposure to sophisticated criminals. She claimed in the psychologist's report, as is urged to us today by Mr Steen on her behalf, to have had insufficient training and inadequate support which deterred her from doing what she should have done and reporting the threats as soon as they were made to her.

The grounds of appeal are that the sentence on the drugs offence indicates an approximate 10 year sentence on conviction which is described as manifestly excessive, as is the concurrent sentence on the misconduct charge.

We would accept that outside the context of a prison, if a court were prepared to accept an appellant as acting as a low-level retailer in class A drugs transactions, a lesser sentence might have been expected on conviction. But that ignores the vital feature of the context in which this offence occurred. The quantity of heroin and its purity was such that this was far more than the recipient would require for personal use. It would set him up as a dealer within the prison with all that that entails.

Sentences in the region of up to 10 years on conviction will be, in our judgment, entirely appropriate for prison officers committing these offences for personal gain. However, to reflect the inexperience of this particular appellant, her junior grade within the system, her extreme vulnerability as a person and her plea of guilty, as well as the significant delay that has occurred in this case, we would allow this appeal to an extent. We think that in the context of dealing directly with prisoners in a maximum security establishment such as this she was under a level of pressure that she found it very hard to resist. It is accepted that the disposal, however, remains and must remain a substantial prison sentence.

We would allow her appeal to this extent, that the sentences on counts 1 and 2 are quashed and they are replaced in each case by sentences of five-and-a-half years' imprisonment, to run concurrently with each other and with count 3, a total sentence therefore resulting of five-and-a-half years. To that extent this appeal is allowed.