By Ellie Watson Pupil Barrister at Crown Prosecution Service, Manchester

Introduction 

Recent case law has uncovered difficulties faced by the courts when sentencing police officers. Fulford LJ’s sentencing remarks in R v Couzens [2022] EWCA Crim 1063 emphasised that ‘the police are in a unique position… they have powers of coercion and control that are in an exceptional category.’ However, there is no specific guidance for sentencing police officers who abuse their position to commit offences. Abuse of trust is applicable, but on analysis of case law it appears its application is inconsistent and ineffective for sentencing police officer offenders.

 Case Law

R v Dunn (Matthew) [2003] EWCA Crim 709

A police officer who delivered ‘two substantial kicks … to the body of an essentially defenceless man’ was given a 3-month prison sentence for common assault. The court found that it was so great a breach of trust that custody was inevitable as ‘it is critical that the public retain full confidence in our police force’.

R v Bohannan (Mark Edward) [2010] EWCA Crim 2261

A police officer who, for 5 years, provided a drug dealer with sensitive and confidential information, impacting on police operations, was sentenced to 6 years imprisonment after 3 years was held to be unduly lenient. The Court stated that ‘the public must see that condign punishment will be visited on police officers who betray the trust reposed in them and do not live up to the high standards of the police service’. This case has received positive judicial consideration and demonstrates that the public expect police officers to behave at a higher standard and therefore receive appropriate punishment for not doing so.

R v O [2016] EWCA Crim 1762

A police officer convicted of 8 counts of indecent assault was sentenced to 3 years’ conditional discharge. On one occasion, O was dressed in his police uniform. The case was referred by the Attorney General for being unduly lenient, but this was dismissed by the Court of Appeal. It was held that whilst it was a lenient sentence, the judge had not been bound to impose a custodial sentence. It was stressed that whilst there may have been some element of breach of trust, including wearing his uniform, this was not a case of abuse of trust in the sense used in the sentencing guidelines.

A partial reason for this lenient sentence was the mitigation considered, including that he had no previous convictions and evidence of positive good character from witnesses who knew him as a police officer.

R v Luckett (Michael David) [2020] EWCA Crim 565

4 months imprisonment was imposed on a police officer who started a sexual relationship with a vulnerable defendant. The Court held that the original 12-month sentence was manifestly excessive due to the unusual circumstances and mitigation but that ‘the public are entitled to expect that police officers will act with professionalism and integrity and those who abuse that trust must … inevitably serve a prison sentence’.

R v Lewis and another [2022] EWCA Crim 742

Lewis and Jaffer, both police officers, pleaded guilty to misconduct in public office after breaching a police cordon to take and share photographs of two deceased women who had been murdered. They each received sentences of 2 years and 9 months imprisonment. Each appealed on the ground that the sentence was manifestly excessive due to the judge double counting the abuse of trust element of the offence.

The Court held that ‘the starting point will be that offences involving a high degree of abuse of trust will attract longer sentences. We reject the submission that the abuse of trust inherent in the offence debars a judge from differentiating between higher and lower degrees of abuse on grounds of double-counting.’ This judicial comment supports that there are levels of abuse of trust.

Abuse of Trust and Power

Case law is clear that higher sentences should be imposed when dealing with offenders who have breached or abused their trust or power. However, the nature of the job means that police officers will most likely have no previous convictions, be of good character with character witnesses to testify, and courts often consider the potential loss of job, and that prison would be difficult owing to their role, as mitigation. Together, these can outweigh the aggravating factor of abuse of trust and police officer offenders can receive the same, or even a lower, sentence than those who have not abused a position of trust.

Issues with Current Law

There is a disparity when sentencing police officers, both in the sentences imposed and the judicial comment. Some decisions are clear that the abuse of trust warrants a higher sentence, in particular a custodial sentence, whereas other decisions fail to uplift the sentence appropriately due to the assessing that the mitigation outweighs the aggravating features. What is clear, is that most often cases involving police officer offenders are appealed either for being unduly lenient, or manifestly excessive. This is due to the lack of guidance available for courts in this area.

Proposal

Reform is required to address the issues identified to ensure the sentencing of police officers is predictable, effective, consistent, and in line with the sentencing purposes. The reform proposed here reflects the uplift imposed by the Assault on Emergency Worker Aggravated Offences whereby the judge must apply the guidance set out in the sentencing guidelines as to the level of uplift required. The key difference being that this reform would encompass all offences, not just assault.

How officers may abuse their position is not an exhaustive list and remains at the judge’s discretion. The lowest uplifts in sentence would be for off duty officers who have used their position to offend, then increasing the uplift for officers who were on duty but who did not explicitly use their position. For the most serious of abuse of trust or power the most severe uplift can be applied. This would be cases where an on-duty police officer, or police officer purporting to be on duty, has used their position to commit an offence. The guidance tables will suggest a starting point uplift and judges can, as with normal sentencing guidelines, aggravate or mitigate dependant on the level of abuse.

There will be different levels of uplift dependant on the category of offence, a general table can be adapted for each offence to give the judge guidance. Although the judge retains discretion on the uplift applied, the uplift itself will be a mandatory part of sentencing. The tables will look similar to that provided in the sentencing guidelines for Assaults on Emergency Workers, but it can be adapted for use in all offences. For example, considering a sentence for unlawful act manslaughter, the guidance table may look like the below.

Although this is merely indicative, it demonstrates how the guidance would be applied by courts when sentencing police officers who have abused their position.

Analysis of Proposal

Double Counting

Whilst abuse of trust or abuse of power is sometimes relevant in deciding the category in which the offence falls, discretion in deciding the uplift will enable judges to ensure the abuse is not double counted. Instead, the judge can differentiate between higher and lower degrees of abuse by applying the necessary uplift. This will enable judges to ensure that the abuse is properly considered when sentencing.

Impact of More Severe Sentences

Police officers often must make potentially lifesaving decisions under intense pressure. Sometimes these decisions can be wrong. Imposing more severe sentences may impact on those officers who marginally step over line into unreasonable and unlawful force but are not intending to commit an offence.

The judge’s discretion in applying the uplift can counteract this impact. With this application, the reform should mostly impact the sentences of police officers that have used their position to commit an offence or deliberately offending.

Conclusion

A quick analysis of case law has identified issues that have impacted the effectiveness of sentencing police officers. The proposed reform may have limitations in practice but, with the above suggestions to mitigate these, this proposal would most likely be more effective than current law due to the increased predictability and consistency. Whatever shape the reform takes, it is clear is that reform is needed to ensure just and consistent sentences for police officer offenders who abuse their position.

 Ellie Watson Pupil Barrister at Crown Prosecution Service
Crown Prosecution Service, Manchester