No: 2005/2867/A7 
Neutral Citation Number: [2005] EWCA Crim 1896
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Monday, 11 July 2005
 
B E F O R E:

LORD JUSTICE LATHAM 

MR JUSTICE BENNETT 

HIS HONOUR JUDGE BROWN DL 
(Sitting as a Judge of the CACD) 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 54 OF 2005    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR B ALTMAN appeared on behalf of the ATTORNEY GENERAL
MR P LOWNDS appeared on behalf of the OFFENDER
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J U D G M E N T 
1.	LORD JUSTICE LATHAM:  On 29th March 2005 after a trial this offender, who is 39 years of age, was convicted of conspiracy to burgle.  On 29th April 2005 he was ordered to perform 230 hours community punishment.  However on the same occasion he was sentenced to six months' imprisonment for contempt of court, a matter of some significance to which we will return.
2.	The matter comes before this court on a Reference by the Attorney General, which we grant, on the grounds that the sentence of 230 hours community punishment was unduly lenient.
3.	The offender is and has for many years been an animal rights activist.  On this occasion, together with two men, he entered the premises of Wickham Laboratories on the night of 13th December 2003 in order, he asserted originally, simply to obtain documentary evidence of alleged illegal experimentation on animals.  He and at least one co-conspirator entered the premises through a roof void having approached that void over a low-pitched roof on the laboratory.  It is clear that the appellant had inside information as to the positioning of the documents that he wished to obtain and when he entered the building he was in an area where there were mice, which were the subject of some experiments.  In addition to removing laboratory records he and those with him took 700 of those mice and their cages.
4.	Two days later the appellant was arrested by the police for the offence and the police were able to recover virtually all of the mice which were returned to Wickham Laboratories.  There was clear and substantial disruption to the experiments that were being undertaken at the time on the mice and if the mice had not been returned the total financial loss sustained by Wickham Laboratories would have been some £25,000 which would appear to include £3,000 by way of the damage done to the building by those who entered.  Because the mice were in fact returned and therefore were capable of use again it is unclear what the total economic loss to Wickham Laboratories will ultimately have been.  
5.	It was in those circumstances that the appellant was sentenced to the community punishment order to which we have referred.  He was tried together with a co-defendant, a Mr Glintenkamp, who received 170 hours by way of community punishment order, and from the sentencing remarks it is clear that the judge took the view that the offender had been the leader in the conspiracy and had, as he put it, "involved the unfortunate Mr Glintenkamp." 
6.	After he had been sentenced and was leaving court, the offender passed the public gallery.  In the public gallery amongst others was Mr Bishop, the technical director of Wickham Laboratories.  As he passed, the offender said to Mr Bishop: "Your troubles have only just started" and then added something like: "You should start looking under your bed." The offender was arrested and brought back before the judge to face the allegation that what had been said amounted to a contempt of court.  He admitted the first remark heard by Mr Bishop but denied the second.  The judge having heard the evidence preferred the evidence of Mr Bishop.  It was in those circumstances that he concluded that a significant sentence of imprisonment was appropriate for the contempt and imposed the sentence of six months' imprisonment.  
7.	The Attorney General refers the community punishment order to this court on the grounds that it is, as we have said, unduly lenient.  The features which he submits should justify that conclusion are, first, that the offence was both carefully planned and sophisticated and was committed in furtherance of the offender's moral beliefs; secondly, the deliberate removal of the mice exceeded the offender's claimed purpose for committing the offence of exposing alleged illegal animal experimentation to the media; thirdly, the offender inflicted significant financial damage to a legitimate business and important scientific experimentation; fourthly, the offender, who was the prime mover, recruited others in order to carry out his plan; and fifthly, the offender has relevant previous convictions committed against a background of longstanding animal rights activism.  
8.	Whilst acknowledging that there was no intention to gain personally from the offence and that the offender was the sole carer for his partner who was ill -- a matter to which again we shall return -- it is accordingly submitted that the only appropriate sentence in the circumstances could be one of imprisonment.  
9.	In support of that general submission Mr Altman has referred us to the cases of Tisdall (1984) 6 Cr.App.R (S) 155; Stock (1984) 6 Cr.App.R (S) 234; Francis (1985) 7 Cr.App.R (S) 222; and Bowles (1988) 10 Cr.App.R (S) 146, in all of which cases this court upheld sentences of imprisonment where there had been a breach of the law which was impelled, it was said, by moral considerations.
10.	Turning to this case, it seems to us first that the Attorney General is correct in pointing out that this offence was both carefully planned and sophisticated.  It involved the infliction of economic damage, although the extent of it is uncertain for reasons we have given, on a legitimate business enterprise.  The offender was the prime mover and recruited others who were less sophisticated in order to carry out the plan.  It was a carefully organised invasion of the laboratory with, as we have indicated, the benefit of inside information.  All that would certainly suggest that of itself the court would and could properly conclude that a sentence of imprisonment was appropriate.  
11.	But in the present case that position is strengthened by the fact that this offender has previous convictions arising out of animal rights activities.  The most significant is a conviction in 1996, the details of which can be found reported in [1996] 2 Cr.App.R (S) 28.  The offender had been sentenced to 14 years' imprisonment for attempted arson, criminal damage, attempted incitement to commit arson, attempted incitement to criminal damage, attempted incitement to steal, escape from lawful custody and having explosive substances.  That sentence was reduced by this court to one of 11 years' imprisonment.  Significant in this court's reasoning was the fact that not only before the sentencing judge but in particular before this court the offender had asserted an intention no longer to pursue his beliefs in animal rights by illegal means.   
12.	The offender has said that he meant at that time exactly what he said and he has not been able to give any coherent justification or reason for his reneging on that expressed intention.  True it is that he has not come before the courts for an offence of this nature or indeed any offence since his release from prison in 1999, but not only the offence of which he was found guilty but the contempt of court casts significant doubt upon the genuineness of the expressions of intent that he gave at the time.  
13.	Mr Lownds, on behalf of the offender, nonetheless submits to this court that the judge was entitled, despite the fact that imprisonment was perhaps prima facie the sentence which he could properly expect, to impose the sentence that he did not only because this particular offence did not result in any significant damage to the economic activity of Wickham Laboratories for the reasons that we have given, but it was not an offence which involved any risk of harm to any of those working there and did not involve any damage to the premises beyond that necessary for committing the actual burglary.  
14.	Further, he submits that the judge was entitled to take the course that he did by reason of the very particular position of the offender's partner.  Details of her physical condition are set out in the paragraph 9 of the pre-sentence report.  They make it plain that she suffers from significant handicaps.  She has had a brain haemorrhage.  She suffers from fybromyalgia and she has consequent substantial physical and mental disabilities.  She needs constant care and the offender was her carer.  This undoubtedly affected the judge in his assessment of the appropriate disposal in this case.  He said that he had taken "very much into account the fact that you are the sole carer for a very sick person".  
15.	It seems to us that the Attorney General is right to say that in cases such as this an offender can expect a significant sentence of imprisonment.  The moral justification for the action does not make it any the less illegal and the courts have repeatedly said that unless the courts are prepared to deal appropriately with that unlawful action then there is effectively anarchy.  That does not of course mean that in an appropriate case there may not be room for some other disposal, but in this particular case we do not consider that there is.  The justification which the judge gave for the sentence that he imposed, namely the fact that the offender was the sole carer for his partner, cannot, in our judgment, justify the exceptional course that he took in the light of the offender's repeat offending, despite his protestations in 1996 that he was no longer intending to pursue illegal means, and the contempt of court, both of which in our judgment resulted in his forfeiting any claim to the leniency that he received.  
16.	In those circumstances the question is what is the appropriate sentence bearing in mind the element of double jeopardy which we have to consider in any references?  In our judgment the offender could have expected a sentence of 18 months to two years' imprisonment.  But in all the circumstances, and also bearing in mind the position of his partner, we propose that the sentence should be one of 12 months' imprisonment to be served consecutively to the contempt of court.