Case No: 2007/4603/A7 
Neutral Citation Number: [2007] EWCA Crim 3099
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 22 November 2007
 
B e f o r e:
 
LORD JUSTICE HUGHES 
MR JUSTICE WYN WILLIAMS 
 
HIS HONOUR JUDGE RICHARD BROWN DL
(Sitting as a Judge of the CACD) 
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R E G I N A 

v 

JOHN BALL
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Mr N Lobbenberg appeared on behalf of the Appellant 
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J U D G M E N T 

1.	JUDGE BROWN:  On 8th February 2007 in the Crown Court at Kingston‑upon‑Thames, before Recorder Bennett‑Jenkins QC, the appellant, on rearraignment, pleaded guilty to causing danger to road users by interfering with traffic equipment.  On 2nd August 2007 he was sentenced at the same court by His Honour Judge Binning to four months' imprisonment suspended for a period of two years, with a mental health treatment requirement and a two year supervision requirement.  He appeals against that sentence.
2.	The facts of this case can be dealt with relatively briefly.  On 10th April 2006 road repairs were planned for the A312 in the Hayes area of West London, the road at that point being known as The Parkway.  At about 10 o'clock in the evening the road was closed by Mr Alan Chapman of the Anglia Traffic Management.  He used traffic cones to complete that manoeuvre.  He also put up three signs explaining to motorists what was happening.  
3.	Repair work began almost immediately and Mr Chapman walked along the closed road to return to his car which was parked on another road.  However, he realised after a short while that vehicles were coming round the corner towards him.  It was clear to him that they had been travelling on the closed section of the road.  He ran back down the road and discovered that the cones that he had put in place had been removed.  As he did so he was nearly hit by cars on several occasions.  He investigated and found that the cones had in fact been thrown over a fence and that the three signs which he had erected had been pushed over.  He hurriedly closed the road again, using whatever cones he could find.  
4.	At that point he was approached by the appellant.  He noted that the appellant smelt of alcohol and appeared to be staggering.  The appellant said to him that he was an off‑duty police officer and that he had reopened the road because the closure had caused "bloody chaos and havoc".  The appellant told Mr Chapman his police shoulder number and his warrant number and told him that he was a firearms officer at London Heathrow.  
5.	At that point other police officers attended the scene.  They had in fact been responsible earlier in the evening for closing another stretch of road nearby and had discovered that the two closures had caused a gridlock.  To compound matters the appellant's actions had resulted in traffic being trapped.  The appellant told one of the officers that he had moved the cones and told him that he was an off‑duty police officer.  That officer then attempted to direct the traffic but the appellant interrupted him and told him that he was not doing his job properly.  Another officer attended and the appellant became abusive and argumentative with him.  He was warned that he could be arrested for obstructing a police officer.  About 20 minutes later the appellant then again approached the officers and then a police sergeant approached and told the appellant to go home and that if he wished to make any complaint he could take it up the following day.  The appellant then walked away.
6.	It is known that during that period of time the appellant had made three 999 calls about the situation regarding the traffic.  He was saying that he had removed or thrown a few cones out of the way to start the traffic moving.  He made other observations during those 999 calls about himself.  
7.	The appellant is a man of good character.  He is aged 48.  The sentencing court had before it, as we do, a pre‑sentence report which indicated that on the day of the offence the appellant had taken more anti‑depressant and sleeping tablets than was recommended.  Whilst waiting for his wife to pick him up he had also consumed alcohol.  On the journey home he had taken another sleeping tablet and had no further recall of the events of that night.  The author of the report indicated that in her view the appellant was remorseful for his actions and fully understood the dangers involved in his irresponsible actions.  She was of the opinion that the appellant, whilst on a high dosage of prescription drugs, had acted out a part of his police career that was no longer available to him.  
8.	The appellant had indeed been a police officer since 1982 and had suffered injuries during the course of his work on two occasions.  They had happened in 1997 and 1998.  He had been a firearms officer but in 2001 he had had to go off work for a period of time with severe pain.  X‑rays indicated spinal damage.  Since that point in time he had been in chronic pain.  He believed that he was suffering from depression.  The chronic pain was responsible for his use of prescriptions drugs and the appellant also accepted to the author of the pre‑sentence report that he was drinking alcohol in excess of the safe medical limit.  It was her overall view that the appellant posed a low risk of harm to the public and that it was unlikely that he would re‑offend.
9.	Two psychiatric reports have been prepared in connection with this case.  They were initially prepared for consideration on the basis of a potential plea of not guilty.  A psychiatric report was initially prepared by Dr Hallstrom.  He confirmed that the appellant's behaviour at the time of the offence was in keeping with the known side effects of a combination of a significant amount of alcohol and sleeping tablets.  He thought that the appellant's account was compatible with a period of automatic behaviour with no memory of events.  This doctor said that the taking of the sleeping pill with alcohol would be likely to cause a blackout and to cause somebody to behaved as an automaton.  However, in a second report prepared by Dr Dhar, Dr Hallstrom's suggestion that the appellant might have had a defense of automatism was refuted.  In that doctor's view the appellant's behaviour suggested the result of the effects of alcohol exaggerated by the sleeping tablet rather than automatism.  Dr Dhar confirmed that the appellant had suffered from depression and chronic pain, and that the pain had worsened in the days leading up to the offence.  That doctor felt that the appellant needed help for his depression, chronic pain and his alcohol problems.  It seems that when Dr Hallstrom was made aware of Dr Dhar's report he agreed with it and that led to any possible defence of non‑insane automatism being abandoned.  It was in those circumstances that the plea of guilty was thereafter entered.
10.	The court also had before it a number of what might be described as glowing references and testimonials from a variety of people, including letters of thanks from members of the public, thanking the appellant for assistance he had given them during the course of his police service.
11.	In his written grounds of appeal and before us today, counsel Mr Lobbenberg suggests that this is a peculiar and bizarre offence with an unusual appellant.  His basic submission is that, as he puts it, in reality this case is a mental health case.  He points, however, to a number of factors which in his submission means that the sentence is manifestly excessive and that the learned sentencing judge failed to take into account sufficiently a number of factors.  He lists them in the following way.  First of all, obviously, the appellant's good character; his early plea after receipt of the psychiatric reports; his excellent service in the police force; the constant pain and subsequent depression that led thereafter to his alcohol dependence; the impact of the sleeping pill with the alcohol; the link between the injuries suffered by the appellant whilst on duty and his depression and alcohol use and the commission thereafter of the offence; the chaos initially caused by the conflicting road works which had come about by way of the way in which the police had set up their road work signs and thereafter Mr Chapman; he points to the fact that nobody was in fact injured and, if he is right, he submits, that it is a mental health case then such a factor should take priority in sentencing.  
12.	In granting leave to appeal, the learned single judge said that the appellant should have the opportunity to persuade the full court that in the particular circumstances of this case a non‑custodial disposal might be appropriate.  It is right to say that that is the single point of this appeal, namely as to whether or not the learned judge should have imposed the suspended sentence.  It is not argued that the community element of the sentence are in any way inappropriate; indeed it is argued that they are absolutely appropriate.
13.	We have considered anxiously all of the matters that have been drawn to our attention both by counsel and in the various reports that we have mentioned.  This offence, as the learned sentencing judge rightly noted, had potentially disastrous consequences for other rode users and of course for maintenance staff.  However, in what is rightly described as a highly unusual case there is a great deal of mitigation that can be put in the appellant's favour.  
14.	We are bound to say that we are not sure that the sentencing judge was necessarily wrong in principle.  However, on this occasion as an act of mercy, in circumstances which we describe as probably unique, we do propose to allow this appeal.  What we propose to do is to quash the sentence of imprisonment.  For that sentence there will be substituted a community order with a two year supervision requirement and a mental health treatment requirement in exactly the same terms as the original order.  To that extent this appeal is allowed.