Neutral Citation Number: [2011] EWCA Crim 1152
Case No: 201101858 A1; 201101862 A1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 20th April 2011

B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE HOLROYDE 
 
RECORDER OF PRESTON
HIS HONOUR JUDGE ANTHONY RUSSELL QC 
(Sitting as a judge of the Court of Appeal Criminal Division)
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R E G I N A 

v 

TREVOR RICHARD HENDERSON
GRAEME DAVID METCALFE 
 
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Mr J Atkinson appeared on behalf of the Applicants 
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 J U D G M E N T 

1.	LORD JUSTICE RICHARDS:  On 25th March 2011, at the Crown Court at Lincoln, the appellants, Trevor Henderson and Graham Metcalfe, pleaded guilty to an offence of perverting the course of justice and were each sentenced by Mr Recorder Bernhard to six months' imprisonment.  Each was also disqualified from driving for a period of 12 months.  Each has applied for leave to appeal.  The applications have been referred to the full court.  In each case we grant leave to appeal.
2.	The facts are that on 29th June 2010 Henderson was driving a lorry in Lincolnshire.  A speed camera recorded his speed as 49 miles per hour, in excess of the 40 miles per hour speed limit for the type of vehicle he was driving.  A notice of intended prosecution was sent to his employer in Cumbria, who provided information that Henderson had been driving that day.  A notice was then sent to Henderson himself.  He responded by claiming that he had lent the vehicle to Metcalfe and that Metcalfe had been driving it.  Accordingly a notice was sent to Metcalfe, who in turn responded that he had indeed been the driver at the time.  He subsequently accepted an offer of a fixed penalty.  His licence was endorsed with three penalty points and he paid a £60 fine.  
3.	In October of that year the police had cause to investigate the matter.  They obtained information from the tachograph fitted to the lorry, which showed that Henderson had in fact been the driver on the relevant date.  
4.	Both applicants were in consequence arrested.  When interviewed, Henderson said that he had panicked when he received the notice of intended prosecution because he already had 11 penalty points endorsed on his licence and he feared that he would be disqualified from driving.  His job as a lorry driver (he was a full‑time HGV driver) depended on him having a driving licence, so he feared that he would lose his livelihood.  Metcalfe stated that he knew Henderson as a work colleague.  Henderson had rung him up and asked if he knew anyone who would take the points for him and Metcalfe agreed to help out, knowing that what he was doing was wrong.  He said he received no financial reward and in fact he paid the £60 fine himself.
5.	Henderson is a man aged 43 with limited and relatively old convictions, leaving aside the driving matters that caused him to have 11 penalty points on his licence.  He had good references.  The Recorder treated him as a man of good character.  He also took into account what when arrested Henderson made full admissions and accepted the stupidity of what he had done.  
6.	Metcalfe is a man aged 27 with no previous convictions and with good references, who likewise made full admissions on arrest.  
7.	In sentencing the two of them the Recorder rightly observed that offending of this sort strikes at the heart of the criminal justice system.  The purpose of the points system is that those who drive badly eventually have to be punished by means of disqualification, which serves to discourage bad driving and to protect the public from bad drivers.  What the appellants had done was to try to evade and pervert the course of justice.  It was an offence that was very easy to commit and often went unnoticed and unchecked.  
8.	He said he could see no reason to distinguish between the two appellants.  He was in no doubt that the offence passed the custody threshold.  He did not consider that the circumstances were exceptional so as to justify suspending the sentence.  He said he would have passed a sentence of nine months if the case had been contested.  In imposing sentences of six months he gave full credit for the guilty pleas.  He also exercised his power under section 146 of the Powers of Criminal Courts (Sentencing) Act 2000 to disqualify both appellants for a period of 12 months.
9.	Mr Atkinson, who represents both appellants, makes the entirely realistic concession that, in the absence of the most exceptional circumstances, an immediate custodial sentence must follow for offences of this nature and was inevitable in the present case, but he submits that six months' imprisonment is manifestly excessive.  He says that the very imposition of a custodial term, the clang of the cell door, is sufficient to deter and punish in such a case.  A very short sentence would therefore have been equally as effective as a term of six months.  
10.	He refers us to the terms of section 153(2) of the Criminal Justice Act 2003 and to what was said in R v Ollerenshaw [1999] 1 Cr App R (S) 65 about the desirability of short sentences being as short as possible.  Mr Atkinson submits that that is particularly applicable to the circumstances of this case, where the appellants have no relevant previous convictions and where it can be expected that the immediate fact of imprisonment would achieve the requisite purpose of sentencing.
11.	It is important to stress that this offence was committed not in the heat of the moment, as might happen for example when someone is arrested immediately after an incident, but as a considered response on the part of Henderson to receipt of a written notice of intended prosecution, and on the part of Metcalfe to Henderson's request for help.  On the other hand, it is not a case where the giving of a false name has resulted in the person named being the innocent subject of investigation or charge, with all the distress that that can cause.  Metcalfe acted here as a deliberate volunteer to accept the punishment lawfully due to Henderson.  He was equally at fault.  The Recorder was plainly right to treat the appellants as equally culpable, and counsel has not suggested otherwise.
12.	Looking at the circumstances as a whole, we have reached the conclusion that the starting point taken by the Recorder was higher than was reasonably open to him on the particular facts.  We accept all that he said about the importance of deterrence and the nature of these offences, but we have very much in mind the kind of considerations pressed upon us by Mr Atkinson about the importance of making short prison sentences as short as is reasonably possible.  It seems to us that in relation to these appellants, effectively of previous good character, one can rely on a shorter sentence than that imposed by the judge as having all the requisite effects.  
13.	We take the view that an appropriate starting point here is one of six months rather than nine months.  In each case full credit must be allowed for the plea of guilty.  It follows that in each case the sentence should be reduced to one of four months instead of six months.  We allow the appeal against the custodial term accordingly.
14.	We turn to consider the question of disqualification.  As we have said, the Recorder disqualified each appellant from driving for 12 months.  In the case of Henderson, whose very objective in committing this offence was to avoid the six month period of mandatory disqualification to which he would otherwise have been subject under the totting up procedure, it was plainly right to order disqualification.  Mr Atkinson does not contend otherwise, and indeed has properly drawn our attention to relevant authority to support that view: see, for example, R v Waring [2006] 1 Cr App R (S) 9 at page 56.  He submits, however, that there is no reason in this case to impose a longer period than the six months to which Henderson should properly have been subject for the speeding offence.  He also prays in aid the fact that, given the appellant's previous employment as a professional HGV driver, a longer period of disqualification will have a severe effect on his ability to find work.  We accept those submissions and consider that the period of disqualification in the case of Henderson should be reduced to six months.
15.	As to Metcalfe, the submission is made that he did not escape disqualification through commission of this offence.  On the contrary, he picked up penalty points to which he would not otherwise have been subject in consequence of committing the offence.  He is sufficiently punished by the custodial sentence.  The gravity of the offence does not require the additional step of disqualifying him from driving.  In his case too there are said to be employment reasons why a driving licence is essential.  Again, we agree with the submissions advanced.  We do not think that there is sufficient justification for an order of disqualification in the case of Metcalfe.  
16.	Accordingly, in relation to Henderson we will reduce the period of disqualification from 12 months to 6 months.  In the case of Metcalfe we will quash the order for disqualification altogether.
17.	To the extent that we have indicated, both as regards the custodial sentences and as regards the orders for disqualification, these two appeals are allowed.