Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0085/11 THE QUEEN V PATRICIA MONIQUE WEBSTER Appearances: Ms. Laura Manson for the Crown Mr. Ben Tonner of Samson & McGrath for the Defendant Before: The Hon. Mr. Justice Charles Quin Submissions heard: 7th May 2013 SENTENCE RULING
The Defendant has pleaded guilty to two Counts of Misconduct in Public Office contrary to common law.
On the first count, the particulars of the offence are that the Defendant, between the 19th April 2011 and the 11th August 2011, within the Cayman Islands, being a public officer, did willfully misconduct herself in abuse of the public trust, by making extensive searches of the confidential police database and soliciting information from the immigration database, otherwise than in accordance with her authorised duties, in order to ascertain whether (a person), X, was the subject of a criminal investigation.
The particulars of the second count are that the Defendant, on or before the 16th August 2011, within the Cayman Islands, being a public officer, did misconduct herself in abuse of the public trust by using the confidential police database, otherwise than in accordance with her authorised duties, to obtain the personal telephone number of (a person) Y, and passing that number on to a third party. SUMMARY OF FACTS
The Court has been provided with an agreed Summary of Facts.
The Defendant had been employed by the Royal Cayman Islands Police Service (RCIPS) in various roles since 1998.
In 2011 the Defendant was a Communications Officer at the front-desk of the George Town Police Station. She was not a police officer. However it is common ground that she was in public office.
In her capacity as the Receptionist at the police station the Defendant’s duties, amongst others, included taking calls from the public, dealing with walk-in matters, inputting data into the police database, creating crime reports and liaising with fellow RCIPS employees.
The Defendant’s duties brought her into contact with a great deal of police information data including personal contact details of victims and witnesses and details of investigations, including who is being investigated and details of people’s criminal records.
The Defendant was given access to this type of information in order to fulfill her official duties. This information is confidential and the Defendant was not permitted to give any confidential information out to anyone unauthorised to receive it.
The Defendant should have been aware of the requirement not to disseminate unauthorised information, because it was stated in her job description. In addition, the Defendant would have been aware of this requirement from the regular Crime Desk General Meetings. Also Clause 5 of the RCIPS Code of Conduct would have been known to the Defendant and this states: "All members of the Service shall maintain strict confidentiality. No one shall improperly disclose either information or documents to those unauthorised to receive them."
Both offences took place in August 2011. Count 1
X was a friend of the Defendant who was living overseas. In August 2011 X contacted the Defendant and asked her to find out whether a stop notice was in place in relation to X. When a stop notice is placed against a person in the Immigration Database, it states that he or she should be stopped from either entering or exiting the Cayman Islands. These notices sometimes contain instructions that the person in question is to be arrested.
The Court notes that the investigations into this matter had revealed that, prior to contacting the Defendant, X had made contact with other people, largely in the Immigration Department, in attempts to find out whether the stop notice existed and what it was for. These attempts had either been unsuccessful or X needed further confirmation of what had been told.
From a review of the BBM messages on the Defendant’s Blackberry, it is clear that she agreed to try and find out this information for X. It was also clear from a review of the police database that the Defendant had made several checks in attempts to find out whether the stop notice existed and, if so, what it was for.
The Defendant’s attempts to find out the information failed. Consequently, the Defendant then sent an email to Immigration Officer, A, and copied the email to a senior Immigration Officer, asking Immigration Officer A for the information.
It is clear that this information was never provided to the Defendant and therefore the Defendant never provided the information to X.
The Defendant was subsequently interviewed by the police on the 21st September 2011. The Defendant accepted that she performed these checks for X, but, in summary, said she did not know she was doing anything wrong and she was simply trying to help out a friend.
The Defendant told the police that X had told her that he had already been told that a stop notice was in force. X was concerned that his ex-wife was making false allegations about him and therefore X wanted know whether it was safe to return to the Cayman Islands. Count 2
In August 2011 the Defendant was contacted by Y who asked the Defendant to get the telephone number of a third party for him. Y was a former employee of the RCIPS and had worked at the George Town Crime Desk with the Defendant, but had since moved overseas. Y was visiting Cayman in August 2011 for a vacation and wanted to get in contact with the third party.
On the 16th August 2011 the Defendant searched the police database and found the telephone number of the third party. The Defendant passed on this telephone number to Y.
The Defendant was interviewed about this offence on the 1st and the 21st September 2011. The Defendant explained that she intended to contact the third party to notify the third party of Y’s request. However, due to pressure at work at the time, she did not manage to make the call.
The Defendant accepted giving Y the third party’s telephone number without the third party’s permission. The Defendant said she did this because she believed that Y and the third party were good friends. (The third party’s statement confirmed that Y and the third party were, in fact, friends.)
The Defendant said that she had attempted to call the third party, but the third party was on vacation. Investigations supported this — that is, that the third party was in fact on vacation. This led to the Defendant entering the RCIPS database. Ironically, the telephone number and home address of the third party are listed in the yellow pages, and are therefore freely available to the public. SUBMISSIONS FROM THE CROWN
Crown counsel, Ms. Manson, on behalf of the Director of Public Prosecutions pointed out that the Defendant knew that this information was confidential and not to be disclosed without official authorisation.
In relation to Count 1, it is accepted that the Defendant made no attempt to delete the records of the BBM messages which recorded her request to obtain the information. In addition, despite the Defendant’s efforts, no information was revealed to her, and therefore, information was not disclosed by the Defendant.
The Crown accepts that Count 2 is moderately less serious that Count 1. However, the Crown points out the following as aggravating features in relation to both counts: (a) The Defendant was acting in the course of her duties as an employee of the RCIPS; (b) The Defendant was trying to obtain confidential information and therefore is guilty of invading the privacy of third parties; (c) The security of the police database and the information it contains were put at risk; (d) The potential harm that could result from the security breach of the RCIPS database is very serious. THE LAW
As far as both counsel are aware, and as far as this Court is aware, there are no previous cases in the Cayman Islands which give guidance as to the appropriate Sentence therefore, this Court looks at the case law for similar offences for misconduct in public office in the United Kingdom.
In R v. David Andrew Keyte [1998] 2 Cr. App. R. (S) 165, the Applicant was a serving police officer who was convicted of misconduct in public office. Over a period of 12 months he obtained information on 192 occasions from the police national computer and supplied it to private investigators. In most cases the information related to the identities of the registered keepers of motor vehicles. The High Court had sentenced the police officer to two years' imprisonment. The Court of Appeal upheld the sentence of imprisonment of two years and said that as he was a serving police officer he was in a position of trust. He had abused his position for profit and, accordingly, the sentence was not found to be manifestly excessive. Swinton Thomas LJ of the English Court of Appeal stated that: "Police Officers are given considerable powers and privileges which are necessary for the proper performance of their duties. If they dishonestly abuse their position and do so for profit, then not only must a prison sentence follow, but it must of necessity in our view be a severe one."
In R v. Khalid Nazir [2003] 2 Cr. App. R. (S) 114, a police officer pleaded guilty to misconduct in a public office. The officer was intending to destroy a fixed penalty ticket issued to a friend. The Court of Appeal reduced the original three months' imprisonment for misconduct in a public office to one month.
In R v. Ghazi Ahmed Kassim [2006] 1 Cr. App. R. (S) 4, the Defendant was a police officer who had pleaded guilty to three counts of misconduct in public office. The Defendant had made the acquaintance of a diplomat, and he used his status as a police officer to make enquiries into private individuals on behalf of the Diplomat and was paid for doing so. The Defendant gained access to data stored on police computers in order to obtain information about persons who were of interest to the Diplomat. Over the period in question the Defendant received an estimated payment of £14,000.00.
The Court of Appeal held that the 2 ½ years' imprisonment for the misconduct in public office was not manifestly excessive and therefore upheld the sentence. The Court of Appeal judgment was delivered by Mr. Justice Bodey who stated: "It seems to us that, especially nowadays, the preservation of the integrity of information regarding members of the public held on databases, like those maintained by the police, is of fundamental importance to the wellbeing of society. Any abuse of that integrity by officials, including the police is a gross breach of trust, which unless the wrongdoing was really really minimal, will necessarily be met by a severe punishment even in the face of substantial personal mitigation."
In the Attorney General's Reference No. 1 of 2007 (James Andrew Hardy) [2007] 2 Cr. App. R. (S.) 86, the AG asked the Court of Appeal to review on the ground that the sentence was unduly lenient. The offender, a serving police officer, pleaded guilty to misfeasance in public office. The AG submitted that the offence involved a gross breach of trust, in that, confidential information was passed by the police officer to a known criminal who had recent convictions for offences of violence and harassment. The officer was sentenced to 28 weeks' imprisonment, suspended for two years. The Court of Appeal held that was unduly lenient and substituted a sentence of nine months of immediate imprisonment. Lord Phillips, the then Lord Chief Justice, stated at page 6 in relation to the aggravating features that: "...most significant of these is that the offender gave the information to a known criminal whose record included offences of violence in order to enable him to take the law into his own hands by dealing with no less than three men who had, so he believed, committed offences against him, or a close friend. It must have been obvious to the offender that this was a serious risk that the defendant's co-defendant would subject these men to physical violence." Clearly an immediate prison sentence was the appropriate sentence in that case.
The aforesaid cases were all reviewed by the Northern Ireland High Court in the R v. Griffiths [2009] NICC 23 by Mr. Justice McCloskey. The Defendant had initially been charged with 56 Counts. The Defendant pleaded guilty to the first count which was aiding, abetting, counselling or procuring misconduct in public office contrary to common law. The mechanism of the single count was also employed by the English Court of Appeal in R v. O'Leary [2007] 2 Cr. App. R. (S) 317, so that the Defendant would be sentenced to the totality of his offending during the period under consideration, and his plea of guilty to the first count covered all the offences.
The Northern Ireland High Court relied on the Judgment of Judge LJ in Attorney General's Reference No. 140 of 2004 EWCA Crim. 3525 and Lord Judge's dicta: "The offender was in a position of trust. His activity has damaged confidence in the way in which DVLA records are kept and maintained. The information at the DVLA is confidential. The unauthorised disclosure of information held in any records kept and maintained only for public purposes should also always be regarded as a serious offence. The amount of private information about each and every single citizen in this country, available to public servants, has increased and with modern technology continuing increase is virtually inevitable. Citizens are entitled to assume that the information so kept will only be made available to those who are entitled to see it, and only for the express purpose permitted by law. Wrongful disclosure sometimes works to the benefit of someone who is not entitled to the advantage so provided. Sometimes wrongful disclosure causes damage. Even if an offender is not fully anticipating the consequences of disclosure, it would be very unusual for him to be entirely ignorant of the possible consequences, and even if those consequences are unforeseen, the impact of disclosure on any individual whose privacy has been betrayed is a critical ingredient of the sentencing decision. It seems to us these are essential principles which should be noted by any judge facing a sentencing decision in this class of case." Lord Judge went to add that: "Where there is evidence of detrimental impact on some individual or individuals, this will undoubtedly be a material factor and is likely to rank as an aggravating feature in a great majority of cases." This Court respectfully adopts Lord Judge's clear statement of the principles to be applied in cases of misconduct in public office. ANALYSIS AND CONCLUSION
In relation to Count 1, the Defendant made no secret of her attempt to obtain this information. Not only did she forward her request for the information to an Immigration Officer, but she copied it to the Senior Immigration Officer. This constituted extreme naivety on the part of the Defendant, but goes towards illustrating that she had a lack of criminal intent. It was a very stupid act on the Defendant's part, as it compromised the integrity of the data system and it resulted in these charges being brought against her.
The Crown accepts that the second count is even less serious than the first count.. The Defendant clearly thought she was carrying out a simple act of trying to assist a former co-worker — whom she had no reason to distrust — with a telephone number. The Defendant knew that her former co-worker was trying to find the telephone number of someone who was a good friend of his. Moreover, the information sought by the Defendant from the database, is information which could have been obtained from a telephone book. The Defendant, because she thought of this as a simple and very normal request, clearly forgot that supplying information from the database must be authorised, and that she had strict duties of confidentiality in relation to the database.
Again, this was a very naïve and foolish offence. However, I accept that, as in the first count, the Defendant did not seek to obtain any benefit, financial or otherwise.
The Defendant should have clearly understood the seriousness of accessing the RCIPS confidential database without formal or official authorisation. Where someone abuses their position of trust the Court must of necessity consider an immediate prison sentence. Whilst not, in any way, minimizing the seriousness of these two offences, I find that they are at the very lower end of the scale. The sole motive for both offences was to help a friend and not to help herself. The Defendant has been extremely foolish and obviously did not consider or anticipate the serious consequences of her actions.
I fully accept that the Defendant’s commission of these offences did not involve the conferral of any pecuniary benefit to her. When I review the relevant UK case law for offences of misconduct in public office, I find that in light of the facts of this case, the sentence can be placed at the lower end of the scale.
The Defendant admitted her involvement when confronted by the police. The probation officer, Trisha Smith, has stated that after the Level of Service/Case Management Inventory Risk Assessment, the Defendant scored “very low” as a repeat offender. I quote from the Social Inquiry Report prepared by Probation Officer Trisha Smith, dated 3rd May 2013. Ms. Smith states: "The Court now also has to consider that Ms. Webster is a first time offender and is truly contrite about what she did. Whilst this will not remit her from facing the consequences of her actions, the Court could take into consideration that a custodial sentence might have implication for her fairly young children."
In my view, because of the seriousness of the offences, they warrant a prison sentence of 9 months on each count, to run concurrently. However, I am going to adopt the approach taken by Hutton LCJ in Attorney General’s Reference No. 2 of 1993 5 NIJB 71 at page 75-76 and reiterated by McDermott LJ in Attorney General’s Reference (Nos. 1 and 2 of 1996) [1996] NI 456 at page 463: "At this stage, we would venture to repeat the elementary, but sometimes forgotten, proposition that before suspending a sentence a Judge has to apply his mind to two separate questions: (1) Does the offence require a custodial sentence and (2) if it does, do circumstances exist which would justify a suspension of the sentence."
In my view, the offences of this nature require a custodial sentence but, in light of the following circumstances I believe that the sentence of 9 months' imprisonment should be suspended for twelve months: i. No criminal intent: The Defendant did not have any motives for her actions which she knew were in breach of the RCIPS Code of Conduct; ii. No pecuniary reward: The Defendant did not ask for, or receive, any benefit, financial or otherwise, for her actions; iii. The Naivety of the Acts: The Defendant was naïve in the extreme in both cases — that is, in her view, aiming simply to assist friends in both cases without considering the strict conditions attached to her access to information in the database. Because the Defendant had no criminal or illegal intent in carrying out her actions, she did not stop to think that there could still be consequences for what she was doing. The Defendant did not consider these consequences of her actions, and, in this way, her naivety was extreme. iv. *No third party detriment:* Save and except for the obvious compromise to the security of the RCIPS database, there is no evidence of any specific detrimental impact on any individual as a result of the Defendant’s actions. v. *The Defendant’s Good Character:* The Defendant has no history of wrongdoing or any previous convictions. vi. *The Defendant’s early admission to the police:* The Defendant was honest and forthcoming to the authorities and her account of both incidents has been consistent. vii. *The Defendant’s guilty plea:* The Defendant admitted her guilt when faced with the fact of her wrongdoing. viii. *The sole provider for two young children:* I take into account that the Defendant is a young mother of previous good character and that she is the sole provider for her two young children. To send her to an immediate term of imprisonment would have a devastating effect on her two children.
Accordingly, for the aforesaid reasons, I suspend the Defendant’s sentence of imprisonment for 12 months.
I make it very clear that this is still a sentence of imprisonment of 9 months. It will remain on the Defendant's record with all the associated adverse consequences. Furthermore, should the Defendant commit any further offences within 12 months, she will be liable to immediate imprisonment for these two offences on this Indictment. Dated this the 16th day of May 2013 Honourable Mr. Justice Charles Quin Judge of the Grand Court