Neutral Citation Number: [2011] EWCA Crim 1249
Case No: 2010/5618/A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 7 April 2011
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE TREACY 
 
MR JUSTICE EDWARDS‑STUART 
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R E G I N A 

v 

NEIL JOHN WEINER
 
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Computer Aided Transcript of the Stenograph Notes of  
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Miss F Hussain appeared on behalf of the Appellant 
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J U D G M E N T 

1.	MR JUSTICE TREACY:  This appellant, Neil Weiner, was convicted after a trial on 4th August 2010 at the Central Criminal Court.  He was convicted of three offences: doing acts tending and intended to pervert the course of justice, for which he received 12 years' imprisonment, and two offences of possession of indecent photographs of children, for which he was sentenced to three years and two years' imprisonment to run consecutive to one another but concurrently with the 12 years imposed for the main offence.  He received those sentences on 23rd September 2010, His Honour Judge Paget QC giving credit for time spent in custody.  The single judge has granted leave.
2.	The facts of the case show an utterly deplorable course of conduct.  At the end of July 2006 police received anonymous telephone calls to say that a school caretaker was involved in the distribution of child pornography.  At the end of August 2006 they received a CD Rom containing some of the images in the post.  When the CD was examined it did indeed depict indecent images of children.  
3.	The sender and maker of the anonymous phone calls followed up the matter in October 2006.  He telephoned the police and said he was the man who had sent the CD and he wanted to know what action the police were proposing to take.  He gave the name "Steve".  He also provided information that the images had been downloaded from the computer of a man whom we shall identify as "T", a caretaker at a school in London.  
4.	On 25th October 2006 the police attended T's home address and arrested him.  They searched his house and the school office.  His laptop computer was seized from a locked filing cabinet at the school.  T was interviewed and denied having possessed or viewed any such images.  He said that he must have been set up.  He told the police that he could only think of two people who would do that and he named this appellant and another man.  He believed that those people would want to get him out of the way so that they could have an easier passage at work and so that they would stand a better chance of promotion.  
5.	The appellant in fact had access to T's computer at work and regularly assisted him with it.  It does not appear that T was a particularly sophisticated user of computers and this appellant had taken the opportunity, in breach of trust, to view T's password over his shoulder.  
6.	Examination of the computer showed 177 indecent images of children ranging between 87 at Level 1 and 33 at Level 4.  Many of these images were concealed in hidden files.  The images had been created on the system over a space of about half a minute.  That indicated that they had been created from another piece of media material.  They appeared to be isolated from the normal usage of the computer.  There was no evidence to suggest that any normal user of the computer had accessed any kind of pornography.  The police came to the conclusion, after careful examination, that the child abuse material had been placed on the laptop by a third party without the knowledge of the user T.
7.	The police had a telephone number which had been given to them by the man calling himself "Steve" in October 2006.  Enquiries revealed that it was an unregistered prepay SIM card.  The SIM card had been placed in three handsets, one of which was connected to the appellant, who had failed to realise that handsets also record data as well as the SIM cards themselves.  
8.	The police in the course of their enquiries took statements from two women who had been at a barbecue with the appellant in June 2006.  They told the police that the appellant had mentioned to them a man at work whom he did not like and they provided the police with a name.  The appellant said that he and a colleague were going to put child pornography on that man's computer and then report him to the police.  The women say they urged him not to do it, but he ignored them.  
9.	After the police had made their enquiries, this appellant was arrested in early July 2007.  In interview he denied the matter, just as he denied the matter at trial.  He ultimately, whilst not admitting that T had been set up, sought to suggest that others within his office, a small number of people, might in fact have been responsible for what had been done to T. 
10.	We next gratefully adopt and summarise certain observations made by the trial judge when sentencing.  He observed that the appellant had done what he had done to a decent and honest man and that what he had done was wicked.  He said it was hard to imagine a more cunning, deceitful or warped course of conduct, or a more malicious one.  A wholly innocent man was arrested and suspended from work.  It was 18 months before he was exonerated after a thorough police operation.  The police had been careful not to make public the arrest of T or the reason for it, but the appellant gratuitously and spitefully informed the local press in January 2007 so that T and his wife suffered the distress of inevitable unwelcome publicity.  Amongst other things they were spat at in the street, they were forced to move out of their home and they were deserted by many of their friends.  When T eventually returned to work at the school he found life unbearable as many of the staff would not speak to him.  His health suffered and so did that of his wife.  There were still people who believed that he was a paedophile, even though he was in fact a wholly innocent man.  
11.	The judge said that the appellant's reason for trying to ruin T seemed to have been simply that he did not like him.  He was the appellant's superior.  T had asked for the appellant's help with computers on a number of occasions and the appellant had betrayed the trust placed in him.  
12.	The images placed on the computer had been carefully concealed in hidden files.  The judge observed that the files were unusual and appeared to have been carefully chosen so that T would never find them and so there was no chance of him deleting them by accident.  Indeed the date of the download had been altered so that it would appear to be at a time before this appellant began his employment at the school.  All of this demonstrated a high level of deceit and sophistication on the appellant's part.  We agree with all those remarks.  The judge went on to say that the appellant's deliberate course of conduct over a number of months had ruined the life of T and his wife.  We agree and accept those observations as well.
13.	This appellant is now 40 years of age.  He is of previous good character.  There was a pre‑sentence report available to the judge, but it showed that the appellant continued to deny his involvement in these matters.  
14.	It is submitted on his behalf that a term of 12 years' imprisonment on count 1 was manifestly excessive.  It is pointed out that Mr T was arrested and interviewed but was not in fact charged and it is urged upon us that the police forensic examiners were able to discover with relative ease that this was a case where Mr T had been framed.  
15.	None of those matters which have been urged upon us carry particular weight with us.  Any case of perverting the course of justice which wrongly exposes another to the risk of arrest, imprisonment and wrongful conviction is to be viewed as particularly serious.  This case was one which involved a high degree of careful planning over a period of time, as well as a degree of breach of trust.  At no point did the appellant draw back from what he was doing, despite clear opportunities to do so, and he denied his offending to the bitter end, thus losing the only meaningful mitigation of remorse and an apology in a case like this.  His previous good character carries little weight in the context of such evil behaviour.  The case was further aggravated by the great public opprobrium which an accusation of the type made carries with it and by the malicious alerting of the press to T's arrest and by the enduring harm which the allegations have caused to T and his wife.  All of these matters and their consequences must have been intended by this appellant. 
16.	Thankfully conduct of this type is relatively rare.  There is a reported example in the decision of this court in Attorney General's Reference Nos 6, 7 and 8 of 2001 (Rees and others) [2002] 2 Cr.App.R (S) 76.  There the offenders arranged falsely to implicate the estranged wife of one of them in the unlawful possession and supply of class A drugs.  The motive was so that the estranged husband could secure custody of his child.  The plan was for cocaine to be planted in the victim's car and a police intelligence report was in fact submitted, falsely asserting that the victim possessed controlled drugs.  The matter came to light before the scheme could come to fruition and the offenders were kept under surveillance.  However, the victim's home was searched at night by other officers not in the know and the victim was arrested and understandably distressed.  This court proceeded on the basis that class A drugs had not in fact been planted and also on the basis that the victim's ordeal was relatively brief as her innocence came to light promptly.  In this case of course material was planted on T's computer and the ordeal of T and his wife was a prolonged one.
17.	The court in the Attorney General's Reference held that had drugs in fact been planted a sentence of 10 to 12 years would have been appropriate.  There are clearly aspects of the present case that are more serious than those which actually existed in the Attorney General's case.  The victim's ordeal was longer and greater; his employment was badly affected and the other personal consequences we have mentioned have taken their toll.  True it is that this appellant, unlike one of the conspirators in the case cited, was not a police officer, but he chose to use the police as his unwitting tools and to take careful steps to deceive them.  On the other hand, it is right to observe, as Miss Hussain has urged upon us, that the planting of drugs which was envisaged in the Attorney General's Reference would be the type of activity which, had the conspiracy been successful, would have led to a considerably higher sentence of imprisonment had the plot been successful than would have been the case in this matter had T been wrongly convicted of an offence of possessing child pornography.  That seems to us to be a relevant factor.  
18.	We have also considered the level of sentencing in this case alongside other serious crimes for which a similar significant level of sentencing might be appropriate.  This court brings to mind certain cases of manslaughter, some cases of attempted murder, serious drug importations of class A drugs and very serious section 18 offences with serious and permanent consequences for the victim.  Those are all classes of case which would result in a level of sentencing comparable to the sentence imposed by the learned judge in this case.  
19.	In the course of her submissions to us, Miss Hussain has reminded us of another category of case which has some relevance to the considerations of this court.  She has mentioned those cases which involve false allegations of rape.  There are certain parallels with the type of activity with which this case is concerned because an allegation of a sexual offence made falsely carries with it very similar opprobrium to that which follows from the possession of child pornography.  It is interesting to note that the decisions of this court in that class of case, namely false allegations of rape, have generally resulted in sentences which are considerably lower than the sentence imposed in this case.  No doubt there are good reasons for that because in the general run of such cases the false allegation of rape will not have been plotted or planned with anything like the precision and persistence that this case involved.  Secondly, there is generally no question of planting material in that type of case, unlike the present situation.  Thirdly, there is very often an emotional background which provides a degree of mitigation for the making of the false allegation in the first place.  It is right to make clear that Miss Hussain was not in any way seeking to suggest that that class of case has any sort of parity with the present type of allegation.  She merely drew to our attention sentencing levels in that type of case.  We agree that there is no question of parity involved and we view the aggravating features of this case as taking it into a very different category.  Nonetheless we have paid attention to the arguments as they help to set in context the offending with which we have to deal.  
20.	Having reviewed the matter in that way, and bearing in mind what was said in the Attorney General's Reference, we accept that the range indicated by this court in the Attorney General's Reference of some 10 to 12 years in the case of planting evidence in circumstances of extreme aggravation, is the appropriate range.  However, setting that guidance on one side and placing it alongside the considerations which we have set out by reference to other types of offence, we have come to the conclusion that the sentence of 12 years which was imposed was too high.  It would represent the extreme end of the range which was indicated in the Attorney General's Reference and this case in our judgment, grave as it was, does not come into that category.  
21.	We think that the judge should have passed a sentence within the range but at the bottom end of the range indicated, namely at 10 years.  Accordingly, in those circumstances, we reduce the sentence and allow the appeal by reducing the sentence from 12 years to 10 years.  To that extent this appeal is allowed.