Difficulties in sentencing historic sexual offences

Cases relating to historic sexual offences seem to have dominated the media in recent times. Some difficult and sensitive issues can arise when the courts are dealing with such cases. When sentencing offenders convicted of historic sexual offences, relatively recent case law provides some helpful guidance (in particular, the cases of R v Limon [2022] EWCA Crim 39; R v Ahmed and others [2023] EWCA Crim 281; and, R v A (Whitelam) [2023] EWCA Crim 1204).

The sentencing exercise for historic sexual offences is a notoriously difficult task. It requires careful consideration of past and present sentencing regimes, reference to Article 7 of the European Convention on Human Rights (the ‘Convention’), and an up-to-date knowledge of relevant case law.

Article 7(1) of the Convention provides that:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The sentencing exercise becomes even more complex if, for example, the offender was a youth (aged under 18) at the time the offences occurred, or if the indictment period spans a period of time during which the sentencing regimes changed and / or the offender’s age crossed a significant age threshold.

One of the principles of sentencing is that where an offender’s age crosses a significant age threshold between the date of commission of the offence and the date of conviction, the starting point is the sentence that would have been appropriate if the offender had been sentenced at the date of the commission of the offence (Section 6, paras 6.1 to 6.3 of the ‘Sentencing Children and Young People’ guideline (the ‘Children Guideline’)).

If the offender’s age at the time of the offending is uncertain, then the court must be satisfied, with regard to the evidence and the indictment period, that the offence was committed on or after a particular relevant date – for example, the date on which offender passed a significant age threshold, or the date on which new legislation came into force. If the court cannot be satisfied that the offence was committed on or after the relevant date, then it must proceed on that basis and sentence the offender according to their age and the legislation in force prior to that date (see R v Limon, para 27, explored further below).

In R v Ahmed and others, the Court gave further guidance as to determining the offender’s age when the offences were committed. At para 78, the Court discussed the appeal in R v Priestley (one of the cases in Ahmed) and said that:

“It [the Court of Appeal] concluded that all the offences could have been committed before the appellant’s eighteenth birthday and that this was the basis on which sentence had to be imposed.”

The Court went on to say at para 79 that:

“In the absence of any findings of fact by the sentencing judge [as to the appellant’s age when the offending occurred], we are entitled to consider the evidence called at trial and to determine whether that evidence demonstrates clearly the period during which the offending [occurred]”.

Cf. this with para 119, where the Court discussed the appeal in R v Hodgkinson (another of the cases in Ahmed) and said that:

“The judge noted that, whatever technical argument might be raised in relation to the indictment, there had been a concession made on behalf of the appellant that offending had occurred multiple times when the appellant was an adult i.e., 18 or over. Thus, he sentenced on that basis.”

There are three relatively recent cases which are relevant to the consideration of what sentence is permitted and is appropriate when sentencing offenders convicted of historic sexual offences.

R v Limon [2022] EWCA Crim 39

Here, the appellant (‘A’), a 41-year-old man of otherwise good character, had been convicted of eight historic sex offences against a child (indecent assault of a woman contrary to s.14 Sexual Offences Act 1956 (‘SOA 1956’)). The offences took place between September 1993 and September 1996, when A was aged between 14 and 17 (i.e. a youth) and the victim was aged between six and nine. A had been sentenced to a total of four years’ imprisonment.

There were two principal grounds of appeal in R v Limon:

The first ground was that the maximum sentence for an adult was 10 years' imprisonment for each offence; however, with regard to the provisions regarding ‘grave crimes’ that were in force at the time of the offending, the maximum sentence for a youth was 12-months' detention. On this basis, A submitted that the sentence was wrong in principle and / or manifestly excessive.

The second ground was that by imposing a total sentence of four years' imprisonment, the judge had imposed a heavier penalty than would have been available had A been sentenced as a youth at the time the offending occurred, contrary to Article 7 of the Convention.

In its judgment, the Court of Appeal stated:

“The appellant was aged under 18 throughout the indictment period. At the start of that period, the offence of indecent assault, contrary to section 14 of the 1956 Act, was not one of the grave crimes in respect of which section 53 of the 1933 Act enabled a court to sentence a young offender to a term of detention not exceeding the maximum applicable sentence of imprisonment. Accordingly, the custodial sentence which could be imposed on an offender aged between 15 and 18 was detention in a young offender institution. The effect of sections 1A and 1B of the Criminal Justice Act 1982 was to place a limit on the total term of such detention which could be imposed, even if a young offender fell to be sentenced for multiple offences. At the start of the indictment period, that limit was 12 months.” [para 26]

The ‘grave crimes’ provisions were set out in s.53(2) of the Children and Young Persons Act 1933 (the ‘CYPA 1933’) as amended by s.16 Criminal Justice and Public Order Act 1994 (which has been repealed, and replaced by s.249 Sentencing Act 2020). The list of offences which are classified as ‘grave crimes’ changes over time and so, when sentencing a youth, particular regard must be paid to the list of ‘grave crimes’ in force at the time when the offending occurred.

For example, the offence found at s.14 SOA 1956 (indecent assault on a woman) was added to the list of ‘grave crimes’ under the version of the CYPA 1933 that came into force on 9 January 1995. From this point, the s.14 offence became a ‘grave crime’ for which long-term detention under s.53 of the CYPA 1933 was available. However, the s.15 SOA 1956 offence (indecent assault on a man) was only added to the list of ‘grave crimes’ later, under the version of the CYPA 1933 that came into force on 1 October 1997.

Regarding consecutive and concurrent sentences, Part 1 of the Criminal Justice Act 1982 (as amended) (the ‘CJA 1982’) deals with the treatment of young offenders and, specifically, custody and detention of persons aged under 21. Section 1B CJA 1982 sets out the legislative position that was in force from 3 February 1995 to 31 July 1998; sub-section (4) states:

“A court shall not pass on an offender aged 15, 16 or 17 a sentence of detention in a young offender institution whose effect would be that the offender would be sentenced to a total term which exceeds…” [the number of months permitted under ss. 1A and 1B CJA 1982].

In relation to “total term”, s.1B sub-section (6)(a) defines this as:

“in the case of an offender sentenced (whether or not on the same occasion) to two or more terms of detention in a young offender institution which are consecutive or wholly or partly concurrent, the aggregate of those terms”.

In Limon, the Court of Appeal dealt with this exact scenario, and stated:

“The effect of sections 1A and 1B of the Criminal Justice Act 1982 was to place a limit on the total term of such detention which could be imposed, even if a young offender fell to be sentenced for multiple offences.” [para 26]

The Court quashed the sentences of four years' imprisonment on count eight, and three years' imprisonment on count four. The overall sentence was reduced from four years' imprisonment to 12 months' imprisonment concurrent on each of the relevant counts – 12 months being the maximum available for an offence that was not a grave crime and for a youth of the appellant’s age at the time of the offending, as set out in ss. 1A and 1B CJA 1982. The overall sentence was necessarily reduced from four years' imprisonment to 12 months' imprisonment, confirming the position in relation to consecutive and concurrent sentences in the case of a youth offender. One further consequence was that the period for which A was subject to the notification requirements was reduced from ‘indefinitely’ to ‘ten years’.

It is worth noting that, with effect from 3 February 1995 to 31 July 1998, pursuant to ss.1A and 1B CJA 1982, the maximum total term of detention in a young offender institution was increased from 12 months to 24 months. This was applicable to offenders aged 15, 16, or 17. This maximum was applicable even if the youth was being sentenced for multiple offences, i.e. sentences could run consecutively but only up to a maximum of 24 months.

In Limon, the fact that, as a young offender, A would have been subject to a different sentencing regime did not assist him in relation to Article 7. However, he had crossed a significant age threshold between the time of the offending and the date he was convicted, and that passage of time did not imbue him with “any greater culpability or moral responsibility than he had at the time of the offending” [para 30].

The Court of Appeal noted that these principles will apply in cases where the defendant is a young adult when convicted of offences committed as a child a comparatively short time earlier. The Court observed that there was no reason not to apply them also to a case in which many years had passed between the offending and the conviction. This was in contrast to the approach set out in R v Forbes [2016] EWCA Crim 1388, which held that, so long as the defendant could have been sentenced to imprisonment had he been sentenced as a child, then the Court would be free to impose any custodial sentence up to the maximum for the offence.

Limon provides authority that when sentencing an adult defendant who was a youth when the offending occurred, the starting point should be the sentence which it is likely that the defendant would have received if convicted at the time of the offence.

Limon acts as an important reminder to practitioners to take care in identifying the relevant provisions at the start of the indictment period for the purposes of sentencing. When sentencing historic sexual offences, lower and appellate courts should disregard equivalent modern offences and applicable sentences.

R v Ahmed and others [2023] EWCA Crim 281

In the light of the tension between Forbes and Limon, discussed above, the Court of Appeal convened a Special Court in Ahmed. With Lord Burnett of Maldon CJ presiding, the Court heard five otherwise unconnected cases relating to sexual offences, to consider the correct approach when sentencing an adult for an offence committed when the offender was a child.

The Court of Appeal confirmed the approach in Limon.

Regarding the Children Guideline (which came into effect on 1 June 2017), Lord Burnett stated:

“i) Whatever may be the offender’s age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so.” [para 32]

The court must have regard to the maximum sentence which was available at the time the offending occurred, and must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced at the time the offence was committed. The judgment in Ahmed quotes directly from the Children Guideline as follows:

“In such situations where an offender crosses a significant age threshold (primarily turning 12, 15, or 18 years old) the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence but when this occurs the purpose of sentencing adult offenders has to be taken into account, which is:

• the punishment of offenders.

• the reduction of crime (including its reduction by deterrence).

• the reform and rehabilitation of offenders.

• the protection of the public; and

• the making of reparation by offenders to persons affected by their offences.

When any significant age threshold is passed it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate”.

In Ahmed, the Court made it abundantly clear that they would:

“find it very difficult to think of circumstances in which a good reason [to impose a sentence in excess of the maximum available to a child offender]” could properly be found”. [para 32(v)]

The Court went on to address the issue of whether the historic sentence of Borstal training was applicable:

“We would add that the approach to a sentence of Borstal training available at the time of offending became common ground before us. In determining what length of custodial sentence should now be imposed to reflect the sentence which was likely at the time of the offending, a sentence of Borstal training (which would have comprised detention for up to two years, followed by supervision for a further two years) can properly be reflected by a sentence of up to four years’ imprisonment. That would reflect current early release provisions.” [para 31]

Further guidance on the point of Borstal training is set out later in the judgment in Ahmed (see para 31).

The sentence of Borstal training was abolished by the CJA 1982 and replaced with youth detention centres (Schedule 16 (repeals) came into force on 31 January 1983). So, a sentence of four years’ imprisonment, as an aggregate of Borstal training comprising two years’ detention and two years’ supervision, is not available for an offender being sentenced for offences committed on or after 31 January 1983.

R v A (Whitelam) [2023] EWCA Crim 1204

Here, the appellant (‘AA’), a 70-year-old man of otherwise good character, had been convicted of 13 historic sexual offences against two children. AA was acquitted of two counts (counts 11 and 12).

The offences against ‘C1’ (who was aged between eight and 12 at the time of the offending) were committed when AA was aged between 15 and 20. The offences against ‘C2’ (who was aged between 10 and 14 at the time) were committed around 20 years later, when AA was an adult.

AA had been sentenced to a total of 13 years’ imprisonment.

A (Whitelam) is distinguished from Limon on two facts. In A (Whitelam):

• the offences against C1 occurred between 1966 and 1971 (when AA was aged 15 to 20), during which time the sentence of Borstal training was available; and
• the offences against C2 occurred when AA was an adult.

There were two principal grounds of appeal in A (Whitelam):

The first ground was that the sentence of four years' imprisonment in respect of the offending against C1 was wrong in law and / or manifestly excessive. AA submitted that the maximum sentence available for a child offender at the time was six months' detention, and that it was incorrect to equate Borstal training with detention to justify a longer custodial sentence.

The second ground was that the overall sentence of nine years' imprisonment on count 10 was manifestly excessive and that by imposing consecutive sentences for counts 5 and 10, the judge gave insufficient consideration to the principle of totality.

Regarding Borstal training, A (Whitelam) followed Ahmed. In Ahmed the Court of Appeal had expressly confirmed that a sentence of Borstal training can properly be reflected by a sentence of up to four years' imprisonment.

Regarding totality, A (Whitelam) considered Ahmed in which the Court of Appeal had stated:

“Lastly, where the offender has committed offences both as a child and as an adult, it will commonly be the case that the later offending is the most serious aspect of the overall criminality and can be taken as the lead offence(s), with concurrent sentences imposed for the earlier offences. In such circumstances the key considerations for the court are likely to be an assessment of the extent to which the offending as a child aggravates the offending as an adult, and the application of the principle of totality.” [para 30]

However, the Court in A (Whitelam) held at para 33 of its judgment that concurrent sentences may be appropriate where the offending against the same victim crosses an age threshold, or where there is some other feature that links the offending over time. Where, however, the offending in adulthood is entirely separate from that committed as a child, it is open to the judge to impose consecutive sentences. AA’s subsequent offending demonstrated that the earlier offending was not a childhood lapse, so culpability was therefore somewhat greater. The appeal against sentence was dismissed.

Although the sentence for the offences committed as an adult are unremarkable, arguably the upholding of the four-year sentence for those offences committed as a child, and particularly the decision to make those consecutive, is at odds with the rationale in Ahmed.

If Ahmed is one of those rare cases where the courts look more sympathetically on crimes committed by youths (as is the norm in other European jurisdictions), then A (Whitelam) is a reminder that such consideration is equated with leniency and dispensed grudgingly, with courts and the Court of Appeal seemingly happy to find a rationale to maintain the more punitive sentencing that some may consider to be the bedrock of sentencing in the English courts.

Further information

If you have any questions regarding this blog, please contact Tom Surr or Greg Foxsmith in our Criminal Litigation team.

 

About the authors

Greg is a Legal Director in the Criminal team. He is a highly regarded and experienced lawyer and advocate with over 25 years experience. He returns to criminal litigation after a stint as a senior advocate in our regulatory team, dealing with misconduct  cases across a wide range of professions, particularly in health care. His expertise in both fields will be invaluable in defending professionals facing allegations that have both criminal and regulatory consequences.

Tom is a trainee solicitor at Kingsley Napley and is currently in his third seat with Criminal Litigation. He joined Kingsley Napley in October 2019 as a paralegal in the Criminal Litigation department and was promoted to Head Paralegal in March 2020. He worked on matters including criminal defence and police investigations, white collar and financial crime, international crime and extradition, and investigations. Tom has also volunteered for pro-bono projects including with the Queen Mary Legal Advice Centre, Amicus ALJ and the Zacchaeus 2000 Trust. Tom was offered a training contract with the firm in 2021.