Sentencing in historic cases

There has been a lot in the news about historic sex offence, particularly in light of the Jimmy Saville investigation.  However, those related investigations are by no means the only circumstances in which historic sexual offences are coming to light, and for which offenders are being convicted. Therefore, it might be worthwhile considering how the Court is to approach sentencing in these (and similar cases).  Historic cases (of all types, not just sexual offences) have had a history of causing concern and outrage to the public as the sentences can sometimes appear to be substantially less than what would be expected if someone was convicted of the same crime today.

In 2011, the Court of Appeal issued guidance specifically relating to the sentencing of historic sexual abuse cases in England and Wales.  The guidance was given in the case of R v H and others [2011] EWCA Crim 2753.  Upon reading that case, it becomes clear that sentencing offenders in cases where they have admitted sexual offences which had occurred a significant time ago is a complex exercise.

The first thing that should be noted is that the maximum sentence which can be given in any case is that which was applicable at the time the offence was committed, not at the time of sentencing.  Where the law has been amended over time to increase the penalty for a particular crime, it is not possible for the Court to sentence in the context of that maximum.  Similarly where the maximum has been reduced over time, the court is still required to sentence in line with the maximum that was in place at the time of the offence.

It should also be noted that the charges brought against an offender whose crimes were committed in the past must reflect the law at the time of the offence, not at the time he or she is charged with anything.  There are some courses of conduct which, historically, would be an indecent assault, which would now be classed as rape (under the Sexual Offences Act 2003).

While the Court has to take account of the sentencing regime that applied at the time of the offence, the Court must also take account of the sentencing regime in place at the time of sentencing.  Therefore, the Court will have to take account of any guidance issued by the Sentencing Council (or its predecessor organisation, where that guidance is still in force).  However, where those guidelines would produce a sentence greater than the maximum permitted at the time the offence was committed, the sentencing court would have to make adjustments to that sentence so as to ensure it was not greater than the maximum allowed.

The Court of Appeal found it to be wholly unrealistic to attempt, at the time of sentencing, to try and pass the sentence that would have been passed had the offender been convicted at the time.  Beyond that, the process of sentencing is rather similar: account must be taken of the facts of the offence, the culpability of the offender at the time of the offence and whether than has been early admission of the offences.

One last thing that the Court of Appeal noted was that the passage of time between the offence and the date of conviction could be an aggravating factor, but that mitigation could also be found in that time.  For example, if it can be demonstrated that between the offence being committed (or last being committed) and the date of sentence there is evidence of an unblemished life, particularly where ‘accompanied by evidence of positive good character’, then there may be mitigation to be found (which presumably could reduce the sentence actually passed).  The passage of time may also be an aggravating factor, the Court stated, where (for example) there is evidence that the offender poses a continued risk to the public, or that he or she continued to offend during that time.

Sentencing is always complex, but when dealing with historic cases it is even more complex.  The Court has to have due regard to the law as it was at the time of the offence.  This is to ensure that the sentence is not harsher than could (not would) have been given at the time of the offence.  When the offence and date of sentence are separated by significant periods of time during which there has been substantial changes in the law, it can appear as though the Courts are being ‘soft’ or too lenient on offenders.  This is especially so where the maximum possible sentence has increased over that period.

The guidance in R v H and Others should be kept in mind when reading about sentences involving those convicted of offences which occurred many years, sometimes even decades, ago.  For a full understanding of just how the Court should appraoch these cases, I would stronly suggest reading the judgment in its entirity.

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