The law and historic cases: sensible or bizarre?

It has been reported by the BBC today that president of the ‘Association of Child Abuse Lawyers’ has said the way in which Rolf Harris was sentenced was ‘bizarre’. He is referring to the fact that in historic cases the judge passing sentence is limited to the maximum sentence that was available at the time of the offence. In the Harris case this was 2 years (or 5 years in the cases where the victim was under the age of 13).

There are a lot of historic sexual assault and abuse cases trundling their way through the justice system. It is right that, no matter how many years later, the perpetrators of these crimes face justice. However, there is a significant issue in such cases; whether it is a sexual offence or not. As time progresses and as Government’s change, the law too goes through change. If you’re prosecuting an individual 20 or 30 years after the offence was committed it is highly likely that the law has undergone several significant changes: that is true with the law surrounding sexual offences. In all cases historic offences will be prosecuted according to the law at the time the offence was committed. The other alternative is to prosecute them under the law at the time they are prosecuted.

Why do we prosecute historic cases at the time they were committed? Well, it’s about what is fair and just. Justice is not just about the victim, but it must equally be about the offender. It would be oppressive if the law were to treat offences committed decades ago as if they were committed today. It is a general principle of law in democratic countries around the world, especially in the realm of criminal law, that the law is not retrospective. That means that current changes in the law should not affect future consequences of past conduct. In other words, if you did something that was a particular criminal offence which attracted a particular maximum penalty, but by the time you are prosecuted the law has changed, you should be treated (as far as is reasonably practicable) as you would have been when you committed the crime. The same would be true if you committed a crime today, but the law changed substantially tomorrow: you would be dealt with as the law was today and not as the law changed tomorrow – even if there was no substantial delay in arresting, charging and prosecuting you.

In the Rolf Harris case he was prosecuted for the offences that he committed at the time. As such, the maximum penalty that was available to the court was that which would have been available at the time the offence was committed (2 years, or 5 in the case of offences relating to children under the age of 13). Specifically, in the case of Rolf Harris his sentence of 5 years and 9 months was made up of a mixture of concurrent and consecutive sentences for the various charges that he was convicted of. The sentencing remarks of Mr Justice Sweeny are available online and detail what the charges were and what the sentence was for each charge (and whether it was to be served concurrently or consecutively). You can read the sentencing remarks here.

When it comes to sentencing cases like this one where there has been such a delay in bringing the offender to justice, it is not the job of the court to try and fix the sentence that would have been given at the time. The judge must have regard to the sentencing guidelines that are currently in place; however, they cannot pass a sentence which would exceed the maximum available at the time the offence was committed. I blogged in this issue last year looking specifically at the law of England and Wales, you can read that blog here.

Sentencing is always a complex matter, but it is even more complex in these cases. While there will, quite understandably, be no sympathy for people like Rolf Harris; the law must be fair and it must be just. That applies to victim and offender and so the law must not be oppressive by prosecuting people for more serious offences than what they committed (while under the current law they may well have committed the more serious offence, they did not actually commit that offence because they offended at a time when the law was quite different) or by giving them a sentence that is in excess of the maximum that was available at the time they committed the offence.

I won’t make any comment on whether I think the sentence Rolf Harris received was too harsh, too lenient or about right. I understand that the sentence has been referred by someone to the Attorney General and it is now for him to decide whether he thinks that it is unduly lenient and whether it ought to be referred to the Court of Appeal. When he is doing so he will have regard to the sentences passed, the law as it was at the time the offences were committed the present sentencing guidelines and no doubt the totality of the sentence passed. My understanding of the law is that the Attorney General has 28 days to decide whether he is going to refer it to the Court of Appeal. Even if the Attorney General decides to refer it to the Court of Appeal they may refuse to hear the case or decide that the sentence should remain the same: a referral does not mean that the sentence will increase or that it was unduly lenient.