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Appeal judges set sentencing rules for historic sex offences

29 November 2011

The Court of Appeal has set out the rules on sentencing those responsible for historic sex offences.

Ruling on seven appeals in R v H and others [2011] EWCA Crim 2753, Lord Judge said appeal judges had taken “conflicting approaches” in the past to the issue.

He said that in cases of sexual crime, it was a common for the victim to be “ashamed, shy, hesitant, fearful or terrified, or as a result of a combination of all these considerations, reluctant or unable to make a complaint at or close to the time of the offence.

“On occasions those who do complain within the family or school environment are ignored and rejected, and thereafter feel powerless to help themselves.

“Thus it is that the crimes do not come to the attention of investigating authorities until years later, when with maturity, sometimes as a result of parenthood itself, but in reality for a variety of different reasons, the truth of what happened in childhood emerges.”

The Lord Chief Justice went on: “We do not overlook a small number of exceptional cases (none of which are included in this group), where the perpetrator of the crime, haunted by a sense of guilt of what he did many years earlier, reports himself to the police, and triggers off the investigation.

“That raises specific sentencing problems. For the moment, however, it is sufficient to observe that this course is always open to every offender, but the majority live what often appear to be ordinary lives hoping, and indeed in many cases expecting, that their criminal activities will never come to light.”

Lord Judge said that although the sentence set must be limited to the maximum at the date when the offence was committed, it was “wholly unrealistic” to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for an individual offence was likely to have been if the crime had come to light at or shortly after the date when it was committed.

Similarly, he said that if maximum sentences had been reduced over the years, “the more severe attitude to the offence in earlier years, even if it could be established, should not apply”.

The Lord Chief Justice said the particular circumstances in which the offence was committed and its seriousness “must be the main focus” in sentencing.

“Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability.

“If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision.

Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.

“In some cases it may be safe to assume that the fact that, notwithstanding the

passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil.

“However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision.”

Lord Judge said the passing of the years might demonstrate aggravating features, if the defendant had continued to commit sexual crime or represented a continuing risk.

“On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.

“Early admissions and a guilty plea are of particular importance in historic cases.

Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations.

“It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.”

Mr Justice Royce and Mrs Justice Macur contributed to the judgment.

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