First published on the Brett Wilson Criminal, Fraud and Regulatory Law Blog on 14 October 2016
Regina v Forbes & others  EWCA 1388 involved conjoined appeals in a number of cases involving sentences for historic sexual offences. The Court of Appeal, presided over by the Lord Chief Justice, took the opportunity to consider relevant authorities and lay down a number of important principles to interpret current sentencing guidelines in accordance with historic offending particularly in circumstances where the offending would have attracted lesser sentences at the time. It is not really necessary to examine the facts of the individual cases but to look at the general principles which are laid down by the Lord Chief Justice at the outset and can be extracted from his judgment.
- The guidance given in previous authorities has now been codified in Annex B of the Definitive Guideline on Sexual Offences.
- The offender must be sentenced in accordance with the regime applicable at the date of sentence but the sentence itself must be limited to the maximum available at the time of sentence.
- The applicability of Article 7 ECHR is essentially restricted to those cases where particular sentences were not available at the time (as opposed to limiting the sentence to that which would have been passed at the time). The appeal of BD in this case was successful to the extent that a custodial sentence not available at the time (as a result of his age) was quashed as it was incompatible.
- It is essential that courts avoid ‘double-counting’ on the basis that the starting point already incorporates the gravity of the offence.
- The circumstances in which ‘abuse of trust’ is an aggravating factor should be narrowly construed to include for example teachers, scoutmasters, priests, but not family relationships – parents, siblings etc.
- Immaturity at the time of the commission of the offence goes to assessment of culpability.
- Lack of offending since the commission of the offence is not necessarily a mitigating factor. Evidence of positive good character will be.
- Psychological and physical harm to the victim is already incorporated into the guidelines by virtue of the very nature of these types of offence. Only extremely severe cases should serve to place an offence into the top category of harm.
- Passage of time is unlikely to be a material mitigating factor.
- The prosecution should think carefully to ensure that counts on the indictment are drafted so that a judge has certainty over the nature and extent of the criminality proven when passing sentence.
In a general sense then modern sentencing practice in dealing with historic sexual offending has moved on. Those convicted of such offences cannot expect to benefit from the passage of time, old age or ill health. Nor are the Courts restricted, in any meaningful sense, in the application of current sentencing guidelines to historic offences. The question of what sentence could or may have been passed at the time of the commission of the offence is merely a factor when applying current sentencing guidelines.