Sentencing and Mitigation in Historic Sexual Cases

Criminal investigations in to historic offences have undoubtedly increased over the last few years, particularly following the exposure of Jimmy Saville. Sentencing of historic offences, and not just historic cases of a sexual nature, can prove to be a very difficult exercise. In 2011, the Court of Appeal reviewed the issue of sentencing historic sexual abuse cases and in doing so recognised the complexity of the issue. It has now issued guidance specifically relating to the sentencing of historic sexual abuse cases in England and Wales. The Court of Appeal reaffirmed a number of principles of general sentencing philosophy and took the opportunity to set out the following guidance.

• The maximum sentence which can be imposed is what was applicable at the time the offence was committed, not at the time of sentencing. This means that where the law has been amended over time to increase the available sentence for a particular crime, the maximum sentence remains the one at the time the offence was committed.
• Importantly, the charges brought against an offender whose crimes were historically committed must reflect the law at the time the offence was committed. Some offences which would be considered an indecent assault prior to the Sexual Offences Act 2003, would now be considered as rape.
• Even though the court has to apply the sentencing applicable at the time of the offence; it must also consider the guidance in place at the time of sentencing. This means that it needs to take into account any guidance issued by the Sentencing Council. However, if those guidelines produce a sentence greater than the maximum allowed at the time the offence was committed, the court would have to adjust the sentence to ensure it doesn't exceed the maximum permitted.
• The Court of Appeal recognises that it is unrealistic to attempt to impose a sentence that would have been given if the offender had been convicted at the time. However, it stressed that the process of sentencing remains unaffected and that the court will need to properly assess the facts of the offence, consider the culpability of the offender at the time and to consider other relevant mitigating factors. Mitigating factors could include; early admissions of the offences and the timing of any such admissions. These are two very important issues when determining the amount of discount to give.
• Interestingly, the Court of Appeal stated that the time between the offence, conviction and sentence could be as much of an aggravating factor as a mitigating factor. It would be considered an aggravating factor if an offender had continued to commit offences. It would be considered mitigation in a case where an offender demonstrated that no further offending had taken place and that there was evidence of positive good character.
• Defence lawyers must be careful not to aggravate the case by saying the wrong thing. For example, without a confession from an offender a crime would never have been detected. This would certainly be considered good mitigation. Delaying a guilty plea until the day of trial, or close to it, would not and would undoubtedly aggravate a defendant's position.

There can be a perception that sentencing judges impose 'soft' sentences for historic offences, particularly those of a sexual nature. Sentences that were imposed many years ago were lower for many examples of criminal conduct.

New Sentencing Council guidelines on sexual offences came in to force from 1^st April 2014. The existing guidelines do not apply in relation to offences under the 1956 Sexual Offences Act.

When sentencing under the Sexual Offences Act 1956, or other legislation pre-dating the 2003 Act, the court should apply the following principles:

1. The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence.
2. The sentence is limited to the maximum sentence available at the date of the commission of the offence. If the maximum sentence has been reduced, the lower maximum will be applicable.
3. The court should consider any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.
4. The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence.
5. When assessing the culpability of the offender, the court should consider any relevant culpability factors set out in any applicable guidelines.
6. The court must assess carefully the harm done to the victim based on the facts available to it, considering any relevant harm factors set out in any applicable guideline. Consideration of the circumstances which brought the offence to light will be of importance.
7. The court must consider the relevance of the passage of time carefully as it has the potential to aggravate or mitigate the seriousness of the offence. It will be an aggravating factor where the offender has continued to commit sexual offences against the victim or others or has continued to prevent the victim reporting the offence.
8. Where there is an absence of further offending over a long period of time, especially combined with evidence of good character, this may be treated by the court as a mitigating factor. However, as with offences dealt with under the Sexual Offences Act 2003, previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.
9. If the offender was very young and immature at the time of the offence, depending on the circumstances of the offence, this may be regarded as personal mitigation.
10. If the offender made admissions at the time of the offence that were not investigated this is likely to be regarded as personal mitigation. Even greater mitigation is available to the offender who reported himself to the police and/or made early admissions.
11. A reduction for an early guilty plea should be made in the usual manner.

If you have any questions regarding historic sexual offences, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.