Sexual Offences Sentencing Update

Sentencing Update – Sexual Offences

There have been three main areas of recent development in the law relating to the sentencing of sexual offences:

1. R v C [2011] EWCA Crim 1872 – Overrules the previous authority of Attorney General’s Reference No.18 of 2011 [2011] EWCA Crim 1300 in relation to Disqualification Orders and Banning Orders;
2. R v Smith and Others [2011] EWCA Crim 1772 – Provides guidance in relation to the making of Sexual Offences Prevention Orders (SOPOs); and
3. R v H [2011] EWCA Crim 2753 – Provides guidance in relation to the sentencing of historic cases.

Disqualification Orders and Automatic Barring

In Attorney General’s Reference No.18 of 2011 the Court of Appeal held that the power to make a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000 was no longer available if the offender was liable to automatic barring under the Safeguarding of Vulnerable Groups Act 2006.

In arriving at this conclusion the Court considered the meaning of Paragraph 3(2) of the Safeguarding of Vulnerable Groups Act 2006 (Commencement No.6, Transitional Provisions and Savings) Order 2009, which provides that that the 2000 Act should cease to have effect “for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act” [emphasis added].  The Court took the view that the words ‘who is barred’ must be read so as to include also those who are going to be barred, otherwise individuals would be made subject to two overlapping statutory regimes.

However, the Court returned to the topic in the case of R v C at the request of the Home Office. It was contended by the Home Office that the intention of para.3(2) was to prevent a gap in public protection between conviction and being added to the barred list by the Independent Safeguarding Authority (which could take some time), therefore para.3(2) should be given its literal meaning.

As a result the Court came to the conclusion that the ruling in Attorney General’s Reference No.18 of 2011 is incorrect and that a court must continue to make an order under section 28 as well as notify convicted persons that they would be barred. The Court did however criticise the drafting of the legislation and made it clear that it was essential that the present transitional regime was discontinued as soon as possible, stating that “it is simply wrong to subject a person to two different and highly complex regimes for anything other than a temporary transitional arrangement”.

Sexual Offences Prevention Orders

In R v Smith the Court of Appeal gave general guidance in relation to the making of SOPOs. Particular consideration was given to the relationship between SOPOs and other applicable regimes:

(a)   SOPOs and Sentences of Imprisonment for Public Protection:

The Court took the view that the making of a SOPO would generally be inappropriate if an indefinite sentence is imposed. This is due to the fact that release under an indeterminate term is allowed only on very carefully considered licence terms best considered at the time of release and not at the time of sentence. Therefore a SOPO was unnecessary unless there was some very unusual feature of the case;

(b)  SOPOs and Determinate, Extended and Suspended Sentences:

Where sentences are determinate or extended the licence would have a defined and limited life. The SOPO may extend beyond this. Therefore a SOPO may be necessary in such cases. Similarly the SOPO serves a different purpose from the suspension of the sentence. Its duration is certain to be longer, since it cannot be made unless prohibitions for at least five years are called for: s.107(1)(b);

(c)   SOPOs and Notification Requirements:

A SOPO must act in tandem with the statutory notification requirements. It is not normally a proper use of the power to impose a SOPO to use it to extend notification requirements beyond the period prescribed by law. However, if the circumstances require it a SOPO may extend beyond the notification period. Equally a SOPO for a defined period may be appropriate where the notification requirements would endure forever (i.e. where a sentence of imprisonment in excess of 30 months is imposed).

The Court also considered the terms which may be appropriate, particularly in cases involving computers and the internet:

• —A blanket prohibition on computer use or internet access is impermissible;
• —The formulation of restricting internet use to job search, study, work, lawful recreation and purchases should be avoided;
• —A requirement that defendants notify the police that they possess devices with internet access is of little value;
• —A requirement to preserve a reasonable internet history and submit to inspection on request is likely to be most effective;
• —It may be appropriate to include a prohibition on communicating via the internet with any young person known or believed to be under the age of 16;
• —In some cases it may be necessary to prohibit altogether the use of social networking sites or other forms of chat line or chat room;
• —Care must be taken in considering whether prohibitions on contact with children are really necessary;
• —It is not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence. There must be an identifiable risk of contact offences before this kind of prohibition can be justified;
• —Where there is no risk that a defendant may abuse his own family, it is both unnecessary and an infringement of the children's entitlement to family life to impose restrictions which extend to them;
• —Even if there is a history of abuse within the family, any order ought ordinarily to be subject to any order made in family proceedings e.g. allowing carefully supervised rehabilitation of parent and child;
• —In those cases where it really is necessary to impose a prohibition on contact with children (of whichever age) it is essential to include a saving for incidental contact such as is inherent in everyday life;
• —A term prohibiting activities likely to bring a defendant into contact with children must be justified as required beyond the restrictions of the Independent Safeguarding Authority;
• —Such a prohibition should ordinarily only involve children under 16 unless the defendant would be in a position of trust;
• Lastly the Court criticised the fact that Judges were too often presented with hastily and inadequately prepared drafts of orders at a late stage in the sentencing process. It should normally be required that a draft SOPO should be served on the court and the defendant not less than two clear days in advance of the sentencing hearing.

Historic Cases

In R v H the Court of Appeal set out various principles applicable to the sentencing of historic cases:

• —Sentencing in historic cases is to be in accordance with the sentencing regime at the date of sentence and in accordance with a measured application of the definitive sentencing guideline;
• —Although sentence must be limited to the maximum sentence at the date of the commission of the offence, it was wholly unrealistic to seek to identify what the sentence would have been at the time;
• —Due allowance for the passage of time might be appropriate if the date had a considerable bearing on the offender’s culpability;
• The circumstances in which the offence came to light will be relevant;
• Careful judgment of the harm done to the victim and the extent of the offender’s criminality is crucial;
• The life led by the offender since the offence may be an aggravating or mitigating factor;
• —Early admissions and a guilty plea are of particular importance in historic cases;
• —It is powerful mitigation that an offender has reported himself to the authorities out of a sense of guilt and remorse.

SUZANNE THOMAS