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Sentencing historic offenders

Sentencing historic offenders is notoriously difficult because it involves an interplay between old and new sentencing regimes. A new report sheds light on the issue.

The principal reason for the rapid growth in the number of sex offenders in our prisons over the last 10 to 15 years has been the prosecution of large numbers of perpetrators arrested for historic offences. Probably the best known example is Operation Yewtree, the police investigation into historic sexual abuse allegations relating to Jimmy Saville and other celebrities.

There has been plenty written about the difficulties in achieving convictions in these cases and the importance or providing even belated justice to people who suffered the most heinous of crimes often while children.

However, much less has been written about the difficulties in sentencing people convicted of these historic offences. A new publication by the Sentencing Academy looks specifically at this subject.

About the Sentencing Academy

The Sentencing Academy, which is funded by the Dawes Trust, is a research and engagement charitable incorporated organisation dedicated to developing expert and public understanding of sentencing in England and Wales. It encourages the Government to implement effective sentencing practices and informs public debate about sentencing, acting as a bridge between those with expert knowledge of sentencing, the public, and policy makers.

The report

The Sentencing Academy report, authored by Dr Gabrielle Watson of Lincoln College Oxford acknowledges that sentencing historic offenders is notoriously difficult because it involves an interplay between old and new sentencing regimes as well as careful reference to Article Seven of the European Convention on human rights which requires that the penalty imposed should not be heavier than the one which would have been applicable at the time of the offence.

A host of other factors further complicate an already complex sentencing exercise. These include the age and maturity of the defendant at the time of the offence, the passage of time – which can have an aggravating or mitigating effect depending on the circumstances of the case – and the suffering of the victim and the victim’s family in the intervening period, which may, by the time of conviction, have extended to years or even decades.

One of the most fascinating sections of the report explores the debate on whether the passage of time should have an aggravating or mitigating effect at sentencing. Does an offender deserve to be punished for a crime if a considerable amount of time has elapsed since its commission? There is a tension between, on the one hand, the proper consideration of the personal development of the offender, having due regard to their behaviour in the intervening years and, on the other hand, the public interest associated with the pursuit of serious crime, as evidenced by enduring harm to the victim and the victim’s family, unabated by the passage of time. This debate is very much sharpened in the case of sexual abuse offences where it often appears likely that the perpetrator was a systematic abuser who may have committed many more offences than those with which they (usually he) are charged and convicted of.

Dr Gabrielle Watson 

Dr Watson also explores the guiding principle of proportionality - the idea that the punishment should reflect the severity of the crime. This is particularly importance in historical sexual offences where as a society and the legal system we have generally considered these offences to be much more serious over recent years with a consequential shift towards more severe penalties. One striking example  in the report is the comparison of the sentencing of indecent assault on a woman. The Sexual Offences Act 1956 carried (until 1985) a maximum sentence of two years’ imprisonment, while either sexual assault or rape under the Sexual Offences Act 2003, carries maximum sentences of 10 years and life imprisonment respectively.

Conclusion

The report argues for greater clarity in the public domain as to how the sentencing of historic offenders works. One issue highlighted by Dr Watson is that judges use current sentencing guidelines for the purposes of assessing the harm to the victim and the culpability of the offender, but the law only allows them to pass sentences within the maximum sentence range that would have been available at the time of the offence.

The court has a duty to strike a balance the competing rights and interests of multiple parties – of victims, offenders, and the public at large. The report concludes by saying it is far from clear whether sentences have yet found a satisfactory balance between these competing rights.

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