The question was recently addressed by a specially constituted Court of Appeal in R-v-Ahmed and Ors  EWCA Crim 281. The judgment provides welcome guidance on an issue that has often troubled practitioners and sentencing judges.
This particular sentencing challenge is not uncommon, mainly as a result of the increase in prosecutions for historic sexual offences over the last two decades. It frequently happens that 'child' offenders come to be sentenced many years after their offending took place. Society accepts that children are less culpable for their actions for adults. But as the Court in Ahmed acknowledged, there can be complicating factors in such cases.
i) maximum sentences for the relevant offences, or equivalent conduct under current legislation, may be different now (usually higher) than at the time the offences occurred
ii) there has been uncertainty about the applicability of current sentence guidelines to historic offences
iii) the difficulties in second guessing what sentence would have been imposed if that sentence been imposed at the time the offences were committed and;
iv) uncertainty arising from an apparently divergent decisions, particularly R-v-H(J), R-v-Forbes and Ors and R-v-Lickorish and R-v-Limon.
The Court began by reviewing previous cases. In Forbes , following H(J), it had been held that a defendant must be sentenced in accordance with the regime in force at the time of sentence, not at the time the offences were committed, but that sentence is to be limited to the maximum in force at the time of the offending (unless it had been reduced in the interim). Applying Forbes, the Court in Lickorish held that if custody was available as a sentence at the time of offending, then the offender’s age at the time of offending would only be relevant to assessment of culpability.
In Limon, the Court had held that the starting point for sentencing should be the sentence likely to have been imposed at the time of the offending, having in mind the maximum sentence available at that time, although this may not be the end point, and a longer sentence that that which could have been imposed at the time would not necessarily offend Article 7. In R-v-Priestly the Court confirmed that Limon did not depart from the judgement in Forbes.
Some uncertainty had arisen in these previous cases though (and here the judgment in Ahmed becomes involved) as to the extent to which current sentencing guidelines on children apply in historic cases. The Court confirmed that the Sentencing Counsel’s overarching principles guideline Sentencing Children and Young People (the Children Guideline) should always be applied unless contrary to the interests of justice, and that Forbes was not authority, as the Prosecution had argued, that the Children Guideline should only apply where the offender comes to be sentenced shortly after he or she has ceased to be a child.
The Court accordingly went on to clarify the correct approach to sentencing adults for offences committed as children as follows:
i) Whatever the age of the defendant at sentence, the Children Guideline should be followed unless contrary to the interests of justice to do so.
ii) The Court should have regard to (but not be restricted to) the maximum sentence available at the time of the offending.
iii) The starting point should be the likely sentence that would have been imposed shortly after the offence was committed.
iv) If custody was not an available sentence then, it should not be imposed now.
v) If some form of custody was available, the Court is not necessarily bound by the maximum that would have applied to a child offender but this should only be exceeded where there is good reason. The mere fact that the defendant has attained adulthood is not a good reason. The Court observed that it was difficult to think of circumstances in which a good reason could properly be found.
vi) The starting point taken above would not necessarily be the end point, subsequent events might show that the defendant’s culpability was in fact higher or lower than would have been apparent at the time of the offending - for instance if greater harm to the victim has subsequently become evident, or if it has become known that the offence was not a one-off but part of a continuing course of conduct.
In passing, it is interesting that under vi, the Court did not give as an example of increased culpability, the situation (not uncommon) where the reason that sentencing is taking place many years after the offending is that the victim has felt too scared of or pressured by the defendant to report the matter in the intervening years. This may well be a relevant consideration as these principles are applied in future cases.
The Court commented that the above approach might pose difficulties for sentences in trying to assess what would have been likely to have happened in a sentencing process many years ago: “However… if principled application of the law requires difficulties to be confronted, then they must be.”
It pointed out that assistance may be derived from any relevant guidelines in force at the time, any limitations on maximum sentences at the time, the application of the principle of totality particularly where some of the offending took place while the defendant was an adult, and indeed from the helpful table of historically available sentences in Current Sentencing Practice.
Practitioners will welcome the clarity that this decision brings, resolving as it does the apparent tension between Forbes and Limon. More generally, the Court has emphatically reinforced the principle that passage of time does not increase culpability, and that society’s and Parliament’s recognition that children are less morally culpable for their actions than adults should be reflected in sentencing even where the offender is no longer a child – and even though this adds a degree of complexity to the sentencing process.
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