By Dr Gabrielle Watson
This paper reviews approaches to the sentencing of non-recent or ‘historic’ offenders in England and Wales. These include – but are not limited to – late prosecutions for historic sexual offending which have dominated the media in recent years.
• The sentencing of historic offenders is a notoriously difficult task, involving an interplay between old and new sentencing regimes as well as careful reference to Article 7 of the European Convention on Human Rights, which requires that the penalty imposed should not be heavier than the one applicable at the time of the offence.
• The complexity of the sentencing exercise – driven by an overarching desire to promote consistency – is compounded yet further by factors including 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.
• In 2011, the Court of Appeal issued guidance on the sentencing of historic sexual abuse in England and Wales. The guidance was codified by the Sentencing Council for England and Wales in its Sexual Offences Definitive Guideline (2014) Annex B.
• A key debate in the literature on historic offending is 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.
• Proportionality – the idea that the punishment should reflect the severity of the crime – is a guiding principle in cases of historic offending, where – in the extended period between crime, conviction, and sentence – there may have been an evolution in the objective or perceived gravity of the conduct coupled with a shift towards more severe penalties. A striking example is to be found in comparing indecent assault on a woman under the Sexual Offences Act 1956 which, until 1985, carried a maximum sentence of two years’ imprisonment, and either sexual assault or rape under the Sexual Offences Act 2003, which carry maximum sentences of 10 years and life imprisonment respectively.
• Notable cases so far this decade include R v Lamb (Dylan) [2020] EWCA Crim 881, where the requirement to make ‘measured reference’ to the Definitive Guidelines posed a challenge for the court in sentencing a sports coach who sexually abused boys in his care during the 1970s, 80s, and 90s and R v Limon [2022] EWCA Crim 39 where the defendant was convicted of eight counts of indecent assault between 1993 and 1996 and crossed a significant age threshold between committing the crimes and his conviction.
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