Note: Para references refer to the transcript of the original sentence hearing on 5 August 2013.
Neil Wilson pleaded to various sexual offences. These were reported – in varying accuracy and detail – in early August. David Cameron waded in, not wanting to miss an opportunity to get a nice media sound bite.
You will no doubt remember the media furore over the language used by the prosecutor and the judge in describing the victim’s behaviour. We don’t propose to go into this, save to say that as with any media reports, caution should be taken when relying on them. In relation to the prosecutor, though the language used seems poorly chosen, it is stil unknown whether there was a reason behind using that particular language.
See here, here and here for some news reports.
There were two indictments:
The Snaresbrook Indictment
Count 2, sexual activity with a child
Count 3- 8 indecent photographs of children
Count 4 – possession of 11 extreme pornographic images
Count 1 was not proceeded with, the defendant having previously pleaded not guilty on 24 June 2013. I was not the Judge that day. The prosecution on that occasion indicated their acceptance of the pleas and requested that Count 1 would be left on the file.
The York Indictment
5 counts of possessing extreme pornographic images
The sexual activity
The transcript of the initial sentencing hearing is now available here.
The transcript of the variation hearing is available here.
Having given it a cursory read, the following seem to be of note:
The officer in the case, at the request of the judge, stated that the 13-year-old victim looked and acted older, about ’14 or 15’ years of age. [page 10 para E onwards]
The prosecution accepted that the meeting that was arranged between Wilson and the girl was a 50-50 consensual meeting – when asked in such terms by the Judge, the prosecutor said ‘very much so’. [page 11 para F]
The prosecutor stated that “she [the victim] is undoubtedly it is fair to say very sexually experienced, and one hesitates to use the word, but it is a word that has been used in other cases, I think the officer would agree that she may well be what is described as predatory in respect of her activities.”
The prosecution stated: “Initially she [the victim] said that she was 16 and then she said, “I am nearly 16”. I was 16 a couple of months ago. I am nearly 16.”
The prosecutor said: “She certainly appears on the face of it to behave as somebody who is very much more sexually experienced; that we can confirm, both from what he [Wilson] says and what she [the victim] says.” [page 11 para B]
The indecent images
There were photographs of prepubescent children [page 15 para D] found on Wilson’s computer. He was charged with making them (in that he downloaded and created a copy of the images).
The levels: two at level 1, two at level 2 and four at level 3.
See here for an explanation of this type of offending and the way in which such material is categorised.
The extreme pornographic images
There were 11 extreme pornographic images.
The images depicted women engaging in sexual activity with horses and dogs.
The prosecution said that there were ‘5 videos of bestiality, penetrative sexual acts between humans and animals.’ [page 16 para H]. This would appear to be the York indictment on which there were 5 (as per 5 August transcript) or 6 counts (as per 12 August transcript). The difference is immaterial.
Wilson’s account – The sexual activity
As the victim was not a complainant, the case was opened to the Judge (where the prosecution tell the Judge the facts) on the basis of (it would seem) facts ágreed between the defence and prosecution. It is important to remember that the prosecution has a duty to be fair to the defendant – he or she must state the facts of the case without misleading the court.
The prosecutor, in opening, said:
“He says they sat in the lounge. She had arrived in school uniform. They sat in the lounge. They talked about their relationship. He told her there was no relationship, this could not go on as he would get into trouble. He asked her to leave, but she asked if she could change out of her school uniform. He left the room and returned a short time later to find her sitting on the settee with just a t-shirt on and no other clothing. He sat on the floor and told her to put her clothes back on. She came round to where he was sitting and began kissing and touching him. He told her to go away. She sat astride him facing him, undid his trousers, took his penis out. She began to masturbate him. He was angry and said, “leave me alone”. She then turned around, still astride him with her back to him. She lowered herself on to his back. He believes his penis may have touched her vagina or near to that area. He pushed her away and she was upset. After further conversation about him not wanting to see her any more she got dressed and left. He has said at no time did he have penetrative sex with her.”
As varied on 12 August 2013:
Count 2, sexual activity with a child the sentence is 8 months suspended for 2 years
Count 3 indecent photographs 4 months imprisonment suspended for 2 years.
Count 4 extreme pornographic images 4 months imprisonment suspended for 2 years.
On the York indictment 5 counts of possessing extreme pornographic images 4 months imprisonment suspended 2 years.
Arranging the sentences – Concurrent or Consecutive?
The Judge said:
“Count 3 and 4 and the York indictment will be concurrent to one another but will together be consecutive to Count 2.
Therefore the total sentence thus far is 12 months imprisonment suspended for 2 years.”
Sexual Offences Prevention Order
We are aware that a SOPO was imposed, however as we understand it the terms of the order have not been made available. We are aware however that one of the terms included a prohibition from deleting Internet history [page 20 para G]
In the variation hearing on 12 August, the Judge appeared to add the word ‘smart phone’ to the order.
Judge’s comments about the sentence
“As I said to you last week if you commit any offence in the next 2 years then in addition to any sentence you will receive for the new matter, this sentence of 12 months will be activated and added.
You will be subject as part of the suspended sentence order to a supervision requirement for 2 years which requires you to attend regular interviews with your appointed probation officer.
You will be required to complete the Northumbria Sex Offender Treatment Programme of 100 days. This has to be completed within the 2 years.
This is and is meant to be an intensive course of treatment, you must attend every session. If sessions are missed you will have to catch up before resuming the programme. If two sessions are missed without an acceptable reason approved by the probation officer, you will be in breach and you will be returned to Court which will have wide powers including prison. The same strictures will apply if you fail without good reason to attend appointments with your probation officer.”
The Attorney-General’s reference
On 27 August 2013, it was announced by the AGO’s Office that the Attorney-General had referred the sentence to the Court of Appeal as being unduly lenient. The Court would hear the case ‘in due course’.
We now know the factual background on which Wilson was sentenced (see above)
The guidelines are here – see numbered page 52 (p 54 of the document)
The range would appear to be 1 – 4 years with a starting point of 2. That is for ‘Contact between naked genitalia of offender and naked genitalia or another part of victim’s body, particularly face or mouth.’
Assessing the sentence is complex as there appear to be many factors to the factual background. Of particular relevance are:
a) The Judge said: “the prosecution accept [the victim] looked and behaved a little bit older”
b) The Judge said: “On these facts, the girl involved, I am told, to use the expression was “predatory” and was seriously egging you on.”
c) It appears that b) was a significant factor in deciding to suspend the sentence.
d) The Judge noted the need for treatment, and made specific reference to the aim of the sentence he was imposing being that Wilson could receive such treatment.
e) It would appear that there was no ejaculation (see ‘Wilson’s account’ above)
f) It appears Wilson ‘intervened’ and eventually made the girl leave. Of course this was after some sexual activity had already taken place.
We are aware that Wilson had two previous convictions but neither were relevant. He is treated as if he was of good character. [page 20 par C onwards]
With a discount for the plea (which was the full 1/3), mitigation (intervention of Wilson, victim looked and behaved older) and any reduction for the role of the victim in the offence (the acceptance that to some extent she instigated the offence), a sentence of 8 months would not appear so low as to attract the attention of the Attorney-General (absent the media attention of course).
The extreme pornographic images – which contained images of adult females engaging in sexual activity with horses and dogs – are not covered by the guideline. Case law has suggested that some assistance may be gained from looking at the guideline however. The guideline is here, see particularly page 113. In a comparable case from 2011, a defendant was sentenced to 2 months (on a plea) for possession of eight moving images and three still images depicting sexual activity between adults and animals. In this case, considering there are two counts for this material, 4 months on a plea (which would have meant starting at 6 months) seems reasonable.
For the indecent images, there is a very small amount at levels 1, 2 and 3. This is more difficult to place into the guideline. There is no suggestion Wilson distributed the material. The guidelines (as inflexible as they are) would seem to require these offences to be placed into the second category (starting at the bottom), namely that Wilson was ‘in possession of a large amount of material at level 2 or a small amount at level 3’. This is on the basis that level 3 images are not specified in the bottom category. In reality, the true position is somewhere between the two categories. The range is therefore 4 weeks – 26 weeks.
4 months does not seem unreasonable on a plea.
For both images offences, the material appears to have been for his own personal use, which would of course be some mitigation.
It is first important to note that there is a two-stage process when considering suspended sentence. First, how long should the custodial term be. That is an assessment of how long the offender should go to prison for. Second, and independent of the first stage (although many counsel and judges do not conduct it independently) there is the question of whether the custodial term should be suspended.
To my mind, the length of the sentences – 8 months and 4 months consecutive – does not seem so low as to require the Court of Appeal to step in. It cannot be said that the sentence is a severe one, but I think we should be careful to criticise a Judge who obviously made a point of attempting to pass a sentence which sought to give the offender the treatment he requires to correct his behaviour, rather than simply lock him up and wait until he offends again. ‘Low’ isnt enough for the Court to increase the sentence. For an explanation of Att-Gen’s References, see here.
It may be that a modest increase is seen to reflect the element of grooming (the text message contact etc) and to reflect the overall seriousness of the case – it must be remembered that this is quite serious sexual activity with a child.
The material question at the Court of Appeal may well be whether it was appropriate to suspend the sentence and that is a very different question.
If the sentence is increased, expect a double jeopardy argument for a reduction to the eventual, increased, sentence as Mr Wilson is currently serving a non-custodial sentence. Despite the rejection of the double jeopardy reduction in the Stuart Hall case (and the accompanying dodgy reasoning) the Court would find it rather difficult no to give some discount to reflect the anxiety caused by being sentenced a second time.
EDIT: This post was edited on 29 August to clarify the position in relation to the extreme pornographic images. These were images depicted adults and animals NOT children and animals and therefore are not covered by the guideline.