Neil Wilson – judgment in ‘predatory’ case

£££-Nigel-Peters-and-Neil-Wilson-2349957

Introduction

Well, as we’ve noted, it’s taken a long time but we’ve finally got there. The case of Neil Wilson is well known (our post on the initial sentence, the notification of the AG Reference and the outcome of the prosecution appeal).

Judgment

The bottom line is that the sentence was increased from 12 months suspended to 2 year immediate imprisonment.

CrimeLine has posted the full judgment, which is well worth a read. What was it that caused the Court of Appeal to make such a huge increase to the sentence?

The main issue that the Attorney-General raised (and the only error that was identified) is at para 18:

Miss Whitehouse, on behalf of Her Majesty’s Attorney General, contends that the sentences passed, and in particular that in respect of the offence of sexual activity with a child, were unduly lenient. She submits that the judge adopted an approach that was wrong in principle. Far from it being any mitigation that, on the offender’s account, the victim had initiated what happened, that was, in the Attorney General’s submission, an aggravating not a mitigating factor. Other criticisms are made of the judge’s approach to which we will refer in a moment [it seems that this related to other aggravating features which had been identified by the Judge – see para 16]”.

The Court of Appeal said that this point was ‘unarguably right’ as the “reduction of punishment on the basis that the person who needed protection encouraged the commission of an offence is therefore simply wrong“.

The Judge was “appreciated that for an offence of sexual touching of this kind a sentence of immediate custody is the sentence that should ordinarily be imposed. There may of course be circumstances where that may not be the just and right sentence. However, in this case, there were no circumstances whatsoever that justified a departure from the principle that a custodial sentence was appropriate. An immediate sentence of imprisonment should therefore have been imposed.

After noting the sentencing guidelines had a starting point (after a trial) of 2 years with a range of 1-4 years, the Court of Appeal imposed the sentence of 2 years.

Comment

Victim initiating the offence as an aggravating feature

Despite the Court of Appeal saying this is ‘unarguably right’, it is likely to prove controversial.

It is quite correct (para 19) that when Parliament passed the ss51-52 Offences Against the Person Act 1861, it’s purpose was to protect those under 12 (increased to 13 in 1875 and 16 in 1885). That is not in doubt, but it does not necessarily follow that factual (sometimes called ostensible) consent (or the background to the offending) is irrelevant.

It seems to me that where there is factual consent because of a history of grooming, this is an aggravating feature. Where the conduct is initiated by the victim without this backdrop, this lessens the culpability of the defendant (and is therefore a mitigating feature).

The Court of Appeal say (para 18) “the victim had initiated what happened was …an aggravating not a mitigating factor“. It is hard to know what to make of this. The conduct can be initiated by the defendant or the victim. Logically, a factor can only be aggravating relative to a state of affairs that is less serious, which would seem to imply that for a defendant to initiate an offence is a mitigating feature (you cannot have a situation where every way of committing an offence aggravates it).

There could, in theory, be a ‘baseline’ of it being initiated by both simultaneously, but this raises the same issue. It surely cannot be the case that a defendant initiating the offence is a mitigating feature?

It may be that (as was suggested by Lyndon Harris on twitter) where the defendant initiates the offence, this is ‘very aggravated’ but where it is mutual or initiated by the victim, it is merely ‘aggravated.

This doesn’t make much logical or semantic sense (and has shades of Spinal Tap), and most people would agree that that interpretation is wrong. It may be that the Court of Appeal meant this, but looking for example at what they said at para 20 “an underage person who encourages sexual relations with her needs more protection, not less“, it is not clear. This may have to be resolved at a later date.

Other matters

In our write up of the case when it was in the news, we wrote “Two particular things that I will be looking out for see (1) what is said about double jeopardy (an idea which, sadly, seems to be going out of fashion) and (2) the actual reasons given. I mention (2) because reading the Stuart Hall Attorney-General reference, despite it being lengthy, there was no explanation by the Court of Appeal given for the length of the actual sentence passed.

How have the Court of Appeal measured up to this? Sadly, on both points it has to be said ‘not particularly well’.

Nothing at all was said about double jeopardy (the completion of part of the Community Order, as mentioned at para 29, is a separate matter) which is strange.

The sentence that the Court of Appeal passed indicates a sentence after a trial of 3½ years (after the guilty plea and double jeopardy, which always is more significant when a defendant who received a non-custodial sentence is imprisoned). This is right at the top of the range of sentences that could be passed, especially as it appear that Mr Wilson was of effective good character.

This may well be right, but there is not a great deal of analysis to explain the reasoning, which is unhelpful for later cases that try to apply the principles.

It may be that this case, like the Stuart Hall one, is a result of the specific nature of the case, and should be confined to it’s own facts.

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11 thoughts on “Neil Wilson – judgment in ‘predatory’ case

  1. Liberte, Egalite, Sororite

    Having reached my 40′s I’ve never had a 13 year old boy (or girl) or any child attempt to initiate sex/intimacy with me. In the astounding event such a thing did happened what are my options (a) call their parents, if known, (b) tell their school if identifiable, (c) report it to the police d) any and all of the above. What wouldn’t I do well that would be option (e) more commonly known as common sense or option capital (X) I would NOT then invite them to my home for a… chat, yeah right, fag, laugh or for anything at all. Should I instead take leave of my senses and follow option Capital X then yes it is aggravating and secondly I deserve everything that thereafter comes my way. Mitigation indeed, no, not anyhow or anyway. A child is a child, I’m the adult, responsible and accountable for my actions and decisions. Even more so if I know I can’t control myself I can choose the easiest option walk Away.

    Reply
    1. Dan Bunting

      No-one’s saying he’s not culpable and as the adult he bears the full responsibility. It’s the question of whether it is less serious had he approached her, took her home and carried out these activites against her will. It seems to me that that would be more serious.

      Reply
  2. Andrew

    In your forties?That’s late adolescence.

    But I entirely agree. Two years is about right.

    Reply
    1. Dan Bunting

      I think it’s too high on an AG ref (but not by much) taking account of double jeopardy, especially as he was initially given a non-custodial sentence.

      Reply
      1. Liberte, Egalite, Sororite

        May I ask Dan what do you think about what he, Neil Wilson, did?

      2. Dan Bunting

        Sorry for the delay in answering. Basically, I agree with what Andrew is saying.

        Of course what Neil Wilson did is wrong, and was so wrong that it was criminal. But in all crimes there are different ways of committing it, some of which are more serious than others. That got Ken Clarke in a lot of trouble a few years ago, but is (to me) obviously true.

        What Wilson did is indefensible, but to insist that he is punished properly is not defending him.

        As an example of why I think the judgment is wrong, imagine a party with a 12 year girl and two 13 year old boys. The girl takes one of the boys upstairs of his own initiative and then engage in consensual kissing and ‘petting’. After that the boy leaves and the other boy comes in. The girl is not interested, but he pushes her down on the bed and kisses and touches her against her will.

        Both boys have committed the same offence, but to say that the second boy, who acted without her consent, should get a lower sentence than the first seems nonsense, but would appear to follow from the judgment.

  3. Andrew

    Dan will speak for himself.

    But for me: The offence is horrible, but there are degrees in horrible. In law this girl cannot consent, but the fact that her state of mind was such that had she been sixteen it would have amounted to consent and indeed desire (a long periphrasis but it got there) makes it less horrible than if it had all been his own idea.

    Reply
  4. Liberte, Egalite, Sororite

    A 13 year old expressing sexual desire is a loud warning bell of a vulnerable, and abused, child to me. She wasn’t sixteen and yet someone had inducted into the world of adult ‘love’ before her time. Why couldn’t he see that and leave her alone?

    Reply
  5. Andrew

    Because he’s a foul slob, Liberte, but the question is always how foul and could he have been fouler, and the answer is yes, he could. The only way I could defend him is professionally and if I were acting for him I would do so.

    Reply
  6. Liberte, Egalite, Sororite

    Dan – it took me a while I had re-read the blog above and then your response to my query too. Several reads later and… I don’t see anywhere where it suggests that the second boy would be less culpable or get a lesser sentence then the first boy. The second boy acted without consent whilst the first boy did not but he still had sexual activity with her. Then I got a bit stuck because in the case of the first boy and the girl it was consensual so I felt that given their ages we should not judge boy one and the girl so harshly and therefore context and other considerations also need to be taken account of? Hope this makes sense.

    Reply

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