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).
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.
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.
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.