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Neil Wilson’s sentence referred to Court of Appeal by Attorney-General

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.

The offences

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 facts

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.”

The sentences

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.

Conclusion

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.

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Stuart Hall’s 15 month sentence referred to the Court of Appeal by Attorney General

stuart hall

The Attorney-General has referred the 15 month sentence imposed on Stuart Hall for 14 indecent assault offences to the Court of Appeal as he considers it to be unduly lenient.

AG’s Rererences

An Attorney General’s Reference is a prosecution appeal against sentence, where the prosecution contend the sentence should be increased. A fact sheet explaining AGs References can be found here.

The Court of Appeal is only able to interfere with a sentence if it is “unduly lenient”.

A good statement of this if from AG Ref (No 4 of 1989) where it was said that ”A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate … However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”

Stuart Hall

The starting point is the sentencing remarks, which are here. They are worth reading in full (especially if you are of the view that the sentence was too short).

There were 14 separate offences (relating to 13 separate victims). The ages of the victims were between 9 and 17 years old. The offences vary in seriousness, with the Judge noting that some of them, had they stood in isolation, “is by no means the worst example of sexual abuse of children to come before the Court

The most serious offences were Counts 6, 15 and 16. Briefly, Count 6 involved a 13 year old girl who had been drinking. Mr Hall accepted touching her breasts and inserting a finger in her vagina. Counts 15 and 16 involved far less serious offending, but also attracted the highest sentence as the girls were so young (10 and 9 respectively).

It should be noted that the offence in Count 6 would today be charged as Assault by Penetration with a maximum sentence of life imprisonment. Given the facts of the offence, the starting point today would be in the region of 5 years (page 29).

The Judge has to look at all the offending taken together, and here decided that the appropriate starting point was a sentence of 20 months. Looking at the history of the matter, the Judge gave credit of 25%. This gives the total sentence of 15 months.

The sentencing of historic sex offences is difficult.

Here are some basic principles from the guideline case on sentencing historic sexual offences, R v H 2012 2 Cr App R (S) 21:

1) The offence of which the defendant is convicted and the sentencing parameters (in particular, the maximum available sentence) applicable to that offence are governed not by the law at the date of sentence, but by the law in force at the time when the criminal conduct occurred.

2) Article 7(1) of the European Convention of Human Rights prohibits the imposition of a heavier penalty than one “applicable” at the time when the offence was committed.

3) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in (2013) what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed.

4) Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.

5) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability.

Will it be increased?

Who knows? The more sceptical of you out there may consider that there is a political element to this referral (no one likes sex offenders. The proposition that they should be locked up for longer is bound to get near universal support. An easy bit of PR for the AG and government.)

My view is that the sentence isn’t unduly lenient.

It is by no means harsh and were Hall sentenced today, he would receive something in the order of 5 years. It may a little on the lenient side, but the test is whether it is unduly lenient and I don’t think, weighing up all the factors – including Hall’s age and public humiliation – that 15 months needs to be increased.

Having said that, the Court of Appeal can be an unpredictable beast. I hope that political pressure would not come into such a decision, but now that the AG has referred the sentence, it may be that the Court of Appeal increase the sentence slightly to assuage any criticism that could be levied at ‘bonkers judges letting off paedos’.

The controversial bit

One might ask whether there is any point in locking him up at all. Does he pose a risk, considering the fact he has not offended since 1986? He will never work with children again, his reputation is ruined and the whole country knows him to be a predatory sex offender. He is 83 years of age and has some health complications. Is it likely that he will reoffend?

If no, then why not punish him in other ways? A community order, a tag, a fine are all cheaper ways of punishing him. Are they suitable?