Sentencing for the past

As celebrities and high profile cases are brought to trial years after the offences were committed, the outcomes can be difficult to apply and understand. In this third in the series of articles explaining the courts’ decision-making, the Sentencing Council explains how they are constrained by the law as it stood many years ago.

Sep 27, 2017

As celebrities and high profile cases are brought to trial years after the offences were committed, the outcomes can be difficult to apply and understand. In this third in the series of articles explaining the courts’ decision-making, the Sentencing Council explains how they are constrained by the law as it stood many years ago. The past few years have seen a clear increase in the number of prosecutions for sex offences committed during the 1960s to 1980s. This trend has raised many questions about how those convicted of historical offences are dealt with by the courts and how the consequences of such a passage of time between offence and sentence should be considered. One fundamental principle, which is longstanding in English common law, is that when an offender is sentenced it should be according to the law at the time the offence was committed, not the law at the time when they are sentenced. This has been reinforced by Article 7 of the European Convention on Human Rights. It is a general legal principle that the law should not be applied retrospectively, so that people are able to know the penalty for an offence. Over time, society changes and the law changes with it so it would be entirely unfair, for example, to ban smoking in cars then prosecute those who did it before it became illegal. In the main, applying the law that was in force at the time of an historical offence means that sentence levels are lower than those that offenders today could expect. Sentence levels have generally been increasing over the past few decades and changes to the law relating to sex offences are a good example of this trend. This reveals much about how attitudes towards these offences have changed over time. For example, sentencing for the offence of indecent assault on an underage girl has seen several changes over the years. Between 1957 and 1960, the maximum was two years’ imprisonment. In 1961 it changed to a maximum of five years if the victim was under 13 years old, and in 1985 it increased again to ten years. After that, the Sexual Offences Act of 2003 redefined sex offences, and indecent assault was replaced by new offences, such as sexual assault and assault by penetration. While the maximum sentence for sexual assault remained at ten years, it increased to 14 years in cases where the victim was under 13, and assault by penetration has a maximum sentence of life. Some sentence levels have also reduced. If someone had been sentenced for murder in the early 1960s they could have faced the death penalty, and some may argue that if people have to be sentenced as the law was at the time of the offence, they should therefore receive the death penalty. However, the entire sanction has been abolished. In short, it is no longer legal for anyone to be executed in any circumstances, so even if it applied at the time of the offence, the type of sentence cannot be resurrected and used today. Unlike sentencing for recent offences, there were no sentencing guidelines for judges to refer to in England and Wales until after the Criminal Justice Act 2003, although guideline judgments were used before then. Nevertheless, in sentencing offenders for historical offences, judges will apply the approach used by current sentencing guidelines for the purposes of assessing the harm to the victim and the culpability of the offender. Another aspect of current practice that is applied to historical offenders is inclusion on the sex offenders register. While it was set up in 1997, offenders who committed sexual offences before the register was created will still be subject to the requirements. This is to help ensure the protection of the public from potential future offending. In looking at historical offending, age is often a factor that needs to be considered. In some cases, if there has been a long period between the offence taking place and a conviction and sentence, the offender may be quite elderly. Rolf Harris, for example, was 84 when he was sentenced in 2014 for a number of sexual offences, but he is by no mean

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