When a new headmaster takes over a school there are three strategies that can work. He can be relaxed, friendly and cheerful; he can impose an iron discipline from the word go and send miscreants into detention without hesitation; or he can start by terrifying his pupils, before eventually relaxing a little once they know who is boss. Something a little similar applies to new judges.
When it comes to criminals Baron Thomas of Cwmgledd the new Lord Chief Justice obviously does not favour the relaxed and friendly approach. He is said to be “extremely clever” with a “brain like a squash ball, bouncing off all the walls,” and some say he is “testy and does not suffer fools gladly.” The distinguished artist Graham Ovenden and Neil Wilson, who was an unknown sex offender until achieving notoriety when his prosecutor called his victim “predatory”, may this week feel that it is they, rather than Lord Thomas’s brain, that have been bounced off the beautiful oak-panelled walls around the court of the Lord Chief Justice of England and Wales.
In each case the Court of Appeal allowed an Attorney-General’s Reference, in effect an appeal against a lenient sentence. In each case a 12 month suspended sentence was replaced by an immediate prison sentence: in Ovenden’s case one of 2 years and 3 months, in Wilson’s one of 2 years.
No transcript has yet been published of what was said by the Court of Appeal and it would be unwise to comment too much before seeing exactly what it had to say.
Nevertheless there are some points that perhaps can be made, especially as far as Mr Wilson’s case is concerned.
First of all it is unlikely that it would ever have reached the Court of Appeal had there not been an outcry over the language used by the prosecution barrister, Robert Colover and Judge Peters. This illustrates a rather unfortunate feature of the Attorney-General’s referencing procedure. It is far more likely to be used in a high profile than in a run of the mill case. Celebrity defendants – Stuart Hall and Graham Ovenden would probably agree – find that the Attorney General pays more attention to them than to ordinary Joe Criminal. Mr Wilson’s case, of course, started off as an ordinary one but became high profile after publicity was given to Mr Colover’s ill-chosen word “predatory”. One cannot blame the Attorney for this. He cannot personally consider every sentence that the courts pass and when a potentially unduly lenient case is brought to his attention he would be failing in his duty if he did not act.
Nevertheless, a sentencing system which depends to an extent upon the degree of interest that the press (or Twitter) takes in a case is hardly very satisfactory.
Secondly, the new sentence of 2 years imprisonment does seem at first blush, severe. But was it?
There seems to have been a bit of a fudge on the question of how old Mr Wilson believed the girl to be. Obviously he accepted that he knew she was under 16. At one stage she was said to have told him she was “16”, then “nearly 16..” The police thought that she looked “14 or 15” although she was in fact 13.
If the facts outlined in the Crown Court are correct, the sexual contact between the two was fairly short in duration, did not involve penetration, was initiated by the girl and ended by Mr Wilson. She made no complaint to the police so the only evidence of what happened came from his confession. Of course one should be sceptical about what was likely to have been a self-serving account, but with nothing to contradict it, it was the account upon which the court had to rely.
There are official sentencing guidelines for this offence. It makes no difference whether it was charged under S.9 or S.10 of the Sexual Offences Act 2003: the guideline sentence is the same in either case. For an offence with no aggravating or mitigating features where, (as here) there has been contact between naked genitalia but no penetration, it is 2 years imprisonment. It is not clear what the Court of Appeal regarded as aggravating features. Their Lordships did not regard the victim’s behaviour as mitigation, but nor could it be an aggravating feature. The age difference was considerable but I doubt whether it would have made much difference had he been aged 25 rather than 40. However, the fact that he invited her back to his house might have suggested a degree of planning which could aggravate the offence. There also seem to have been quite a number of telephone calls between the two of them.
Mr Wilson was also found in possession of a small number of indecent images of children, 4 of which were at level 3 (on a scale which runs from 1 as the least serious to 5 as the most) which he had unsuccessfully tried to delete from his computer; together with a number of photographs of “extreme pornography” apparently involving adult women and animals. The Sentencing Guidelines suggest that for possession of a “small number of level 3 images” the starting point (after a trial) should be a sentence of about 26 weeks, or 6 months. As an act of mercy I suspect many judges might have made any such sentence concurrent but in principle there is no reason why it should not be consecutive to the main sentence.
This would suggest to me a starting point of a little over 2 years for the sexual activity, plus six months for the possession of the indecent images: perhaps 2 years and nine months.
What of the mitigation?
The Sentencing Guidelines suggest a number of specific factors that, when present, should be regarded as mitigating factors in offences of this sort. Most of these are clear enough and fairly obviously did not exist. One, however, M10, is decidedly cryptic: “no element of corruption.” I find it hard to understand exactly what is meant by “corruption” in that context. To have sex with a child could of course be said to be in itself “corrupting,” but it cannot mean that here because then it would be a mitigating factor that could never apply. Another possible meaning could be that corruption means the destruction of innocence; but if that is the meaning then the sexual experience of the child is relevant to the sentence, something which the Court of Appeal roundly rejected. Or perhaps “corruption” here is something akin to grooming, a long term process of seduction, although “corruption” is an odd word to use when “grooming” is an unambiguous alternative. Other criminal lawyers may know what it means. Otherwise we must await the transcript of the reference hearing to see whether any light is thrown on the subject.
The most important mitigation that undoubtedly did exist is that Mr Wilson not only pleaded guilty but seems to have given the only admissible account of what happened. This would mean that he was entitled to expect the “standard” one third reduction in sentence for an early admission of guilt. I would have thought that he should also have been given some credit for the fact that despite the girl’s apparent willingness to continue he decided to stop the sexual activity himself.
The sentencing judge and the Court of Appeal would also have had a pre-sentence report from the Probation Service. It would not be usual for such a report (containing a great deal of confidential information) to be made public, but it seems from the remarks made by the Probation Officer at the original sentencing hearing that it recommended a suspended sentence, or a community order, with a condition of attendance on a Sex Offenders’ Programme. This was the recommendation that the original judge, broadly speaking, followed.
Finally it is well-established sentencing practice that a defendant who is sentenced to a higher sentence following an Attorney-General’s Reference is given some discount off what would otherwise have been the appropriate sentence. The reason is the element of double jeopardy: it is considered particularly painful to have to go through the sentencing process twice. Whilst the discount is usually fairly modest, assuming it was given in this case it suggests that the Court of Appeal felt the starting point, before mitigation, was a sentence somewhat longer than three years.
Was that too long? Opinions will differ but one thing has become crystal clear: Baron Thomas of Cwmgledd is not a softie. The message that has gone out from the Court of Appeal: those who commit sexual offences against children can expect little mercy.
As a post script it seems that Lord Thomas said very little about the language used by Mr Colover at the sentencing hearing. He no doubt took the cautious view that to say too much in the absence of Mr Colover would be injudicious. That said, it is a shame he did not feel it appropriate to point out that Mr Colover had not in fact said much of what the press reported him as having said.