Andrew Picard is 18. He is an old Etonian.
Last Friday he received a sentence of 10 months imprisonment suspended for 18 months. The sentence has been the subject of a great deal of criticism. A Change.org petition has been set up asking the Attorney-General to “review” the sentence. It currently has well-over 10,000 signatures.
The signatories to the petition have been disappointed. The Attorney-General has announced that he cannot refer this sentence to the Court of Appeal. That power exists only for “indictable only” offences (Mr Picard’s were triable “either way”), or for certain other specific offences, which do not include those to which he pleaded guilty.
Many online commentators have noted the fact that Mr Picard is an old Etonian, and that his father is a prominent American lawyer. Many have suggested that he has been treated leniently for these reasons.
Are they fair criticisms of Judge Ross? Did he pass an unduly lenient sentence? Are there any grounds for thinking that Mr Picard was treated more leniently because he was an Etonian?
Whilst he was still at school, and 17 years old, Picard made contact with somebody he thought was another teenager in an internet chat room. Unknown to him the man was an undercover police officer.
“Do you want to see pics of boys and girls your age, nude?”
Picard said that he had hundreds of videos. He added the officer on Skype and shared indecent images of a boy aged ten and girls aged eight and fourteen.
The police were able to trace the IP address to Picard’s computer at Eton.
According to the Daily Mail report:
Picard admitted one count of possessing indecent pictures of children, one count of making indecent pictures of children and eight counts of distributing indecent photos or recordings of a child.
They also discovered chat logs from the chatrooms where Picard boasted about the ‘quality’ of his videos and asked users who claimed to be as young as 14 to exchange naked shots of themselves for indecent videos he would provide.
Exactly how many of these images were found is not entirely clear. According to the Mail:
“Detectives found 1,185 indecent images and videos on his computer and on hard-drives seized from his school dormitory.”
However the same report also talks about “more than 2,000” such images:
Andrew Picard, from Westminster, London, was found with more than 2,000 pornographic images of children on his computer at the prestigious school near Windsor, Berkshire.
At an earlier hearing it was reported that he was charged with possession of over 2000 images, broken down as follows:
622 category A images;
1,062 category B images; and
725 category C images.
It may be that not all of these images featured in the final plea, but that is my speculation.
Indecent images of children are categorised in the statutory Sentencing Guidelines.
Category A: Penetrative sexual activity, sexual activity with an animal or sadism;
Category B: Non-penetrative sexual activity;
Category C: Other indecent images not falling within A or B.
Whether it was 1,185 or over 2,000 images perhaps does not make very much difference. What is more important is that some of them were almost indescribably vile, including a picture of a 2 year old girl being raped by a dog.
According to Judge Peter Ross, who passed the sentence, other images were so appalling that he could not bring himself to describe them. No doubt many, and I would guess most, of these images were downloaded from the internet. However, in some cases Picard appears to have been far more proactive, by persuading teenage children to make indecent images of themselves in exchange for indecent videos that he would then supply to them. One such video – I think this was shared with the undercover officer – involved a boy aged about ten, and girls aged 8 and 14.
Although it is possible to commit the offence (under S.1 of the Protection of Children Act 1978) of “making” an indecent photograph of a child by downloading an image from the internet, for sentencing purposes an important issue is whether the defendant has “produced” an image “at source”. The guidelines say:
“Making an image by simple downloading should be treated as possession for the purposes of sentencing.”
The thrust of Mr Picard’s mitigation was that he had pleaded guilty and sought psychiatric help. It was argued by his barrister, Sallie Bennet-Jenkins QC, that an immediate custodial sentence would undo all the good work that had been done by the psychiatrists and counsellors.
As well as suspending the sentence, Judge Ross imposed a Mental Health Treatment Requirement, and a Sexual Harm Prevention Order (although the terms of the Order do not seem to have been reported).
There is not necessarily a “right” sentence for any crime. Some people are naturally more punitive than others. In order to ensure a degree of consistency in sentencing Parliament has created the Sentencing Council which is charged with issuing Sentencing Guidelines for a wide range of offences. It has issued a definitive Sentencing Guideline for sexual offences. The guideline covers the whole range of sexual offences from child rape to exposure, and it includes a section on sentences for offences related to indecent images of children.
It needs to be stressed that although these are guidelines not absolute rules, judges cannot ignore them. S.125 of the Coroners and Justice Act 2009 provides:
(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and
(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.
In other words there is a strong presumption that judges should follow the guidelines unless there is good reason not to do so.
Was the sentence unduly lenient?
Based only on the press reports it is impossible to be sure one way or the other. The reports do not distinguish clearly between which images were respectively “made”, “distributed” or “possessed”, a crucial distinction for sentencing purposes.
It is not clear, for example, whether the charges of “making” indecent photographs related to the Category A images. It seems probably not, because the prosecution were reported as saying:
“it was a feature of Picard’s offending that he would send images in return for the user to strip, showing him their ‘underarm or groin.”
Such images would be Category C. Under the Sentencing Guidelines “producing” Category C images has a starting point of 18 months custody, with a sentencing range of 1 – 3 years.
What about the 8 charges of distribution?
Again, it is not clear whether he distributed any Category A or B images. The Guidelines suggest a starting point of 1 year (range 26 weeks – 2 years) for distributing Category B images; or 3 years (range 2 – 5 years) for distributing Category A images.
Finally the possession charges. Plainly he did possess numerous Category A images. The Guidelines suggest a starting point sentence of 1 year’s custody, with a range of 26 weeks to 3 years.
There were undoubtedly several “aggravating features”: a comparatively large quantity of images, some of the children were exceptionally young, some were visibly distressed, the collection included moving images, and there was involvement in some sort of “network” for distributing images. All these would tend to indicate a sentence above the “starting point”.
On the other hand, there were also “mitigating features.” Mr Picard had no previous convictions, he was judged to be remorseful, and he had clearly taken steps to “address his offending behaviour” all of which are specific factors that the Guidelines require sentencing judges to take into account, and can tend to to indicate a sentence lower than the starting point.
Most important was the fact that Mr Picard, though aged 18 at the date of sentencing, was only 17 at the time that the offences were committed. In the 2015 case of Mark Antony Smith1 the Court of Appeal said that the “the proper approach to sentencing those who were under the age of 18 at the time of the offence, but since then have achieved the age of 18, [is to reduce] the sentence notionally to be imposed on an adult by one-third.”
Assuming the judge adopted this approach, and assuming that some of the distributing offences related to Category A images (which is not clear from the reports), the judge might have had a starting point of 3 years imprisonment. He would probably have discounted the normal one third of that to give credit for the guilty plea, making 2 years. He would then have been required to reduce that sentence by a further one third to take account of the fact that Mr Picard was only 17 at the time the offences were committed, reducing the sentence to 16 months.
If the “distributing” offences related to Category B images, the upper range of the Guideline suggests no more than a 2 year starting point, leading to a final sentence of no more than about 10½ months, very close to the 10 months in fact imposed.
If he was sentencing for possession of Category A images, although the starting point is 1 years imprisonment, the sentencing range goes up to 3 years. A 2 – 3 year starting point would again produce a final sentence in the range 10 – 16 months.
Having decided on the length of the custodial sentence.
“Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement … can be a proper alternative to a short or moderate length custodial sentence.”.
In other words, judges are enjoined to consider a non-custodial sentence instead of a “short to moderate” custodial sentence.
Presumably Judge Ross considered whether to impose a non-custodial sentence, and decided that it would have been too lenient.
But having decided in favour of custody, and that it should be a sentence of less than 2 years, he then had to consider whether he should suspend it. Most judges, understandably, would be anxious not to send any 18 year old with no previous convictions to prison – or technically to a young offenders’ institution – especially if there were reason to believe that there was a “sufficient prospect of rehabilitation.”
The conditions in our prisons are shocking. Of course, imprisonment is meant to deter as well as to rehabilitate, but the idea that sitting in a prison cell for 20 or more hours a day, with no prospect of undertaking any meaningful work could produce a change for the better in anybody’s behaviour is at best highly optimistic; some would probably prefer the word deranged.
As far as we can tell from the reports Mr Picard’s sentence was in line with what one would have expected from a judge faithfully following the Sentencing Guidelines and the case law on the sentencing of young people.
Some commentators have queried why Mr Picard was not charged with an offence under S.10 of the Sexual Offences Act 2003 of causing a child to engage in sexual activity. It is quite possible (depending on exactly what happened) that asking a child to strip for the camera would involve the commision of that offence. But it would have made very little to the final sentence. The maximum sentence when that offence is committed by a 17 year old is 5 years imprisonment, exactly half the maximum for making an indecent photograph of the same activity.
Judge Ross has also been criticised for not ordering that Mr Picard register on the “sex offenders’ register.” Again, such criticism is unfair. A judge can neither make nor decline to make such an order. The requirement to notify arises automatically, and irrespective of anything the judge says, if, and only if, a defendant qualifies under S.80 of the Sexual Offences Act 2003.
The law on who qualifies is contained in Schedule 3 paragraph 13 of the Sexual Offences Act 2003. A person convicted of an offence under S.1 of the Protection of Children Act is subject to the notification requirements only:
The “18 or over” requirement is a reference to the defendant’s age “at the time the indecent photographs were taken,” as paragraph 95 of the Schedule makes clear. Since he was 17 at that point, and his sentence was less than 12 months’ imprisonment he does not qualify for registration. No doubt some will complain that the judge ought to have passed a longer prison sentence in order to bring him within the notification regime, but that would have amounted to the tail wagging the dog. The Court of Appeal would have strongly disapproved of passing a longer sentence than the law demanded in order to bring Mr Picard within the notification requirements.
In any case, those who think the judge was going soft on Mr Picard need to ask themselves why, if that was the case, did he impose a Sexual Harm Prevention Order (breach of which carries a prison sentence of up to 5 years)? The law did not require him to impose it, he chose to do so.
The terms of the order do not seem to have been reported, but such orders inevitably involve a significant interference with a person’s liberty, as well as preventing him becoming a “rehabilitated person” under the Rehabilitation of Offenders Act.
Much of the comment has focused on the fact that Mr Picard was an old Etonian, implying – and quite often saying explicitly – that he received a lenient sentence for that reason. If someone is determined to believe – without any evidence – that an Etonian has been given a soft ride for that reason then it is probably impossible to shift that belief.
In fact the opposite is the case. Although there is no reason to suppose the court treated him any differently because of the school he once attended, the press and social media undoubtedly have done so. Mr Picard’s case would barely have been noticed if he had been educated at an “ordinary” school.
More to the point, had he been charged before his 18th birthday it is very probable that the judge – any judge – would have made an order under S.45 of the Youth Justice and Criminal Evidence Act 1999 banning the publication of any details which would be “likely to lead members of the public to identify him.” Such orders are routine in any case involving defendants under the age of 18. Specifically, the order would have prohibited any mention of:
(a) his name,
(b) his address,
(c) the identity of any school or other educational establishment attended by him,
(d) the identity of any place of work, and
(e) any still or moving picture of him.
Many of the internet warriors who have joined in the frenzy of anger over the case have commented that Mr Picard was charged in his mother’s name of “Picard” rather that of his father “Boeckman”. One of the internet’s nastiest anti-semites, Charles Frith, has even got in on the act suggesting that it was done in order to avoid publicising his father’s “Jewish name.” Mr Frith is adept at using practically any sex case to further his anti-semitic agenda.
Whether there was an attempt to avoid publicity, or whether Mr Picard, like many people, switches between different names for different purposes I have no idea (any more than do many of those who criticise him). If it was some sort of ruse, it clearly hasn’t worked. But nobody seems to have considered that he was for legal purposes still a child when he committed the offence. There seems to be something rather odd about a law which would have ensured him anonymity had he been prosecuted at the time the offences were committed, but which has resulted in maximum publicity because the prosecution did not happen until he became an adult.