Neil Wilson probably thought that he had escaped lightly on Monday when he walked out of Snaresbrook Crown Court with a suspended sentence after pleading guilty to a single count of sexual activity with a child and 2 counts of possession of images of extreme pornography possibly involving horses or dogs. There was some suggestion that he may also have possessed images of child abuse, but puzzlingly the press reports do not suggest that he was actually sentenced for such an offence.
Unfortunately for Mr Wilson his good fortune quickly turned sour with the news that the Attorney General is considering a review of his sentence. As I have observed recently on this blog, and as Stuart Hall recently learnt the hard way, if the Attorney General decides to appeal against a lenient sentence he has an extremely good success record.
In fact a non-custodial, or at any rate a suspended sentence, is by no means unusual for a single sexual offence against a teenage child. The official sentencing guidelines suggest that for “contact between the naked genitalia of the offender and naked genitalia of the victim or another part of victim’s body, particularly face or mouth” there should be a sentencing range of 1 – 4 years after a trial. There was no trial in this case, and an early guilty plea normally merits a reduction of about one third in the length of a sentence. If Judge Peters thought that the proper sentence after a trial was one of about 12 months, then the 8 month sentence he actually imposed is readily understandable.
Sentences of that length are often suspended. An 8 month suspended sentence combined, as it was in this case, with attendance on a sexual offenders programme may well be better for society than a 2 year immediate sentence which would have Mr Wilson banged up with other sex offenders for 12 months before being released with no attempt made to address his underlying motivation to offend. Courses such as the Thames Valley Sex Offender Programme exist to try to get people like Mr Wilson to change their attitudes and behaviour. Many believe that they do an excellent job.
Moreover, there are grave dangers in expressing any opinion about the leniency of the sentence relying just on press reports. I have seen nothing, for example, which sets out in any detail what it is that Mr Wilson is said to have done. We can probably guess what was involved from the court reporter’s traditionally coy euphemism that “she performed a sex act on him” but we don’t know for sure. As a result it is simply impossible to say whether the sentence was broadly commensurate with the guidelines. Nevertheless, even if it was not, it would not have been such a newsworthy story – and would probably never have come to the Attorney General’s attention – had both the Judge and Prosecutor not said various things that, out of context at least, sound remarkably foolish.
Prosecuting barristers opening a case in court face many pressures. Sometimes, of course, they have had the papers for many weeks with plenty of time to get to grips with all the complexities and subtleties of the case. At other times, and probably more often than most members of the public realise, the barrister has been handed the papers that morning, often as one case among several, and he or she has to do the best job possible after a quick skim reading. That is, of course, far from ideal.
In such circumstances a slip of the tongue or even a serious misunderstanding of the case is understandable if not forgiveable. We should not be too hard on Mr Colover: in a system which depends on oral advocacy there is not an advocate who has practised in any court who has not occasionally said something stupid. There must be many who are thanking their lucky stars that their mistakes were made away from the ears of the press.
One does not know if something like that happened, but if reports are to be believed the prosecutor Robert “Bob” Colover did make a bit of a mess of opening the case. According to The Times Mr Colover told the Court:
“The girl is predatory in all her actions and she is sexually experienced.
“She appeared to look around 14 or 15 and had the mental age of a 14 or 15 year old despite being younger than that.
“There was sexual activity but it was not of Mr Wilson’s doing, you might say it was forced upon him despite being older and stronger than her.”
Being as charitable as one can, and even making allowances for simple human error, it does seem rather hard, though not entirely impossible, to imagine how the girl could have “forced” herself onto Mr Wilson; and to describe her as “predatory in all her actions” was surely absurd. It is also difficult to see why Mr Colover made a reference to her having a “mental age of a 14 or 15 year old,” or indeed what he could have meant by it.
Nevertheless, teenage girls do sometimes seek sex with older men. If the girl in this case had in fact been actively seeking sex with Mr Wilson, then it would not have justified his behaviour but Mr Colover would have been failing in his duty had he not mentioned the fact. Contrary to popular belief, in England and Wales it is not the function of the prosecutor to strive to obtain the heaviest possible sentence but to present the facts clearly and fairly.
Perhaps I should let Mr Colover explain the job of prosecuting counsel in his own words, given, of all places, in a video art installation, at the Cob Gallery Camden Town in 2012:
“… people often say,well, you’re the prosecuting barrister,you’re representing the victim, and the victim’s your client, no, that’s wrong, the victim is the state’s witness as to what happened but they’re not represented by the prosecution barrister.”.
Matters were compounded when Judge Peters, perhaps picking up on Mr Colover’s words, said when passing sentence:
“On these facts, the girl was predatory and was egging you on.”
It is not entirely clear what he was referring to by the expression “on these facts,” or indeed whether he even accepted them. It certainly sounds as though he may have had some misgivings about the matter. But save in exceptional circumstances judges have to deal with cases as they are presented to them by the prosecution and the defence. It is very rare, especially when the judge has not presided over a full trial, in which he is entitled to say “despite both the prosecution and the defence saying x, I think the position is y and I will sentence you on what I think, rather than on what has been presented to me as agreed facts.”
The press and social media mob is now in full cry, and it is a terrifying sight. Mr Colover and Judge Peters are denounced as “scumbags” and “nonces” by people with little knowledge of the case and less of the law.
They are not nonces or scumbags: Mr Colover’s only known vice seems to be a weakness for flying kites on Streatham Common. And unfortunately for those who would like to blame as much as possible on a public school and Oxbridge education, Judge Peters went to a state school and was educated at the solidly red brick Leicester University.
They are human beings, and sometimes human beings make mistakes. But that of course would not be much of a story.
Since this was originally written the Attorney General has confirmed that he will indeed be seeking to review the sentence.
Mr Colover’s opening and the judge’s sentencing remarks have now been published. You can see them here and make up your own mind. Three things strike me from a quick reading of the transcript:
1. Mr Colover does appear uneasy about his own use of the word “predatory.” It also rather sounds as though he used it after having talked to the police.
2. The girl’s behaviour was unusual and Mr Colover could not but describe it. In my view it was relevant to sentence.
3. The consideration that Mr Wilson would receive treatment far more effectively if he retained his liberty seems to have been a point heavily relied upon by the defence.