Sentencing Historic Sexual Offences – The new guidelines

The new Sentencing Council Guidelines on sexual offences have been published[1]. They will be in force from 1 April 2014. The existing guidelines do not apply in relation to offences under the 1956 Act. However, in the new document, the maximum penalties are set out in Annex C and the approach to sentencing historic sexual offences is set out in Annex B. Annex B reflects the decision in R v H and Others [2011] EWCA Crim 2753, [2012] 2 Cr App R (S) 21. Annex B to the guideline reads as follows:

When sentencing sexual offences under the Sexual Offences Act 1956, or other legislation pre-dating the 2003 Act, the court should apply the following principles:

  1. The offender must be sentenced in accordance with the sentencing regime applicable at the date of sentence. Under the Criminal Justice Act 20032 the court must have regard to the statutory purposes of sentencing and must base the sentencing exercise on its assessment of the seriousness of the offence.
  2. The sentence is limited to the maximum sentence available at the date of the commission of the offence. If the maximum sentence has been reduced, the lower maximum will be applicable.
  3. The court should have regard to any applicable sentencing guidelines for equivalent offences under the Sexual Offences Act 2003.
  4. The seriousness of the offence, assessed by the culpability of the offender and the harm caused or intended, is the main consideration for the court. The court should not seek to establish the likely sentence had the offender been convicted shortly after the date of the offence.
  5. When assessing the culpability of the offender, the court should have regard to relevant culpability factors set out in any applicable guideline.
  6. The court must assess carefully the harm done to the victim based on the facts available to it, having regard to relevant harm factors set out in any applicable guideline. Consideration of the circumstances which brought the offence to light will be of importance.
  7. The court must consider the relevance of the passage of time carefully as it has the potential to aggravate or mitigate the seriousness of the offence. It will be an aggravating factor where the offender has continued to commit sexual offences against the victim or others or has continued to prevent the victim reporting the offence.
  8. Where there is an absence of further offending over a long period of time, especially combined with evidence of good character, this may be treated by the court as a mitigating factor. However, as with offences dealt with under the Sexual Offences Act 2003, previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.
  9. If the offender was very young and immature at the time of the offence, depending on the circumstances of the offence, this may be regarded as personal mitigation.
  10. If the offender made admissions at the time of the offence that were not investigated this is likely to be regarded as personal mitigation. Even greater mitigation is available to the offender who reported himself to the police and/or made early admissions.
  11. A reduction for an early guilty plea should be made in the usual manner.

In R v H and Others [2011] EWCA Crim 2753, [2012] 2 Cr App R (S) 21 the Court of Appeal also stated that reference to earlier decisions is unlikely to be helpful, and, generally, to be discouraged. Subsequent decisions of the Court of Appeal which do not expressly state that they are intended to amend or amplify this guidance should also be treated as fact specific decisions, and therefore unlikely to be of assistance to the court.[2]

It is not clear where this leaves R v Millberry; R v Morgan; R v Lackenby[3] which gave starting points, after a trial, for rape as follows[4]:

  • five years for a single offence on an adult;
  • eight years for gang rape, abuse of trust or rape of a child;
  • 15 years for a campaign of rape;
  • life for the most serious and dangerous offenders.[5]

It would have been helpful had The Sentencing Council expressly deal with starting points. It would have been simple to adopt principles from existing case law thereby giving guidance as to which remained relevant or were to be excluded. Although the guideline isn’t in direct conflict with Milberry, this sentence in the Sentencing Council press release supports the conclusion that starting points have risen and were intended to be raised:

The new guideline also brings increases in sentencing starting points and sentencing ranges for some offences. For example, in relation to rape, the new guideline allows top category sentences with a starting point of 15 years. The previous guideline only allowed sentences with this starting point for multiple rapes. Sentences of 20 years and above are also now recommended for campaigns of rape”.

Whilst there may some useful assistance derived from Milberry in relation to principles of sentencing rape, eg ‘rape is rape – whether stranger or acquaintance’, it is unlikely that much else from it that survives. It seems the 5 and (arguably) 8 year starting points for single rape and gang rape (assuming category 3 A in the new guideline) perhaps remain, but there is little point in using Milberry if those starting points have been adopted by the guidelines. The starting point for a campaign of rape has obviously increased from 15 years to 20. Our view at the moment is that like the drugs guideline, the sexual offences guideline is now almost the sole source of assistance for sentencers, save where really long sentences need to be imposed, eg 20 years +.

Of course, it is outside the scope of The Sentencing Council to deal with crime prevention but increasing sentences does not necessarily affect the commission of crime and, such an increase in relation to historic offences cannot logically be preventative. If the news is accurate that post Jimmy Savile, the number of complaints have increased, if proved, there will have to be provision for a much larger prison population.

Pre-sentence reports

It is ‘unwise’, even after a trial, for a court to pass sentence without seeking at the very least a pre-sentence report. This is no less true of a defendant of good character than it is for one with convictions for serious sexual offences. Indeed in some cases it is more important to examine how it has come about that the offence was committed and what underlying problems there may be which have resulted in an individual of good character committing a serious sexual offence.[6]

By Felicity Gerry, Catarina Sjölin and Lyndon Harris

Sentencing Recent Sexual Offences – The new guidelines – to follow soon on Halsbury’s Law Exchange

[1]  Felicity Gerry and Lyndon Harris responded to the consultation – to read their response go to
[2]  R v H and Others [2011] EWCA Crim 2753, [2012] 2 Cr App R (S) 21  [at 46]
[3]  [2003] 1 Cr App R 25. But see R v H and Others [2011] EWCA Crim 2753, [2012] 2 Cr App R (S) 21 where the LCJ suggested that reference to past decision would not be helpful.
[5]   R v S, Lawtel document number AC 9400419 (in which Felicity Gerry appeared).
[6]  Attorney-General’s References (No.s 73 and 75 of 2010 and 3 of 2011) (R v Anigbugu) [2011] 2 Cr App R (S) 100.

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