Historic Offences: Children Guidelines Relevant

Article 7 of the European Convention on Human rights provides: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The issue which arose in the present appeal for consideration against that backdrop was what was the correct approach to sentencing when the maximum sentence available to the court, if the offender had been convicted at the time of the offences, would by reason of his age have been subject to a restriction which did not apply to an adult? R v Limon [2022] EWCA Crim 39 : Holroyde LJ, Lavender J, Sir Nigel Davis

The subject matter was grooming and sexual offences committed by the appellant between 1993 and 1996, when he was aged between 14 and 17 against a girl aged between 6 and 9 when she was a visitor in the family home.

The appellant denied eight offences but was convicted after a trial on 25 January 2021. He was then aged 41 and of otherwise good character. A pre-sentence report assessed him as being at low risk of committing further offences.

In sentencing, the judge identified modern equivalents of the offences and placed them into categories under the relevant modern guidelines. The appellant was sentenced to a total of four years’ imprisonment.

Article 7 was considered by the House of Lords in R (Uttley) v Secretary of State for the Home Department[1] where the claimant was sentenced to 12 years’ imprisonment for offences committed 12 years earlier. At the time of his offending, he would have been entitled to unconditional release after serving two thirds of the sentence but subsequent legislative change meant that he would also be subject to licence conditions until the three quarters stage of his sentence. He argued in  judicial review proceedings that he had received a heavier penalty in breach of Article 7.

Rejecting that argument, Lord Phillips referred to the decision of the Court of Justice of the European Union in 2000 in Coëme v Belgium. He concluded: “…Article 7(1) will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which would have been imposed on the defendant under the law in force at the time that his offence was committed.”

It was clear that Article 7(1) required a court, when sentencing for historical offences, to sentence within the maximum sentence prescribed at the time of the offending. The court was not required to consider what sentence might have been imposed in practice at the time.

Where an 18-year-old was sentenced to a term of detention which was longer than the maximum term of detention and training order which would have been imposed if he had been sentenced as a 17 year old for violent disorder[2], the Court rejected a submission that there was a breach of Article 7.

Latham LJ said: “… it seems to us that the provisions of Article 7(1) are clearly directed to the mischief of retroactive or retrospective changes in the law. In the present case there was no change in the law. The penalties for violent disorder remain the same. All that changed was the penal regime to which the appellant would be exposed as a result of the normal operation of existing law to his age at the time of conviction.”

These principles were endorsed in subsequent cases.[3] In the light of the authorities, the Court was unable to accept the submission that the appellant received a heavier penalty than would have been available had he been sentenced as a teenager. At the time of the offending, the maximum penalty prescribed for an offence contrary to section 14 of the Sexual Offences Act 1956 was ten years’ imprisonment. The total imposed on the appellant was well below that maximum.

But that was not the end of the matter. The appellant was aged under 18 throughout the indictment period. At the start of that period the offence of indecent assault was not one of the grave offences in which section 53 of the 1933 Act enabled a court to sentence a young offender to a term of detention not exceeding the maximum applicable sentence of imprisonment.

Accordingly, the custodial sentence which could be imposed on an offender aged between 15 and 18 was detention in a young offender institution. That was limited by sections 1A and 1B of the Criminal Justice Act 1982, even for multiple offences, to a period of 12 months.

That was increased from 12 months to two years in February 1995 but transitional provisions excluded from the effect of that increase any offences committed before that date.

The Children guideline came into effect on 1 June 2017 and post-dated the cases previously cited. Primarily directed to the sentencing of those aged under 18 when convicted, it contained important guidance as to sentencing an offender who crossed a significant age threshold between the date when he committed the offence and the date when he was convicted.

It would be wrong in principle to overlook the children guideline. As counsel eloquently put it on the appellant’s behalf, “The passage of time does not imbue the appellant with any greater culpability or moral responsibility than he had at the time of the offence.”

Parliament had consistently legislated over the years in ways which reflected the lesser culpability and lower moral responsibility of a child offender by making special provision for his punishment which explicitly distinguished him from those of full age and understanding.

Therefore, however many years had passed since the commission of the offences, the principles in the Children guideline were relevant and, by section 59(1) of the Sentencing Code, every court must, in sentencing an offender, follow any sentencing guidelines which were relevant to the offender’s case, unless it was satisfied that it would be contrary to the interests of justice to do so.

The Children guideline raised a different point. Even though a longer sentence would not offend against Article 7(1), it must, for reasons of fairness, be tempered by reference to the sentence which would have been imposed at the time of the offending.

Although the judge fell into error, in fairness to him, these considerations were not brought to his attention by counsel and the submissions made to him had a different focus.

Reducing the sentence to 12 months, Holroyde LJ said he starting point should have been a total sentence of 12 months, and there was no good reason why the adult appellant in 2021 should have been sentenced more severely than the adolescent appellant could or would have been sentenced in 1994 or 1995.

The period for which the appellant would be subject to the notification requirements was reduced to ten years.

You can listen to this case summary on the Baines Law Podcast R v Limon [2022] EWCA Crim 39 which can be accessed on this website at Podcast – Barry Baines

[1] [2005] 1 Cr App R(S)

[2] R v Bowker [2007] EWCA Crim 1608

[3] R v Forbes [2016] EWCA Crim 1388 ; R v L [2017] EWCA Crim 43