Attorney General's Reference (Nos. 14 and 15 of 2006); R v Tanya French and Alan Robert Webster

Lord Phillips, CJ :

This is a consolidated reference by the Attorney General under section 36 of the Criminal Justice Act 1988. We granted permission to make the reference at the beginning of the hearing, for the reference raises important issues of principle. The Attorney General contends that sentences passed on two co-defendants should be increased on the ground that the sentences were unduly lenient. One is Alan Webster, a man of forty years of age. The other is Tanya French, a woman of 20 years of age, but who was 17 and 18 when the offences for which she was sentenced were committed. The sentences were imposed in the Crown Court at St Albans by His Honour Judge Baker QC on 10 January 2006.

Webster was charged on two indictments. French was charged with being party to a number of the counts on the principal indictment. Those counts related to a course of conduct of horrifying depravity in which the offenders used a baby girl, entrusted to the care of French as a baby sitter, as a sex toy. The evidence of, and an element of, this offending consisted of photographs taken by the offenders of their conduct, so that these could be used for further sexual gratification by Webster. The offenders were plainly recognisable in these photographs.

Webster's offences and sentences

In relation to offences involving this baby girl, Webster pleaded guilty to four counts of rape, contrary to section 1(1) of the Sexual Offences Act 1956, five counts of indecent assault, contrary to section 14(1) of the Sexual Offences Act 1956 and three counts of either taking or permitting to be taken, indecent photographs of a child, contrary to section 1(1)(a) of the Protection of Children Act 1978.

On the principal indictment Webster alone was charged with a serious indecent assault on a fourteen year old girl, L. He pleaded guilty to this charge.

On the second indictment, Webster pleaded guilty to each of seven counts of possession of an indecent photograph of a child contrary to section 160(1) and (3) of the Criminal Justice Act 1988.

On each of the counts of rape Webster was sentenced to imprisonment for life, with a minimum term of 6 years, less the 167 days already spent in custody. On each of the counts of indecent assault of the baby he was sentenced to six years imprisonment. On each of the indecent photography counts he was sentenced to four years imprisonment. On the count of indecent assault on the fourteen year old girl, he was sentenced to four years imprisonment. On two of the counts on the second indictment he was sentenced to two years imprisonment, with no separate penalty on the remaining counts. The sentences of imprisonment were ordered to run concurrently with each other and concurrently with the life sentence. Ancillary orders were made in relation to prohibiting working with children and forfeiture of photographs, cameras, computer equipment and other items.

French's offences and sentences

French pleaded guilty to one count of rape, four counts of indecent assault and three counts of either making or permitting to be taken indecent photographs of a child.

On the count of rape French was given an extended sentence of ten years with a custodial term of five years imprisonment and an extension period of five years. On the counts of indecent assault she was sentenced to three years imprisonment. On each of the counts of indecent photography she was sentenced to two years imprisonment. Each sentence of imprisonment was ordered to run concurrently with the others. The same ancillary orders were made as had been made in the case of Webster.

The facts

We will deal first with Webster's indecent assault of L. L was a long-standing friend of French. Through French she came to know Webster. When L was fourteen years old Webster began to kiss her and touch her inside her clothing. On one occasion in 2003 or 2004, when she visited Webster and French's home, she found Webster there, who told her that French was upstairs. They went upstairs to the bedroom, where he announced that he had made a mistake and French was at work. L sat down on the bed, whereupon Webster pulled down her knickers and removed her bra. He kissed her, then pulled her legs apart and licked her vagina, which he penetrated with his tongue and finger. He then suddenly stopped and returned to his computer.

In a witness impact statement L said that before the offence she had boyfriends but that since them she could not even be in the same room as her brother. She felt that she could not trust anyone any more. She had difficulty sleeping and experienced nightmares. For nine months she had been on anti-depressants.

Next we turn to the second indictment. This consisted of seven counts of offences committed on 25 July 2005. Six related to still images and the seventh to moving images. Webster had some 225,000 images on his computer. 9000 of these were examined by the police. Of these 7,376 were indecent and the subject matter of the seven counts. 918 of these involved penetrative sexual activity between children and adults and 523 involved non penetrative sexual activity between children and adults.

Finally, we turn to the joint offending in relation to the baby. The offences came to light when the police raided Webster's home because they had received information that indicated that he had been downloading on his computer indecent images of children. An album of photographs was found that showed acts of abuse being carried out by Webster and French on the baby. Each had taken photographs of the acts of the other. As the photographs recorded, abuse of the baby took place on five separate occasions between 5 February and 8 March 2004.

Webster first met French when she was fourteen, but their close relationship began when she was seventeen. She moved into his home. It is clear that he corrupted her, so that she was fully complicit in the offences with which we are concerned, a fact reflected by some of the photographs in which she featured, which gave the impression that she was enjoying the activities in which she was participating.

At the time of the offences French was 17 or 18 years old. She had become friendly with the baby's mother, who lived by herself with the baby and a seven year old son. French used to baby sit and on occasions the mother permitted French to take the baby to Webster's home to look after her there. This enabled Webster and French to plan the offences that they carried out on the baby.

On the first four of the five occasions that were photographed, Webster was shown in the act of raping the baby. This involved the insertion of the end of Webster's erect penis in the baby's vagina. One photograph showed almost the entire head or glans inserted in the baby's vagina, clearly stretching it. A subsequent medical examination of the baby revealed that her fourchette was scarred and thickened, which was consistent with this abuse. The depth of penetration was not such as to cause internal injury and, although some of the photographs showed that the baby was distressed, no injuries were noticed by her mother. Apart from raping the baby on four occasions, Webster was also shown inserting his penis in the baby's mouth, or placing it in the vicinity of the mouth. One photograph depicted semen around the baby's mouth. Webster was also shown licking the baby's vagina, inserting his tongue in the vagina, kissing the baby's mouth and inserting his tongue into her mouth and licking and kissing the baby's nipples.

Apart from taking photographs of Webster's activities, French assisted with them, as demonstrated by photographs taken by Webster. On one occasion when Webster was raping the baby, she was holding a feeding bottle to her mouth. Another image showed her holding Webster's penis as it penetrated the baby's vagina. Webster photographed her licking the baby's vagina, or inserting her tongue into the vagina, touching the vagina, kissing the baby's mouth and holding the baby for the purpose of having indecent photographs taken.

Evidence of Mr Dominic Croft, a consultant community paediatrician was adduced in relation to whether, and if so what, long term psychiatric effect the offenders' treatment was likely to have on the baby. Mr Croft was unable to speak about this from his own experience. He stated that while some of his colleagues considered that the baby would not suffer any lasting ill effects as the result of her treatment, he had been informed by another consultant paediatrician that there was 'a general belief' that babies who are abused very early in life acquire a sort of 'bodily memory' of the abuse. This evidence did not establish more than a possibility that the baby's treatment will result in long term psychiatric damage, but there is a risk of this and it should have been apparent to the offenders that there was a risk that they might cause the baby long lasting psychiatric injury.

There is an obvious possibility that, when she grows up, the baby will discover...