R (Appellant) Hall (1) and Another Ferris (2) and Another A Walker (3) and Another P Walker (4) and Another Dan (5) and Another Stones (6) and Another Robertson (7) and Another P (8) (Respondents)

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeThe Lord Chief Justice of England and Wales
Judgment Date24 November 2011
Neutral Citation[2011] EWCA Crim 2753
Docket NumberCase No: 2011/03264/A1 (1), 2011/03850/A2 (2), 2011/02215/A4 (3), 2011/02489/A3 (4)

[2011] EWCA Crim 2753

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Lord Chief Justice of England and Wales

Mr Justice Royce

and

Mrs Justice Macur DBE

Case No: 2011/03264/A1 (1), 2011/03850/A2 (2), 2011/02215/A4 (3), 2011/02489/A3 (4)

2011/02221/A6 (5), 2011/02311/A4 (6), 2011/02204/A2 (7), 2011/04172/A5 (8)

Between:
R
Appellant
and
Hall (1)
R
and
Ferris (2)
R
and
A Walker (3)
R
and
P Walker (4)
R
and
Dan (5)
R
and
Stones (6)
R
and
Robertson (7)
R
and
P (8)
Respondents

A Howarth for Hall (1)

D Callan for Ferris (2)

J Vakil for A Walker (3)

P Mason for P Walker (4)

A Rafati for Dan (5)

A Metzer for Stones (6)

G Cooke for Robertson (7)

J Warrington for Preston aka Khannon) (8)

J Price QC for the Crown

Hearing dates: (1–6) 11 th October 2011 (7 and 8) 13 th October 2011

The Lord Chief Justice of England and Wales
1

The court is once again revisiting issues which arise in the context of crimes brought to justice many years after they were committed, sometimes described as "historic" or "cold" cases.

2

In R v F [2011] EWCA Crim 1844 guidance relating to abuse of process applications arising from delayed prosecutions was promulgated. The present cases all arise in the context of historic sexual crime, that is, sexual offences committed many years ago but only recently brought to conviction. What this means in reality is that justice has eventually caught up with the criminal, sometimes years and sometimes indeed decades after the crime was committed.

3

The issue is the correct approach to the sentencing decision. Although a number of different questions arise, stripped to essentials specific guidance is required about the extent, if any, to which the court passing sentence should reflect the levels of sentence which would have been likely to have been imposed if the defendant had been convicted at a trial shortly after the offences were committed and, by contrast, the extent to which events during the long period between the commission of the crime and the sentencing decision may be relevant. We have examined numerous sentencing decisions in this court. Conflicting approaches to these questions are discernable. Accordingly leave was given in each case either by the single judge or this court for these interesting questions to be examined and decided.

4

The first six cases, Hall, Ferris, A Walker, P Walker, Dan and Stones were heard together on 11 th October. Robertson and P were heard together on 13 th October. In Robertson the appeal was dismissed at the end of the hearing. This judgment deals with the remaining seven appeals, and provides the reasons for our decision in Robertson.

5

The descriptions, "historic" or "cold" cases, are not confined to sexual crime. Advances in science, for example, with DNA techniques, have led to successful prosecutions in many so called "cold" cases of homicide and other serious offences. In such cases ignoring any express statutory provisions, such as those to be found in schedules 21 and 22 of the Criminal Justice Act 2003 (the 2003 Act), the broad sentencing principles should coincide.

6

In cases of sexual crime, in particular sexual crime involving children or boys and girls who have recently reached puberty, it is a common feature and where it appears, effectively integral to the impact on the victim of the crime that he or she is ashamed shy, hesitant, fearful or terrified, or as a result of a combination of all these considerations, reluctant or unable to make a complaint at or close to the time of the offence.

7

On occasions those who do complain within the family or school environment are ignored and rejected, and thereafter feel powerless to help themselves. Thus it is that the crimes do not come to the attention of investigating authorities until years later, when with maturity, sometimes as a result of parenthood itself, but in reality for a variety of different reasons, the truth of what happened in childhood emerges. Such cases do not involve a delayed investigation. Until the report is made to the police there is nothing to be investigated.

8

On other occasions complaints brought to the attention of investigating authorities, whether proximate to the event or not, were not prosecuted. It was frequently thought that a conviction was unlikely, a view reinforced by the technical requirements of corroboration, in particular in relation to the evidence of children, which did not disappear until the coming into force of the Criminal Justice Act 1991. These earlier complaints may be resurrected by subsequent allegations.

9

We do not overlook a small number of exceptional cases (none of which are included in this group), where the perpetrator of the crime, haunted by a sense of guilt of what he did many years earlier, reports himself to the police, and triggers off the investigation. That raises specific sentencing problems. For the moment, however, it is sufficient to observe that this course is always open to every offender, but the majority live what often appear to be ordinary lives hoping, and indeed in many cases expecting, that their criminal activities will never come to light.

Legislation

10

Self-evidently, the sentencing decision cannot be made until the defendant has been convicted. By definition, in historic cases, that will be years after the crime was committed. The criminal conduct will sometimes span different legislative provisions governing the substantive law of sexual crime, and variations in the maximum penalties. Sometimes, and this is the general trend when variations are introduced by statute, and perhaps well exemplified by reference to cases of causing death by dangerous driving, the maximum sentence is increased. There are however occasions when, as in the case of sentencing for theft, the maximum sentence is reduced. The legislation applicable to the present cases includes the Attempted Rape Act 1948, the Sexual Offences Act 1956, the Sexual Offences Act 1967, the Sexual Offences Act 1985, the Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 and the Sexual Offences Act 2003.

11

Over the same period, while the substantive law and sentencing provisions have been changing a variety of different sentencing regimes have been in force. The Powers of Criminal Court (Sentencing) Act 2000 was but one vast piece of legislation in the deluge of legislative provisions which have come, and gone, over the years. In the meantime provisions relating to the release of prisoners subjected to custodial penalties have also been changed. These include the Prison Act 1952, the Criminal Justice Act 1991, and the Criminal Justice Act 2003 which came into force in April 2005. These legislative provisions are not compartmentalised. For example, section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 contains provisions relating to the release of those convicted of sexual offences committed before September 1998. We shall not anxiously parade an inclusive list of all the relevant statutory provisions. It would be unbearably long. We simply remind, with now customary trepidation, ourselves that yet further proposed legislation relating to sentencing regimes and prisoner release is currently in contemplation.

12

What is the judge to do? We must return to first principles. In relation to each of these appeals, the matters to be taken into account are explained in Chapter 1 of Part 12 of the 2003 Act. This contains general provisions about sentencing. They are well known. Sentencing judges cannot ignore statutory provisions which are currently in force. They apply to each and every sentencing decision, whenever the crime in question was committed, at the date of sentence. No specific provision is made for historic or cold cases. The judge is required to deal with the offender having regard to the express purposes of sentencing. These are defined in section 142 as:

"…(a) the punishment of the offenders,

(b) the reduction of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences."

13

In considering the seriousness of any offence the court is directed by section 143 to:

"…consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused."

The harm caused may of course be very long-standing harm, and in historic cases the evidence may show that the impact of the crime years after it was committed is still disturbing and painful to the individual who is now an adult.

14

As is well known, the 2003 Act created the Sentencing Guidelines Council. By section 172 it was the duty of the sentencing court to "have regard" to any guidelines issued by the Sentencing Guidelines Council. In accordance with its responsibilities, in 2007 the Sentencing Guidelines Council issued a definitive guideline relating to the Sexual Offences Act. Then, from April 2010, the Coroners and Justices Act 2009 (the 2009 Act) in effect abolished the Sentencing Guidelines Council and created a new body with additional responsibilities as the Sentencing Council for England and Wales. The overall effect of this legislation was that the definitive guidelines issued by the Sentencing Guidelines Council in relation to sexual cases continue in operation, at any rate until reconsidered by the Sentencing Council. By section 125 of the 2009 Act every court, when sentencing an offender, is required to follow any relevant guideline including the sexual offences...

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