The Sentencing of Historic Sexual Offences
| Author | Gavin A. Doig |
| Published date | 01 February 2017 |
| Date | 01 February 2017 |
| DOI | http://doi.org/10.1177/0022018316687667 |
| Subject Matter | Court of Appeal |
2017, Vol. 81(1) 9–19
Court of Appeal
ª The Author(s) 2017
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DOI: 10.1177/0022018316687667
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The Sentencing of Historic Sexual Offences
R v Forbes and others [2016] EWCA Crim 1388
Keywords
Historic sexual offences, sentencing guidelines, totality, relevance of good character, specimen counts
This was a series of nine appeals heard together, which addressed various issues arising from the
sentencing of historic sexual offences. This is an issue with which the court system has been increasingly
concerned in recent years. The importance of the case is clear from the fact that the Court of Appeal sat
as a five-judge panel, including the Lord Chief Justice and the Vice-President of the Court of Appeal
(Criminal Division). The judgment gives guidance concerning the charging and sentencing of defen-
dants in these circumstances. The facts of the particular appeals are of little significance. Only the three
individual appeals that are most relevant to this case note are outlined below. The majority of this note
will address the general guidance provided by the court.
HELD, ALLOWING THREE OF THE APPEALS, sentencing for historic sexual offences is now
governed by Annex B of the Definitive Guideline on Sexual Offences (2013) and is subject to the
following general principles:
The Applicable Sentencing Regime
An offender must be dealt with in accordance with the regime applicable at the date of sentence. Any
offender who is thereby disadvantaged should reflect that, where there has been a delay in the senten-
cing, ‘ . . . it was his choice not to take the initiative and admit the offences when the earlier more lenient
sentencing policy was in operation’ (at [4]).
When passing sentence for historic offences committed before the implantation of the current defi-
nitive guideline, a sentencing judge should ‘have regard to’ that guideline, and pass sentence giving
‘measured reference’ to it. Sentencing judges should guard against ‘too mechanistic an approach’ (at
[10]). The phrase ‘have regard to’ was intended to make that clear. Instead the present guideline should
be used in a ‘ . . . measured and reflective manner to arrive at the appropriate sentence’ (at [10]).
Certainly a judge should not seek to construct an alternative notional sentencing guideline, eliding
current and contemporaneous sentencing practice.
In rare situations a defendant may fall to be sentenced for behaviour which, if prosecuted at the time,
could not have resulted in a custodial sentence. In respect of the instant appeals, the appellant BD was in
that position. In such circumstances, ‘ . . . taking into account Article 7 [of the ECHR] and the common
law requirements of fairness’, it would not be right to impose a custodial sentence now (at [13]). These
are rare circumstances, and this principle should not be taken as an encouragement for courts not to
sentence to custody in other appropriate cases.
10
The Journal of Criminal Law 81(1)
Abuse of Trust
Many historic offences concern situations that may be characterised as involving a breach of trust. This
phrase connotes...
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