Thursday, 8 August 2013
R v Neil Wilson (Sentencing for Sexual Offending) ~ Approval of Trial Judges
On Monday 5th August, Neil Wilson (age 41) was sentenced by the Crown Court sitting at Snaresbrook. It is reported that Wilson admitted two counts of making extreme pornographic images and one count of sexual activity with a child - Sky News 7th August 2013 When sentencing Wilson to 8 months imprisonment suspended, it seems that the judge (HHJ Peters QC) referred to the young female victim (age 13) as 'predatory.' Unfortunately, this is a case where sentencing remarks are not available and so only the media reports are available. The barrister representing the Crown Prosecution Service (Robert Colover) is reported to have said to the court - "The girl is predatory in all her actions and she is sexually experienced." On what basis (if any) the judge chose to use the same word 'predatory' is unclear. Sentencing has to be based on facts either admitted by the defendant or proved to the tribunal of fact (i.e. the jury). Sometimes, in guilty plea cases, there is an agreed factual basis for the plea and sentencing may then be based on that agreement - see Attorney General's Office - 'The acceptance of pleas and the prosecutor's role in the sentencing process.'
have been lodged with the Office for Judicial Complaints. The OJC website (7th August) reported:
The OJC has received a number of complaints about the remarks made by HHJ Peters QC during the sentencing of a defendant at Snaresbrook Crown Court on 5 August 2013. The complaints will be considered in accordance with the Judicial Discipline (Prescribed Procedure) Regulations 2006 (as amended). (Link added)
Also, the CPS issued a remarkable statement to the effect that Mr Colover will not, at least for the time being, be instructed for the prosecution in cases involving sexual offences - (CPS statement).
In recent years, the criminal justice system has come to greater recognition of the needs of victims of crime. The sentencing of Neil Wilson provoked outcries. For example, the NSPCC warned that the case was part of a wider pattern about how child sex abuse cases are treated in the courts. Alan Wardle, head of corporate affairs, said: "It was quite clear in the case the predator was the man who was in the dock, not a 13-year-old child, and it is quite clear that a 13-year-old child cannot be complicit in her own abuse.'
The media reports do not say exactly the offence admitted by Wilson though it is reported as 'sexual activity with a child.'
The offence in the Sexual Offences Act 2003 s.9 is based on the intentional sexual touching of either a child under age 16 or a child under age 13. Therefore, issues of 'consent' on the part of the child do not arise. Even if a child was sexually active (as some undoubtedly are), would that offer a convicted person any mitigation? Even if it did, it must surely be only in rare cases that it would offer a defendant very much. See CPS guidance on 'Derogatory or Defamatory Mitigation.'
The suspension of Wilson's sentence of imprisonment is also of interest and it is reported that the Attorney-General is considering referring it to the Court of Appeal on grounds of undue leniency.
The case clearly demonstrates the undoubted value of publishing sentencing remarks - sadly, absent in this instance.
There is also an interesting point about ages and the criminal law. A child of 10 may be held criminally liable for (say) murder. However, the law steps in to offer child victims particular protection in relation to sexual activity. There are strong arguments to raise the age of criminal responsibility - (see also here). However, the protection of children must surely be right.
Trial by an approved judge:
In a separate development, the Lord Chief Justice has responded to a request from the Parliamentary Home Affairs Committee which had looked at Child Sexual Exploitation - Committee Report and LCJ statement (pdf). The committee had invited the Lord Chief Justice to consider recommending to the Judicial College that there should be specific guidance and training for judges who preside over cases of child sexual exploitation. A particular concern was cases with multiple defendants and the consequent possibility of a victim being subjected to multiple cross-examination.
The LCJ pointed out that there is already an authorisation process for judges who try serious sexual offences - details are in the LCJ's statement. However, the LCJ noted some cases where, for the future, the trial judge will be one selected by the Resident Judge (on a case by case basis) and approved by a Presiding Judge. These will be trials for serious sex cases where the trial is likely to last over 10 days or, regardless of the length of trial where one or more of the witnesses is significantly vulnerable. A similarly approved judge will be required for all other cases, irrespective of the nature of the charges or length of trial, in which a significantly vulnerable witness is to be called in circumstances that call for especially sensitive handling - e.g. by virtue of age, situation or the circumstances of the case.
This post was reproduced on Legal Week 8th August - Predator or prey? The judge, the barrister, a 13-year-old victim and a media furore.
Further reading - Felicity Gerrity - Robert Colover investigation: the misunderstandings around sex offence trials