Because the view of society and the judiciary towards offences of a sexual nature even towards children was much more lenient in the 1970's, then the resuiltng sentence in 2014 will be too lenient.
At one time there would have been nothing that could have been done to correct it, whereas now a reference can be made to the Attorney General, who has 28 days to decide whether or not the sentence was too lenient and should be referred to the Court of Appeal.
In the Stuart Hall case the reference was made because the judge only gave him 2 years. The Court of Appeal increased the sentence to 30 months. The CPS, as if to compensate for the length of sentence even on appeal, then proffered additional charges.
Hall went to Court and was charged under old laws of indecency. Prosecution Counsel addressed the jury incredulously because, under this old law (the offences having taken place in the 1960's & 1970's) Hall was entitled to defend on the basis that the young adolescent girls had consented to the offences. He was acquitted on most of the charges on this basis even though the girls were all under age.
If Hall had been charged under modern day sexual offence legislation, he would not have been able to run this defence. The law on consent has changed diametrically. Now there is a presumption that vulnerable adults have not consented, thus putting the burden of proof on the accused to show that the victim has consented.
The consent defence is, however, only available for serious offences such as rape.
When sentenced, the judge in the Harris case had to consider what the sentencing guidelines would have been when the offence was committed. The maximum sentence for some of the offences of indecent assault under the Sexual Offences Act 1956 is 2 years. If Harris had been charged under the present day version of the Sexual Offences Act 2003 then the maximum sentence for some of the charges would have been life.
The Sentencing Council has only just published new guidelines relating to 54 Sexual Offences which came out in April 2014. Following the link to read them for yourself in more detail - http://
So what is the rationale?
- It makes no sense to use out of date criminal offences which are out of step with modern law to prosecute sex offenders. We are not taking them to Court in the 1970's
- The guidelines seem to follow dyed in the wool criminal law principles without thinking of the consequences.
- The recent spate of historical abuse allegations seem at odds with the principles
- There are arguments and some sense in thinking of a change in the law. particularly if the effect of the guidelines is the referral of two recent cases to the Court of Appeal because sentences in accordance with the guidelines are deemed to be too lenient.
- The cost of appeals to the Court of Appeal must be born in mind
- The analogy of the logic would be that if someone was prosecuted for murder committed in 1962 before the abolition of the death penalty for murder, then one should use the sentencing guidelines for 1962 which was hanging? So hang the accused?
I was honoured to have debated the above point with Vera Baird on the Today programme yesterday morning on Radio 4. Vera justified the principle of sentencing by circumstances at the time of the offence, on the basis that the accused is influenced as to the consequences of committing a crime at the time of the offence, namely in the recent cases, decades ago. It seems to me to be a weak argument when faced with the drama of celebrity sex offenders getting too lenient a sentence.
We will see whether there is an appetite for a change in the law.