Tuesday, 7 August 2018

Unduly Enlarging Scheme?

Child sexual abuse is an abhorrent crime. Filming or photographing child sexual abuse is an abhorrent crime. Viewing films or photographs of child sexual abuse is an abhorrent crime.  All of these crimes cause harm to children. Not all of these crimes are as common as each other. Nobody can know whether ten times more people view images of child sexual abuse than actually engage in child sexual abuse or whether it is a hundred times more. Whatever the figure, once an image is on the Internet it is there for all who choose to view and see it. And the ugly reality is that a great many people, the vast majority of them men, do choose to find and view these images. Vastly more than are ever arrested or come before a court.

As for all sexual offences the courts have clear guidelines to follow in sentencing these offenders.  The guidelines encompass three different types of offending in an ascending order of seriousness: possession; distribution; and production of images.  The guidelines also encompass three different types of image in descending order of seriousness: penetrative sexual activity; non-penetrative sexual activity; and other indecency.

At the lowest end of the guidelines, possssion of other indecent images, a medium level community order is recommended.  At the highest end of the guidelines, production of images of penetrative sexual activity, 9 years' imprisonment is recommended.  Even a non-lawyer would, I hope, accept that is a very wide range of sentencing disposals sufficient to achieve a just sentencing outcome for almost any kind of indecent images case.

Because people make mistakes, even judges, the criminal justice system allows appeals when sentences are too severe but also when they are too lenient.  However there is an important distinction.  Any sentence for any crime is susceptible to appeal (either to the Crown Court or the Court of Appeal) if the defendant feels the sentence is too severe.  Only a limited number of offences allow an appeal if it is felt a sentence is too lenient, and it is not the victim that brings the appeal, it is the Attorney General.

The Attorney General's Office sets out the procedure here: https://www.gov.uk/ask-crown-court-sentence-review.

A press release issued yesterday reveals that in 2017 the Attorney General referred 173 sentences to the Court of Appeal as being unduly lenient with the result that 137 offenders had their sentences increased: https://www.gov.uk/government/news/more-victims-and-their-families-get-justice.

This is against a backdrop of an ever increasing number of complaints from members of the public about sentences being too low.  Addressing every one of these complaints costs time and money.  These are both resources suffering drought like conditions within the criminal justice system. That being said it is only right that the public have a platform to challenge and query sentences.  Prosecutions are brought in the name of the Crown but if sentencing is not for the public then there can be no public confidence in sentencing.

Unfortunately public confidence in sentencing is a very sensitive topic for those that practise within the criminal justice system.  If social media and below the line commenting is believed there are those that won't be satisfied until the noose and transportation are back on the statute books.  Hot on their heels are the prison is a holiday camp brigade and the any sentence less than 40 years is unduly lenient legion.

There are some respects in which the public are right to feel conned by sentencing.  It is very difficult to explain or justify why it is that when a judge pronounces a prison sentence that the offender will not spend that period of time in prison.  In short it is a money saving fiddle. Prison is very, very expensive and in far too many cases it does nothing to prevent reoffending. More temeperate politicians know that very well but far too few of them are prepared to say so publicly.  

Instead the party line is that prison works and there will be plenty more of it for anyone the public particularly abhors and the public abhors nobody as much as a paedophile.  With that in mind it is difficult for practitioners to welcome the suggestion that the Unduly Lenient Scheme should be extended to encompass indecent images of children: http://www.dailymail.co.uk/news/article-6033321/Child-porn-perverts-face-tougher-sentences.html.

It is difficult to welcome for two reasons.  First I am not aware of a study that suggests that judges are habitually misapplying the sentencing guidelines for these cases.  If they are not then this would be a meaningless enlargement of the scheme beguiling the public into believing that they have agency in this arena and that suddenly a lot of people who weren't going to prison will be going to prison.  Secondly if it is felt necessary that the prison population should be increased by thousands then there are more politically direct ways of expressing that policy.  The cost and effect of such a policy should also be spelled out.    

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