Welcome to the Spring edition of our Sexual offences newsletter and we hope in these difficult times it provides you with a useful quick update to cases and issues.

In this issue, Ben Newton looks at the correct approach to be applied by the courts when considering the defence of legitimate reason for possessing or distributing indecent images of children.

Abigail Bright succeeds with an innovative approach to obtaining and maintaining anonymity for a defendant accused of rape.

Tayyiba Bajwa provides us with a round up of recent useful sentencing authorities including the important issue of totality in multiple sexual offending while I comment in a little more detail on the latest legislation altering early release provisions for those convicted of sexual and violent offences.

As always if you want to discuss these issues with anyone in the team or anything else relating to sexual offences please do get in touch.

Sarah Elliott QC

By Ben Newton

R v Toure [2020] 4 WLR 17

The defendant was convicted of possession of an indecent image under s160 Criminal Justice Act 1988 and further offences of distribution of that image under s1(1)(b) Protection of Children Act 1978, and received a conditional discharge for twelve months (thus also requiring her to comply with notification requirements for twelve months pursuant to s82 SOA 2003).

Her defence was that she had come to the United Kingdom from Guinea as an asylum seeker, having suffered physical and sexual abuse there and was now a single mother and an active campaigner against human rights abuses in Guinea. Her friend Rokia sent her the video in November 2016 after they had been discussing how horrible the sexual abuse of children was. She opened the video, sent it to her friend Natine (who was not the subject of any count) and then thought she had deleted it. Over a year later, in December 2017, she was talking to her friend La Souer Fanta about child abuse being prevalent in this country and not just in Africa, but her friend did not believe her, so she went through her phone to see if she could find the video, and, having done so, sent it to her friend and telephoned her afterwards to continue their discussion. Later that day she sent it to her friend Queenta (a single mother), who she was with at the time, to make her aware also that children were being abused in this country. She did not know that what she was doing was against the law, but just wanted to make people aware of what was going on. She also sent it to her friend Doss because he was active in the community working to protect children and raise awareness about human rights abuses, and they too had a conversation after she had sent it.

Having called witnesses to support her account it seems clear that she was able to establish the genuineness of her subjective belief that she had a legitimate reason for possessing and distributing the image. The issue was therefore whether it was an objectively legitimate reason for the purposes of s160(2) or s1(4).

As the Court of Appeal confirmed, there are two questions to be asked and answered: (a) is the defendant telling the truth about the reason that he or she put forward for possessing or distributing the material? If the answer to that question is no, then they must convict. If the answer is yes, then the jury are to go on to consider the second separate question, namely (b) whether or not that reason was a legitimate reason.

In his written directions of law the judge directed the jury that the genuineness of the defendant’s belief was irrelevant to the second question of whether the reason was legitimate. As he explained in his summing up: ‘if you are satisfied on the evidence that you have heard from her and the other witnesses that she was genuine when I said, ‘I kept it for this reason’, then you will need to ask yourselves a second question, and that is this: ‘Was that legitimate?’, and you answer that question. It is not a matter for the defendant whether she thinks that was a legitimate reason within the Act. You set the standards for society.’

The Court of Appeal held judge had not been wrong to direct the jury that the genuineness of the defendant’s belief was irrelevant to the second question, distinguishing the earlier case of Atkins v DPP [2000] 1 WLR 1427 and dismissing the appeal.

Benjamin Newton is instructed to defend those accused of the most serious and complex criminal offences, and regularly appears in high profile and legally significant cases. To read more about Ben, click here.

By Abigail Bright

We have all been asked by anxious defendants accused of sexual offences ‘Will my name get in the press?’ and have had to explain that while complainants have anonymity those accused of sexual offences do not. Acquitted clients often feel the stigma and consequences of being accused of this type of offending for a very long time after trial . Abigail Bright however was able to successfully persuade a Crown Court Judge that not only was her client entitled to a reporting restriction providing for his anonymity, but that restriction should continue indefinitely following his acquittal.

After a trial of six days, D was acquitted by a jury of rape. At the PTPH, D was indicted in his birth names by which he was commonly known. A reporting restriction of D’s name before the start of the trial was successfully sought, and post acquittal granted for D’s lifetime or until further order. This appears to be the first time a court has granted a post-acquittal reporting restriction after a rape trial restricting the publication of identifying details of the defendant and the fact of his acquittal. The judge decided that the Contempt of Court Act 1981, section 11, applied. The parties had agreed to refer at the trial to ‘the man’, rather than to the defendant by his name, but the complainant and non-police eye witnesses were not stopped from giving their best evidence by describing events and people, including D, in the words those witnesses wished to use.   

The application for a reporting restriction arose from D’s instructions that he had given sworn evidence at his brother’s murder trial, in his real names, at the Central Criminal Court, and his name had been reported by the press, including the BBC and The Times. D had given evidence before the Coroners and Justice Act 2009 introduced power to grant anonymity to witnesses. Having given evidence, D entered into a witness protection re-location programme. At the time he was indicted for rape, he still lived under the same programme.

The judge at D’s rape trial required persuasion that a reporting restriction order should be made and exactly what should be the form and ambit of that order. The reporting restriction sought had several aspects to it (fact of acquittal; AA’s name, AA’s address). The Crown’s position after the verdict was that no continuation of the reporting restriction was necessary: open justice should prevail and indictment for rape was dissimilar to a background of serious organised crime. Against making a reporting restriction order was the fact that D’s name had been given and reported at the earlier murder trial and D had been settled in the witness protection programme for some years and that that protection continued. The judge was ultimately persuaded that D would be at risk of reprisals such that his life would be endangered in the event that the fact of his name and his acquittal of rape were to be published.

Abigail’s submissions focussed on the case engaging two articles of the European Convention on Human Rights, article 2 (the absolute right to life) and why that should prevail over article 10 (the right to freedom of expression and information, capable of limitation).

The judge’s decision to grant a reporting restriction order involved a number of highly practical arrangements. Mention of D’s trial in the Crown Court list (which is hosted publicly on CourtServe daily) was anonymised: this was done by inserting asterisks in place of each identifying number per the ‘T’ number by which Crown Court cases are uniquely identified. Public listings of D’s trial generated the T number T2019****. The parties agreed, endorsed by the judge, that the clerk and usher would refer any inquiries about D’s case (and its reporting as an anonymised ‘T’ number) to the list office. The senior list officer would ascertain exactly the nature of any inquiry and communicate directly to the judge any enquiry. Enquiries established that there had been no reporting of D ’s case as a result of the first hearing in the Magistrates’ Court, which does not publish its court list in a public forum except for noticeboards at that court on the day of hearings. A defendant’s address becomes a matter of public record when recorded on the court file; it is invariably given in open court to identify a defendant when a defendant is first put before a court; and it can be ascertained upon request to a court by the press.

The public interest served by open reporting of the result of a trial is separate to the statutory and absolute prohibition on any reporting of a sex complainant’s name or information that might identify that person’s name (for the duration of the life of that person). Complainants of a wide range of sexual offences are given lifetime anonymity by the Sexual Offences (Amendment) Act 1992. Whilst this statutory protection accorded to sex complainants is distinct from publication of other information, as this case illustrates there may be unusual but compelling circumstances in which is possible to apply for a reporting restriction in order to protect a defendant.

Abigail Bright defended in this case. To read more about Abigail, click here. 

By Tayyiba Bajwa

Release

On 1 April 2020 the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 entered into force. This Order changed the automatic release point for relevant individuals from the half-way point to the two-thirds mark. The two-thirds change applies to prisoners convicted of a relevant sexual or violent offence, where the maximum sentence is life and who receive a standard determinate custodial sentence of 7 years’ or more. The change also applies to those serving consecutive terms of imprisonment for any sentence of 7 years or more for a relevant sexual or violent offence. The relevant sexual offences are those specified in Part 2 of Schedule 15 to the Criminal Justice Act 2003.

Importantly, and unlike the Terrorist Offenders (Restriction of Early Release) Act 2020, this change is not retrospective and will only affect those sentenced in relation to relevant offences after 1 April 2020. The Order will also not affect those who were under 18 at the time the relevant sentence was imposed or those subject to special custodial sentences under s.236A of the 2003 Act.

Sexual Harm Prevention Orders

R v Inches [2020] EWCA Crim 373

This was an appeal against the terms of a Sexual Offences Prevention Order (the predecessor to the Sexual Harm Prevention Order) imposed in 2009. The appellant objected to the prohibitions relating to the use of the internet and on possessing a mobile phone with a camera as being manifestly excessive. The Court found that the correct approach would be to apply to the Crown Court to vary the terms of the Order as the Order had been properly imposed and the Court’s appellate powers on sentence were only engaged where the sentence was shown to be manifestly excessive or wrong in principle.

This may represent a change of approach when contrasted with the earlier decisions in R v Hewitt [2018] EWCA Crim 2309 [2019] 1 Cr. App. R. (S.) 34 and R v Connor [2019] EWCA Crim 234 [2019] 4 W.L.R 76 where the Court of Appeal quashed aspects of Sexual Harm Prevention Orders which related to restrictions on accessing the internet and owning devices capable of recording images as being unworkable, ineffective and oppressive.

The Court of Appeal has also emphasised that before imposing Sexual Harm Prevention Orders, the sentencing court must give due consideration to whether such an order was necessary to protect the public from sexual harm from the applicant (R v AB [2019] EWCA Crim 2480).  In this case where the sexual element of the crime of which the appellant had been convicted (child abduction) had not been proven, the Court of Appeal quashed the order that had been imposed.

Totality

R v Green [2019] EWCA Crim 196 [2019] 2 Cr. App. R. (S.) 16

The appellant had abused a number of young boys in his charge over a period of 14 years. In 2014 he was sentenced to a 9-year custodial sentence for offences committed during this period. In 2018 he was tried and convicted of a further 17 offences also committed during the same period. The sentencing judge did not consider the 2014 sentence on the basis of the gravity of the 17 offences for which the appellant had been convicted in the 2018 trial and sentenced him to 12 years’ imprisonment.

The Court of Appeal substituted a sentence of 10 years finding that the sentencing judge should consider all the circumstances in deciding, what, if any, impact the previous sentence should have on the new sentence to be passed. The Court laid out a number of relevant factors for sentencing judges to consider, including:

• How recently the previous sentence was imposed;
• The similarity of the previous offences;
• Whether the offences overlapped in terms of the time they were committed;
• Whether, on the previous occasion, the offender could have “cleaned the slate” by bringing the further offences to the attention of the police bearing in mind they may genuinely have forgotten some of their offending;
• Whether to take the previous sentence into account would give the offender an undeserved bonus, such as where a technical rule of sentencing has been avoided or where the court has been denied the opportunity to consider totality in terms of dangerousness;
• The age and health of the offender;
• Whether, if no account is taken of the previous sentence, the length of the two sentences if passed consecutively would have offended the totality principle.

The Court of Appeal emphasised the importance of totality in the context of consecutive sentences in R v Falder [2018] EWCA Crim 2514 [2019] 1 Cr. App. R. (S.) 46. The appellant had received consecutive determinate sentences amounting to an extended sentence of 38 years, comprising a custodial term of 32 years and an extension period of six years with concurrent determinate sentences. The Court of Appeal noted that consecutive sentences can give rise to confusion about the date of eligibility for release on licence and should, in general, be avoided if possible. In the instant case, the sentencing judge had lost sight of the full extent of overlap between the various categories of offending and so made insufficient allowance for totality. The Court’s view was that the appropriate sentence was an extended sentence of 33 years comprising a custodial term of 25 years and an extension period of eight years.

Reduction of sentence for delay between arrest and charge

In R v Beattie-Milligan [2019] EWCA Crim 2367 the Court of Appeal substituted a sentence of 2 years’ imprisonment for 18 months’ to reflect the mitigation resulting from the unjustified delay of 11 months between arrest and charge. The delay had impacted on the applicant, her mental health and her family.

Reduction for inchoate offences

In Att. Gen’s Reference (R v Zaheer) [2018] EWCA Crim 1708 [2019] 1 Cr. App. R. (S.) 14 the Court substituted a sentence of 5 years and 6 months’ for a sentence of 3 years and 9 months’ for a conviction of attempted rape. Although there should be a reduction to reflect the attempted nature of the crime, the degree of reduction depended on the circumstances including the stage at which the attempt failed and the reason for non-completion. In the instant case, there had been several attempts to penetrate the victim and the offender had only desisted because the victim had successfully frustrated his attempts at penetration meaning a lesser reduction was warranted.

Tayyiba Bajwa is a pupil practicing in criminal defence, inquests and crime-related public law. To read more about Tayyiba, click here.

By Sarah Elliott QC

April 1^st 2020 saw the commencement of The Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2020 statutory instrument 2020 No 158.[i]

This change got little publicity compared to the suspension of early release provisions for those convicted of terrorism offences, but it will significantly lengthen the time spent in prison for those convicted of serious sexual offences or offences of violence by providing for automatic release two-thirds of the way through the custodial term, rather than the current halfway point.

There are 4 important criteria:

1. It only applies to sentences passed on or after 1^st April 2020
2. The offence must be an offence listed in Schedule 15 CJA 2003[ii]
3. The custodial term passed must be 7 years or more
4. The offender must be 18 or over at the time of the sentence

Sexual offences listed in schedule 15 include:

• Rape
• Sexual assault
• Sexual offences against children
• Also like offences under the 1956 Act such as buggery, indecent assault and Indecency

What are the practical effects of this change?

By looking at the sentencing council guidelines for sexual offences[iii] we can see that:

Rape

Only rapes categorised with the least harm and culpability (Category 3B) have a sentence starting point less than 7 years.

Any rapes involving an abuse of trust, use of alcohol, recording of the offence (to cite just 3 of the raised culpability factors) have a starting point of 7 years (category 3A).

Any rapes falling into category 2 - as many do because, for example, of the incidence of severe psychological harm to the victim or their particular vulnerability - have a starting point of 8 years (category 2A).

Sexual assault of an adult (section 3 SOA 2003)

For a single offence the starting point of the highest category 1A is 4 years so the changes will most likely apply only where there are a number of assaults or a number of victims.

Sexual offences against children

Rape and other penetrative offences against the under 13s are already subject to the sentences for ‘Offenders of particular concern’ legislation (section 236A CJA 2003) in force since 2015 meaning offenders are not subject to the early release provisions and can only be released by the Parole Board after serving half or more of the custodial term.

Sexual assaults of children under 13

Likely to affect sentences for the most serious of those assaults, (Category 1A and B and Category 2A), these offences all having a sentencing range of up to (at least 7 years) for a single contested offence. No single offence has a starting point of 7 years or more therefore more likely to affect sentences for more than one offence or more than one victim, (neither of which is uncommon).

Sexual activity with a child

The most serious offences in category 1A have a starting point for a single offence of 6 years  but a range of up to 10 years. This offence typically reflects repeated sexual activity with those between 13 and 16, often including penetrative sexual activity, grooming behaviour, significant disparity in age and abuse of trust which would usually place the offending in the highest category and potentially over the 7 year mark.

Historic offences usually charged as indecent assault

These obviously mirror the sentence for the offence that would be charged under the current legislation but given many historic offence prosecutions involve multiple offences and often more than one victim many of these are likely to attract offences of 7 years or more.

[Worth noting the legislation also applies to any consecutive sentences that fulfil the criteria].

Indecent Images of Children (IILOC)

Unlikely to be affected unless an offence of production of images of the most serious kind involving penetrative sexual activity, animals or sadism where the category range is 4-9 years.

What will sentencing Judges do ?

It is a long established principle of sentencing that release provisions should play no part in the determination of the appropriate custodial term. Therefore the additional length of time spent in custody ought not be taken into account. This will result in increases to the actual length of time an offender spends in prison of a minimum of  14 months for a 7 year sentence and, for example, 2 years for a 12 year sentence.

In summary those likely to be affected by the change:

Many of those convicted of rape :  typical example - offender convicted of vaginal and oral rape of very drunk young woman where photographs taken.

Historic sexual offenders where there has been a number of offences over the years or a number of victims : typical example -  school teacher convicted of repeated genital touching over years of many pupils.

Offenders who have repeated sexual intercourse with underage girls who they have groomed over a period of time and/or where there is a significant age difference: typical example - the family friend who over time sexually grooms a 14 year old and commits an escalating series of offences culminating in intercourse.

Sarah Elliott QC is one of the leading silks at the Bar for defending sexual allegations. To read more about Sarah, click here.