How sentencing of historic offenders works

Recent trials for sex offences committed between the 1960s and 80s have raised many questions about how those convicted of historic offences are dealt with by the courts and how the consequences of such a passage of time between offence and sentence should be considered.

The basic position when an offender is sentenced is that it should be according to the law at the time the offence was committed, not the law at the time when they are sentenced. This has been reinforced by Article 7 of the European Convention of Human Rights.

It is a general legal principle that the law should not be applied retrospectively – so that people are able to know the penalty for an offence. Society – and as a result, the law – changes and so it would be entirely unfair to, for example, ban smoking in cars then prosecute those who did it before it became illegal.

Sentence levels have generally been increasing over the past few decades and changes to the law relating to sex offences are a good example of this trend. This reveals much about how attitudes towards these offences have changed over time.

For example, sentencing for the offence of indecent assault on an underage girl has undergone several changes to sentence levels over the years. Between 1957 and 1960 the maximum was two years’ imprisonment. It then changed in 1961 to a maximum of five years if the victim was under 13 years old, and in 1985 it increased again to 10 years. After that, the  Sexual Offences Act of 2003 redefined sex offences and indecent assault was replaced by new offences such as sexual assault and assault by penetration. While the maximum sentence for sexual assault remained at 10 years, it increased to 14 years in cases where the victim was under 13, and assault by penetration was given a maximum sentence of life.

Some sentence levels have also decreased. If someone had been sentenced for murder in the early 1960s, they could have faced the death penalty and some may think that if people have to be sentenced as the law was at the time of the offence, they therefore should get the death penalty. However, the entire sanction has been abolished. In short, it is no longer legal for anyone to be executed in any circumstances, so even if it applied at the time of the offence, the type of sentence cannot be resurrected and used today.

Unlike sentencing for recent offences, there were no sentencing guidelines for judges to refer to in England and Wales until after the Criminal Justice Act 2003, although guideline judgments were used before then. In sentencing offenders for historic offences, judges will use current sentencing guidelines for the purposes of assessing the harm to the victim and the culpability of the offender but, as mentioned, the law only allows them to pass sentences within the maximum sentence that would have been available at the time.

Another aspect of current practice that is applied to historic offenders is inclusion on the sex offenders register. While it was set up in 1997, offenders who committed sexual offences before the register was created will still be subject to its requirements.

In some cases, in particular if there has been a long period between the offence taking place and a conviction and sentence, the offender may be quite elderly. Judges are not obliged to take that into account when sentencing but may do so, depending on the circumstances, for example if they are very ill or frail.

At the other end of the age scale, judges have to take into account the youth of an offender at the time of the offence. In some cases, the offence will have been committed while the offender was under 18, but they are sentenced after they have become an adult.

For example, in 2012, Gary Dobson and David Norris were convicted of the 1993 murder of Stephen Lawrence. While they were 36 and 35 years old respectively when sentenced, they were 17 and 16 years old at the time of the offence and therefore had to be sentenced as juveniles and according to the law at the time. This meant that the starting point for the minimum prison term was 12 years – as it was for juveniles in 1993 – as opposed to a starting point of 30 years had they been sentenced as adults in 2012. They received minimum terms of 15 years and two months and 14 years and three months respectively.

In sentencing, Lord Justice Treacy said:

“…the law dictates that I must sentence you by reference to your age and maturity at the time of the crime. I cannot sentence you as the mature men you now are. In addition I must sentence you in accordance with the practice in force before the coming into force of Schedule 21 of the Criminal Justice Act 2003 which now governs sentencing for more modern murders.”

In essence therefore, while the law at the time of the offence sets the scope of sentence lengths, a modern approach to the assessment of an offence’s seriousness is used through sentencing guidelines, while other appropriate current practice will also be applied.