Some thoughts on guidelines & abuse of trust...

01 Dec

Sentencing in historic cases of sexual abuse was considered by the CACD by Lord Judge, then Lord Chief, in October 2011 in R v H ([2011] EWCA Crim 2753, [2102] 1 WLR 1416, [2012] 2 Cr App R (S) 21, [2012] Crim LR 149). The essential principle is clear: offenders sentenced today for historic offences are to be sentenced in accordance with the regime applicable at the date of sentence, & current sentencing practice, subject to the perhaps obvious caveat that the sentence that can be passed is limited to the maximum sentence available at the time of the commission of the offence, unless the maximum has been reduced, when the lower maximum applies...

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Sentencing in historic cases of sexual abuse was considered by the CACD by Lord Judge, then Lord Chief, in October 2011 in R v H ([2011] EWCA Crim 2753, [2102] 1 WLR 1416, [2012] 2 Cr App R (S) 21, [2012] Crim LR 149). The essential principle is clear: offenders sentenced today for historic offences are to be sentenced in accordance with the regime applicable at the date of sentence, & current sentencing practice, subject to the perhaps obvious caveat that the sentence that can be passed is limited to the maximum sentence available at the time of the commission of the offence, unless the maximum has been reduced, when the lower maximum applies.

The more recent case of Forbes & others [2016] EWCA Crim. 1388 (12/9/16) is of some interest, and, perhaps, needs to be read alongside H. It consisted of a fairly formidable Court (the LCJ, VP of the CACD, Treacy LJ, McGowan J and H.H.J. Rook QC), and helpfully set out at paragraphs [2]-[36] under the heading “General Principles. R v H and annex B to the Definitive Guideline on Sexual Offences”, er, what it says on the tin?

In the Sentencing Council’s Definitive Guideline, effective as of 1st April 2014, it is only after dealing with the raft of offences created by sections 1-10, and not until page 52 (offences under sections 25 & 26 of the Sexual Offences Act 2003) that “abuse of trust” does not feature under those factors to be considered in assessing culpability, as it does for all offences created by sections 1-10. It is therefore a term of some importance: these types of offences are often carried out by someone known to the victim, and, as often as not, connected to them, socially or biologically.

In Forbes, Lord Judge, LCJ, said this of the guidance in H:

“[3] That guidance was codified by the Sentencing Council in annex B of the Definitive Guideline on Sexual Offences published in 2013. It is a convenient statement of the applicable principles which, subject to the view we express at paragraph 20 about paragraph 9 of Annex B, a court should apply without the need to refer to R v H or other cases.


Abuse of trust
[16] It is evident from the appeals that one issue that has caused difficulty is "abuse of trust" as an express aggravating factor and as used in respect of culpability extensively in the definitive guideline.
[17] Whilst we understand that in the colloquial sense the children's parents would have trusted a cousin, other relation or a neighbour … to behave properly towards their young children, the phrase "abuse of trust", as used in the guideline, connotes something rather more than that. The mere fact of association or the fact that one sibling is older than another does not necessarily amount to breach of trust in this context. The observations in [54] of R v H should be read in this light.
[18] The phrase plainly includes a relationship such as that which exists between a pupil and a teacher … a priest and children in a school for those from disturbed backgrounds … or a scoutmaster and boys in his charge ... It may also include parental or quasi-parental relationships or arise from an ad hoc situation, for example, where a late night taxi driver takes a lone female fare. What is necessary is a close examination of the facts and clear justification given if abuse of trust is to be found.

The various appeals illustrate the kind of relationships (perhaps “associations” is a more useful word to use as the relationship) where “abuse of trust was, or was not,found to arise: that relationship  will not necessarily be that of family - even where the abuse is within the family, that may not give rise to an abuse of trust, as Tarrant (one of the appeals) illustrates.

Thus with Forbes himself, as a teenager he indecently assaulted (as it was then) 2 young boys (cousins?) who called at the family home. It appears (the judgement is not wholly clear), that in passing sentence, the sentencing judge treated the assaults as an abuse of trust (“… the abuse of trust in taking advantage of the complainants in a home environment”); at [47] the LCJ observed that:-

“There was no evidence put before us that when a young teenager, Forbes was placed in a position of trust which he abused, as opposed to taking advantage of opportunities that presented themselves when alone with his younger relations”

With Farlow he observed [@208] that;-

“The judge found an abuse of trust in relation to all three girls. C1 was Farlow's cousin, C2 his niece and C3 a next-door neighbour. All of the girls came from relatively sheltered backgrounds in which they considered it impossible to complain at the time about what Farlow had done. There was evidence from victim personal statements that each of them had seriously been affected by the offending. For the reasons we have given at paragraphs 16-18 [quoted above] we do not consider that the judge was correct to treat this as such a case.”

With Tarrant, 2 incidents of indecency with a younger stepsister could not [@ 169]

“… be viewed as a prolonged course of conduct involving systematic and regular abuse. A proper inference cannot be drawn that either of the two offences necessarily involved planning and grooming. Nor can it be said that either involved an abuse of trust of a nature that should elevate the case into a higher category of the guidelines.”

Clark was, by trial, an elderly former prep school teacher who had abused a number of young boys; here, the Court could not [@ 81]:-

“… ignore the fact that this was sustained and systematic gross abuse of vulnerable young children in Clark's care solely for his sexual gratification … [He had] groomed them and committed the offences in gross abuse of trust” [@79].

McCallen was a school chaplain at a school for boys who were “emotionally or behaviourally disturbed”; he sexually abused them. Refusing leave to appeal the sentence, the CACD implicitly agreed with the sentencing Judge’s observation (quoted at [97]) that:-

"These victims were particularly vulnerable, not least by reason of the fact that they were the subject of court orders and were not free to leave. They were effectively trapped and there was no escape from you. It is difficult to imagine a worse case of breach of trust."

Warren was a scoutmaster who misused his position to abuse, like McCallen & Clark (in loco parentis?) [54]:

“All offences occurred during boat trips to the Norfolk Broads where, as the judge put it, the boys were effectively trapped and prey to Warren's perverted demands. There was the clearest breach of trust involved.”

Is “D was in a position of trust?” a more accurate phrase to illustrate if there was “as abuse of trust”? Anyway,  given the expressed view, quoted above, that “annex B of the Definitive Guideline” is all that is needed to be considered, clearly citation of actual cases and appeals against sentence will now cease …?

Timothy Compton

 

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