The sentences given out in a number of recent high-profile sexual abuse cases has caused a great deal of debate about the length of sentence and the judgements made by high court judges. Jenni Whitehead discusses the current issues.

The month of June saw the beginning of a debate about the sentencing of sex offenders. The initial call for reform came when a man who raped a 12-week-old baby had his minimum jail term changed from six to eight years by appeal judges. Paul Webster, 40, was sentenced to life in January but was eligible to apply for parole after six years. His accomplice, Tanya French, 19, was jailed for five years and this sentence was not changed. Webster and French raped and indecently assaulted the baby and took photographs of the abuse, their trial heard. The case caused a public outrage and set off a whole debate about sentencing in sexual abuse cases. The concern was that despite being given a life sentence Webster would be eligible to apply for parole after six years.

The attorney general, Lord Goldsmith, said it was possible that Webster would never be released despite any application for parole because of the depravity of the offence. French’s sentence was not changed because the appeal judges decided that she was very young and had been corrupted by Webster.

Webster had been convicted of a serious indecent assault on a 14-year-old girl three years before he was sentenced for the baby rape offences.

June also saw one of the government’s rising stars, Vera Baird, forced into admitting that she was wrong to criticise Judge John Griffith Williams over his sentencing of Craig Sweeney for the abduction and rape of a three-year-old girl. Sweeney was given an 18-year sentence with a minimum six years’ imprisonment. Vera Baird, herself a QC as well as MP for Redcar, made public criticisms of the judge’s decision, on the BBC’s Any Questions programme, despite Lord Falconer, the lord chancellor, having said only days earlier that the judge had made the correct sentence under a system that needs changing.

The home secretary, John Reid, also criticised the leniency of Sweeney’s sentence, which has caused further debate in the House of Commons and received continuing coverage in the press. Reid’s criticisms were met with understandable anger from the judiciary who have repeatedly stated that they are following the present law and guidance on sentencing.

Lord Goldsmith has himself referred 698 cases to the court of appeal because he regarded the sentencing as ‘unduly lenient’. In 521 of the cases  the court agreed, and 414 offenders had their sentences increased. The rules determining whether the attorney general can make a reference are quite tough. An unduly lenient sentence must not be simply lenient. It must ‘fall outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate’.

The home secretary cannot refer cases to the court of appeal; he can write to the attorney general, but only as a member of the public. Reid’s intervention, however, was interpreted by many as political pressure on the attorney general. Lord Goldsmith must consider the request within 28 days, and can only make reference on strict legal merits without implying any criticism of the judge. The basic criteria for appeals of this kind were laid down by Lord Lane in 1989. He said it had to be shown there was ‘some error of principle in the judge’s sentence and that in the absence of the sentence being altered by the court public confidence would be damaged’.

Such sentence reviews should be the exception and not become routine in borderline cases. The attorney general also has to consider whether the appeal court is likely to increase the sentence and whether that would be in the public interest. On this basis, the home secretary’s complaint that Craig Sweeney’s minimum life sentence tariff of five years and 108 days did ‘not reflect the seriousness of the crime’ does not sound like the ‘error of principle’ Lord Lane envisaged. He seems instead to have just disagreed with Judge John Griffith Williams.

Lord Goldsmith’s success in persuading the appeal court to increase the minimum term of the life sentence on the rapist of a baby from six to eight years illustrates the point. The appeal court ruled that the absence of any remorse in Alan Webster justified the higher term even though he – like Sweeney – got a one-third discount for pleading guilty.

Sentencing guidelines
How do such offences result in what most people would see as unreasonably lenient sentences? David Cameron, leader of the Conservative Party, blamed it on the sentencing guidelines for the 2003 Criminal Justice Act and called for a review of legislation. Sweeney was actually sentenced to life with an 18-year tariff. However, rules that were brought in by the act then came into play:

  • The offender pleaded guilty at the first opportunity, so the judge was required to reduce the prison sentence by one-third, bringing the tariff down to 12 years.
  • The offender is allowed to apply for parole after serving half of the sentence, bringing  it down to six years.
  • The offender is entitled to ask for the time he spent on remand to count towards his sentence and the judge had no grounds to refuse this, bringing it down to five and a bit years.

Tightening the parole system As the debate progressed, John Reid announced his intention to review the parole system and the issue became a party political ping pong ball, with each side blaming the other for introducing pieces of legislation and guidance on sentencing and tariffs.

Tony Blair said; ‘Since April 2005, 1,000 indeterminate sentences have been given, six have been considered for parole, none have been parolled.’

He announced that Mr Reid would be bringing forward ‘further measures’ and said to David Cameron: ‘Then we will have a chance to see whether you and your colleagues are prepared to back their tough talk by changing the habits of opposition and voting for the legislation that actually does the job.’

The Liberal Democrat home affairs spokesman, Nick Clegg, said: ‘The fact that these offenders have been released into the community after only a few years in prison is a direct consequence of government policy.

‘It is no good ministers trying to blame the judiciary or parole boards for decisions which fall squarely with the government itself.’

As the debate went on the Home Office released figures showing that 53 prisoners sentenced to life since 2000 have already been released on licence, fuelling concern over the minimum tariffs being set by the courts.

But recent prison service figures show that the average time spent in prison by mandatory lifers is now 14 years – far higher than a decade ago.

The Sweeney case is expected to accelerate a review, chaired by the lord chief justice, of the sentencing rules that permit judges to give a discount of up to one-third in sentencing offenders who plead guilty at an early stage.

It is expected to say that in cases where the prosecution evidence is overwhelming or the defendant was caught red-handed the discount should be cut.

Is this debate useful?
Paedophilia and other serious crimes will always generate anxiety. The flames are fanned by selective media reports and statements by opportunistic politicians. The public are often left without the full facts – for instance, how many of us noticed that Sweeney was in fact convicted for sexual abuse, which in general carries a lower sentence, rather than rape. The press reports on the Sweeney case focused on the fact that he would be able to apply for parole after five years, causing public outrage, despite the judge and the attorney general saying that it was very unlikely that his request for parole would be granted. These scare tactics gave rise to the next issue.

How should sex offenders be managed in the community?
Sentencing sex offenders to longer prison spells may in the short term pacify the public. However, the fact remains that paedophiles do come out of prison and live in the community. In June John Reid set off a new debate about the management of offenders he announced he was sending prisons minister Gerry Sutcliffe to the US to study  ‘Megan’s law’, which gives parents the right to know if a paedophile is living nearby.

Calls from Sara Payne, whose eight-year-old daughter Sarah was murdered in Sussex in 2001, for a similar law to be introduced in Britain were rejected by previous home secretaries for fear of triggering vigilante attacks on released sex offenders. But Reid told the News of the World newspaper, he believed that ‘information should no longer remain the exclusive preserve of officialdom’.

Different versions of Megan’s law were introduced across the United States nine years ago (see below).

Critics say that as a result of Megan’s Law only 80% of released offenders comply with registration requirements in the US, compared with 97% in Britain. Senior probation sources have also warned that ‘controlled access’ by parents and schools to the home addresses and other personal details of released child sex offenders could lead to ‘lynch mob law’.

Downing Street played down the prospect of the law being carbon-copied to the UK as it highlighted the ‘genuine difficulties’ of releasing more information to the public on the whereabouts of paedophiles.

The prime minister’s spokesman said: ‘The important thing and the difficult thing in this is to get the balance right between, on the one hand, protecting the public and giving the public as much information as possible, and on the other making sure that you don’t have vigilantes.’

At present the multi-agency public protection panels decide on how released paedophiles should be supervised and what information can be shared, with whom, and how. Information is disclosed on a strict ‘need-to-know’ basis. 

Users of the registry are warned that public access to registry information is intended solely for the protection of the public, and should never be used to threaten, intimidate or harass another.

Throughout this debate newspapers have suggested that the public want and have a right to know where sex offenders are and suggest that there are few controls. These scare tactics do not help the debate.

At the moment registered sex offenders are supervised by public protection officers and the probation service. These services do know where they are and the MAPP (Multi Agency Public Protection) system allows agencies to decide together when, how and to whom it should be disclosed. The fear for most agencies is that laws such as Megan’s law, will drive offenders underground where they will be totally unmanageable and much more dangerous.

Sex offenders in hostels The most recent development in this whole debate has been the removal of sex offenders from community hostels that are near schools or other places where children congregate. Near the end of June, 70 paedophiles were unexpectedly moved out of 11 probation hostels close to schools across England and Wales.

The Home Office said hostels for released prisoners near schools would now operate a restricted admissions policy excluding sex offenders.

Harry Fletcher of Napo, the probation union, said there was no evidence that sex offenders in hostels had preyed on children in local schools. ‘Virtually all hostels are in residential areas. The advantage of a hostel is that we can maximise supervision and moving them to different locations can jeopardise those plans. They will be in therapy programmes that are going to be disrupted,’ said Mr Fletcher.

A Home Office source revealed to the Observer newspaper that the 70 affected offenders were now being housed either in voluntary hostels run by church groups or in bed and breakfast accommodation. ‘There’s little option because of a shortage of specialist accommodation units,’ the source said.

Probation experts warned that in both types of accommodation the level of supervision of sex offenders is not as high as that in specialist hostels.

Lack of treatment
A number of charities have raised the point that while the debate about sentencing and the management of offenders in the community continues there remains a serious lack of treatment centres for children and young people who have been sexually abused.

Megan’s law
Different versions of Megan’s law have been introduced in 50 US states. At its most basic, Megan’s law allows parents and public bodies to access registry information in respect of sex offenders.

Fifteen states list offenders’ details on the internet, allowing parents to check if anybody has moved in nearby. In Oregon sex offenders can be forced to display a sign in their window while in Washington state police call at every house in the neighbourhood to warn people when an offender moves in. Critics say that only 80% of released offenders comply with registration requirements in the US as a result of Megan’s law, compared with 97% in Britain.

The register information includes:

  • Information on convicted offenders who have been assessed as high risk of re-offending; some medium risk offenders are also registered but low risk offenders are not.
  • Personal details, such as name, address, aliases, age, race, sex, date of birth, height, weight, hair, eye colour and any distinguishing scars or tattoos; a photograph of the offender and the date on which the photograph was entered in the registry.
  • A general description of the offender’s modus operandi, if any.
  • The determination of whether the risk of re-offending by the offender is moderate or high.
  • The make, model, colour, year and licence plate number of any vehicle operated by the offender.