Posted on 18th August 2015

Data released from the Ministry of Justice last week demonstrated that sentences for sexual offences had increased in the past twelve months by an average of 4.5 months. What are the reasons behind this and is it part of an upward curve?

Two factors have clearly played a part in this increase, Operation Yewtree and the sentencing guidelines for Sexual Offences effective from 1st April 2014.

Operation Yewtree was the police investigation into historic sexual offences committed by, amongst others, high profile public figures from the seventies and eighties. The publicity from the operation has provided reams of column inches in newspapers, it has raised the taboo subject of sexual offending towards young women committed by those who knew them. This publicity has led to a huge increase in the reporting of historic sexual offences, and the cases that are charged tend to be to be the more serious offences of rape and assault by penetration rather than more minor indecent assaults. The more serious offences carry higher sentences thus as more of those type of offences come through the courts rather than simple indecent assaults the average sentence is pushed higher.

Judges have also been using the new Sentencing guidelines, effective from 1st April 2014, these guidelines replaced earlier ones in force and recognised just how serious offences of a sexual nature were and how defendants ought to be punished appropriately. Thus for any offender who committed an offence under the old legislation they now fall to be sentenced with the new guidelines in place, under some parts of the Sexual Offences Act 1956 the old maximum sentence used to be 2 years imprisonment, for example for Indecent Assault. Judges sentencing for these offences though can now take account of the new guidelines and lengthier sentences advocated by those guidelines, thus whilst the maximum sentence may have been two years Judges have been imposing consecutive sentences, as in the case of Max Clifford, or Rolf Harris, to ensure that the total sentence reflects the serious and continuing nature of the abuse. This relatively new sentencing practice has been reviewed and approved by the Court of Appeal.

For those who have committed offences under the new legislation the guidelines are stringent, a rape with no aggravating features as defined by the guidelines has as a starting point 5 years imprisonment, once any aggravating feature is identified sentences can range up to a 15 year starting point for a man of good character after trial. This is a significant increase from old sentencing practice. Furthermore because the guidelines are prescriptive there is less variance amongst Judges, there is a relatively narrow band of sentences which can be imposed thus there is less inconsistency as between different court centres.

The report from the MOJ also highlights an increased conviction rate, again in part this is likely to have been influences by Operation Yewtree, there is an increased awareness about the reporting of sexual offences and a greater education which has led to the destruction of certain myths and stereotypes about complainants in sexual offences. Previously defence advocates were allowed to suggest to complainants that their race allegation was false because they didn’t scream, or fight back, or hadn’t reported the matter right away, now jurors are told that there is no typical reaction by an alleged victim of rape and the jury must not assume that because someone has not screamed they have not been the victim of a rape. Simple directions like this have helped to debunk old stereotypes and in turn it has led to a higher conviction rate for sexual offences.

It remains to be seen whether this upward trend will continue or if it is a spike reflecting the current publicity, but if that publicity has allowed complainants who have previously remained silent to find their voice and speak up then that can only be regarded as a positive.

Written by Michelle Heeley, Criminal Barrister at No5 Chambers.

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