Attorney General Reference No 18 of 2011

A statutory age threshold defining sexual offences does not require a fundamentally different sentence for otherwise identical conduct occurring immediately before and after that threshold. Sentencing must remain just, rational and proportionate to the whole course of offending. Courts should apply relevant guideline ranges intelligently and ensure that adjacent ranges bear a sensible relationship to one another.

On the transitional child-protection scheme, the former court-ordered disqualification regime is displaced where a convicted person is or is to be barred under the replacement scheme. The court should give the statutory notification of barring rather than make a redundant disqualification order.

The Solicitor General sought leave to refer as unduly lenient an extended sentence of 10 years, comprising six years’ custody and four years’ additional licence. The offender had been convicted of six sexual offences involving a boy aged 12 to 13. One offence occurred shortly before his thirteenth birthday and the remainder afterwards.

The reference challenged only the six-year custodial term. It contended that the statutory distinction between victims under 13 and those aged 13 or over required a substantially higher sentence for the first offence.

A separate technical issue concerned whether the sentencing judge had to make a disqualification order under the former statutory scheme when the offender would inevitably be placed on a barred list under the replacement scheme.

1. Leave to refer was refused. The six-year custodial term within the extended sentence was not unduly lenient and was correct. The extended sentence was an appropriate means of managing the assessed future risk.

2. Parliament had selected age 13 as the point below which actual consent does not prevent commission of the relevant sexual offence. That statutory watershed did not require sentencing to change fundamentally where an otherwise identical offence occurred a day or two before, rather than after, the victim’s thirteenth birthday. Such a result would be unjust, unfair and irrational.

3. The sentencing judge had properly synthesised the guideline ranges for offences against children under 13 and those against children aged 13 or over. The court applied the reasoning in R v Peters & others [2005] EWCA Crim. 605: sentencing cannot be dictated by accidents of timing at an age threshold. The overall pattern of offending, its aggravating and mitigating features, and the relationship between the guideline ranges remained material.

4. On the separate statutory issue, the new barring scheme under the Safeguarding of Vulnerable Groups Act 2006 was intended to replace the former disqualification-order scheme under the Criminal Justice and Court Services Act 2000. A literal reading of paragraph 3(2) of the commencement order would create overlapping and potentially non-identical restrictions.

5. To give effect to that intention, the expression “who is barred” in paragraph 3(2) was to be read as “who is or is to be barred”. Where automatic barring will follow, the court need not make a section 28 disqualification order. It should instead notify the defendant, as required by Schedule 3 paragraph 25 of the 2006 Act, that the Independent Safeguarding Authority will place the defendant on the barred list. The order made in this case under section 28 was unnecessary.

• Court of Appeal (Criminal Division) In an Attorney General reference, the court refused leave to refer the extended sentence as unduly lenient and clarified the transitional operation of the child-barring regime: [2011] EWCA Crim 1300.
• Sentencing court The offender was convicted of six sexual offences and received an extended sentence of 10 years, comprising six years’ custody and four years’ additional licence. The court below also made a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000.