Forbes & Ors, R v

Historic sexual offences must be sentenced under the law and current sentencing practice at the date of sentence, while respecting the maximum penalty available when the offence was committed. The current guideline for the equivalent modern offence is a measured aid, not a mechanistic tariff or a basis for constructing a notional historic guideline.

Abuse of trust requires a relationship or circumstance showing more than ordinary familial association or opportunity. Immaturity bears on culpability. Article 7 may prevent custody where no custodial sentence was legally available for the offender at the time of offending; that narrow inquiry does not otherwise reopen historic sentencing practice.

Nine appeals or applications concerning sentences for historic sexual offences were heard together. The offenders had been convicted or had pleaded guilty in Crown Courts to offences committed between the 1960s and 1990s, many against children.

The court considered the proper use of current sexual-offence guidelines where historic statutory maxima were lower. It also considered abuse of trust, youth and immaturity, passage of time, totality, defective indictments, and the effect of Article 7 where an offender had been too young for custody when the offences were committed.

The individual cases raised further issues about consecutive sentences, defective specimen counts, correction of court records, and licence consequences.

1. The court restated the historic-offence sentencing approach in R v H [2011] EWCA Crim 2753. Sentence is imposed under the current regime, but cannot exceed the historic maximum. A judge must have measured regard to the guideline for the equivalent modern offence, adjusted for the historic maximum. The guideline must not be applied mechanically, and no alternative notional guideline should be constructed.

2. “Abuse of trust” requires more than a child being alone with an older relative, neighbour or sibling. It requires a relationship or circumstance properly capable of being characterised as trust, with clear factual justification. Immaturity goes to culpability. In the absence of reliable individual evidence, it is assessed by reference to the ordinary maturity of a person of that age.

3. Article 7 of the European Convention on Human Rights is ordinarily satisfied if the sentence is within the historic statutory maximum. However, where no custodial sentence was legally available for the offender at the time because of his age, custody imposed later is impermissible. That conclusion was also required by common-law fairness and was confined to that exceptional situation.

4. The prosecution must frame counts so that they reflect the criminality alleged. A defective specimen count which does not establish multiple incidents permits sentence for only one incident. Consecutive sentences must also be tested for a just and proportionate total.

5. Warren’s, BD’s and Tarrant’s sentence appeals were allowed. Warren’s total was reduced to seven years, BD’s to three years six months, and Tarrant’s to three years. Forbes’s and Rouse’s appeals were dismissed. Clark’s appeal was dismissed after leave was granted; McCallen’s and Farlow’s applications were refused. In Foulkes’s case, the defective conviction on count 9 was quashed, but no sentencing error was established.

• Court of Appeal (Criminal Division). The court determined nine conjoined appeals and applications concerning Crown Court sentences for historic sexual offences.

• Crown Court. The underlying convictions and sentences arose in separate Crown Courts. No lower-court neutral citations are stated in the judgment.