L, R. v

Where an adult is sentenced for an offence committed as a child, European Convention on Human Rights Article 7 requires the sentence to remain within the statutory maximum available when the offence was committed. A custodial sentence does not breach Article 7 merely because the offender, by the date of conviction, is subject to a different penal regime.

The narrow exception arises only where no form of custody could lawfully have been imposed when the offence was committed. If custody was then available, its former type, maximum duration and the sentencing court’s historical powers do not limit the present court. The offender’s youth at the time remains relevant to culpability and maturity.

The appellant, aged 51 at conviction, was convicted of two historic indecent assaults on young female relatives. He had committed the offences when aged between 14 and 17. The Recorder imposed concurrent sentences totalling 30 months’ imprisonment, having reduced a five-year starting point to reflect youth.

On appeal, the appellant contended that the sentence exceeded the custodial powers that would have been available had he been sentenced at age 14. It was common ground that some custodial sentence would then have been available. The central issue was whether European Convention on Human Rights Article 7 or common law fairness nevertheless prevented an adult sentence exceeding those historical youth-court powers.

1. Appeal dismissed. The 30-month sentence was lawful. Although the appellant had been a teenager when offending, a custodial sentence was available to a court at that time.

2. The general rule is that the relevant maximum penalty is the statutory maximum for the offence when it was committed. Article 7 prevents retrospective penal changes. It does not prevent the normal operation of an existing sentencing regime which applies because an offender is older at conviction.

3. The court applied the limited exception identified in R v Forbes [2016] EWCA Crim 1388. Article 7 and common law fairness prohibit a custodial sentence now only if no custodial sentence of any kind could have been imposed when the offender committed the offence.

4. Where custody was available at the time of offending, the court must not conduct a wider historical inquiry into the type or maximum length of detention then available, powers of committal for sentence, or former youth-sentencing principles. Those matters do not constrain the current court beyond the statutory maximum for the offence. The offender’s age at offending remains relevant to culpability and maturity.

5. The appellant’s reliance on R v Forbes was therefore misplaced. The seriousness of the offences and their grave, enduring impact also provided no basis to challenge the sentence as excessive.

• Court of Appeal (Criminal Division) dismissed the appeal and upheld the lawfulness of the total sentence of 30 months’ imprisonment.
• Crown Court The Recorder convicted the appellant of two historic indecent assaults and imposed concurrent sentences totalling 30 months’ imprisonment.