REGINA v ANDREW LIMON

For historic offending, Article 7(1) requires the sentencing court to remain within the statutory maximum penalty prescribed for the offence when it was committed. It does not require the court to replicate the sentencing regime, or the maximum period of youth detention, which would then have applied to the particular offender.

However, where an offender has crossed a significant age threshold since committing an offence as a child, the Children guideline remains relevant even after many years. The court should begin with the sentence likely to have been imposed at the time, including the then maximum sentence. A more severe sentence will rarely be appropriate, although it may exceptionally be justified.

The appellant was convicted after trial at the Crown Court at Teesside of eight historic indecent assaults on a child. He committed the offences when aged between 14 and 17, but was aged 41 when sentenced. The Crown Court imposed concurrent sentences totalling four years’ imprisonment.

He appealed on the basis that, when the offences were committed, the youth sentencing regime would have permitted no more than 12 months’ detention in total. He contended that a longer sentence breached Article 7(1) of the European Convention on Human Rights. The appeal also raised whether the Sentencing Council’s Children guideline applied where a child offender is sentenced many years later as an adult.

1. The appeal was allowed against sentence. The court held that Article 7(1) of the European Convention on Human Rights did not prevent a four-year sentence. For historic offending, the relevant ceiling is the statutory maximum prescribed for the offence when committed. The maximum for an offence under section 14 of the Sexual Offences Act 1956 was ten years’ imprisonment. Article 7(1) did not require the court to apply the different youth detention regime which would have governed the appellant if he had been sentenced while still 15 years old.
2. The court followed the approach in R (Uttley) v Secretary of State for the Home Department [2005] 1 Cr App R(S), R v H [2011] EWCA Crim 275, and R v Bowker [2007] EWCA Crim 1608. Article 7(1) does not require speculation about the sentence which would in practice have been imposed at the time of offending.
3. Nonetheless, the judge should have applied the Children guideline. Its principles apply where many years have elapsed between offending in childhood and sentence in adulthood. The passage of time does not increase the offender’s culpability or moral responsibility at the time of the offence. By section 59(1) of the Sentencing Code, relevant sentencing guidelines must be followed unless contrary to the interests of justice.
4. Applying the guideline, the starting point was the likely historical sentence and the maximum then available under the youth regime: 12 months’ detention in total. Although a sentence above that maximum would not itself breach Article 7(1), fairness required the adult sentence to be tempered by that limit. The seriousness and harm of the offending did not provide a good reason to sentence the appellant more severely than he could or would have been sentenced in 1994 or 1995.
5. The court quashed the four-year and three-year sentences on counts 8 and 4 and substituted concurrent sentences of one year. The remaining concurrent sentences stood. The total sentence was reduced from four years to 12 months’ imprisonment, with a consequential reduction of the notification period to ten years.

• Court of Appeal (Criminal Division): By [2022] EWCA Crim 39, allowed the appeal against sentence, quashed the principal sentences and substituted concurrent sentences of one year.
• Crown Court at Teesside: On 25 January 2021, following conviction after trial, imposed concurrent sentences totalling four years’ imprisonment for historic indecent assaults.