Forbes & Ors v REGINA

Factual and Procedural Background

This opinion concerns a series of appeals related to sentencing for historic sexual offences committed between the 1960s and 1990s. The appellants were convicted of various sexual offences against children and young persons, with offences occurring in multiple contexts including familial relationships, educational settings, and positions of trust such as scout leadership and clergy. The cases were heard by the Crown Courts and subsequently appealed to the Full Court. The opinion addresses the application of sentencing principles and guidelines relevant to historic offences, particularly considering changes in statutory maxima and sentencing practices over time.

Legal Issues Presented

1. How should sentencing courts apply current sentencing guidelines to historic sexual offences where statutory maxima at the time of offending differ from modern maxima?
2. What is the appropriate approach to selecting equivalent modern offences for sentencing historic offences?
3. How should courts assess aggravating and mitigating factors such as abuse of trust, immaturity, passage of time, and good character since the offences?
4. What is the impact of Article 7 of the European Convention on Human Rights regarding retrospective application of heavier penalties?
5. How should defective counts or errors in indictments be treated in historic sexual offence cases?
6. What is the proper application of s.236A of the Criminal Justice Act 2003 concerning additional licence periods?

Arguments of the Parties

Appellants' Arguments

• Sentences imposed were manifestly excessive given the lower maximum penalties available at the time of the offences.
• Sentencing judges applied current guidelines in a mechanistic way without sufficient regard to historic statutory maxima.
• Consecutive sentences were sometimes improperly imposed for offences forming part of a continuous course of conduct.
• Youth and immaturity of offenders at the time of offending warranted greater mitigation.
• Good character since the offences and the passage of time should have been given more weight as mitigating factors.
• Errors in indictment drafting, including defective counts and mis-specified offences, prejudiced sentencing and convictions.
• Article 7 ECHR prohibits imposition of heavier penalties than those applicable at the time of offending, especially where custodial sentences were not available for young offenders.

Prosecution's Arguments

• Courts should select applicable current sentencing guidelines for equivalent offences and sentence accordingly, capping sentences by historic statutory maxima.
• Sentencing should reflect the seriousness of the offences, including aggravating factors such as abuse of trust and harm caused, regardless of passage of time.
• Errors in indictments should be rectified where possible to uphold convictions and proper sentencing.
• Article 7 does not prevent imposition of custodial sentences where such sentences were available at the time of offending.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by restating the general principles established in R v H and annex B of the Definitive Guideline on Sexual Offences, emphasizing that sentencing for historic offences must be conducted according to the current sentencing regime but capped by the maximum penalty available at the time of the offence. The court rejected a mechanistic application of modern guidelines, requiring a "measured and reflective" approach that takes into account the lower historic maxima.

The court analyzed the concept of "abuse of trust," clarifying it requires more than mere association or familial relationship and must be justified by the facts. It highlighted the importance of assessing offender culpability and harm caused, avoiding double counting of aggravating factors, and considering immaturity as a factor influencing culpability rather than as a distinct mitigation.

Regarding Article 7 of the European Convention on Human Rights, the court held that imposing custodial sentences on offenders who could not have received such sentences at the time of offending would violate the prohibition on heavier penalties. This led to a refusal to impose custodial sentences in such cases, as with the appellant BD.

The court addressed errors in indictments, emphasizing the prosecution’s duty to draft charges carefully to reflect criminality and enable appropriate sentencing. It ordered corrections where procedural errors occurred but recognized limits on appellate intervention, especially concerning licence periods under s.236A of the Criminal Justice Act 2003.

In applying these principles to individual appeals, the court carefully balanced aggravating and mitigating factors, including passage of time, offender maturity, harm to victims, and offender conduct since the offences. It adjusted sentences where totality or procedural errors warranted, but overall upheld sentences where they were proportionate to the gravity of offending and the harm caused.

Holding and Implications

The court's final decisions varied by appellant but collectively:

• Dismissed appeals where sentences were found not manifestly excessive after appropriate adjustment for historic maxima and offender culpability (e.g., Forbes, Clark, McCallen, Rouse, Farlow).
• Allowed appeals where sentences were excessive due to failure to properly apply totality, incorrect selection of equivalent offences, or procedural defects (e.g., Warren, Tarrant, BD).
• Clarified that Article 7 ECHR prohibits imposition of custodial sentences for offences committed by offenders who could not be lawfully sentenced to custody at the time of offending.
• Emphasized the necessity for prosecution diligence in indictment drafting to avoid defective counts and ensure accurate reflection of criminality for sentencing purposes.
• Confirmed that appellate courts have limited power to correct licence periods under s.236A CJA 2003 when appeals are dismissed.

The decisions reinforce the principle that historic sexual offence sentencing must carefully balance respect for current sentencing standards with the legal constraints imposed by historic statutory maxima and human rights considerations. No new binding precedent was established beyond the reaffirmation and application of existing principles.