Sentencing Historic Sex Offences

The Sentencing Children and Young People guideline is now a widely utilised mechanism for approaching youth offenders. However, this guideline is also essential to consider when an adult is being tried for historic sex offences, carried out in his or her childhood. In approaching sentence for these individuals, counsel must consider the overarching Sentencing Children and Young People guideline and review useful authorities offering guidance on how to address historic offending perpetrated when the Defendant was a youth.

Where an adult falls to be sentenced for offences committed as a child, the court is faced with a challenging conundrum. Until 2023, the approach was relatively clearcut. As articulated in R v. Ghafoor [2002] EWCA Crim 1857, “The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence.” [31] In essence, the judge must always consider the convicted adult as the child they were at the time of offending.

However, the new key authority for sentencing adults who were youth offenders is R v Ahmed [2023] EWCA Crim 281. Although the sentiment of Ghafoor remains intact, Ahmed offers a more detailed approach. Paragraph 32 of the judgment provides clarity on more nuanced situations:

“We therefore answer as follows the question posed at the start of this judgment:

1. 1. Whatever may be the offender’s age at the time of conviction and sentence, the Children guideline is relevant and must be followed unless the court is satisfied that it would be contrary to the interests of justice to do so. Judgment Approved by the court for handing down.
   2. The court must have regard to (though is not necessarily restricted by: see (v) below) the maximum sentence which was available in the case of the offender at or shortly after the time of his offending. Depending on the nature of the offending and the age of the offender, that maximum may be (a) the same as would have applied to an adult offender; (b) limited by statutory provisions setting a different maximum for an offender who had not attained a particular age; or (c) limited by statutory provisions restricting the availability of different types or lengths of custodial sentence according to the age of the offender.
   3. The court must take as its starting point the sentence which it considers was likely to have been imposed if the child offender had been sentenced shortly after the offence.
   4. If in all the circumstances of the case the child offender could not in law have been sentenced (at the time of his offending) to any form of custody, then no custodial sentence may be imposed.
   5. Where some form of custody was available, the court is not necessarily bound by the maximum applicable to the child offender. The court should, however, only exceed that maximum where there is good reason to do so. In this regard, the mere fact that the offender has now attained adulthood is not in itself a good reason. We would add that we find it very difficult to think of circumstances in which a good reason could properly be found, and we respectfully doubt the decision in Forbes in this respect. However, the point was not specifically argued before us, and a decision about it must therefore await a case in which it is directly raised.
   6. The starting point taken in accordance with (iii) above will not necessarily be the end point. Subsequent events may enable the court to be sure that the culpability of the child offender was higher, or lower, than would likely have been apparent at the time of the offending. They may show that an offence was not, as it might have seemed at the time, an isolated lapse by a child, but rather a part of a continuing course of conduct. The passage of time may enable the court to be sure that the harm caused by the offending was greater than would likely have been apparent at that time. Because the court is sentencing an adult, it must have regard to the purposes of sentencing set out in section 57 of the Sentencing Code. In each case, the issue for the court to resolve will be whether there is good reason to impose on the adult a sentence more severe than he would have been likely to have received if he had been sentenced soon after the offence as a child.”

A crucial component of this is refraining from applying modern legislation and guidance to historic offences. The Sentencing Children and Young People guideline also clearly stipulates that it is “rarely appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed.” The justification for tempering sentences in this way is succinctly set out in R v. Limon [2022] EWCA Crim 39: “the passage of time does not imbue the appellant with any greater culpability or moral responsibility than he had at the time of the offence.” [30]

However, the court must have mind to ensuring that the sentence is just. To take directly from Ahmed, the starting point should not (and will not) necessarily be the end point. Evidently, neither the passage of time, nor the introduction of new legislation and guidelines should imbue the Defendant with higher culpability or necessitate a more stringent sentence. Crucially however, youth at the time of offending does not obviate the purposes of sentencing and the harm sustained by years of prolific abuse.

A more refined and considered approach was demonstrated very recently in R v. Legg [2025] EWCA Crim 258:

1. 1. The Court of Appeal held that a sentence of 5 years and nine months in detention was unduly lenient. D had committed 13 serious sexual offences against three victims aged 4-14 whilst he was 11-15.
   2. Crucially, the sentencing judge had reduced the sentences without appropriate consideration of the harm and the dangerousness of the now 19-year-old offender. Citing Ahmed, the court held that the sentencing judge had not effectively balanced the different factors at play.
   3. At paragraph 30, the Court of Appeal posited that: “When deciding, however, how the fact that multiple victims were involved should be reflected when considering totality, it is not so clear that a significant reduction is always required. The offending has damaged the lives of three people and the sentence must reflect that. In the end, the court has to test the overall sentence to ensure that it is just and proportionate with the offending as a whole.”
   4. Legg therefore warns against placing too much weight on youth and immaturity in the face of serious offending.

The case of R v. LP [2023] EWCA Crim 1077 has an interesting fact pattern whereby the abuse took place both as an adult and a child. In LP, the Defendant was aged between 11 and 21, whilst the complainant was aged between 3 and 13. The twenty-count indictment included multiple instances of Indecency with a child, contrary to s.1(1) of the Indecency with Children Act 1960. Further, the Defendant was also convicted of Indecent assault, contrary to s.14 of the Sexual Offences Act 1956. The Court of Appeal referred to Ahmed at paragraph 32 and rejected the applicant’s assertions: first that the Recorder had erred in imposing custodial sentences in excess of the maximum and, second, not adequately considering D’s youth and immaturity. Ultimately, given the factual matrix of this case, the Court of Appeal held that a total sentence of 10.5 years custody was not excessive.

To conclude, when approaching sentence for cases such as these, it is the role of both Prosecution and Defence counsel to ensure that the judicial balancing exercise is fully informed. Highlighting the particularised factors in Ahmed will edify the court and, building upon this with factually similar authorities, will assist a sentencing judge in landing upon the fairest possible outcome.

By Hannah Tickle