On 14th January 2014 Stuart Kerner was sentenced to a prison sentence of 18 months, but suspended for 18 months, for two charges of sexual activity in breach of trust.
Cue complaints to the Attorney-General Jeremy Wright QC, who acted swiftly –
And later that same day gave a promise –
Before having to backtrack the next day when it transpired that Mr Kerner’s offence was not one that could be the subject of an Attorney-General’s Reference.
But all was not lost – the AG promised to look into it –
Is this sailing too close to the wind? An AG is a law officer and, whilst a politician, this appears to be a bit too political for most sensible people –
If you want to add to the offences, the Home Secretary can lay a Statutory Instrument that will take effect unless annulled (s34 Criminal Justice Act 1988). Just for information, the last time this was done was last year when The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2014 was made. This added a new offence of holding someone in slavery to the list of offences that were important and/or serious enough that the AG should have the power to appeal a sentence that appeared unduly lenient.
This came into force on 21st July 2014 when a new man had just got his feet under the most important desk at the Law Officers office – Mr Jeremy Wright QC. Presumably he read this, it is a shame he didn’t check whether any other offences should be on the list*.
*there are actually very good reasons that the offence under s16 Sexual Offences Act 2003 weren’t included in the list originally – it would not appear to be an oversight. When AG References were brought in, they were controversial. The general rule being that there should be finality in proceedings and that it is unfair on an individual to be re-sentenced to a higher sentence. For this reason, and although the principle itself may not be controversial any longer, the same concerns apply.
For that reason, AG References aren’t available for all offences – only the most serious ones where the public confidence in the judicial system would be undermined if unduly lenient sentences were allowed to stand. Looking at the list of offences, the maximum sentences for them are life, 14 years or 10 years (with the exception of some historic sexual offences which would today have a maximum sentence of 10 years plus).
The s16 offence is different. The maximum sentence is 5 years, so it is a lot less serious. This is because it involves circumstances where there is consent given by the victim, and this consent is given by someone over the age of consent. The offence is committed because of the breach of trust where Parliament has decreed that the consent is of no legal effect in those circumstances.
In light of that, it seems to me that when s16 was left off the list, this was a deliberate decision rather than an accident. However, I’m sure it will fine itself onto the list pretty soon …