Neutral Citation Number: [2011] EWCA Crim 1300
Case No: 2011/1778/A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 12 May 2011
 
B e f o r e:

THE VICE PRESIDENT
(LORD JUSTICE HUGHES) 

MR JUSTICE RODERICK EVANS 

MR JUSTICE BEATSON 
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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

ATTORNEY‑GENERAL'S REFERENCE NO 18 OF 2011   
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr E Garnier QC, the Solicitor General, appeared on his own behalf together with Mr M Heywood QC  

Mr M Procter appeared on behalf of the Offender 
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J U D G M E N T 

1.	THE VICE PRESIDENT:  Her Majesty's Solicitor General seeks leave to refer under section 36 of the Criminal Justice Act 1988 an extended sentence of 10 years (six years custodial and four years additional licence) which was passed on a woman for sexual offences involving a boy of 12 to 13.  We make it clear that the boy in question is entitled not to be identified, not only directly but also indirectly by any report of either the proceedings below or the proceedings here.  That means that he cannot be identified, for example, by way of his family or his relationship with the defendant.
2.	The woman defendant was at the time a woman of 31.  She was married, although her marriage had broken down, and she had female children not far different in age from the boy who was the victim of these offences.  She was still living in the same house where she had lived with her husband and family, but she was sleeping in a caravan in the garden with a new boyfriend.  
3.	The boy concerned was the son of family friends.  Between about the end of May 2009 and about the middle of September of the same year, the defendant initiated and then continued a fully sexual relationship with him.  He passed his 13th birthday shortly after the first incident and the offences continued for about two to three months after his 13th birthday, so that there was a single incident before he was 13 and a number afterwards.
4.	Their association was kept secret in a sense but it was imperfectly clandestine.  Several others noticed the apparent familiarity between them and at least four people, including the boy's mother and the defendant's own boyfriend, commented on appearances to the defendant.  She was thus not without warning.  She brushed the warnings off.  She nevertheless continued the relationship and it seems to have induced her to live dangerously and recklessly, as does sometimes happen in the case of illicit sexual relationships.  
5.	The behaviour, however, was brought to an end in about September 2009 and, independently of that, the association between the families came to a conclusion after a shared holiday the following month, October.  It follows that it was not discovery which brought the offences to an end.  That happened about six months later in the spring of 2010 when the boy's mother fell into conversation with another adult who had seen signs of what was occurring.  The result of that was that the boy had to be confronted and he confessed to his parents.  The defendant was taxed by the police with what she had done, but she insisted that it was all false.  She maintained a similar stance at trial which undoubtedly deprived her of what would have been much the best mitigation available to her if she had felt able to confess what she had done.  If she had, she could have demonstrated regret for her behaviour and, much more, she could have avoided the stress, tension and unpleasantness of a trial in which the boy had to give public evidence, had to be challenged with the suggestion that he was lying and no doubt his parents had to sit and listen.
6.	There is no doubt that the boy was a fully consenting party to what went on.  He was however of course at an age when the defendant had no business whatever encouraging him or even allowing him to do so.  As to the impact on him, he does appear to have suffered some psychological harm, not directly from the offences but from the consequences of discovery, by the anxiety caused to his parents, by the necessary police enquiry and, because the matter was contested, by the trial process.  The consequence for him was of course a premature introduction to sexual activity in the course not of an equal relationship but of a relationship which was exploitative.  We accept that the residual possibility of latent impact can never be ruled out in these cases, but the indications are that he has coped resiliently with it, his school performance is good and his relationships appear to be fully satisfactory.
7.	We agree that this offending had aggravating features.  
1.  A large age disparity.  18 years.  The defendant was well aware of it.  She knew the family well.  She knew exactly how old the boy was.  She had children of her own.  
2.  A significant element of breach of trust in a particular sense.  This was not the kind of case, which is worse, where a child is committed to the care of an adult and the adult exploits the opportunity for sexual purposes.  But the families were friends and each was used to their children being in the care of the other.  That was the trust between the parents which the defendant flouted.  
3.  This was an exploitative and unbalanced sexual experience for this boy.  
4.  There was a quite marked effect upon the boy's mother.  She became ill through distress at learning what had happened and, no doubt, as a result of the strain of the investigation and trial process.  Moreover, it would appear that the defendant was at some points blaming mother for what she was saying were false allegations, although they were in fact true.  That can only have added insult to injury.  
5.  The boy was encouraged by the defendant to miss school from time to time in order to meet her for sexual trysts.  It is right to say that she did not, it seems, initiate his truanting because he was missing school at least as often, if not a little more so, before the association began.  Nevertheless, as an adult she encouraged him in this misbehaviour which was very much against his own interests.  Those, as it seems to us, are the aggravating features of the case.  Given that the defendant was convicted of six counts over four months, all involving full sexual intercourse, we do not in this case think that the other sexual familiarities which accompanied it make the offending worse.  We also note that the defendant had a job at a primary school as a playground assistant but that was irrelevant to what she did.  She did not know the boy through her job.  
8.	As against that, there were some features tending to mitigate the offences.  
1.  The defendant was of good character.  Others who knew her spoke well of her and of her willingness to help other people.  
2.  There was absent any element of coercion.  If it had been present the offending would obviously have been worse.  
3.  The defendant herself was described by the probation officer who assessed her as apparently immature and somewhat child‑like in approach.  
4.  The offending ended before it was discovered.  
It needs to be pointed out, however, that this is not one of those cases where the defendant was absent a full adult relationship at the time.  She was in one.
9.	The probation officer concluded that at least until some work was done with the defendant there remained a significant risk that she might misbehave similarly in the future.  Given her immaturity and reckless behaviour, the risk taking and her denial, together with the fact that she had seduced a boy of this age, those are conclusions which the judge, as it seems to us, rightly accepted.  The result of that was an extended sentence and the prolonged supervision which comes with it will last until this defendant is into her forties.  So it should.  Moreover, the custodial sentence is of the kind of length which will allow ample opportunity for her to receive the programme designed for female sexual offenders.  It may not generally be known how demanding and frequently effective that and similar programmes are.  They are very challenging.  They confront in offenders things which most people are very much happier not to have to think about and they are frequently effective.  
10.	It follows that an extended sentence was an entirely appropriate way of managing the risk and it is likely that in any event as time goes by the risk will diminish considerably, however immature she may be, once she has served a lengthy sentence in prison as a result of behaving as she did.
11.	The challenge to the judge's sentence is accordingly not to its nature but as to the custodial element of six years.  Says the Solicitor General, that is below the acceptable bracket.  The critical submission which the solicitor general makes is that Parliament has explicitly adopted a watershed of age at the passage from 12 to 13.  That, says the Solicitor General, may be an arbitrary age but it is one deliberately selected and all offending under the age of 13 carries, he says, a sentence significantly above the sentence passed in this case.  He asserts that there is nothing wrong with the concurrent sentences of five years imposed for the offences committed after the boy's 13th birthday.  However, for the single offence just before he was 13, he contends that something like nine years would be appropriate and anything significantly less is unduly lenient.
12.	We agree that Parliament has set a watershed at 13 for the purposes of defining offences.  We agree that an age has to be selected below which consent, however real in fact, is irrelevant to the commission of the offence.  It does not in the least follow that sentencing must be fundamentally different as between an offence committed a day or two before a victim's 13th birthday and an identical offence committed a day or two afterwards.  Indeed, if there were to be the kind of fundamental distinction between the sentence for those two offences which is suggested, we are satisfied that the sentencing would be unjust, unfair and irrational.
13.	This court dealt with a similar age watershed question in R v Peters & others [2005] EWCA Crim. 605; [2005] 2 Cr.App.R (S) 101, there in the context of the watershed relating to the age of the defendant to be found in Schedule 21 of the Criminal Justice Act 2003 in cases of murder.  Sir Igor Judge P (as he then was) observed of the proposition that sentence must leap dramatically the day the watershed is passed that "sentencing decisions cannot be prescribed by such accidents of time." Exactly the same applies to the critical submission made by the Solicitor General in the present case.  
14.	The judge was very well aware of the guidelines set by the Sentencing Guidelines Council for sexual offending.  He knew perfectly well that for offences under the age of 13 the guidelines collect together offences which are without consent and those which are with actual consent, and that the relevant guidelines suggest either a bracket of about five to ten years or in more serious cases much longer period.  He also knew that the same guidelines suggest a general range at a much lower level, between three and seven years, for offences committed in relation to children over 13.  The Solicitor General realistically and correctly accepts that the ranges and boxes provided by the Council, doing the best that the Council can, inevitably leave cases, perhaps many cases, which fall between the stalls.  But he nevertheless contends that there must be the kind of fundamental distinction for which he contends, wherever there is even a single offence committed against a boy under 13, however close to his birthday he may be.  The judge took a different view.  The judge examined the guidelines.  He did his best to apply them intelligently to the fact of this case.  He did pay attention to the fact that the first offence was committed only just under the age after 13 and that most of this offending was after 13, and he did his best to synthesize the two different sets of guidelines applying to those different general situations.  He concluded that the two sets must bear sensible relationship to one another.  
15.	We have no doubt at all that the judge's approach was that right one.  His sentence of six years was not only in our judgment not unduly lenient; in our view it was absolutely correct.  This was a first sentence of considerable length for a woman who had behaved extremely badly but otherwise was of good character.  Its impact is inevitably going to be very severe, and so it should be.  But it is a sentence of no small length and it is extended, as we have said, by the additional licence period into her forties.  In those circumstances, we refuse leave to refer this case to us and we do not in consequence alter the sentence.
16.	A quite separate and entirely technical question of some general significance arises in relation to the inevitable disqualification of the defendant from working with children.  Prior to 2006, disqualification was governed by the Criminal Justice and Court Services Act 2000.  Section 28, as is well‑known, created a mandatory duty on a court to make a disqualification order when the offence was a qualifying offence ‑ see section 28(2)(a) and (4).  There was a limited exception in section 28(5) to which we need not refer.  The consequence of such a disqualification order was, and is, that a defendant is unable to work in what is described by the statute as a regulated position ‑ see section 35.  The particular work which falls within the notion of regulated position is defined in section 36.  The consequences of disobedience to such an order are criminal.  It is a criminal offence carrying up to five years' imprisonment on conviction on indictment.  
17.	In 2006 a new statute, the Safeguarding of Vulnerable Groups Act, set out to replace the scheme under the 2000 Act with a new one.  The 2006 Act has been the subject of repeated repeal and amendment but in essence its new scheme involves a separate organisation, originally called the Independent Barring Authority and now called the Independent Safeguarding Authority ("ISA").  What used to be called "disqualification" is now called "barring".  It is achieved under the new Act not by order of the court but by act of the ISA which maintains what are called "barred lists".  There is a good reason for this because the ISA's remit extends well beyond persons who have been convicted of sexual offences.  There are other reasons why people should be prevented for good reason from working with children.  However, it does apply to convicted persons and in their case the new procedure is this.  The Secretary of State is enabled by the statute to set out criteria by which he assesses people who present a relevant risk.  The Act contemplates by schedule 3, paragraphs 1 and 2, that some criteria will result in what is called automatic reference to the ISA and automatic inclusion on the barring list which the ISA keeps, whereas other criteria will lead to a reference to the ISA requiring of it that it give the opportunity for representations to be made by the person concerned.  The Secretary of State has prescribed such criteria.  He has done it by means of the Safeguarding of Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, SI 2009 No 37.  There is a very long list of qualifying convictions and in essence qualifying sexual offences result in automatic reference by the Secretary of State to the ISA and automatic inclusion by the ISA on the relevant barring list.
18.	The effect of being on the barred list is, under the new scheme, that the person in question is prevented from engaging in what this statute calls "regulated activity" ‑ see section 3(2).  Regulated activity is then defined in schedule 4 part 1.  Once again, a criminal offence of disobedience to the barring is created.  The important thing to recognise is that although there is an enormous overlap between what was prevented under the 2000 Act scheme and what is prevented under the 2006 Act scheme, the activities prevented are not identical.  We have been told on behalf of the Solicitor General that it is at least possible that there are some activities which are prevented by scheme A but not by scheme B or for that matter vice versa.  There probably are not very many but there may be some.  
19.	Under the 2006 Act scheme there is accordingly no occasion for the court to make any order at all.  The Secretary of State deals with it by referring the convicted person to the ISA.  Instead the duty on the court is simply to tell the defendant that that is what will happen.  That is provided explicitly in the Act in schedule 3, paragraph 25.  
20.	The difficulty arises, as so often in modern legislation, from piecemeal commencement and the obscure terms of a commencement order.  The relevant commencement order is the Safeguarding of Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings) Order 2009, SI 2009 No 2611.  The relevant provision is paragraph 3(2) which reads as follows:  
"(2) The provisions of CJCSA referred to in paragraph (1) shall cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is barred from regulated activity by virtue of section 3(2) of the Act."
The question which that paragraph leaves unanswered is this.  If after the relevant commencement date, which was 12th October 2009, a defendant is convicted of a relevant sexual offence and will inevitably as a result be referred by the Secretary of State to the ISA and will inevitably be placed by the ISA on the barred list, is the court still governed by section 28 of the 2000 Act so that it must make a disqualification order?  One possible construction of the paragraph is that the court does remain under a duty to make the disqualification order because at the moment that the court passes sentence the barring process has not yet been completed and so the person in question is not yet barred.  That appears to be the view taken by at least one distinguished academic commentator who is experienced in examining the intricacies of sentencing legislation, Dr David Thomas.  The alternative view is its transparent purpose of the statute to replace the 2000 scheme by the new 2006 scheme and that what paragraph 3(2) must mean is that where the defendant is inevitably to be barred under the new scheme, the duty to make a disqualification order under the old scheme no longer arises.  That is the view taken by the learned editors of Archbold.  Judges are entitled to know which is right.  
21.	We have been very much assisted by submissions made by Mr Heywood QC on behalf of the Solicitor General.  He invites us to consider the apparent wording of the paragraph and he draws attention to the expression "a person who is barred" which we agree on the face of it does not seem to apply to a defendant such as this defendant, although it will do within a week or two or perhaps at most two or three months, when the process as between the Secretary of State and the ISA has been gone through.  
22.	The difficulty with that construction is twofold.  First, it transparently does not give effect to the plainest possible Parliamentary intention which Mr Heywood agrees is plain, namely that the 2006 Act should replace the 2000 Act in this respect.  Secondly, if that is the meaning of paragraph 3(2) then the effect will be this.  The court will be required to make a section 28 2000 Act disqualification order.  Two weeks or two months later the process required by the 2006 Act will take place and the ISA will incorporate the defendant onto the barred list.  Thereafter the two forms of disqualification will run concurrently, but they are not necessarily the same because, as we have said before, there exists the possibility that some conduct is prevented by one but not by the other.  It is true that the criminal sanction of imprisonment will not, it seems, be applicable to such a person under the 2000 Act scheme once that person is included on the barred list.  That appears to be the effect of paragraph 3 of the Commencement Order read as a whole, so that any prosecution thereafter would have to be under the 2006 Act and there would not exist the risk of double prosecution.  But prosecution apart, any defendant is entitled to know or to be able to be advised on what he or she can or cannot do.  We do not believe that it can possibly have been the intention of Parliament or those framing the commencement order that there should continue to exist indefinitely a section 28 disqualification which is largely but not entirely dead in the water alongside a 2006 barring.  There would be real difficulties for a defendant if that was so because, prosecution apart, there may be a number of occasions on which it is necessary for such a person to answer questions about what he can or cannot do, particularly on official or employment documents. 
23.	For those reasons, we are persuaded that in order to give effect to the transparent Parliamentary intention, the proper reading of paragraph 3(2) of the commencement order should be that the elliptical expression "who is barred" should be read as meaning "who is or is to be barred" under the 2006 Act.  The result of that is that the court in such a case need no longer make a section 28 2000 Act disqualification order.  Instead what it should do is to tell the defendant, as required by schedule 3 paragraph 25 of the 2006 Act, that he will be included by the ISA on the barred list.  We have no doubt that that gives effect to the Parliamentary intention.  
24.	In this case, confronted by the disagreement between commentators to which we have referred and which is entirely understandable in the face of the obscurity of the legislation, the judge did both.  It was not in the end necessary for him to do so, but we say nothing more than that the order under section 28 was unnecessary and in future cases need not be made.  We are very grateful for all concerned for their assistance in this case.