Alice McBrearty – teacher jailed for sex with her 15 year old...

Alice McBrearty – teacher jailed for sex with her 15 year old pupil

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Photo from the BBC / Met Police

Introduction and Facts

Last week the case of Lavinia Woods raised again the question of whether women get different (meaning more favourable) treatment from the Courts. On 6th October 2017, we saw another case that raises the same question when Alice McBrearty, a 23 year old teacher from East London, was jailed for 16 months for having a 4 month relationship with her 15 year old pupil.

Ms McBrearty sent the victim a friend request on Facebook and quickly became ‘besotted’ with him. Over the four months she kissed him in the classroom and had sex on at least two occasions, again in the classroom and at a hotel that Ms McBrearty had booked. There were 7 counts, although it’s not clear what they all related to.

The relationship ended when the victim’s father contacted the police.

 

Sentence

The Judge accepted that the relationship was factually consensual, but it was still a ‘gross breach of trust’ that required an immediate custodial sentence.

The sentence passed was one of 16 months. Assuming full credit for a plea of guilty, this equates to a starting point of 2 years.

 

Comment

The first point to note is that because of the age of the victim (under 15), there were two offences with which Ms McBrearty could have been charged :

Ms McBrearty was charged with the second of these. On the face of it, this is the more serious (there’s the abuse of trust element) but there is an important (and counter-intuitive) distinction.

That is that whilst the maximum sentence for the s9 offence is 14 years, the maximum for the s16 offence is only 5 years.

Why is that? It is not clear on the face of it, but the reason is that although it applies to victims of any age, it is really aimed at victims aged 16 and 17 – namely where the victim is old enough to consent under the law, but the offence is committed due to the mismatch of power between them.

So, why was Ms McBrearty charged with the less serious offence? That is something we don’t know.

 

The starting point is the Sentencing Guidelines for sexual offences.

For the s9 offence (p45), it is a Category 1 Harm (due to penetration) and Culpability A (due to the breach of trust). This gives a starting point of 5 years, with a range of 4 to 10 years.

But looking at the s16 offence (p67), whilst it is still a Category 1 Harm case, it is probably a Culpability B case, or at least straddling A and B (the breach of trust is not a factor as it inherent in the offence).

Even as a 1A offence, this give a starting point of 18 months, with a range of 1-2 years custody – clearly a very big difference.

 

What have other people got?

If you’re interested, here are some examples of past cases we’ve looked at :

Women

Men

We haven’t set all the facts out for the other cases, but you can see that the sentence passed on Ms McBrearty is pretty much in line. The outlier is Jeremy Forrest, but then that was a very different case with a lot of other things going on.

 

Will the Prosecution appeal the sentence?

We can say with a degree of safety that that won’t happen.

The first reason is that on the offence charged, the sentence is well with the guidelines (in fact, at the top of it). Having charged her with the s16 offence they cannot really complain if the defendant is sentenced for that offence.

But the second, and bigger, reason is that the s16 offence is not on the list of offences that the Attorney-General can appeal (the s9 offence could have been however). This was something that the current Attorney General, Jeremy Wright QC, found out the hard way.

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33 COMMENTS

  1. Kerner was an outlier in the other direction: the judge who sentenced him got it wrong by suspending the sentence, and the same may be true of Hayley Southwell. I take the view that teachers, male or female, who have intercourse with their pupils, male or female, must go down, whatever the circumstances, whatever the mitigation. These cases are always sad, usually involving a defendant of previous good character with a wrecked career and a wrecked life, but nothing else will deter teachers who are tempted.

    • Why have you mentioned Kerner? His case is an obvious miscarriage of justice. Read the facts not the gutter press!!!

  2. This isn’t a complete list, I accept that.

    What is perhaps worthy of note is that there are only two cases on that list where a S9 offence could be considered, those of Jeremy Forrest and Emily Fox.

    Jeremy Forrest WAS tried under S9, Emily Forrest wasn’t. With very different sentences.

    If you are searching for disparity in prosecution and sentencing due to gender there is your example. However the disparity is both in the genders of the the offenders AND the victims. Emily Fox had sex with a girl.

    This reinforces the ‘male teachers are a danger to female pupils’ prejudice.

    I am a male teacher in a girls school. At a recent safeguarding training session I had to remind colleagues, and the trainer, after much discussion (a little too imaginative and descriptive, I thought, on the part of the trainer) that the most recent cases that actually reached the courts in our area, including one at our school, were both same sex cases. One male teacher and male pupil (not guilty) and the other female teacher and female pupil (guilty).

    • Yes David, you go ahead and focus on the anthill when it comes to sexual offences and ignore the mountain (98% committed by men).

      • I read David’s focus as being on the justice gap and the fact that, in the cases in his area, accused and accuser were of the same sex. I think that he’s brave to speak out.

        • I don’t think it’s brave at all men like to portray themselves as victims because of cognitive dissonance, an uncomfortable place to live I guess.

          • I admire the courage of David and anyone else who speaks out about gender inequality knowing that they are likely to face criticism for doing so. I don’t agree that all men like to portray themselves as victims due to a psychological condition.

  3. Were the views of the victim on whether the defendant ought to go to prison, how harmed he felt he had been etc. sought or taken into account. I note that the judge “accepted that the relationship was factually consensual”. It sounds on that basis like he didn’t feel particularly traumatised. Did he make a victim impact statement?

    I don’t dispute, for the record, that teachers who have relationships with pupils are guilty of a gross breach of professional ethics. But I expect the harm done to victims in each individual case varies very substantially, and it is not clear to me from reading this account of the case that this particular victim came to much harm.

      • That’s allright. I thought it was obvious too, but from your request it didn’t appear that you did.

        I have already answered your request, even before you made it, but to reiterate, I believe in gender equality and as such I don’t think anybody, male or female, should be rewarded or punished because of their gender.

        • No. You are answering a different point. Let’s hear you speak up for the brave women facing and fighting gender inequality every day.

          • I addressed what you requested me to.

            You’re now asking me to address something slightly different, which I’ve also addressed already. While not wanting to have words put in my mouth, I’m happy to reiterate that I admire the courage of anyone who speaks out about gender inequality knowing that they are likely to face criticism for doing so.

  4. It is obvious that the reason cases involving women teachers hit the news is that they are unusual; (wo)man bites dog.

    But they are still an appalling breach of trust and I remain of the view that the judges who gave Kerner and Southwell suspended sentences got it wrong.

    Eldue, miscarriages of justice occur both ways. Mistaken acquittals can rarely be corrected – it is, very rightly, exceedingly difficult to try anyone again after an acquittal – but may still be a miscarriage of justice. I don’t suggest that that applies to Kerner – the jury acquitted him on some charges after hearing the evidence – but the suspended sentence on a charge which could not be referred to the Court of Appeal was a miscarriage of justice of another sort.

    I don’t think that what happened in that case will give any male (or female) teacher the green light – the chance of being that lucky is minimal!

    • Are cases involving female teachers much more unusual than cases involving male teachers? I’m asking because I honestly don’t know – I haven’t seen statistics, but from cases I’ve read about the appearance given is that cases involving female teachers are almost as common. My view is that cases involving male teachers probably are more common, but I’m not sure to what degree. I think it possible that cases involving female teachers are reported more because newspapers use the story to titillate some of their readers.

      A miscarriage of justice is usually taken to mean that the wrong verdict was returned (usually where an innocent person is found guilty), and not to sentences which are felt to be too soft because a prison sentence was suspended. I don’t think sentences which are viewed as too lenient (or too harsh for that matter) are ‘miscarriages of justice’ in the usual meaning of the term. I agree that it should be difficult to try anyone after an acquittal – in my view the adage that it is preferable for a guilty party to escape punishment than for an innocent person to be punished should still hold and the courts have lost sight of this to an extent.

      One feature which exists in the UK justice system is that the public can request that sentences which are felt to be too lenient (but not too harsh if I understand correctly) be reconsidered. I don’t know if this is a peculiarly British feature, or whether it exists in other countries.

      • “One feature which exists in the UK justice system is that the public can request that sentences which are felt to be too lenient (but not too harsh if I understand correctly) be reconsidered.”

        Yes and no. Jo(e) Public can write to the Attorney General who may or may not call on prosecuting counsel for a report (probably not if the sentence is obviously within the Sentencing Council’s guidelines and Jo(e)’s beef is that the guidelines are too lenient) but only the A-G can refer the sentence to the Court of Appeal. In fact most references arise from a report by prosecuting counsel with no input from the public.

        • Thanks for the further information on this Andrew, I wasn’t fully aware of how the scheme works. My concern about the process is that it only works one way and doesn’t address sentences which are felt to be too harsh. Even if most references are made by prosecutors, there is still the opportunity for the public to write to the Attorney General about sentences which are felt to be too lenient. No such opportunity exists where members of the public feel that sentences are too harsh.

      • I seem to recall (from a TV documentary) that in some countries or cultures , the sentence or punishment can be decided by the victim, or their families should the victim not be in a position to make the decision.

        If memory serves me correctly the process to complain about sentencing to the AG was in response to the public’s concerns over a woeful judiciary who seem to hand out unduly lenient sentences for what were quite serious crimes.

        • I believe Islamic law in some countries allows the type of approach which you mention. But I’m not aware of any other countries where the public can petition the Attorney General to ask for sentences to be reviewed upwards (and only upwards).

          It seems to me that the process was introduced as a political move backed up by sensationalist reporting and misunderstanding of sentencing procedures, and unfortunately doesn’t address public concerns over the judiciary handing out harsh sentences for trivial crimes, or matters which shouldn’t be classified as crimes at all.

  5. I suspect that you do not really want to go down another of these cases but anyone reading this story http://www.independent.co.uk/news/uk/home-news/man-speaks-out-sexual-assault-woman-cheryl-cottrell-glasgow-sheriff-court-a7995021.html about a gay man who was penetrated by the fingers of a female attacker in a homophobic attack, would think that a man who sexually assaulted a lesbian in that way would have been dealt with more severely.

    I know that the case was in Scotland, and that different guidelines apply to those in England and Wales, but the maximum sentence in Scotland for Sexual Assault by Penetration is life imprisonment.

      • “Except men do this to women all the time and get away with it ”

        Sounds like hyperbolic breast beating on your part . . . .
        . . again.

        Time for some perspective?

        For example, not all women kill babies in their womb all the time and get away with it.

        The statistics suggests it is ONLY 1 in 4 to 1 in 3 in their entire lifetimes.

        So while it would be correct to suggest women have cornered the market in (decriminalised) murder, IT IS NOT ALL WOMEN.

  6. L-E-S as these cases show men have not quite cornered the market – there is occasional competition from women. Doubtless rare and that’s why it is newsworthy. Where it concerns teachers and pupils or one sentence is appropriate and it should not be suspended.

    As for you, judge worthy, if I told you where to stuff your misogynistic anti-choice nonsense Dan would moderate me off his website. Hint: it’s not a place where the sun shines!

    • Andrew, I’m still not sure how rare cases of this sort involving women are – I haven’t seen statistics and would be interested to know the figures. As I say, I don’t think cases of this sort involving women are reported only because of their rarity. I don’t agree that an immediate custodial sentence has to be the predetermined outcome for this sort of case where the Defendant loses – its important to look at the facts of each case as part of the trial process and decide the sentence at the outcome of the process, not the outset.

    • “As for you, judge worthy, if I told you where to stuff your misogynistic anti-choice nonsense Dan would moderate me off his website. Hint: it’s not a place where the sun shines!”

      Right on ermm . . . . . Brother.

      Perhaps your reply was an attempt to ride the wave of current trends ?

      However, you have made an accusation of criminality without foundation.

      Furthermore, your suggestion that facts, when presented, should be buried somewhere dark could easily attract you the label of misologist.

      Finally, your apparent championing of choice appears to be limited to life taking. As you say, “whatever the circumstances, whatever the mitigation,” no choice for teachers and pupils.

      • A response from judge worthy

        “quote quote quote”

        blah blah blah blah blah blah blah

        blah blah blah blah blah blah blah

        • Good God, another one ?

          Misologists abound !

          Academia will duly pronounce a misology culture.

          It will be claimed there is an underreporting and the conviction rate needs to increase.

          The CPS will launch a concupiscent campaign to secure more convictions.

          Then again, perhaps irrationality is best left to the irrational ?

  7. I haven’t seen any figures either.

    We will have to disagree about sentence. I think nothing but immediate custody will be a sufficient deterrent.

    Incidentally in my last post “or one sentence” should have been “only one sentence”.

    • Fair enough Andrew, I can’t agree with you on this one. For the deterrent argument to carry, it would need to hold that some of the teachers in the above cases who had consensual sex with their pupils would not have done so had they known that had they been convicted they would have received a custodial sentence, but they would have done so if they had known that if convicted the sentence would have been suspended. And there would have to be a pool of teachers who would have sex with their pupils if they thought they would get a suspended sentence if caught, but who wouldn’t have sex with them if they thought they would get an immediate custodial sentence. I just don’t think it works that way.

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