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.
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.
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 :
- sexual activity with a child – s9 Sexual Offences Act 2003
- sexual activity with a child when in a position of trust – s16 Sexual Offences Act 2003
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 :
- Lauren Cox (27) – victim 16 (s16) : 12 months
- Emily Fox (26) – victim 15 (s16) : 15 months
- Hayley Southwell (27) – victim 16 (s16) : 12 months suspended
- Amardip Bhopari (28) – victim 16 (s16) : 2 years
- Stuart Kerner (44) – victim 16 (s16): 18 months suspended
- Jeremy Forrest (30) – victim 15 (s9) : 4½ years
- Simon Parsons (52) – victim 17 (s16) : 12 months
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.