We were asked by one of our followers on Twitter to explain why Adam Johnson is staring down the barrel of 5 years’ imprisonment whereas – in his words – ‘the Andrew Picard case is more serious’ but he received a suspended sentence.
Apples and oranges
So, here we go. The answer to the question is quite simple, although the issues it raises are rather more complex.
Adam Johnson committed three sexual offences (2x sexual activity with a child and 1x grooming). Dan’s blog post explained why we consider that he is looking at about 5 years for that. They were contact offences and therefore the seriousness is almost automatically quite high. He admitted he was attracted to the child victim and there was plenty of evidence of his willingness to encourage and pursue sexual activity with her.
By contrast, Andrew Picard committed non-contact sexual offences, namely the possession and distribution of indecent images of children. The first thing to note is that although the possession of (and certainly distribution of) indecent images perpetuates demand for such material (and thereby encourages the further abuse of children in the production of that material), images offences are seen as inherently less serious than contact offences. Of course there are cases in which the distribution on a commercial scale could far exceed the seriousness of a contact offence, but the general view is that images offences are less serious. This is demonstrated both by the guidelines and the maximum sentences for the respective offences: 14 years for Adam Johnson’s offence and 10 years for Andrew Picard’s offence.
Further, Picard had plenty of mitigation: he was aged 17 (youthful defendants usually being seen to be less culpable) and in particular since his arrest he had engaged in work with doctors to address his offending. Further still, he pleaded guilty. Johnson pleaded guilty to the least serious offences with which he was charged and only did so at the start of the trial, notwithstanding the fact it appears he admitted that he had been sending inappropriate messages and had kissed the girl when he was arrested.
So hopefully that explains – broadly – why the sentences will be so disparate.
This question raises interesting questions concerning proportionality – to what extent is it instructive to compare sentences for different offences? Is it like comparing apples with oranges?
Sentencing in England and Wales adopts a proportionality based approach, based on the offender’s ‘just deserts’ – the principle of proportionality seeks to limit punishment to that which is commensurate with the seriousness of the offence and nothing more. In that way, disproportionately severe sentences are avoided (in theory).
As such, sentences for different offences should broadly correspond to their relative seriousness. We know that murder will attract a more severe sentence than shop theft, because murder is an inherently more serious offence. In this way, we can see that proportionality sets outer limits for the amount of punishment – for shop theft, we know that 20 years is beyond what is proportionate to the offending. We also know that a fine is beneath what is proportionate to the offending. This is known as cardinal proportionality. It ‘anchors’ the amount of punishment to the offence. It instructs us as to the range of sentences that are proportionate to the offending. For offences like burglary, the range can be large. Take something like manslaughter and the range is enormous. For this reason, cardinal proportionality is of limited use when considering sentence length.
For this, we need ordinal proportionality. Ordinal proportionality is relative and requires that similar offences are treated similarly. In this way, we can compare sentences for different offences. If offender A and B plead guilty to identical crimes, and have similar backgrounds, ages, previous convictions etc., a sentence of 2 years for A and 10 years for B will offend against ordinal proportionality. Simple so far? The problems come when we consider different offences – apples and oranges. How does Johnson’s offence compare with Picard’s?
In my view, there is an appropriate disparity between them, however this is a subjective question.
What is more interesting perhaps, is to compare Johnson’s likely sentence of 5 years with other offences. Rape, for example, should be a simple comparator – it is also a contact sexual offence. For a rape at the lower end of the scale of seriousness, a sentence of 5 years might be expected. How does that sit with Johnson’s sexual activity (seemingly digital touching of the victim’s vagina)? Is there unjustified symmetry between the two?
My personal view is that 5 years is appropriate in both situations – though I am sure there will be many who disagree.