We covered the case of Fred Talbot, former teacher and TV weatherman, who was convicted on 13th February 2015 of two counts of indecent assault on former pupils.
On 13th March, he was sentenced to 5 years in prison.
One thing that has been conspicuously absent from all the news reports is any statement of what it was Mr Talbot had actually done. Fortunately, we have the sentencing remarks.
We know that the two boys were agree 14 and 15. It seems that these offences occurred on a school trip, and Mr Talbot used alcohol on his victims before approaching them whilst they were naked. In relation to the first victim, he “then proceeded to masturbate him and required him to masturbate” Mr Talbot. With the second, Mr Talbot tried to masturbate him.
Extracts from his diary were published, which indicate Mr Talbot was aware of, and was struggling with, what he had done – “In one entry dated 6 May 1984, he wrote, ‘The fourth (year students) decided to stay the night. As usual I had quite a bit to drink and as usual I tried. I must be mad.’
Another entry dated 17 July 1981, he wrote: ‘Some thoughts on the two previous trips: you have messed it up. You have no right, you are in the wrong. Each individual has rights that can’t be infringed.’
Another entry read, ‘What is more interesting than a smoking, swearing and copulating 15 year old.‘”
We have a fact sheet on sentencing for historic sex offences that sets out the approach the Court will take. The starting point is the Sexual Offences Sentencing Guidelines. The Judge said that the offence would now be charged as a Sexual Activity with a Child (maximum sentence of 14 years), so look at the table on page 47. He put it in Category 2A, as there is touching naked genitalia by someone in a position of trust. This gives a starting point of 3 years, with a range of 2 to 6 years.
The Judge stated that he took 3 years and passed consecutive sentences as there were two victims. However, he had regard to totality, and the lower maximum sentence, and passed consecutive sentences of 2½ years, making a total of 5 years.
Will there be an appeal? Probably against the sentence at least. Given the extracts from the diary, the conviction looks a safe one, and it is unlikely that the Court of Appeal will interfere.
As for the sentence? If this had been a year ago, then we would have said that there would definitely have been one, but the cases since then have increased significantly the sentence, as well as changing the approach of the Court of Appeal – Manifestly excessive is the new normal. For this reasons, it is unlikely that an appeal will succeed.
It is interesting that the Judge put this as sexual activity with a child rather than the offence under s4 – Sexual Activity without Consent, which would have a starting point of 6 years. The reason for this must have been that the Judge was not satisfied that there was a lack of factual consent, hence the effectively strict liability offence of Sexual Activity with a Child.
A sexist/homophobic law?
One interesting point to note is this – the maximum sentence for these offences were 10 years, so the maximum sentence the Judge could have passed is 20 years, although it seems to have been accepted that it was not appropriate to pass consecutive sentences totalling more than 10 years.
However, had the two victims been girls, the maximum sentence for each offence would have been 2 years – and this sentence would have been unlawful.
Why is it that at the time there was this different maximum? The short answer is that I don’t know. for sure. One explanation could be that it was felt at the time that the indecent assault of a girl was less serious, but that doesn’t tally with the rest of the legislation.
But, at the time the Act was passed (1956), it was illegal to be gay. Most people prosecuted for all crimes (and I think even more so for sex crimes) are men, and that was even more so back in the 50s. The reason then may well be because there was a feeling that young boys were in greater need of protection from gay men, and the acts of a perpetrator would be doubly criminal. I don’t know of course, that is a surmise on my part, but it’s hard to see what else there would be.
Nowadays, we look at that as being completely wrong and, applying contemporary attitudes, the maximum sentence should be the same. A brave lawyer could take the logic of H (see the fact sheet above) and argue that, based on our contemporary understanding, the maximum should be the same whatever the sex of the victim. Therefore as the two year maximum for indecent assault on a girl cannot be increased, the sentence where the victim is a boy should be effectively capped as what the sentence would be were the victim a girl. This argument is flawed, and has no chance of succeeding, but does have a certain logic in its favour.