There has been much speculation, questioning, and an element of incredulity, about the different sentences handed out to Stuart Hall and Jeremy Forrest this week – is it fair? Does it send out the right message? Does the mismatch in sentencing show that the law truly is an ass?
Here is some commentary from this week:
Here’s some questions that have come up. If there’s any others that you’d like us to look at, please let us know and we’ll be happy to try…
1. Forrest got 5½ years for abusing 1 girl, Hall 15 months for 14 victims. How is that right?
On the face of it this seems strange. There are two reasons, however, why it makes sense. Firstly, the offending is different. Whilst Mr Hall committed lots of offences against different victims, they were mainly ‘low level’ offences (in the sense that there are more serious offences that people commit, not that they were not serious). Mr Forrest only had one victim, but he repeatedly had sexual intercourse with his victim, which the law treats as more serious.
But, the bigger point, and the main reason for the seeming disparity, is the date on which the offences were committed. Mr Hall’s offending occured between 1967 and 1985 when the attitude of the public to this sort of offending was very, very different. Much criticism could be levelled at the laws of the time (with hindsight). The maximum sentence for what Mr Hall did was either 2 or 5 years at the time (whereas had he committed those offences now the maximum sentence is life).
For this reason it is not as simple as saying Mr Forrest got 4½ half times what Mr Hall got and therefore the law treats Mr Forrest’s offending as 4½ times as bad as Mr Hall. It doesn’t work like that.
In essence – comparing the sentences of Mr Hall and Mr Forrest is comparing apples and oranges – the circumstances of the relevant law are so different that no meaningful comparison can be made.
2. Why was Mr Forrest guilty when the victim was consenting?
The law in relation to sexual offences and the abduction offence is clear. Someone under the age of 16 cannot, in law, consent to the sexual activity (or being taken away by an adult).
Parliament has decided that children cannot give consent. This is in part a recognition that they are vulnerable and immature and therefore not able to properly make decision about things such as sex.
The Judge did not refer to the guideline for sentencing in sexual offence cases, however, in the guideline, ‘ostensible consent’ is effectively ‘built in’ to the guideline for these offences. This is because if there was no ostensible consent, the offence charged would be rape (if there was penetration) or sexual assault (if not). Therefore, the starting points and ranges have already been ‘reduced’ to take account of this ostensible consent.
3. We all know the name of Mr Forrest’s victim – why can’t she be named?
This is an area where the law hasn’t quite got to grips with the internet age.
There are two laws in place. Firstly, there is a blanket law that the complainant of a sexual offence cannot be named (Sexual Offences (Amendment) Act 1992). This is irrespective of whether the victims name is known for any other reason (I will not elaborate). Please note that this applies to naming her on twitter.
Secondly, under s39 Children and Young Persons Act 1993, the Court has the power (which it will almost always exercise) to order that the name of a child be withheld from publication.
Although the offence of Child Abduction would not attract the restrictions in the Sexual Offences (Amendment) Act 1992, the ‘usual’ s39 order would have been in place. Now that the sexual offences have been alleged, the provisions of that section apply.
In short – whilst it seems odd, that is the law and the reason for it. It could be argued that this is unrealistic in the age of twitter, facebook and the like. That is an argument that I have some sympathy with, but until there is a review and the law is changed – it is a criminal offence to name the victim!
4. Is Jeremy Forrest a paedophile?
This seems to be being much debated on twitter. In a sense, it is not a legal question as the term ‘paedophile’ is a sociological one, not a legal one. Given the law, Mr Forrest should not have gone along with, let alone encouraged, the behaviour of the complainant. See this statement from the NSPCC for their view.
Ultimately, the law is the law, and whatever one’s view of the age of consent, Mr Forrest was acting illegally and knew it. The exact label is perhaps of less significance.
5. Can Mr Forrest continue in a relationship with his victim?
Yes. She is now 16 and he is not her teacher any longer. Therefore the relationship would be lawful (there is a separate offence of sexual activity aged under 18 where there is a position of trust between the offender and victim).
In reality, Mr Forrest will be in prison until about 1st January 2015. Given that the victim is now over 16, it would probably not be lawful (as it would be a breach of her Art 8 rights) to have a Sexual Offences Prevention Order that prohibited Mr Forrest from contacting her.