Sentencing for the elderly – Court of Appeal gives guidance

    Sentencing for the elderly – Court of Appeal gives guidance

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    Introduction

    We have looked previously at the oldest people sent to prison, all of which were blown out of the park when Ralph Clarke, then aged 101, was convicted at the end of 2016 and was sentenced to 13 years.

    On 2nd March 2017 Mr Clarke’s case, along with another (Peter Cooper – a 96 year old man who was sentenced to 3 years with a one year extended licence period for sexual offences) was reviewed by the Court of Appeal.

    Judgment was given on 6th April – Clarke [2017] EWCA Crim 393. Both appeals were dismissed.

     

    What do you do with octogenarian offenders?

    The Court of Appeal gave general guidance of how to sentence the very elderly (roughly speaking, 80+), and what allowance to make for their age.

    The problem is clear – sentencing someone aged 30 to ten years will mean that (absent unexpected illness or accident) they are released in their mid 30s. The same sentence for someone aged 80 or more may well be a whole life sentence.

    It is difficult to know for sure, and the Court said that sentencing judges should not look to actuarial tables to see how long somebody is expected to live.

    Although many may feel that that punishment should be the primary purpose of sentencing generally, it is only one of the five purposes of sentencing that Parliament has set out (in s142 Criminal Justice Act 2003) :

    (1) the punishment of offenders,

    (2) the reduction of crime (including its reduction by deterrence),

    (3) the reform and rehabilitation of offenders,

    (4) the protection of the public, and

    (5) the making of reparation by offenders to persons affected by their offences.

    For someone in their 80s (and certainly in their 90s and more) (3), (4) and (5) and simply not that relevant. Equally, with offences committed 50 years ago, (2) is not a factor that will feature highly. Which leaves (1) – punishment.

    The conclusion was (para 25) – “Whilst we consider that an offender’s diminished life expectancy, his age, health and the prospect of dying in prison are factors legitimately to be taken into account in passing sentence, they have to be balanced against the gravity of the offending, (including the harm done to victims), and the public interest in setting appropriate punishment for very serious crimes“.

    So, the conclusion is that whilst old age is a factor, it is only a limited one to be put in the mix. For obvious reasons (although it is unhelpful to practitioners), the Court did not give specific guidance of any sort of mathematical approach that can be taken in these cases.

    Specifically, the fact that a sentence will lead to the almost inevitability of someone dying in prison (such as Mr Clarke who cannot be considered for release before he is 108) is no reason not to pass it. It was pointed out that there is always the possibility of a prisoner being released on compassionate grounds if they are gravely ill.

    Given the increasing number of prosecutions for historic sex cases, as well as the general increase in the health of the population, this is not an issue that is likely to go away. Neither is this likely to be the last word on the matter.

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