Stuart Kerner gets suspended sentence – AG already stepping in. Before possibly...

Stuart Kerner gets suspended sentence – AG already stepping in. Before possibly stepping out …

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Introduction

Outrage was caused on 14th January 2014 when Stuart Kerner, a teacher, received an 18 month prison sentence for one charge of sexual activity with a child in breach of trust. Remarkably, the Attorney-General has already said that he will consider whether the sentence is unduly lenient, with a decision due on 11th February.

Facts

There has already been a bit of misinformation in the press. We haven’t got a copy of the sentencing remarks, but the different news reports are at odds and they can’t all be right …

From the BBC report Mr Kerner was the girl’s teacher. What happened “started out as a schoolgirl crush turned into an 18-month affair, which was discovered in 2013.” Part of this was that Mr Kerner “took the girl’s virginity on a yoga mat in an empty room at Bexleyheath Academy, the same week his wife had a miscarriage“.

So. It looks like Mr Kerner faced six counts – two of sexual activity with a child when the girl was aged under 16, and six of sexual activity with a child in breach of trust when the girl was over 16 (and over the general age of consent). He was convicted of two of the latter six offences.

It is not clear that the jury found Mr Kerner guilty of offences throughout the whole 18 month period, but presumably not, so we are not clear exactly what time period the abuse occurred over.

Isn’t this sentence outrageously low?

Firstly, it’s important to look at the charges of which he was convicted – not rape, or abuse of someone aged under 16 (he was acquitted of those charges), but the less serious (but obviously still serious before anyone says anything) under s16 Sexual Offences Act 2003. The maximum sentence for this offence is five years.

If this seems a low maximum, it’s important to step back and see what the offence is – it is activity which, were it not for the position of trust (in here teacher and pupil) would be legal. Here, the activity was consensual (or else there would have been a charge of rape), it is just that the consent of the girl is not legally valid because of the power relationship between them (we can have an argument over that is the right terminology, or some other form of words such as factual v legal consent or something else entirely, but I’m not sure that that’s important).

The Judge sentenced Mr Kerner to 18 months in prison, suspended for 18 months. There are automatic consequences for him signing the Sex Offenders Register and he will never again be allowed to work with children.

In working out the sentence, the Judge would have started with the Sentencing Guidelines (turn to page 67). The Harm is clearly Category 1. In terms of the Culpability? I wouldn’t like to say without knowing more details. It is possible that it is ‘A’ on the basis of “Grooming behaviour used against victim” and “Specific targeting of a particularly vulnerable child“, but both of these will be present almost by definition in this offence.

Still, lets assume that this is Harm A. This gives a starting point of 18 months, with a range of 1-2 years. So, even if that is the correct place to put it, the Judge has passed a sentence that is not only within the proper range, but is bang on it

But wasn’t it suspended? Yes, but that is not relevant to the length of the sentence itself. The Court of Appeal has not given any general guidance as to when a sentence should be suspended. On the face of it, this would be a classic case for it – someone who faces complete ruin in every other aspect of their life as a result of the conviction (or course, self-inflicted) and who will almost certainly not offence again.

It seems to me that even putting the case at its highest, and allowing for the aggravating features, the sentence cannot possibly be said to be unduly lenient, which is the criteria for an Attorney-General’s Reference to succeed.

So, the AG won’t be appealing this then?

Whoops. We messed up. The offence under s15 Sexual Offences Act can be appealed by the AG, but forgot that the offence under s16 can’t be (see the list here).

 

But here’s what we would have said had it been subject to the AG Review procedure …

Hold your horses! I didn’t say that. I don’t think it could be described as unduly lenient, but then we said that about Stuart Hall, Graham Ovenden and Neil Wilson and called those wrong, so we don’t know.

Given the outcry, I would expect the AG to refer it to the Court of Appeal, and it would not surprise me if they increase it to 1½-2½ years, with it being immediate imprisonment. My best guess is that it would be 2 years immediate imprisonment, but we’ll certainly keep an eye out for this …

 

What about the comments the Judge made

Judge Greenberg is reported in the media as saying “[the victims] friends described her, accurately in my view, as stalking you. If grooming is the right word to use, it was she who groomed you, (and) you gave in to temptation“.

This was obviously not appropriate language. I will certainly hold my judgment until a transcript is available as we need to know what was said (it may be that, it may not) and in what context. I don’t know the Judge personally, but I have appeared in front of her a few times, and she has always struck me as professional and experienced, as well as someone who did not suffer sob stories or sex offenders lightly, so I would be surprised if this is 100% accurate.

One other thing to note – in this day and age of social media and instant feedback, we are used to an apology, a rebuttal, or an explanation to be ‘out there’ in seconds. As a Judge however, HHJ Greenberg is not allowed to comment publicly on this case, or the words used, now she has passed sentence. On this occasion, you cannot read anything into her silence.

Whatever was, or was not said, It does make the chances of the case going to the Court of Appeal much higher where we are likely to find out more. Until then, and especially bearing in mind that she is not allowed to defend herself publicly, I’m not rushing to be in judgment against her.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

14 COMMENTS

  1. Looks like a sensible sentence to me.

    The Jury were split on the question of guilt, and basically the Judge said there was a lot of contributory mischief by the girl. He was stupid or weak to give in to it, but most men are vulnerable to sexual advances from women. History reflects this since the dawn of time, and many women have exploited it. She was over 16 (the age of consent) when they actually had sex.
    The very fact that the case was brought at all looks very much like the revenge of a woman spurned, and we all know ‘hell hath no fury like [that]’.
    Was this prosecution a good use of taxpayers’ money? No. Who does it defend? Mostly stupid besotted teenage girls who can’t control themselves. Who does it warn off? Men who can’t control themselves.

    The Law has never worked in regulating the behaviour of idiots, and this case looks like the coming together of two idiots. But ask, who was hurt? Neither. She wanted it, and he probably enjoyed it. Only afterwards did something happen to make her tell as well as kissing.

  2. Please can you tell an ex-pat, ex-barrister, why the scheme doesn’t cover the offence?

    From the updated BBC report.
    “However, a spokesperson for the Attorney General’s Office said: “After a number of complaints, we carefully considered whether Stuart Kerner’s sentence could be referred to the Court of Appeal for being too low – as part of the unduly lenient sentence scheme.

    “Mr Kerner’s crimes are not included in this scheme, meaning the law officers are unable to refer this.”

    • Missed the edit.
      My poor proof reading.
      “Whoops. We messed up. The offence under s15 Sexual Offences Act can be appealed by the AG, but forgot that the offence under s16 can’t be (see the list here).”

  3. And just like that the teaching profession suddenly seemed even more attractive to paedo’s, those already in the profession heaved a huge collective sigh of relief, those with pregnant wives eyed them with a mixture of hope and anticipation unrelated to immiment fatherhood.

  4. I was at trial judge got it right jury gave perverse verdict. 6 of 8 counts innocent – 4 of which described incidents that led to first guilty… ?? One count had to be thrown out as victims mum called police during trial to say a date victim said they were having sex- she was actually in Spain on holiday. So much more beside. Judge right. Wait for appeal

  5. […] It’s been a week where barristers have been in the news, but for all the wrong reasons. Much ink has been spread (and much vitriol on Twitter) as to the issues of ‘victim blaming’ etc. Given that we don’t know yet exactly what was said, there’s nothing that I can add (I would recommend reading Matthew Scott’s take on it which is an eminently sensible one). Although this was written in the summer of 2014, pick your own recent example. I’m reviewing it in January 2015 and it’s still a relevant issue. […]

  6. I don’t know if anyone reads comments added this long after an article was posted, but I wondered whether a transcript of the hearing ever did get released. Did the judge actually say the words attributed to her, and if she did was the matter taken further?

    • We certainly check the comments later, as do others.

      As to your question, as far as we are aware, the sentencing remarks and/or a transcript of the hearing haven’t been published (and probably never will as there will not be an appeal from either side).

      I know that there was a complaint against her, but I’ not sure whether anything was done with that.

      • Thanks Dan. How could I have doubted your conscientiousness 🙂

        It sounds as if we aren’t ever going to know whether press reports of this case were accurate or not.

  7. Kerner lost his appeal today. He was of course on a one-way bet because as you reminded us in another case, on a retrial he could not have got a more severe sentence!

    L-E-S I don’t think too many teachers tempted to try it on with a 16+ pupil but afraid of the consequences will have changed their minds on the off-chance that they would have come up before Judge Greenberg!

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