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.
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.