Flicking through the BBC headlines, this story about Wayne Whitworth caught my eye. Mr Whitworth is not a celebrity, and there’s no great legal significance in his case, just one of the far too many cases that go through our Courts, leaving a trail of misery in its wake.
In short, he was sentenced to five years in prison for “three counts of rape of a girl under 16 and three of indecent assault of a girl under 14″. The facts aren’t set out in any great detail, but the “Police said he had “systematically” abused his victim, who came forward in 2013, over a three year period.”
So far so good. There was a guilty plea, but we don’t know at what stage, but nothing out of the ordinary particularly about a five year sentence for this sort of offending.
Misreporting by omission?
What caught my eye was this. The headline reads “Man jailed for 1980s teen rape and indecent assault” before going straight on to say that Mr Whitworth was now aged 41.
Now, by my maths that means that if the offences finished in 1989, then Mr Whitworth would have been aged from 13 to 16 during their commission. That puts a very different perspective on it. He was a youth at the time, and very different sentencing guidelines apply.
What are the guidelines?
The Sentencing Council has now issued two sets of definitive guidelines for sexual offences. The latest was from earlier this year.
What is very clear however, is that these guidelines do not apply to offenders under 18. There are references to certain offences within those guidelines (see page 151) but these are mainly for cases where there is factual consent.
What is clear is that a youth will get a substantially lower sentence than an adult. In a case such as this, it may well be half, if not less than that.
On this basis, after a discount for a plea of guilty, we would be looking at a starting point of about 16 years. This puts it right in the most serious bracket (see the table at page 11). This is on the basis that he was aged 13-16. It may be that he was younger than that, which makes the sentence even more severe.
At the time, there was the principle of doli incapax – the idea that for someone aged 14 it had to be proved that, in addition to the ‘usual’ elements of a crime, the young person knew that what he was doing was not just wrong, but ‘seriously wrong’ (there’s a good overview in the House of Lord’s case of JTB  UKHL 20). This may be thought to be pretty hard twenty or thirty years down the line.
We don’t know enough about the facts of this case to comment on the sentence. Unless the facts are extreme, we would expect an appeal for the reasons set out above.
The increasing number of prosecutions for historical sex offences raises various issues, many of which have been played out in the media.
One aspect that hasn’t been considered yet is what to do with allegations against people who were teenagers at the time. This raises a whole further set of issues, none of which are easy to resolve. On current showing, this is not an issue that will go away anytime soon.