What to do with ‘cold cases’ when they eventually heat up

8 December 2011 by Alasdair Henderson

R v. H & others [2011] EWCA Crim 2753 – read judgment.

One of the most popular ideas in crime fiction is the ‘cold case’; the apparently unsolved crime which, through various twists and turns, is brought to justice many years after it was committed. Indeed, at least two recent long-running TV dramas (the American show ‘Cold Case‘ and the more imaginatively and morbidly named British show ‘Waking the Dead‘) have been entirely based on this concept.

But what happens when such cases do turn up in real life, get to trial and the perpetrator is found guilty? In particular, how does a judge approach sentencing for a crime which might be decades-old, in the light of Article 7 ECHR? The Court of Appeal recently provided some answers to those questions.

What is Article 7 about and why is it important?

Article 7 is one of the lesser-known and least-litigated parts of the ECHR (see our small number of relevant posts here), but it protects a fundamental and essential right. It provides as follows:

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised norms.

The core of Article 7 is the right not to be retrospectively held guilty of a crime for doing something that wasn’t criminal when you did it. It is an absolute right, although the wording is careful to exclude actions which are criminal in international law (even if not in domestic law) and Article 7(2) sets out an exception which was designed to catch the post-WWII Nuremberg trials and other historic war crimes tribunals. The part of Article 7 the Court of Appeal was concerned with in the H & others case was the second part of Article 7(1), namely the right not to have a heavier sentence imposed than was applicable at the time the offence was committed.

Background

The eight conjoined cases in this appeal all involved sexual crime, in particular sexual assault or rape of children. The facts are set out at paragraphs 48-129 of the judgment, and some details are very unpleasant and disturbing so they will not be repeated here. However, the key thing all the cases had in common was that the crimes were all committed many years ago and were not discovered until recently; they spanned a range from 1966-1996 and did not come to light until 2005-2010.

All the appellants eventually plead guilty or were convicted at trial, but then challenged their sentences as being excessive. The appeals were joined together and guidance sought from the Court of Appeal, as well as specific decisions in each individual appeal. In particular, guidance was sought about:

1. The extent to which the court passing sentence should reflect the levels of sentence which would have been likely to have been imposed if the defendant had been convicted at trial shortly after the offences were committed; and
2. The extent to which events during the long period which in fact elapsed between the commission of the crimes and the sentencing decision were relevant.

As the Court of Appeal explained, the sentencing courts’ task was made all the more difficult by the fact that there have been numerous statutory changes over the years in relation to sentencing and the definitions of sexual offences. The Lord Chief Justice, Royce and Macur JJ wearily noted that:

We shall not anxiously parade an inclusive list of all the relevant statutory provisions. It would be unbearably long. We simply remind ourselves, with now customary trepidation, that yet further proposed legislation relating to sentencing regimes and prisoner release is currently in contemplation. What is the judge to do? We must return to first principles…

Those first principles are set out in s.142 of the Criminal Justice Act 2003, namely that the purposes of sentencing are first punishment, then reduction of crime, rehabilitation, the protection of the public and the making of reparation to victims. The Court of Appeal then applied those principles to the problem of sentencing in historic cases.

Some guidance provided

The Court of Appeal noted that Article 7 prohibits the imposition of a heavier penalty that was ‘applicable’ at the time the offence was committed, and considered the House of Lords ruling in Uttley v. SSHD [2004] UKHL 38 which made it clear that this means provided sentences do not exceed the maximum sentence which could have been imposed at the date the offence was committed, Article 7 is not contravened.

The Court then considered a large body of previous case law. Although concluding that “it is impossible to reconcile them all” and “reference to earlier decisions is unlikely to be helpful and…is to be discouraged” in sentencing decisions, the following guidance was given (paragraph [47])

(a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts.

(b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, as in some instances, for example theft, they have, the more severe attitude to the offence in earlier years, even if it could be established, should not apply.

(c) As always, the particular circumstances in which the offence was committed and its seriousness must be the main focus. Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender’s culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier, and when confronted with them, the defendant had admitted them, but for whatever reason, the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features.

(d) In some cases it may be safe to assume that the fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However the circumstances in which the facts come to light varies, and careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Simultaneously, equal care needs to be taken to assess the true extent of the defendant’s criminality by reference to what he actually did and the circumstances in which he did it.

(e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character.

(g) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. Considerations like these provide the victim with vindication, often a feature of great importance to them.

As the Court made clear, this is simply guidance and certainly not definitive. The facts of every case are of paramount importance. But this decision does give some structure and clarity to an area of human rights law and criminal justice that is particularly difficult and complicated.

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More on Article 7:

• The suits in Strasbourg
• Illegal supply of video convictions stand despite failure to comply with European law