The Huw Edwards case, where he has been found guilty of viewing CSA images, and sentenced to six months in prison, but suspended, has drawn a lot of attention to the treatment of the perpetrators of these crimes.
Firstly, a bit of background on the law as I understand it. Viewing and buying images of abuse is treated as a lesser crime than abducting or grooming a child and actually making the videos or photos. And that’s right. I think the question is how much less of a crime. The current situation seems to be that the phsical abuse would be dealt with very severely indeed, and the act of viewing of it very often results in sentences which many argue are no more than a slap on the wrist, and do not reflect the seriousness of the crime.
In a few brief tweets/X posts yesterday, I used the examples of a getaway drive for an armed bank robbery, and someone who buys shoplifted goods from a bloke in a pub.
Under the, sometimes controversial, laws of joint enterprise, the getaway driver can be charged with armed robbery even if he sat in the car throughout and didn’t set foot in the bank. If those in the bank do use their guns and kill someone, he could be charged with manslaughter, or even murder, as could everyone else involved, not only the man who actually pulled the trigger. There are arguments about this joint enterprise law being misused in some cases, but generally I think people agree that all involved are culpable.
The other example is of buying ‘knock off’ goods in a pub. In that instance, if you were caught doing that, you might be charged with handling or receiving stolen goods, but not with shoplifting because you did not directly and actively encourage the shoplifting to happen.
It is indirect. The shoplifter may not have been directly encouraged by his ‘customers’ to go and steal some steaks from Tesco, but he steals them because he knows there is a market for them. That there are enough people out there who are willing to buy cheap steaks from him. So the buyers are not criminally culpable for the shoplifting, but collectively they are creating the market in which stealing steaks is profitable.
This clearly has similarities with those who create the market for CSA, by searching for and buying the videos and images. There’s a huge difference though.
On the shoplifting. Though it is not a victimless crime (It means that supermarkets lose stock, need to hire security guards and pay for more security measures, and that puts up prices for everyone) it isn’t comparable to the abduction or grooming of a child and then abusing them for the cameras. Those crimes have direct victims and the immediate, and indeed long-term suffering which it causes is horrific.
So, while I agree that buying these images is a lesser crime than the actual abuse. Not that much less, and should be treated much more severely than is currently the case. Not just with Huw Edwards, but in many more cases we may all have heard about.
So, to the sentencing guidelines for these crimes. The Secret Barrister on Twitter/X goes into some detail here https://x.com/BarristerSecret/status/1835673864614887851 which I won’t repeat. Suffice to say I, and many others believe that these guidelines need to be stricter.
To fix this will come in two stages. Firstly, persuade the government to instruct the Sentencing Council to conduct a review into the guidelines for these crimes. And secondly to seek to influence that review to ensure that more of these criminals actually go to jail.
I think?
In the Spectator this week, Julie Bindel makes a good general case for less use of custodial sentences here https://www.spectator.co.uk/article/women-will-pay-the-price-for-labours-early-release-prison-scheme/
particularly making the case that women should generally not be in prison for non-violent crimes like not paying the TV licence. A case can also be made, which Julie does, for more use of prison for certain offences, particularly violence (including sexual violence) against women and children.
So overall, it’s not as simple as more prison, or less prison. Longer sentences or shorter sentences. It’s much more complicated than that.
If we are successful in getting a review of sentencing for viewing CSA, what should the new guidelines look like?
It is generally accepted that there are three aims of sentencing.
· Rehabilitation
· Protection of the public
· Punishment
If, as I do, you think that people who buy CSA should go to prison more often, we need to justify that under those three aims.
I don’t think that a good case can be made that rehabilitation, if it is possible, can only be done in prison. In fact, you could make the case that it is more likely to be successful outside of jail.
On protecting the public, with a properly funded probation service (which we don’t have), it should be possible for these criminals to be on the sex offenders register, with the restrictions which that entails. For internet access to be restricted, and for there to be regular checks of devices and hard drives to ensure that there is no repeat of the crime. This is all possible outside of prison.
So, the final aim is punishment, which includes deterrence of others. This is where I think a strong argument can be made for prison to be normal in these cases. To take account of the fact that there are real victims who will have been seriously harmed. To reassure the public that these are treated as very serious crimes, and to send a deterrent message to others who may be tempted into looking.
Fundamentally though, I do believe in the independence of the judiciary. I think it would be a very bad thing for politicians to be able to impose sentences. This is why the guidelines give a range, maximum and minimum sentences for different offences, and judges work within that range.
Let’s go back to the example of the getaway driver, where shots have been fired and a bank employee has been killed during the armed robbery. The driver would be likely to be convicted of manslaughter. But what should the sentence be?
If he is a hardened criminal with a string of previous similar convictions, who knows exactly what he is getting in to, you would expect a sentence at the high end of the range allowed.
Consider this possible circumstance. The armed gang recruit a teenager to be their getaway driver. Maybe a young lad with any of; low IQ, a learning disability, a history of growing up in care, mental health or substance abuse issues. A vulnerable and easily led youngster with no previous convictions or dealings with the police. You would - I think rightly - assume that his sentence - if convicted - would be at the lower end of the range, possibly a suspended sentence. You might expect that more attempts would be made to rehabilitate, to address his other issues, and help him to lead a crime-free life in future. This is exactly why we should allow judges to sentence within a range.
If this were the case, the family of the murdered victim, even if the rest of the gang receive long custodial sentences, might not be happy. And of course, those in the media, politics and on social media, who have an axe to grind, would produce headlines like “Killer of Bank Teller Walks Free!”. Which is, I think, a lesson in not always taking the headline at face value without knowing more of the facts.
There is a range available to judges. There is the right to challenge a sentence if we believe that it is unduly lenient. The convicted has the right to appeal a sentence if they think it to be unduly harsh. Judges are well aware of this. I think the system works, in general, but in these cases it clearly does not, or at least a large proportion of the public do not believe that it does. That is, in my view, entirely down to the sentencing guidelines for these crimes. They do not reflect the seriousness of the offences, the damage done to the victims, and the need to inform anyone who might be thinking of committing these crimes, that they are taken very seriously and attract severe, usually custodial sentences.
I will be writing to my MP today to ask that she writes to the Lord Chancellor, Shabana Mahmood MP to ask for an urgent review of the sentencing guidelines in these cases.
Maybe you could do that too?
As always, I welcome comments.