Age and the elderly offender

Some years ago, I ran a small media response unit on the Western Circuit. Anxious to get better coverage for the problems of the Bar, we found the Circuit funds would run to a small press party and the Fourth estate were, I hope, suitably impressed. They certainly polished off the drink and took away details of our spokespeople and the goodwill has continued.

There was only one subject, I told them, that was off limits. We would not comment on any sentence imposed by local or indeed any judges.

I have kept that rule strictly ever since. So I have no opinion whatsoever on the sentence imposed on Rolf Harris or other recent older offenders. I am more than content to rely on a particularly experienced Judge, as criminal insiders will know him to be. If the matter were reviewed and either confirmed or altered, well – so be it. That is not the point of this blog, which was stimulated more by reading of a defendant in his early nineties making his way through the system.

The broad issues which interest me are

1. the weight which should be given to age as a mitigating factor.

2. Is there an arbitrary age beyond which we should not prosecute?

As more and more older abusers are rightly brought to court, I suspect these questions will be a subject of increasing discussion. Many years ago, I did a little research on the first question for an appeal I had pending in the CCA. I discovered there were virtually no authorities which referred to the issue and nothing to suggest that age in itself carried any special weight as a factor in mitigation. Today you will see, again very broadly, that it may be simply one factor of potential mitigation, but it does not carry any overwhelming significance. Age coupled with mental or physical decline is plainly capable of being a potent matter, depending on the facts. But no more than that.

Now let us subject that general position to a little analysis.

From the point of view first of a victim of abuse,whose life has been utterly devastated by abuse many years before, the fact that an offender has reached a great age before meeting justice understandably may be utterly irrelevant.
Victims do not all, by any means seek a long sentence: for them the most important thing is that their voice has been heard and believed. But you cannot expect a devastated victim to say that a person, for example, over 85 should not be prosecuted.

From the Crown’s perspective, the principal issue is likely to be whether the prosecution of a very old defendant is in the public interest. At court, the Crown have a duty to inform the Court of advocacy guidelines and relevant sentencing authorities, but absolutely no duty to set out to achieve the highest possible sentence. Nothing makes me angrier than any contemporary prosecutor who crosses that particular line.

From a Defence perspective, there may be detailed instructions of the limited or damaged health of their client. In such case, the defence understandably will wish age to be given a special weight in mitigation. It rarely does have that effect, but as the man on that Clapham contraption might say sensibly, you cannot have a special status given to age because all facts are different. Exactly the same goes for a decision to prosecute a very old Defendant. Each case will be different.

Now I don’t have a strong view either way, merely an uneasy feeling that the present pragmatic position is not very satisfactory. I would like the Court of Appeal to address the principle of prosecuting and punishing the very old with as much precision as they could muster. If that stimulates a legislative and public debate, so much the better.

Nigel Pascoe QC

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