Neutral Citation Number: [2013] EWCA Crim 1450
No. 2013/03548/A8
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Friday 26 July 2013
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
LADY JUSTICE RAFFERTY DBE
and
MRS JUSTICE MACUR DBE
_______________
ATTORNEY GENERAL'S REFERENCE No. 38 of 2013
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
_______________
REGINA
-vJAMES STUART HALL
__________________
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__________________
Mr D Grieve QC (the Attorney General) and Mr R Whittam QC
appeared to make the Application
Mr C Aylett QC appeared on behalf of the Offender
__________________
JUDGMENT
(As Approved by the Court)
__________________
Friday 26 July 2013
THE LORD CHIEF JUSTICE:
1. This is an application by Her Majesty's Attorney General under section 36 of the Criminal
Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly
lenient. We grant leave.
2. The offender is James Stuart Hall. He is 83 years of age. He has no previous convictions.
Indeed, there were before the court positive references. For those with no idea of his criminal
activities, he was highly regarded. On 17 June 2013 in the Crown Court at Preston he pleaded
guilty to fourteen counts of indecent assault. He was sentenced to concurrent terms of
imprisonment totalling 15 months. The victims were children or teenage girls.
3. For a period of years, and indeed at the time he committed the offences with which we are
concerned, through radio and television he had become a well-known, popular and successful
public figure. Without seeking to minimise the offences or their impact on the victims, which
we shall address later in the judgment, it is the unfortunate reality that children and teenagers are
sometimes subjected to indecent assaults which take a more extreme form than those suffered
by the offender's victims. However, we are here concerned with indecent assaults on thirteen
female victims over a period of almost 20 years, between 1967 and 1985/1986. The ages of the
victims ranged from 9 years to 17 years. At the time when they took place the offender was
aged between 38 and his mid-fifties. From the point of view of the victims, he was, and must
have seemed, a figure of power, authority and influence. That is a feature of the case which
involves significant breach of trust which seriously aggravates the offences that he committed.
He is now an elderly, frail man.
4. There is an order under the Sexual Offences (Amendment) Act 1992 prohibiting the
identification of any of the victims.
5. The victim in count 1 was 16 years old at the time of the offence. She was born in
November 1951. The offence occurred in late 1967 or early 1968 when she was a pupil at a
secondary school. She met the offender when he attended the school to present Speech Day
prizes. She was presented with an award. She sang as a soloist. At the conclusion of the
evening she and other fellow students asked the offender for his autograph. He recognised her
as the girl who had sung the solo. He asked her to write to him at the BBC and mentioned the
possibility of a recording session. Unsurprisingly, she was extremely excited at the possibilities.
She told her parents and her grandparents. Naturally they, too, saw this offer as a great
opportunity and encouraged her to write to the offender. She wrote and he wrote back to say
that he was busy at the time. She wrote two further letters and then on the third occasion, in
response, he outlined arrangements for her to attend at an address in Piccadilly, Manchester, to
take part in a recording session. The arrangement was that she would attend the studios and at
the conclusion of the recording session he would drive her home in his car.
6. A number of songs were recorded when she attended. She recalls now as an adult that the
whole thing seemed amateurish. There was no pianist and the offender organised a member of
staff to stand in as a substitute pianist. At the conclusion of the session she did not hear the
recordings.
7. After the session had ended, the offender collected the victim in his car. He invited her to go
with him for a drink. She told the offender that she was not old enough. He reassured her and
told her not to worry. He took her to a public house in Manchester where he bought her a vodka
and lime. She was not used to drinking alcohol, but out of courtesy she consumed the drink.
The offender offered to buy her another. She declined. She was becoming increasingly nervous
and apprehensive.
8. As the offender drove her home in his car, he put his hand on her leg and then moved it up
underneath her skirt. He touched her thigh and then rubbed her vagina over her underwear. She
said that she felt paralysed with shock. She managed to squirm away from his touch and began
nervously to cough. The offender asked if she wanted him to rub her chest in order to make
better her cough. She declined that offer.
9. When they arrived at her home she jumped out of the car and ran into the house, where she
burst into tears. The offender drove away. The victim informed her parents of what had
happened and later told her grandparents, who lived nearby. When she told her father, he was
very angry and went outside to speak to the offender. The offender was nowhere to be seen.
10. The family decided that this incident should not be reported to the authorities. The 16 year
old victim was not happy with the decision, but this was the 1960s, and she acceded to the
wishes of her parents.
11. In 1980 the victim married. When she met her husband she had told him of the incident
with the offender. When she heard that the offender had been arrested in December 2012, she
contacted the police and made a witness statement.
12. When the offender was interviewed about this incident in January 2013, he said that he was
not aware of the particular school or the particular event. He had attended hundreds of Speech
Days. When he was shown a picture of the victim, he did not recognise her. He had no
recollection of a pianist failing to turn up for a planned recording session. He denied the
allegation that he had taken the victim for a drink. He asserted that it was a downright lie.
Indeed, in respect of each aspect of the allegations he asserted that it was a lie.
13. The first paragraph of the victim impact statement is revealing. Her initial feelings, during
the time of the incident, were shock and humiliation. When she told her family about it, her
sentiment changed and she became upset. It then changed to anger, because her family took the
view that
"I should try to forget about it as there was no point in reporting it
as Mr Hall was rich and famous and we were nobody. After that
my anger stayed with me. I had no way to express it and no one I
could tell."
SMITH BERNAL WORDWAVE
She describes the effect of the incident upon her. It is unnecessary for the purposes of this
judgment to relate the matters in full. During her lifetime she has suffered from depression and
difficulties at times, which she attributes to the offender's behaviour towards her. She puts it
this way:
"It may have only been a minor incident to him but the impact on
my self-worth and the way in which my life has unfolded has
been enormous."
14. The sentence was six months' imprisonment.
15. The victim in count 2 was 17 years old at the dates with which we are concerned, May
1973. She was employed at a hotel in Cambridgeshire. The popular programme "It's a
Knockout" came to the city. During filming of the event the offender and the crew stayed at the
hotel where the victim worked. She was recruited as a cheer-leader and dressed up for the event
in medieval costume. As she now remembers it, it was a figure-enhancing outfit. Following the
event, everybody returned to the hotel. After a period in the foyer, the victim left the
celebrations to return to her staff quarters. It appears that the offender followed her upstairs and
tried to catch her attention by speaking to her. She paused politely in order to speak to him, at
which he grabbed hold of her forcefully with both hands and pushed her against the door. She
tried to fight him off, but he was too strong for her. He kissed her on the mouth. He fumbled
with her dress and tried to lift it up as she struggled to get away. Fortunately, there was a noise
of creaking floorboards as if someone was approaching, and so the offender released her. She
seized her opportunity to escape and made off to the staff door and to safety.
16. This victim did not tell her parents about the incident. She told her sister, and she told her
husband shortly after they were married. Thereafter, whenever she saw the offender on
television, memories of what had happened returned. She was disgusted and angry. When the
arrest was reported, she was shocked. She spoke to her husband and contacted the police in
order to report the assault of which she had been the victim.
17. When he was interviewed about this incident in January 2013, the offender recalled the
occasion when "It's a Knockout" was based in Cambridgeshire. He did not recall the hotel
where everyone stayed; nor did he recall the victim. He asserted that the allegation was a
complete and total lie and that it had never happened.
18. In her victim impact statement the victim says that the offence has affected her throughout
her life; it has "hardened" her. She became anxious and concerned about the process. She has
to keep telling herself that she had done nothing wrong.
19. It is a constant feature of such cases that the victims somehow wonder if they were to
blame, when they were not.
SMITH BERNAL WORDWAVE
20. For that offence the sentence was three months' imprisonment.
21. Count 3 related to an offence which occurred in late 1974. The victim was 16 or 17 years
old. She was engaged in part-time work while waiting to start her career. She was introduced
to the offender who was at an event in an official capacity. He returned to her exhibition stand,
placed his arm around her and touched and fondled her breast. She told him to stop. She made
it clear to him that his conduct was unacceptable. He did stop. She did not report what had
happened and had no wish to do so.
22. As an adult, and following the police investigation, she described what happened to her as a
"minor" indecent assault. Nevertheless, when these matters came to light she thought that she
should report what had happened to her so that the truth could be known. Since reporting the
matter to the police, she has become more nervous and anxious. She adds that reporting the
matter was painful, but she was glad she had done so because it might help other women to
come forward. She recalls that as a feature of her decision. The sentence was three months'
imprisonment.
23. Count 4 related to an offence in 1975. The young woman, who was aged 17, worked as a
nanny. She shared a bedroom with the older child, a girl aged 9. There was another younger
child aged 2. The offender was a family friend of the parents. On one occasion when he was at
their home the victim happened to pass him in the hallway. He pushed her against the wall,
placed both his hands on her ribcage and then moved them up and over her breasts. She
immediately turned to the side, pushed his hands away and swore at him. The offender stepped
backwards and walked away. She did not make an immediate complaint. She kept the incident
to herself for a long time. When she was married she told her husband about it. She later heard
about the offender's arrest for allegations of sexual assault on children and decided she should
report the matter.
24. When he was interviewed, the offender said that he could remember his friendship with the
adults in the house, but he could not recall the victim as the nanny. He denied the allegation.
He said that the complainant - and this was a steady, repeated theme throughout his first
interview - was a liar. The sentence was three months' imprisonment.
25. In November 1976 the victim in count 6 celebrated her thirteenth birthday. She was
friendly with another girl of much the same age. During the Christmas holidays she was invited
to stay at her friend's home. She was collected from her home address by the friend's father who
turned up with the offender. When they arrived at her friend's home it became apparent that the
offender's wife and son were also there. They were obviously all good family friends.
26. The three children obtained a bottle of Martini and consumed it. They became unwell
because of the alcohol. The victim vomited on her clothes. Eventually, the adults became
aware of the fact that the children were intoxicated and that the victim had been sick. The
offender picked up the victim and carried her to the bathroom, where she was undressed by her
friend's mother so that she could wash. The mother left her in order to go to her own daughter
who was similarly unwell.
27. The victim was left in the care of the offender, who locked the bathroom door. He placed
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her in the bath. He touched her breasts. He digitally penetrated her vagina with at least one
finger. She was shocked, stunned and paralysed. She was incapable because of her condition
and her distress to do anything. Whilst the indecent assault took place the offender remarked
that she was beautiful and gorgeous. He lifted her out of the bath and placed her on a towel on
the floor. He kissed her on the top half of her body, including her breasts. He tried to kiss her
on the lips, and he digitally penetrated her again before touching her all over her body in a
"frenzied maul".
28. When the mother returned she wanted to know why the bathroom door was locked. No
explanation was given. The offender unlocked the door and left the bathroom. The mother
dressed the victim in fresh, clean clothes.
29. The incident was reported to the friend's mother. No action was taken, and so the victim
did not tell her parents. She and the friend informed the offender's son. He appeared to be
visibly upset, but nothing more was done. The incident was never referred to again until the
victim was aged 18. She told her mother what had happened, and later told her father and her
sister.
30. When the offender was arrested in December 2012 this victim contacted the police and told
them what had happened. In interview in January 2013 the offender said that he did not
recognise this offence. He accepted that he knew the family and the children. He did not recall
being in the bathroom with the victim, although he could recall an occasion when the children
had all had too much to drink. He denied any impropriety. The sentence for that offence was
fifteen months' imprisonment.
31. Counts 10 and 11 relate to a victim who was 15 years old in 1976, when the offender was a
presenter on "North West Tonight", which advertised a weight-loss campaign called the "Slim
and Trim Campaign". The victim had aspirations to be a dancer. She contacted the programme.
She was selected. The programme makers, including the offender, visited her home in order to
take pictures. On that day her parents were out. When the television crew left, the offender was
alone with the victim. He began to kiss her passionately. He put his tongue into her mouth
which shocked her. She was taken aback and somewhat confused. She did not mention it to
anyone at the time.
32. However, she attended the BBC studios on a number of occasions in relation to the "Slim
and Trim Campaign". She was allowed to use the offender's dressing room in order to change.
On one occasion when she was dressed only in her underwear and lying on a settee the offender
entered, lay on the settee with her and put his arm around her. He produced a hand-held,
battery-powered massager which he asked her to use on her vagina. She declined. She made
the excuse that she was menstruating. She could not recall precisely what the offender wore,
but remembered that he was partially undressed and she saw his naked bottom. She confided in
a friend.
33. Again, after the offender's arrest she realised that what had happened to her was not
isolated, and she contacted the police. When he was interviewed the offender said that he did
not recognise her or remember her. He denied that he had had his own dressing room. He
denied producing a massager. He asserted that it was all made up.
SMITH BERNAL WORDWAVE
34. In her victim impact statement the young woman described how this contact was seen by
her as a wonderful opportunity which she did not want to jeopardise. Nevertheless, she
continues to feel a sense of anger at the BBC for allowing her to be in a position where the
offender could commit the offences. The investigation brought back a lot of memories that she
had hidden away or deliberately not brought to her mind. She expresses the hope, as others do,
that after this case is over those memories will leave her. On each of these two counts the
sentence was six months' imprisonment.
35. Counts 12, 13 and 14 relate to three girls. One was aged 11 years in the summer of 1981.
She had a sister who was three years older, aged 14; and the sister had a friend who was aged 13
or 14. The parents of the two sisters had separated and they lived with their mother. Their
father had a local business, the opening of which coincided with a promotional event at which
the guest was the offender and his family. The promotional event was reported in the press.
There was a family meal at a newly-opened bistro, which was attended by the offender's family.
36. Shortly afterwards the two sisters and their young friend were invited to and went to the
offender's home. The ostensible objective was elocution lessons. The three girls have slightly
different recollections about some of the peripheral parts of the incident. For example, one of
them recalls being taken to the address by her father, while the other sister remembers that she
and her friend were collected from a village by the offender who was driving a two-seater, opentop sports car and that all three girls squeezed into it. Which is right does not matter. What is
certain is that they were invited to his home and the parents were prepared to let them go to his
home because he was trusted.
37. When the three girls arrived at the house there was no one else there. They were taken into
the lounge. They were told that they needed to be relaxed for the purposes of the elocution
lesson and so they should have a bath. They were shown into a bathroom where there was a
large corner bath and a shower. Significantly, in our judgment, the bath had already been run
and was full of bubbles. It was suggested by the offender that the older sister and her friend
should share the bath and the younger sister should use the shower. When the girls went to lock
the bathroom door, the lock appeared to have been recently removed.
38. They were in the bath and shower respectively when the offender, unannounced, walked
into the bathroom. He caused them to squeal and to cover themselves as best they could. He
had with him three men's shirts. He told them to put them on, but they should not put on
underwear. The girls put on the shirts, but also put on their knickers.
39. They all returned to the lounge, where the offender was waiting. He wore a pair of small
white underpants. He asked them to pronounce the vowels of the alphabet and to read passages
from a book. He asked the younger girl to sit on the floor in front of him between his legs and
with her back against the area of his groin. Her recollection is that the offender put his hands
inside her shirt and began to massage her shoulders, and then slid them down to the area of her
chest, which he then massaged. She was prepubescent.
40. She recalls that the offender leant close to her. She could feel his breath. As he massaged
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her he pulled her backwards towards a hard object in the area of his groin. Her recollection was
that the two older girls were in the room at the time, but she cannot remember precisely where.
She has a recollection that at some stage the friend was in the same position as she had been
between the offender's legs.
41. Her older sister has much the same recollection. The passages in the book were read. She
sat between the offender's legs with her back to the sofa. He reached inside her shirt and put his
hands on the bare skin of her chest "uncomfortably close" to her breasts. The offender asked her
to read the same passage repeatedly. He said that his objective was to monitor her breathing.
42. The older sister's friend had lost her mother who died when she was 10. She spent a lot of
time with her friend's family. She recalled that the offender took her into a separate lounge
where he instructed her to lie on the floor to relax. He began to stroke her stomach in a circular
motion with his hand. She was uncomfortable, and more so when he began to move his hands
close to her breasts. She felt self-conscious and tried to move away. Eventually he stopped.
43. At the time she did not realise that anything had happened to the two sisters. Beyond a
general conversation with her brother, she did not mention the incident again until she was
much older.
44. In her victim impact statement the younger sister says that she would have told her mother
what had happened, but she did not. If she had told her, it would have been with the innocence
of a child. What troubled her most was that her father was apparently impressed with the
offender and with the "celeb thing". He wanted her to return. She says that her relationship
with her father did not break down until she hit her teens, when she realised that she had been
the victim of a sexual molestation. She resented the fact that her father had done nothing about
it and had noticed nothing. He had introduced the girls to the offender, he had consented to
them going to his house and had not stopped him. Over the years things improved, but their
relationship has been "difficult". She is extremely anxious that her privacy should be respected.
45. The older sister also made a victim impact statement. She was aware of the sexual
connotations. She asks:
"Can you even begin to imagine what it feels like, at the age of
13, to see an aroused man of 50+ standing there wearing only a
pair of white underpants ...?"
She goes on to say that continuing to make the statement makes her feel sick. She says that she
has seen in the press how the offender is described as an "opportunistic predator". She takes the
view, and she is entirely right on the facts we have described, that there was nothing
opportunistic about what she had to endure.
46. The friend describes the impact of the incident upon her and how she has struggled for a
long time with relationships with men. When she learned of the investigation she reported the
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incident, which she had to relive. She found it embarrassing, humiliating and it frightened her.
She had never told her father. He was now an elderly man and it was not a conversation she
wanted to have with him. It is another example of the need for privacy that some of the victims
are desperate to have.
47. The offender was sentenced to nine months' imprisonment in respect of counts 12, 13 and
14.
48. Count 15 related to a girl aged 10. In 1982 she met the offender and his family when she
was on a family holiday with her mother and grandmother in Madeira. The families became
friends. "It's a Knockout" was being filmed there. The offender provided the family with some
tickets. She often spent the summer holidays with her grandparents at their home in the area of
Alderley Edge. After the holiday in Madeira she was invited to the offender's house in
Wilmslow to have a swim in his outdoor swimming pool. Arrangements were made and he
collected her in his car. On the way to his home he stopped to purchase some champagne and
steaks. She thought that there would be others present at the house. She was thrown to discover
that they were on their own. They ate the steaks together and drank the champagne.
49. Later they had a swim together. When she got out of the pool the offender gave her an "It's
a Knockout" tee-shirt to wear once she took off her wet swimsuit. She was not wearing any
underwear. The offender carried her downstairs to the bedroom which contained her clothes.
She started to search for her knickers. She was self-conscious. The offender told her that she
would not need her underclothes. That added to her concern. She recalls being on a bed with
the offender. She was told to cuddle him as she would cuddle one of her teddies. She said she
did not have any teddies. She knew that what was taking place was wrong. She disliked it. The
offender put his arms around her and stroked the top of her arms and back. She felt
uncomfortable. She was "rigid" when he touched her. The offender wore only a pair of shorts
and was naked from the waist up.
50. Her next recollection is that she was back at her grandmother's house and was very upset.
We do not propose to act as detectives, but it is difficult to avoid the thought that one of the
reasons why the girl suddenly found herself back at her grandmother's home was that she was
affected by the champagne she had consumed. She told her grandmother that she would not
return to the offender's home or ever see him again. Her grandmother made the appropriate
excuses and she never returned. She recalls informing her grandmother that she had been on a
bed with the offender but now cannot recollect whether she went into any further detail.
Nothing more was said or done.
51. During her marriage she disclosed to her husband the unpleasant experience with the
offender and told him the full story in recent times. Her mother, having heard of the arrest of
the offender, contacted her daughter. The mother was unaware of what had taken place. The
end result was that the police were contacted and in due course a statement of complaint was
made.
52. In interview the offender recalled "It's a Knockout" visiting Madeira. He had no
recollection of meeting the 10 year old victim's family, of her visit to his house, or that he had
ever provided a meal for her or provided her with alcohol. He asserted that the allegation of
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indecency was untrue and a lie. He said that the family swimming pool was "open house", used
by friends and family alike when he was at home working on his broadcasting commitments or
his writing.
53. In a victim impact statement she says that she felt that this was an attack on her innocence.
She felt cheated. She withdrew into herself and became lonely and isolated. She describes how
she felt anger towards her mother and her grandmother, but now as an adult realises that this
was misplaced. At the time she felt that somehow they had let her down. It upsets her to think
that as a result of what the offender did to her, she felt anger towards her mother and her
grandmother.
54. For this offence the offender was sentenced to 15 months' imprisonment.
55. Counts 16 and 17 related to two girls aged 9 and 13 respectively. The parents of the
younger girl were close family friends of the offender and his family. They often socialised,
played tennis and spent time together on holiday. Her older brother was fond of the offender,
describing him as an "uncle figure". As part of her growing up she was very keen on horses.
She met and became friendly with the older girl, the victim in count 17. They used to ride
together. The older girl was a good tennis player. She was introduced to the offender as a
visitor to the younger girl's parents' home.
56. The incident involving the younger girl occurred at her parents' home. On occasions they
would let the offender read bedtime stories to the children or pop upstairs to wish them
"goodnight". That is indicative of their trust. One evening the child was in bed in her
nightdress. The light in the bedroom was off. She was half-asleep. She became aware that the
offender had entered the bedroom. He put his hand under her duvet cover, onto her bare upper
leg and moved it upwards towards her naked genitalia. Not wishing to confront him, she
pretended to wake up with a start and rolled away. He left the bedroom. She felt scared. She
said "I didn't really know at the time what he was trying to do, but I felt it was wrong. It wasn't
right". She did not disclose this incident to anyone for fear of causing upset and friction
between the families. Thereafter, however, she avoided the offender as best she could. She told
her older friend who disclosed that something similar had also happened to her.
57. The older girl was taken from time to time to play tennis by the offender. On one occasion
he took her and another friend back to his house. They swam in the pool and showered in the
house. He had a sun-bed in the property. He told the girls that if they wished to use it they
should be naked. They did not use it. For no reason he entered the shower room, naked except
for a small towel around his waist. The friend had the impression that, as he walked out of the
bathroom, he deliberately dropped the towel to expose his buttocks.
58. Count 17 related to a visit to the tennis court by the older girl. The offender took her to the
tennis centre in his two-seater sports car. On the journey home it was becoming dark. She
thanked him. He turned off the road into a by-lane and said that sometimes thank you in words
was not enough. She was aged 13. She felt uncomfortable. "In a split second I went from
thinking this was a lovely experience to thinking I was in trouble and that I was on my own with
a man who had changed from being friendly to being sinister". She was right. The car was
stopped. The headlights were turned off. She became more frightened. She realised that
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something was likely to happen. He bent forward, held her chin, kissed her on the lips and
forced his tongue into and around her mouth. She froze, pulled back and screamed or yelped
with fear and so he stopped. He drove her home. She jumped out of the car and ran straight
into the house. She never saw him again.
59. The following day she reported the incident to her sister, who told their parents. They told
the younger girl's parents, but the matter was taken no further. Thereafter, the families had
nothing to do with each other. After her father died, she told her brother.
60. In her victim impact statement, the younger of the two said the intrusion into her bedroom
was disgusting and disturbing. She was worried that it would "negatively impact my father's
friendship" with the offender. "I was frightened a big drama would be caused. I said nothing,
but felt very weird". That is an illustration of the kind of things that go through the minds of
young children when nasty things happen to them. They do not know what to do and their
thoughts inevitably become confused. Her situation was not assisted when, following her
father's death, the offender communicated that he would have spoken a eulogy about her father
but, fortunately from her point of view, he was abroad. She describes her concern at the recent
media attention to which she has been subjected. She now has counselling, years later, to
understand the way in which the secret that she kept has impacted on her life.
61. The older girl describes in her victim impact statement how this made her distrustful of
adult men. "I was a little girl at the time, sheltered and protected by a kind and loving family".
At the time of the incident all she wanted to do was to get home. She was desperate to do so.
At home she would feel safe. She was terrified. She felt that in some way it was her fault; that
in some way she was to blame for what had happened. Now that she is an adult, she realises
that such thoughts are inappropriate; she has nothing to blame herself for. He and he alone is to
blame. That is an indication of how offences of this kind can impact upon victims.
62. For the offences on counts 16 and 17 the sentence was 15 months' and six months'
imprisonment respectively.
63. The last count with which we are concerned is count 18. The victim was aged between 10
and 11. She has a much older sister who was married, and her husband's parents were good
friends of the offender. The marriage took place in 1985. The offender was at the wedding.
After the wedding the victim was offered some elocution lessons. Her father was surprised and
felt uncomfortable, but the child, who was interested in drama and television, was
understandably excited at the prospect of receiving lessons from someone famous. So on this
occasion, when she was aged 10 or 11, her father dropped her off at the offender's home. She
repeated some sentences which the offender had written down. Later they ended up in a
bedroom, where he told her to take off her clothes. She was surprised, but complied. She
recalled the offender producing the tape measure. She stood in front of him in her underwear.
He told her to take off her vest, but she refused. She was self-conscious and felt uncomfortable.
He measured her around the chest. They went into the en-suite bathroom where they sat on the
steps leading to the bath. She continued to practise the sentences. She assumed that everything
that happened to her was normal for an elocution lesson. Later she told her sister about it, and
much later after she married she told her husband. Over the years she asked herself whether she
should tell someone, but she was worried about whether she would be believed. When she
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heard of the offender's arrest, she contacted the police and reported these events. The sentence
was nine months' imprisonment.
64. On the morning of 5 December 2012 the offender was arrested at his home in Wilmslow.
At that stage the police had received information and were investigating complaints by the
victims in counts 3, 16 and 17. The offender was interviewed in the presence of his solicitor.
He denied that he was guilty. He indicated that the allegations were "nonsense", "completely
untrue", "impugning [him] for the sake of putting [him] in the stocks", and they were after
"instant notoriety if [the complaint] ever gets into the press". So far as the girl in count 3 was
concerned, she was a complete and utter liar. So far as the victims of counts 16 and 17 were
concerned, the assaults were completely untrue. Of the victim on count 16 (the young child to
whom bedtime stories were read), he said that any suggestion of impropriety was completely
untrue. His considered view of things as they stood at the time was that there was a "vendetta
going on against people in the public eye and people can come out of the woodwork and say
what they want".
65. The offender was bailed and further enquiries followed. As we have indicated in the
narrative, different victims came forward and made complaints which were investigated. When
he was interviewed again he said that all of the allegations were lies. There was nothing in
them. So far as elocution was concerned, he had devised a programme. That was the point of
it. He denied being improperly dressed or doing anything to anybody. Everything was
completely untrue. "A lot of people have just made things up just to make sensationalism. ....
it's completely misinterpreted." "They are all telling untruths."
66. The next incident of direct relevance occurred on 7 February 2013. We take the view that
what we are about to describe is a serious aggravating feature of these crimes. The offender
made a public statement to the media on the steps of the magistrates' court. He proclaimed his
innocence:
"May I say these allegations are pernicious - callous, cruel and,
above all, spurious. May I just say I am not guilty and will be
defending these allegations. Like a lot of other people in this
country today, I am wondering why it has taken 30 or 40 years
for these allegations to surface. The last two months of my life
have been a living nightmare. I've never gone through so much
stress in my life, and I am finding it difficult to sustain.
Fortunately, I have a very loving family and they are very
supportive, and I think but for their love I might have been
constrained to take my own life. They have encouraged me to
fight on, to fight the charges and regain my reputation and good
name and whatever I have represented to this country down the
years. With that, I would like to thank everybody who has
supported me for their goodwill which has sustained me through
this absolutely horrific ordeal."
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67. Whatever legal advice the offender had by then been given, he knew the truth. He knew
that he was guilty of molesting the complainants. As we have said, this deliberate falsehood is a
seriously aggravating feature.
68. The offender was an expert in the ways of the media. He was fully alert to the possible
advantages of manipulating the media. At that date he was hoping to escape justice and he was,
as we see it, attempting to use the media for the purpose of possibly influencing potential jurors.
He was traducing thirteen adult women who had been sexually assaulted by him in different
ways 20 to 30 years ago.
69. Whatever it may or may not have done to influence any potential juror, we have a clear idea
of what it did to some of the victims. One victim describes how the offender's outburst
"absolutely incensed" her. She felt furious about his blatant lies. There is a similar impression
from another victim who says:
"When he was interviewed outside the court, I felt that [the
offender] was trying to convince people he was innocent and
wrongly accused. I find it difficult to put into words how upset I
was by this. It made me cry, and then I felt I should withdraw my
complaint. And finally I became angry. I was concerned that
people would have been unduly influenced by his statement."
70. At a plea and case management hearing on 1 March 2013 the offender offered to plead
guilty to counts which ultimately were accepted by the prosecution. On 2 May he did so. We
do not see this as the first available opportunity to plead guilty, but guilty pleas were tendered
and it had the huge advantage to the victims that they did not have to relive what had happened
to them all those years ago, the memories of which had in most of them resuscitated thoughts
that they hoped they had buried. When the pleas were accepted, counts 5, 7, 8 and 9 were
ordered to lie on the file, not to be proceeded with in the usual way. Count 5 related to an
allegation of rape against a complainant who did not feature in any other count in the
indictment. Counts 7, 8 and 9 related to allegations of indecent assault on the victim in count 6.
71. The sentencing decision facing the judge at Preston Crown Court was far from
straightforward. These were old, "historic" offences. The maximum sentence available to the
judge was two years' imprisonment; or if the child was under 13, and so stated in the indictment,
five years' imprisonment. For the vast majority of these offences the maximum sentence was
two years' imprisonment. Since the offences were committed, the maximum sentences have
been revisited, but the judge was bound by the sentencing legislation in force at the date of the
offences.
72. In mitigation on the offender's behalf Mr Aylett QC made submissions before the judge
which have been repeated before us:
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(1) The most recent offence occurred in 1986. It is now significantly over 25
years since any criminal activity occurred. There has been no further sexual
offending.
(2) The offender had no previous convictions, and there were positive aspects of
his character which were to his credit. For example, the papers before us
describe how he would write letters to lonely people and to elderly people. He
helped to save the life of a young man who knocked himself out in a swimming
incident. On another occasion he had taken control of a situation when a
grandstand had collapsed and there appeared to be a threat to public safety.
(3) He has been a television and radio entertainer whose success brought a great
deal of pleasure to many who used to watch the programmes to which he made a
contribution, or to listen to the radio when he spoke.
(4) We are asked to bear in mind his health and that of his wife. Her mobility is
now much more restricted than it once was. The offender has an irregular
heartbeat and is therefore susceptible to an increased risk of a stroke. He suffers
from sinusitis. Both he and his wife suffer the infirmities of old age creeping up
on them.
(5) The offender, having indicated his willingness to plead guilty in the way that
we have described, it took two months before all these matters were cleared up.
73. We note that the last incident occurred in 1986 and that there is no further offence recorded.
The offender no longer represents a risk or threat to children or young women. His age and
level of infirmity, too, are relevant to the sentencing decision, but need to be approached with a
degree of caution. In reality the offender has got away with his offending for decades. None of
the adults to whom the children spoke of their fears or experiences would have dared to take on
one of the most celebrated television personalities of the day. The offender must have known
that.
74. Nowadays, things have improved. There was a time when the complexity of trying sexual
allegations made by children was unbelievable: the highly technical requirement for
corroboration, now thankfully gone; the way in which children had to give evidence in open
court; and the warnings that juries had to be given about how they should approach the evidence
of children. All of that, too, has gone. These changes are for the better, and justice has a better
chance therefore of being done.
75. We reject the submission made to the trial judge that somehow the fact that the adults did
not report these incidents when the children told their parents or grandparents (or whoever it
might have been) provides an indication that they could not have taken the allegations seriously.
We know why two families did not formally complain: they could not take on the famous
celebrity. The offender's successful career provides no mitigation. On the contrary, it was the
career that put him in a position of trust which he was then able to exploit and which
contributed to his image as a cheerful, fun-loving, fundamentally decent man. This contributed
to the view that he could be trusted; and second, if he could not be trusted, effectively he was
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untouchable. It is true that he has no previous convictions of any kind. It is true that he has
behaved decently on occasions and deserves credit for that. But we now know, as the world at
large knows, that since the mid-1960s he molested children and growing girls and therefore that
he lived a lie - a lie for more than half his life; a lie repeated on the steps of the magistrates'
court for the benefit of the accompanying media.
76. The sentencing judge carefully analysed the factual and legal issues which bore on his
decision. It is clear from the structure of his sentencing remarks that he addressed the issues
before him with great care. He rejected the submission that, taken together, the offences were
not sufficiently serious to justify a custodial sentence. He agreed that some of the incidents,
taken alone, did not cross the custody threshold. Some of them, either because of the age of the
child concerned or the nature of the indecent act, or in the case of counts 12, 13 and 14 which
involved the three young children, were incidents that did cross the threshold. He reminded
himself that, even if individually a charge did not call for a custodial sentence, the cumulative
effect of the offending had to be taken into account. We agree with that.
77. The judge summarised his conclusions as follows:
"(1) Taken individually some of the offences do not cross the
custody threshold.
(2) However several of the offences, in my judgment more than
your counsel has submitted, do cross the custodial threshold, and
those in each of counts 6, 15 and 16 do so significantly because
of their facts and the ages of the children involved.
(3) Taken together the cumulative result of the offender's
offending is such that a custodial sentence is appropriate as the
starting point for all of the offences.
Having come to the conclusion that the offending taken as a
whole crosses the custody threshold, as I have, I then have to
determine whether the mitigation in your case is sufficient to
justify retreating back over the custody threshold and I have to
decide what the appropriate penalty should be."
The judge then addressed the matters of mitigation which we have addressed in the course of
this judgment.
78. We must specifically address the issue of the discount for the guilty plea. The offender did
plead guilty - not at the first opportunity, but, more important, not before he had publicly and
deliberately attacked the victims. There are two ways of approaching what we have already
described as a seriously aggravating feature of the case. We can either reduce the appropriate
discount by 25% taken by the judge to allow for the unusual feature that preceded the indication
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of a guilty plea; or we can add the aggravating feature to our starting point and then apply the
appropriate discount to whatever sentence we think right in the light of the aggravating feature.
79. We consider that the appropriate course consistent with current sentencing practice is to
reflect this distressing behaviour in the assessment of the sentence and then discount from it to
allow for the guilty plea.
80. The judge decided, and we agree with him, that, notwithstanding the features of mitigation,
an immediate custodial sentence was appropriate. He proceeded to examine each offence in
meticulous detail, and we acknowledge the care that he took. He then applied the totality
principle with which again we agree.
81. The question for us is stark: In the context of the aggravating and the mitigating features,
which we have identified, did a total sentence of 15 months' imprisonment sufficiently reflect
the cumulative effect of the offender's criminality? We cannot interfere with the sentence unless
we are satisfied that it was unduly lenient.
82. After a careful consideration of the facts and the detailed material, we are so satisfied. We
must keep the seriousness of the offences in proper perspective, as the Attorney General did.
Some were more serious than others. Taken in isolation, some would not have required a
custodial sentence. Some, as time went by and as the offender escaped detection, seem to us to
have started to be marked with an increasing degree of thought and premeditation. The result of
the offending taken as a whole is that a multiplicity of young girls were sexually molested over
an 18 year period, some when they were very young, all when they were in one way or another
vulnerable, and all when the offender was in a position to misbehave as he did just because he
was who he was - trusted as a friend, trusted as somebody to whose home it was safe to send a
child, or to invite into a home, or trusted as a public figure. All of the offences were real
assaults. There was no question of any of the victims consenting to anything. These were not
just technical assaults because the victims were too young to have, if they had, consented in law.
There was no such question; they were all assaults - technically, legally and as a matter of fact.
83. The impact on the victims has been lifelong. They have resulted in different
manifestations. Indeed, the breadth of the manifestations, as we have set out in the judgment,
highlight that although it is possible to predict that this kind of sexual misbehaviour will always
cause some permanent consequences, it is not always easy to predict precisely what they will be
in the case of each individual victim. Difficulty in forming a lasting sexual relationship may be
obvious in some cases of indecent assault; but a deep resentment of a father's reaction may sour
what should be a natural, loving relationship of a quite different kind between father and
daughter, to the disadvantage of both the father and the daughter.
84. We hope that when the current clamour diminishes the victims will feel vindicated and find
some level of peace - peace that was "cruelly and callously set into turmoil" by the offender's
public denouncement of them. Many of the victims hate the clamour. The anonymity to which
they are entitled should be maintained, at any rate to the extent that they wish it to be
maintained, and no pressure of any kind should be put on them to waive anonymity.
85. We have been asked to consider a letter written on behalf of some of the victims and of
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course, as we always take into account views expressed by victims about such matters in order
to examine them and see what weight, if any, we can give to them, we have done so. We will
isolate some passages from the letter dated 25 June 2013, received by the Attorney General
from solicitors acting for fourteen of the offender's victims. It reads:
"We're a bit disappointed that the Attorney General is talking
about an appeal as that is not at the request of the police or the
victims. It's out of our hands now and we have not even been
asked whether we want to appeal on the length of the custodial
sentence. .... None of us [was] fired up with anger at the sentence
and I didn't see anyone behaving as though they were unhappy
with the outcome - no one was vicious or vindictive about this
and all, I reckon, would much rather that yesterday was the end
of the criminal proceedings. Watching him go down those stairs
gave us no satisfaction whatsoever ....
On the day, the victims and police felt the sentence was okay and
we were just pleased that he was actually sent down. I am
somewhat disappointed and annoyed that other people think they
know what we wanted [that it should have been a longer
sentence] and feel that need to drag it out further in a public
arena."
It is obvious that some of the victims are neither vindictive nor vengeful. They are happy with
the process and wish to be left alone. They do not relish the case being once more in the public
eye.
86. But whether in the Crown Court, or on appeal to the Court of Appeal Criminal Division by
a defendant who asserts that his sentence is too severe, or on a Reference by the Attorney
General that a sentence is unduly lenient, the principle is simple. We must, of course, consider
the harm done to victims, but victims do not and cannot decide sentences. We cannot have
sentences which depend upon whether a victim feels particularly vengeful, moderately vengeful,
not vengeful at all, filled with mercy, or even, as some do, believes that there should not be a
prison sentence. The principles are set in R v Nunn [1996] 2 Cr App R(S) 136. It was a case of
a young man who had been killed as a result of the dangerous driving of his best friend who had
had too much to drink. The car collided and the young man was killed. The mother did not
want the offender who was guilty of killing her son to be sent to prison. At page 140 the
judgment reads as follows:
"We mean no disrespect to the mother and sister of the deceased,
but the opinions of the victim, or the surviving members of the
family, about the appropriate level of sentence do not provide any
sound basis for reassessing a sentence. If the victim feels utterly
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merciful towards the criminal, and some do, the crime has still
been committed and must be punished as it deserves. If the
victim is obsessed with vengeance, which can in reality only be
assuaged by a very long sentence, as also happens, the
punishment cannot be made longer by the court than would
otherwise be appropriate. Otherwise cases with identical features
would be dealt with in widely differing ways leading to improper
and unfair disparity, and even in this particular case, as the short
judgment has already indicated, the views of the members of the
family of the deceased are not absolutely identical."
(The father did not take the same view of sentence as the mother.)
"If carried to its logical conclusion the process would end up by
imposing unfair pressures on the victims of crime or the
survivors of a crime resulting in death, to play a part in the
sentencing process which many of them would find painful and
distasteful. This is very far removed from the court being kept
properly informed of the anguish and suffering inflicted on the
victims by the crime."
87. We have taken into account all the features that we have identified in the context of what
the victims are reported by the solicitor to have said. However, we must also recognise, as the
Attorney General recognises, that there is public concern about any crime involving the
molestation of children, and therefore these crimes cannot simply be seen in the way considered
by the victims. There are public concerns about sexual crimes against children and young
victims which for very good reason have been heightened by our increasing understanding of
the criminality involved and the serious consequences to the victims, however minor (in the
legal sense) the offence may seem to be.
88. We have come to the conclusion that, making every allowance that can reasonably be made
for the matters of mitigation, this sentence was inadequate. The double jeopardy principle does
not apply. The appellant is in custody; he has been sentenced to an immediate custodial term;
and he has known that the Attorney General proposed to refer the sentence to this court.
89. In our judgment this sentence should be increased from 15 months' imprisonment to 30
months' imprisonment. The objective will be achieved by ordering that the sentence on count
15, which was ordered to run concurrently with the other sentences, should now be ordered to
run consecutively.
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