Judge Cottle intended this disingenuous little lie to express the extent of his contempt for the defendant, but it was soon turned against the judge himself by victim "advocates" and conspiracy theorists. If the offence would earn 14 years, they cried, why a suspended sentence?
First, Judge Cottle was well aware that the 14-year sentencing maximum is only effective for offences committed on or after 14th May 2007. Second, that maximum would only apply where the sexual activity alleged is penetrative:
Section 10: Causing or inciting a child to engage in sexual activity
The elements of the offence are:
- (A) aged 18 or over intentionally causes or incites another person (B) to engage in an activity
- the activity is sexual, and
- either (B) is under 16 and (A) does not reasonably believe that B is 16 or over, or
- (B) is under 13.
The offences in sections 9 and 10 are indictable only with a maximum sentence of 14 years where penetration occurs within subsection (2) of those sections. [Emphasis added.]Third, the 14-year maximum could only be reached in the event of aggravating factors, none of which were even alleged in Mr. Ovenden's case. (The factors include whether the offender ejaculated or caused victim to ejaculate; whether there was a history of intimidation or coercion; whether the offence involved use of drugs, alcohol or other substance to facilitate the offence; whether the offender made threats to prevent victim reporting the incident; abduction or detention; and whether the offender was suffering from a sexually transmitted infection and was aware of it.)3
Finally, retroactive application of sentencing guidelines is prohibited by paragraph 1 of Article 7 of the European Convention on Human Rights, to which the U.K. is a signatory:
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.4 [Emphasis added.]At the time the criminal offence in Mr. Ovenden's case was allegedly committed, the governing law was the Indecency with Children Act 1960, which carried a maximum term of two years for imprisonment on an indictment. (A summary offence earned a maximum term of up to 6 months or a fine of up to £400 or both.)5
Under these circumstances -- including the law in force at the time, the nature and gravity of the offence, the character of the defendant and the likelihood of re-offending -- it is obvious that no custodial sentence is mandated in this case.
So what is the talk about the Attorney General reviewing the sentence? Just talk. According to the CPS guidelines regarding sentence review,
"The Attorney General has a power to refer to the Court of Appeal any sentence which appears to be so lenient that it damages public confidence because it falls outside the range of sentences that the judge could reasonably have considered appropriate. ... The Court does not engage in "tinkering" with sentences, merely because they are marginally lower than might be expected, having regard to the sentencing guidelines or case law.6 [Emphasis added.]
1Morris, Steven, "Graham Ovenden walks free after judged no longer a sexual threat." The Guardian, 4 June 2013. http://www.guardian.co.uk/uk/2013/jun/04/graham-ovenden-judged-no-threat
2Rape & Sexual Offences, Section 2, Chapter 10: Causing or inciting a child to engage in sexual activity. http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/index.html#a23
3CPS Sentencing Manual, S8. Causing or Inciting a child under 13 to engage in sexual activity (discussing aggravating factors). http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/s8_causing_or_inciting_a_child_under_13_to_engage_in_sexual_activity/
4Article 7 of the European Convention on Human Rights. http://en.wikipedia.org/wiki/Article_7_of_the_European_Convention_on_Human_Rights
5Indecency with Children Act 1960, Timeline, Indecent Conduct Towards Child, paragraph 1. http://www.legislation.gov.uk/ukpga/Eliz2/8-9/33/section/1/1991-02-01?timeline=true
6CPS Sentencing Manual, Referral of Unduly Lenient Sentences. http://www.cps.gov.uk/legal/s_to_u/sentencing_-_general_principles/#a20