Shadow Attorney General Emily Thornberry this morning became the latest media casualty of Labour’s attempts to justify their much-criticised attack adverts on Prime Minister Rishi Sunak, in particular the tweet claiming that Mr Sunak “[doesn’t] believe that adults convicted of sexually assaulting children should go to prison”. 

Appearing on Radio 4’s Today programme to be interviewed by Justin Webb, the Shadow AG struggled to summon coherent answers to what might have seemed straightforward questions regarding the data underpinning Labour’s claims, and even Labour’s own position on sexual offending against children. 


Since the advert’s launch last week, it has been clarified that the “4,500 adults” cited relate to cases between 2010 and 2022. Listening to this morning’s interview, Labour’s argument appears to be: The Conservatives have been in power since 2010. Child sex offenders have avoided prison time. This is the Conservative Party’s, and therefore Rishi Sunak’s, responsibility. And these adverts are accordingly a fair and legitimate line of attack.

It is a superficially attractive justification, and one which Labour HQ has apparently calculated will suffice to keep Labour afloat while the flares noisily explode around them. But it is also wildly dishonest; a fiesta of disingenuous assumption and intellectual sleight of hand, designed to exploit the gaps in the public’s understanding of their justice system.

Let’s break it down.


Why have 4,500 adults convicted of sexually assaulting children avoided prison?

The short answer is that we don’t know, because we know nothing of the facts in those individual cases.

The slightly longer answer, is that those people avoided prison because a judge, having heard the facts of the case and applied the relevant sentencing framework, decided that a sentence of immediate imprisonment was not necessary. And the rule of law means that such decisions are made by independent judges, fairly applying the law and principles of criminal sentencing, rather than politicians with an eye trained on the media headlines. 

Which means that the problem – if we accept that it is – must lie with either the judges applying the law, or those responsible for the framework.

The first is easily dealt with. The odds are that, in some of those cases, something will have gone wrong, legally speaking. Judges will have misapplied the sentencing framework. People will have been spared prison who, upon close consideration of the facts and the law, should have been sent down. That happens. Judges are not infallible. Defendants who should go to prison sometimes do not. Defendants who should not go to prison sometimes do. 

But statistically those cases are in the minority. 

In most cases, the defendant will have been sentenced lawfully and in accordance with the sentencing framework – which consists of three main sources: Maximum and minimum sentences set by Parliament; sentencing law and principles set by the Court of Appeal when dealing with sentence appeals from the Crown Court; and Sentencing Guidelines.

So if the contention is that the sentences, even if legally correct, were morally or otherwise flawed, we need to look at who is responsible for that legal framework. 


Who is responsible for maximum and minimum sentences set by Parliament?

Well, Parliament. Usually giving effect to the legislative agenda of the government of the day. So since 2010, the Conservatives and (between 2010 and 2015) the Conservative/Lib Dem coalition.


Who is responsible for decisions of the Court of Appeal?

That would be the judges of the Court of Appeal. However, it is important to note that the Court of Appeal is bound to follow legislation, and, if Parliament disagrees with the way that the Court of Appeal has interpreted the law, or with the development of a principle of sentencing, Parliament can legislate to get its way.


Who is responsible for the Sentencing Guidelines?

The Sentencing Council for England and Wales is an independent non-departmental public body responsible, since 2010, for issuing sentencing guidelines, which courts are required to follow unless it is in the interests of justice not to do so. The idea is to promote consistency in the way that defendants are sentenced across the country. The Sentencing Council is also responsible for monitoring those guidelines, assessing their impact, and promoting public understanding of how sentencing works. It holds public consultations when introducing or amending Sentencing Guidelines, and is accountable to Parliament, whom the Council must consult. The Council currently has 14 members, including representatives from the Ministry of Justice, judges (including the Lord Chief Justice), the police, victims of crime, academia, lawyers, magistrates and, interestingly, the Director of Public Prosecutions, who – as many have observed – would have included Keir Starmer during his time in that role.

There are not yet guidelines for all criminal offences, but there are comprehensive guidelines for sentencing sexual offences against children.


Are the Sentencing Guidelines for child sex offences wrong?

Labour’s original tweet referred to “sexually assaulting children under 16”, which is not actually an offence known to law. (They repeated the feat in their follow-up tweet, which adopted a similar statistical jolly regarding people convicted of the non-offence of “possessing firearms with intent to harm”.) This isn’t merely a semantic quibble – it makes it very difficult to verify the accuracy of Labour’s data when they do not accurately cite what their figures relate to. There are a plethora of sexual offences on the statute books, covering a wide range of conduct, but sexual assault of a child under 16 is not one of them. 

We will assume, for now, that Labour’s figures at least include the offence of sexual activity with a child, as it provides an illustration of how sentencing works. The relevant Sentencing Guideline is here

We can see that the maximum sentence set by Parliament for sexual activity with a child [aged between 13 and 15 – there is a separate guideline, with much higher sentences, for offences against children under 13] is 10 years’ custody (or 14 years where there is penetrative sexual activity). And by inputting the facts of a given case, you arrive at a Category for Harm and a Category for Culpability, which you then put into a matrix to arrive at a sentence starting point, and a sentencing range.

The most serious offences of this type – Category 1A – which involve penetrative sexual activity and where there are features of ‘higher culpability’, carry a starting point of 5 years’ custody, with a range of up to 10 years. The least serious – where there is sexual activity that doesn’t involve the touching or exposure of naked genitals or breasts, and where there are no features of higher culpability – carry a starting point of a medium level community order.  

Now, you may or may not agree with these. For my part, I think that sentencing for serious sexual offences has long failed to reflect the harm caused. Something that I examine in Nothing But The Truth is the tension that exists between the norms of the legal system (many of them the legacy of ingrained misogyny which has valued female bodily autonomy as less worthy of legal protection than property rights), and the expectations of the public. I would have no objection in principle to there being a substantial uplift to the starting points for serious sexual offences (subject, of course, to a vast increase in resources to equip our prisons to effect meaningful rehabilitation).

But whether sentences should generally be higher or generally be lower isn’t actually the issue here.

Rather the nub of the issue as framed by Labour appears to be this: there should not be any cases of this type in which people avoid custody.

Emily Thornberry was asked this morning whether Labour would commit to automatic prison sentences for every child sex offender. In between the attempts at deflection (“We will bring in a minimum sentence of 7 years for (adult) rape”, she offered), she settled on: “That should be the default position, absolutely.” Which falls some way short of committing to minimum prison sentences for child sex offenders, no doubt because she knows all too well that there will be cases in which such offenders shouldn’t – legally or morally – go to prison.

They are difficult and unattractive scenarios to imagine – much less to posit in a media interview – but the courts have to deal with them every day. An 18-year old asking a 15 year-old over SnapChat for “a cheeky picture”. A twenty-something with severe learning disabilities who touches the leg of a teenage boy on a bus. A young man with severe autism and ADHD who begins communicating online with a self-styled “paedophile hunter” posing as a 14 year-old. All serious cases, of course. All offences of engaging in, inciting or attempting to incite sexual activity with a child. All worthy of prosecution, and all in need of a sentence that protects the public. But does that sentence always need to be prison? 

There are also cases in which the court’s hands are tied by the limited suite of sentencing options that the system provides. Prison is a famously excellent way to upgrade minor criminals into major dangers, and there is very little available by way of rehabilitation programmes for sex offenders serving short or moderate sentences. It means that there will be cases where – as the Sentencing Guideline cues – a defendant may have a much better chance of being rehabilitated, and the public thereby protected, by being enrolled in an intensive specialist programme with the Probation Service in the community, where he can keep alive the ‘protective factors’ – employment, housing, relationships – which are statistically likely to prevent him from reoffending. 

It is also worth noting that of those 4,500 “adults”, a number will inevitably be defendants convicted as adults for offences committed when they were children, the delay between commission of offence and date of conviction a regrettably common occurrence in our backlogged system. Similarly, a further number will have served many months – even years – remanded in custody awaiting trial. By the time of their sentence, they may be effectively “time served”, leaving the sentencing court with a choice between imposing a prison sentence which has already been served, and which will see a defendant released with the flimsiest supervision, or a lengthy community order to give the Probation Service a firmer, longer grip over him.

The point is: these cases are rarely straightforward. As Emily Thornberry knows, while politicians love to fulminate about punishment, they have legislated to compel judges to also have regard to other principles of sentencing – namely public protection, reduction of crime (including by deterrence), rehabilitation and compensation – and to balance those competing interests in each individual case. If sentencing was simply a matter of punishing the person in front of you as much as possible, judges wouldn’t need judgement. They would simply need a list of the maximum sentence to be read out in each case.

Labour’s refusal to commit to minimum prison sentences in all such cases is an acknowledgment of this reality.

Ah yes, the response will no doubt come in a forthcoming interview. We accept there will be a few cases where custody would not be appropriate, but that figure of 4,500 is simply too high. This should be given similarly short shrift. It is impossible to say by reference to decontextualised figures alone whether there are too many, too few or just the right number. Emily Thornberry’s inability, when expertly snared by Justin Webb, to offer any sort of context – including the total number of offenders sentenced over that twelve-year period, which would at least provide a frame of reference – exposes the void of principle behind Labour’s complaint.


So is it Rishi Sunak’s fault?

Let’s say that Labour were right, and that the 4,500 figure does in fact disclose a problem with unduly lenient sentencing across this very serious type of offending. There’s no evidence to support that contention, as we’ve seen, but let’s run with the hypothesis.

What is it that Labour say Rishi Sunak could or should have done differently?

Emily Thornberry identified three specific areas. First, she suggested that the Attorney General had failed to refer these 4,500 cases, or a proportion of them, to be increased by the Court of Appeal under the ‘unduly lenient sentence scheme‘. The Court of Appeal can only intervene where a sentence is not simply lenient, but unduly so, which in legal terms is a very high bar. Ms Thornberry made the bold claim that these cases should have been referred despite knowing nothing about any of the cases in question. She has no idea whether there is merit in referring even a single one of them. It is a preposterous suggestion, made all the more laughable given what is known across the criminal legal profession about the most infamous recent occupant of that office, Suella Braverman. Ms Braverman became a figure of ridicule for her willingness to refer as “unduly lenient” any case where there was a prospect of tabloid publicity for her (even going as far as insisting on putting on her wig and appearing herself at the unsuccessful attempt to refer the sentences of the killers of Pc Andrew Harper, despite having never prosecuted a criminal case in her career). The notion that Conservative Attorneys General have been coy in trying to have sentences increased is absurd; the suggestion that it is in some way Sunak’s fault, is risible.

The second argument was that, due to prison overcrowding, judges are presently entitled to bear those prison conditions in mind when sentencing defendants, so that in a borderline case it might justify passing a suspended, rather than immediate, prison term. And Ms Thornberry is right to be angry. It is shameful that our prison estate has been so mismanaged, so starved of resources and so overfilled. But this situation has little bearing on the sentencing practice of 2010. And, as was exposed in the interview, it is unclear how Labour would be improving the situation by locking up these extra 4,500 while refusing to commit to any further spending on the prison system.

The final argument was that Sunak bears responsibility because Parliament, and by extension the government, is responsible for setting minimum and maximum sentences. 

But as we’ve seen, the maximum sentence isn’t in issue here. And Labour themselves have not committed to a minimum sentence, let alone suggested what such a sentence should be.


So, it is fair to say that Rishi Sunak does not think child sex offenders should be imprisoned?

No. Whatever one might infer about Rishi Sunak’s views on criminal justice, it is highly unlikely that he believes that child sex offenders should not be imprisoned. I imagine that he believes that they should be, and for a very long time. Given his government’s record of punitive breast-beating on the subject of prison sentences, the sensible conclusion is that he believes in longer and more condign sentences, and would probably define the success of criminal justice in such terms.

And that, more than anything else, is why Labour’s campaign is so terribly, unforgivably stupid. Because while Rishi Sunak and his government may well hold a sincere interest in punishing sexual offenders, their record shows that they have minimal interest in upholding a system which brings such people to justice.

The utility of criminal justice for Sunak, like so many of his predecessors (of both main parties), is purely as window dressing. He recognises the electoral convenience of posturing as Tough on Crime, while seeking to avoid the fiscal inconvenience of funding a system which many people believe – wrongly – they will never need. The result, after decades of cuts to every part of criminal justice, is a hollowed-out system which the public are encouraged to admire only for the length of the prison sentences it imposes. Like the polished chassis of a classic car with the engine and interior gutted, our criminal justice system can be wheeled out and pushed around the showroom at election time, with the veneer fooling outside observers as to its roadworthiness.

You don’t need a sophisticated strategy to score easy hits on this government over criminal justice. You simply have to recite the facts.

But instead, Labour invite us all into the gutter. They invite us to agree that something is a problem – when Labour admit that there’s no evidence to suggest it is – and that the problem exists because of the beliefs of somebody who bears little responsibility for that imaginary problem.

It takes all of us for fools. It contributes to the widespread public misapprehension that the only real problem with our justice system is that it doesn’t “punish” enough, when every single person who works in system will tell you that the problems lie everywhere else, most critically in actually getting a criminal allegation to trial. Those problems – the real problems – are things for which Sunak is responsible, both indirectly and directly, and from which obvious conclusions can be drawn about how much he values a functioning criminal justice system.

Rishi Sunak believes that the criminal justice system is not a priority. He believes that it can be run by his incompetent mates on bargain basement rates. He believes that the fact it takes victims of serious sexual violence the best part of a decade to have their trial, does not demand urgent action. He believes in his Justice Secretary’s plans to maintain a record backlog in the courts – despite his own MPs being among those condemning Raab’s “meagre” efforts. He believes that a system where serious trials are cancelled every single day due to a chronic shortage of courts (because they’ve been sold off), judges (because they haven’t been recruited) and criminal lawyers (because they’ve been forced out) does not need any more courts, judges or lawyers. He believes that it is acceptable for victims, witnesses, defendants and jurors to spend days shivering in collapsing, leaking courts where broken toilets spew sewage and there is nowhere to get a glass of water. He believes that addressing the epidemic of overcrowding, violence, self-harm and mental ill health in our prisons is less important than putting even more people into those conditions. He believes that the measure of success is how long those people remain there, rather than whether the public is any safer upon their release.

He believes that if you are wrongly accused of a crime, you shouldn’t be able to recoup your legal fees – meaning you could be bankrupted for the crime of being innocent. And if you are wrongly convicted and spend years of your life in prison, Rishi Sunak does not believe that you should be compensated.

All of those – and so much more – can fairly be put on a poster. All of those are within his control to fix. All of those reflect the legacy of his decisions, and the decisions he has supported ever since he was elected as an MP. 

And from all that, you can extrapolate an equally fair conclusion: Rishi Sunak believes that criminal justice doesn’t matter. He believes that it doesn’t affect people like him. He simply doesn’t care about those who are dragged into the justice system, whether as victims, witnesses or the accused.

Because if he did, he’d damn well do something to fix it.

Stick that on your fucking poster.

thesecretbarrister Lawsplaining, Politics, Sentencing