Darren Riley [2019] EWCA Crim 816

R v Darren Riley [2019] EWCA Crim 816 concerns a reference by Her Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988, in which the Court of Appeal (Sir Brian Leveson, President of the Queen’s Bench Division, Jay J and Freedman J) found that a sentence of a conditional discharge imposed for four counts of sexual assault was unduly lenient and replaced it with a community order.

Mr Darren Riley, aged 44, was convicted after a six-day trial at Woolwich Crown Court before Her Honour Judge Downing and a jury of four counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On 21 February 2019 he was conditionally discharged for 18 months on each count concurrently, ordered to pay compensation of £750 to the victim, and made subject to the notification requirements for 18 months.

The offences took place between March and November 2017. Mr Riley and the victim, known as A, were both volunteers with St John Ambulance, where Mr Riley was unit manager. A had joined the organisation in part because of previous emotional difficulties, of which Mr Riley was aware. On 20 March 2017, during a First Aid training course delivered by Mr Riley, A was lying on the floor while Mr Riley held her neck to demonstrate treatment. He remarked, “You should see the view I can see down your jumper now.” When A left the room upset, Mr Riley followed and squeezed her bottom. That evening he sent a text message apologising for touching her bottom. The following day he sent further messages, including references to his position as line manager, stating, “If I was younger I would love to ask you. But I’m not younger, single I’m your line manager and it’s my job to ensure all is ok.” Other messages included sexually charged comments described by Mr Riley as “banter”, such as joking about putting her across his lap, about rescue breaths and not using his tongue, and about chest compressions and not knowing where to put his hands. On 4 November 2017, while A was cleaning an ambulance, Mr Riley approached from behind and squeezed her bottom again. On 5 November, at a football club event, he remarked, “walk in front I get a better view” and again grabbed her bottom. On 6 November, at a fireworks event, he grabbed her bottom a fourth time while she was making tea in an ambulance vehicle.

When interviewed, Mr Riley denied all allegations of sexual assault. At trial he continued to deny the offences and characterised the text messages as banter, though he acknowledged that what he had said was inappropriate. He denied sexual attraction to A. Mr Riley was of good character save for a caution in 2007 for common assault. He had been employed as a social worker with Kent Adult Social Care but had been dismissed following a sexual complaint. At the time of sentence he was working as a vehicle recovery officer and feared losing his job as a result of his conviction. In a pre-sentence report he maintained his denial, claimed that the victim and witnesses had conspired against him to “usurp his position”, and displayed no empathy or remorse. The probation officer recommended a community order with a rehabilitation activity requirement and unpaid work requirement. A psychological report noted that Mr Riley had suffered post-traumatic stress disorder and depression some 20 years earlier following an unstable relationship and his experiences in the Army, but at the relevant time his mental health had improved and he was not suffering any major mental illness. Character references spoke of him in favourable terms.

A victim personal statement described how A had joined St John Ambulance at a low point in her life, while caring for her seriously ill mother and struggling emotionally and physically. She initially regarded Mr Riley as a friend who supported her through difficult months. The messages from Mr Riley began in a friendly manner but took on a sexual nature, which she tried to brush off. She described her difficulty in reporting the matter, given that Mr Riley was her manager and his fiancée was second in command. She stated that the offending had made it difficult for her to approach men, caused her to blame herself, made her feel small and controlled, and had halted her life, affecting her home life, her St John Ambulance activities and her career. She emphasised that she did not want to ruin Mr Riley’s life or send him to prison, but wanted him to understand that his behaviour was unacceptable and to recognise that he had been in a position of trust and power.

The prosecution submitted that the offending fell within category 3A of the Sentencing Council’s Definitive Guideline for Sexual Assault, on the basis of an abuse of trust. The defence contended that it fell within category 3B. The judge agreed with the defence, having considered R v Ashton [2016] 1 Cr App R(S) 32, a case in which this court considered whether an employer who sexually assaulted a member of staff in the workplace had abused a position of trust. The judge concluded that there was no such abuse of trust by reason of abuse of a position, although she noted that there was not total equality between the parties and that the age and circumstances of the victim ought properly to be reflected in the assessment of culpability.

The judge observed that Mr Riley did not cross the custody threshold and concluded that she was sentencing on practically the lowest level of seriousness. She initially indicated that she would pass a community order but, after reading the victim impact statement, decided to impose a conditional discharge instead. The judge took into account that Mr Riley had been punished by the fact of coming to court, the loss of his good name, the distress caused to his partner by requiring her to give evidence, his traumatic background in the Army, and the downward spiral in his life as a result of matters beyond his control. The judge also remarked, “Were I to pass a community order, you would be on the Sexual Offender’s Register for five years and I am bold enough to say and I hope it will not … that that is not with respect, what Sexual Offenders’ Register is about.”

Before the Court of Appeal, Mr Jonathan Polnay, appearing for the Solicitor General, accepted that the judge was not wrong to place the offending within category 3B, but submitted that the relationship between victim and offender constituted an aggravating feature. Mr Riley had been the manager and had a relationship with A as a volunteer, one that was not one of equality. He had himself recognised in text messages that he was her line manager and exercised a degree of responsibility, if not power, over her. Mr Polnay argued that the totality of four offences rather than one needed to be reflected in the sentence and that the judge had failed properly to have regard to section 125 of the Coroners and Justice Act 2009, which required the court to follow any sentencing guideline unless satisfied that it would be contrary to the interests of justice to do so. The guideline reflected a category range with a community order at the bottom end, which was different from a conditional discharge, which under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 could be imposed where the court considered it inexpedient to inflict punishment. The consequences of proceeding through trial and the upset caused to Mr Riley’s fiancée were the result of his decision, rejected by the jury, to challenge his guilt and therefore did not constitute mitigation. Similarly, his mental health difficulties 20 years previously ought not to have been reflected in the sentence. Mr Polnay submitted that the judge’s approach to the notification provisions was wrong and that this requirement should have been ignored. He referred to Attorney General’s Reference No 50 of 1997 [1998] 2 Cr App R(S) 155, in which Rose LJ made it clear that a judge’s personal view about the wisdom of a Parliamentary enactment had no proper place in the sentencing process and that it was the duty of all judges to implement the sentencing powers given to them by Parliament, whether or not an individual judge believed in the wisdom of those sentencing powers. The notification provisions could not properly be regarded as a penalty leading to a reduction in sentence. That conclusion was reinforced in R v Fox [2012] EWCA Crim 944. Although Mr Polnay did not submit that the custody threshold had been passed, he contended that a high level community order at the least should have been imposed.

Ms Judith Benson, appearing for Mr Riley, argued that the judge was entitled to conclude that there was no abuse of power, notwithstanding Mr Riley’s admissions, and that the trial had been delayed some 18 months because magistrates had declined jurisdiction after a second charge had been brought, in respect of which the judge ruled there was no case to answer. The judge was entitled to have regard to the effect on Mr Riley’s life and the stress of the proceedings both for him and his partner, on the basis that they reflected a degree of punishment. Ms Benson accepted that the judge’s observations about the notification provisions were wrong as a matter of law, but submitted that that was only one of the reasons given.

The Court of Appeal held that none of the reasons given by the judge were proper considerations for going outside the guidelines as identified in section 125 of the Coroners and Justice Act 2009. The fact of going through court proceedings, earlier mental health difficulties and the notification provisions did not constitute reasons which should have satisfied the court that it would be contrary to the interests of justice to have regard to the guidelines. Furthermore, the judge paid insufficient attention to the fact that she was sentencing Mr Riley for four offences, not one, in circumstances where the impact on the victim had been real and continuing, however modest in the range of potential offending these offences actually fell. The court held that there was no basis whatsoever for going outside the guidelines, particularly bearing in mind the number of offences, and expressed concern that the judge should have failed to reflect Attorney General’s Reference No 50 of 1997 and relied upon the notification provisions as a reason for passing a lesser sentence. Having regard to the errors of law in the approach to sentencing, the court concluded that the sentence was unduly lenient. At the lowest end of the bracket, the judge ought to have passed a community sentence. In resentencing, and bearing in mind that Mr Riley was entitled to accept that the proceedings had come to an end, the court reduced the number of hours of unpaid work it ordered him to serve. The court imposed a community order for a term of 18 months with a requirement to undertake unpaid work for 80 hours, which coincided with the recommendation in the pre-sentence report. As a consequence, the notification period would be five years and the statutory surcharge £85.

Before concluding, the court addressed a separate matter concerning the process of obtaining a transcript of the sentencing hearing for the Attorney General’s consideration. The Attorney General has a statutory responsibility under section 36(1) of the Criminal Justice Act 1988 to consider whether certain cases ought to be referred where he considers the sentence to be unduly lenient. The time limits are tight, requiring references to be lodged within 28 days of sentence without power to extend. It is usually essential that the Attorney General obtain and see a transcript of the entire sentencing hearing to ensure the fullest understanding of the facts, concessions, mitigation and the judge’s reasons. On 26 February, five days after sentencing, the Crown Prosecution Service submitted a request for a transcript of the sentencing hearing on the standard form, requesting an urgent overnight transcript for which it was prepared to pay, for the purpose of consideration of an unduly lenient sentence. Her Honour Judge Downing refused the request and when the matter was pressed gave reasons which the court considered it unnecessary to recite. The Court of Appeal stated that it was entirely satisfied that there was absolutely no good reason to refuse to grant the order for the transcript. While discretion may be appropriate when a journalist or any other person seeks a transcript, where the Attorney General seeks a transcript pursuant to his statutory responsibilities in order fully to be aware of the context of the sentencing hearing, bearing in mind his public interest role, it is inimical to that interest for a judge to purport to limit the information that he should be provided with or to seek to reflect the interests of the public purse by making any order restricting what the Attorney General seeks. The court expressed trust that this problem would not arise in the future.

In short, the Court of Appeal held that a conditional discharge for four sexual assaults by a manager of a volunteer in circumstances involving an aggravating power imbalance and significant victim impact was unduly lenient, and substituted a community order with 80 hours of unpaid work.

R v Ashton [2016] 1 Cr App R(S) 32
Roswell [2012] EWCA Crim 944