Date updated: Wednesday 27th January 2021

There have been several changes to the interpretation of the guidelines regarding sentencing for offences relating to causing or inciting a child to engage in sexual activity under s.10 of the Sexual Offences Act 2003 where there is no real victim. This would apply in cases where an individual has been sexually communicating with an undercover police officer or a group of vigilantes posing as a child.

This type of online offending is taken extremely seriously by the courts. There are those who think that because there is no real victim the court may take a more lenient view of the matter. This is not the case.

The current sentencing guidelines for this offence involve determining the harm and culpability of the person charged. There are three categories of harm which vary depending on the facts of the specific matter, Category 1, 2 and 3. Category 1 is the most serious with 3 being the least.

Throughout 2020 there were a number of landmark cases in the Court of Appeal regarding the starting point for sentencing these types of cases. These have shown a marked shift away from the starting point the Courts adopted in the case of AG Reference No 94 of 2014 (Baker) [2014] EWCA Crim 2752 relating to the actual harm caused.

Previously, if you had been charged with a s.10 offence in relation to a fake victim the starting point that would likely be adopted in relation to harm is one of Category 3 regardless of the content of any conversation. This is due to there being no real identifiable victim and as such there cannot possibly be any harm caused to the victim. The starting point for this category (assuming a high level of culpability) of harm is one of 6 months custody.

In January of this year the case of R v Privett and Others [2020] EWCA Crim 557 was heard at the Court of Appeal. The appeal was founded on the basis that unduly harsh sentences were handed out to all the appellants and that category of harm the judge had considered was manifestly incorrect. The judge had employed Category 1 harm whilst sentencing, in stark contrast to the principles set out in Baker, due to the fact that if the actions planned out in these conversations had been carried out with a real victim they would have been adjudged to be Category 1 harm. However, as these were cases involving undercover police officers the argument was that the harm employed should have been less, namely Category 3.  

The Court differentiated this case from the principles laid out in the case of Baker, referring to statutory law that the Court should consider the intended harm that determines which Category of harm should operate. The appeal was dismissed.

This ruling shows a distinct hardening of approach to the sentencing of s.10 offences, the essence being that now the starting point for matters involving undercover officers, or vigilante groups may move from one of 6 months to one of 5 years.

This ruling was confirmed in the case of R v Woolner [2020] EWCA Crim 1245 in September 2020. In this matter the Defendant was sentenced to 12 months imprisonment as the Judge had employed the principles set out in AG Reference (Baker). On Appeal by the Attorney General this sentence was raised to one of 30 months imprisonment when applying the principles set out in R v Privett and Others.

It is exceedingly important to note that each case turn on its own facts and merits. Harm is only one factor which is taken into consideration, culpability is a key part of sentencing a s.10 or s.14 case and can increase or decrease the sentence based on the presence of a number of criteria. These criteria include but are not limited to: whether the individual was acting alone or with others, whether there was any mention of drugs or alcohol, whether there was an abuse of trust, a use of any threats or blackmail and whether there was any grooming behaviour used. The presence of any of these criteria will increase the culpability and thus the likely starting point for the offence will increase. The presence of aggravating and mitigating features can also raise or lower the sentence respectively.

The sentencing guidelines provide that a custodial sentence may be suspended if there is a realistic prospect of rehabilitation. This phrase can mean several things, in essence, to impose a suspended or non-custodial sentence a judge must be satisfied that an individual’s risk can be managed in the community. There are a variety of ways this can be shown by an individual, not least by the steps they take prior to sentencing to address their offending behaviour. This can take a number of forms, not least from exploring the reasons and triggers for the offending through specialised sexual therapy and psychological intervention.

If you have been charged with or arrested under suspicion of offences related to s.10 of the Sexual Offences Act 2003 we offer confidential, expert advice on this area of law having been instructed to appear on behalf of an appellant in the case of R v Privett and Others referred to above.