Case Update: Reed & ors v The Queen (2021) EWCA Crim 572 - Sentencing offences against children.

Claire Robinson considers the important, recent case of Reed & Others v The Queen (2021) EWCA Crim 572

Introduction

On the 21st April 2021 judgement was given in six cases that had been listed together because they all raised issues of the correct approach to sentencing offences against children when no sexual activity has taken place, for example due to the child being fictitious, the defendant failing to persuade the child to engage in sexual activity or the defendant’s plans were thwarted by some other means.

Lord Justice Fulford VP gave the judgement of the court and provided some guidance on drafting statements of offence when an attempt is alleged.

Background

In 2020 there had been two cases decided, a day apart, in the Court of Appeal (Criminal Division) (CACD) which adopted different approaches that were potentially inconsistent [4].

Privett & Others (2020) EWCA Crim 557

On the 29th April 2020, judgement was given in Privett & Others (2020) EWCA Crim 557 which gave guidance on the approach to sentencing offences under the Sexual Offences Act 2003 (‘SOA’) section 14 (arranging or facilitating commission of a child sex offence).

This case involved undercover police officers and a fictitious child, the court decided that when sentencing for an offence contrary to section 14 when there was no real child, the judge should:

• First, identify the category of harm on the basis of the sexual activity that the defendant intended, and
• Secondly, adjust the sentence in order to ensure that it was commensurate with, or proportionate to, the applicable starting point and range if no sexual activity had occurred.

The section 14 offence is not dependant on the sexual offence happening, or even being possible. In those circumstances the absence of an actual victim did not reduce culpability [8].

The Court accepted that as a general proposition, the harm in a case would normally be greater when there was a real victim than when the victim was fictional [9].

Manning (2020) EWCA Crim 592

On the 30th April 2020 judgement was given in Manning (2020) EWCA Crim 592 in respect of sentences for offences contrary to section 10 SOA of causing or inciting a child, and offences contrary to section 9 (1) of engaging in sexual activity with a child. The court in Manning was not referred to the decision in Privett and instead followed Attorney General’s Reference (No. 94 of 2014) (R v Baker) (2014) EWCA Crim 2752, as affirmed in Cook (2018) EWCA Crim 530.

Baker, concerned section 10 SOA, inciting a real child to engage in sexual activity, where the sexual activity proposed to the victim did not take place. The court held that, because the offending did not proceed beyond incitement, it was ‘other sexual activity’ within Category 3 of the Guideline, even when the activity that had been intended to be incited would have fallen within Category 1 or 2 if carried out [7].

The consequence of the decision in Baker was that irrespective of the gravity of the sexual activity the defendant sought to persuade the child to engage in, and irrespective of whether the child was fictional or real, the starting point will always be the same [19].

Two approaches

Two contrasting lines of authority could be identified. The six cases were listed together to consider whether the reasoning in Privett should apply more widely to other offences and attempted offences under the SOA [5].

Lord Justice Fulford VP stated:

"The Sentencing Act 2020 section 63 lies at the centre of this overarching issue of principle as regards sentencing [20]. This section requires the court to consider the intended harm:

“Assessing seriousness

Where a court is considering the seriousness of any offence, it must consider -

   (a) The offender’s culpability in committing the offence, and

   (b) Any harm which the offence –

      (i) caused,

      (ii) was intended to cause, or

      (iii) might foreseeably have caused.”

If the seriousness of an offence is to be judged by reference not just to the harm caused, but to the harm intended, then when a defendant encourages a child to engage in sexual activity but without that activity taking place, or attempts to engage in sexual activity with a child, the effect of section 63 Sentencing Act 2020 is that the harm should be assessed by reference to the defendant’s state of mind and intentions [21].

The decisions in Baker and Cook are unsustainable when considered in light of this clear statutory requirement, because they relegated seriousness to the lowest category of harm, wholly regardless of the harm the accused intended to cause, in clear contravention of this statutory provision [21].

Judgment

Lord Justice Fulford VP confirmed that [23]:

• The difference in approach between Privett and Baker, which depends simply on the particular offence with which the accused has been charged, is unsustainable; it would mean that the assessment of harm would be markedly different in cases of grave sexual offending involving young people simply because of the particular section under which the perpetrator is charged.
• This decision will end the rigid distinction between those cases where particular sexual activity takes place and those cases where the defendant, for example, does everything he is able to bring that sexual activity about but for reasons beyond his control it does not happen.
• The sentencing judge should make an appropriate downward adjustment to recognise the fact that no sexual activity occurred as demonstrated by the court in Privett.
• This approach should apply to all the offences set out in para 5 (of this) judgement (SOA sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 15A, 47, 48, 49 and 50) when the defendant attempts to commit these offences or incites a child to engage in sexual activity, but the activity does not take place.
• The harm should always be assessed in the first instance by reference to his or her intentions, followed by a downward movement from the starting point to reflect the fact that the sexual act did not occur either because there was no real child or any other reason.

The extent of the downward adjustment will depend on the facts of the case [24]:

• Where an offender is only prevented from carrying out the offence at a late stage, or when the child victim did not exist and otherwise the offender would have carried out the offence, a small reduction within the category range will usually be appropriate Where relevant, no additional reduction should be made for the fact that the offending is an attempt [24].
• When an offender voluntarily stopped at an early stage, and particularly if the offending has been short-lived, a larger reduction is likely to be appropriate, potentially going outside the category range [25].
• As indicated in Privett at [72] the result may be that a more severe sentence is imposed in a case where serious sexual activity was intended but did not take place than in a case where relatively less serious activity did take place [26].

Guidance on drafting the statement of offence

At the end of the judgement guidance was given on best practice in drafting the statement of offence so that it identifies the substantive offence lying behind any attempt [85 – 96]. It was noted that this would assist in identifying the relevant Sentencing Guideline.

The model that was favoured and encouraged was the statement of offence in one of the six appeals before the court:

“Attempting to pay for the sexual services of a child, contrary to section 1(1) Criminal Attempts Act 1981 and section 47 (1) of the Sexual Offences Act 2003.”

Another example given was:

“Attempting to incite a girl under 16 to engage in sexual activity (penetrative), contrary to section 10(1) of the Sexual Offences Act 2003 and section 1(1) of the Criminal Attempts Act 1981.”

It was noted that although the word ‘penetrative’ was not strictly necessary, the Court agreed with the submissions made on behalf of the Crown that it is an important component because it affects the maximum sentence.

Commentary

It will be important to be aware of this case at any sentencing hearing that involves child sexual offences. A primary focus of submissions is likely to be the downward adjustment that the sentencing judge will need to consider if no sexual activity took place. It will of course always be very fact specific.

Prosecutors will need to review the way that the statement of offence is pleaded in any indictment that includes an attempt so that the underlying offence is clear and easily understood.