A Question of Intent: Sentencing Child Sexual Offences in a Digital Age

5th July 2022 Business Crime

On the 1st July 2022, new sentencing guidelines were introduced for certain child sexual offences under the Sexual Offences Act 2003 (‘the Act’) in cases where the intended sexual activity does not actually take place or where the ‘child’ who is the intended subject does not exist.

This is an important development that will assist the judiciary in the increasingly common situations where either police intervention prevents further abuse occurring or where the offender is in fact talking to an avatar being operated by an adult. In recent years there has been surge in so-called “paedophile hunter” vigilante groups and decoy operations organised by private citizens, which are run independently of the police.

The police generally do not condone the work of such groups. Humberside Police explain, “these ‘stings’ posted online impact on the work we already do, divert us from the core business of our specialist officers, and can impede our own investigations. They can give a suspect time to delete evidence, or even move away from a location before we can fully investigate.” They encourage the groups to pass on any evidence obtained through these operations promptly.

Further, in the CPS guidance on Online Child Abuse Activist Groups (‘OCAG’) on the internet, they warn that investigators and prosecutors also have a duty to consider whether the OCAG member has committed a criminal offence in obtaining the evidence, such as assault, possession of indecent images or a public order offence.

However, this opposition has seemingly failed to discourage vigilante groups from operating. It is believed that around 90 groups exist in the UK presently. In 2018-19, evidence gathered by vigilante groups led to 150 convictions in England and Wales, almost tripling in two years. Further, the national lockdown in 2020 offered these groups an opportunity to increase their efforts, as the restrictions diverted most of our contact with others online.

Because typically these types of cases will involve a digital profile being operated by an adult, the Courts are more frequently faced with the task of sentencing an offender where no sexual activity could ever have taken place. The response of the Sentencing Council is to re-focus the sentencing exercise onto the intention of the offender.

Revisions have been made to the sentencing guidelines for the following offences under the Act:

i. Arranging or facilitating the commission of a child sex offence (section 14)

ii. Causing or inciting a child to engage in sexual activity contrary (section 10)

Two-Stage Approach

In light of the decision in Alistair Reed, Mark Bennett v The Queen [2021] EWCA Crim 572, where no activity has taken place, a court sentencing an offender for a section 10 or section 14 offence should now take the following two steps:

  • Step 1: Identify the category of harm based on the sexual activity intended.
  • Step 2: Apply a downward adjustment to reflect that no harm or lesser harm actually occurred.

The extent of the downward adjustment will always be specific to the facts of the case. To illustrate this approach in practice, we can consider two scenarios:

In a case where the actual carrying out of the sexual activity was prevented by the police at a late stage or simply because the child did not exist (i.e., a ‘sting’ operation), the intention of the offender is the same regardless of the actual risk to a child. Therefore, this would likely only warrant a small reduction on the eventual sentence.

However, where the offender desisted voluntarily at an early stage, i.e., by withdrawing from a conversation, then the likely reduction would likely be greater. A reduction is not automatically available on the basis that the act was only an attempt.

The effect of this two-stage approach is that a sentence may be more severe in a case where very serious sexual activity was intended than in a case where less serious sexual activity actually took place with a child.

It is important to note that this two-stage approach forms only one part of the sentencing exercise. The Court must then proceed to consider the aggravating and mitigating features as they would normally do.

Changes to Jurisdiction and Maximum Sentences

In addition to the change in approach, there have been adjustments made to the venue and maximum sentences available for specific, very serious offences.

For a section 14 offence, the following changes have now been implemented:

  • Where the offence was committed on or after 28th June 2022, it will now be triable on indictment only where the offence that was arranged or facilitated falls within section 5 (rape of a child under 13), section 6 (assault of a child under 13 by penetration), section 8 (causing or inciting a child under 13 to engage in sexual activity), section 9 where penetration is involved (sexual activity with a child) or section 10 where penetration is involved (causing or inciting a child to engage in sexual activity) of the Act. Otherwise, the offence is triable either way.
  • The maximum sentences for offences committed on or after 28th June 2022 are now as follows:
  • Life imprisonment if the offence arranged or facilitated falls under section 5, section 6 or section 8 (if penetration was involved) of the Act;
  • 14 years’ custody if the offence arranged or facilitated falls under section 7 (sexual assault of a child under 13), section 8 (if no penetration was involved), section 9 or section 10 of the Act; and
  • 10 years’ custody if the offence arranged or facilitated falls under section 11 (engaging in sexual activity in the presence of a child) or section 12 (causing a child to watch a sexual act) of the Act.
  • When a court is sentencing an offender for an offence under section 14, they should refer to the guideline for the applicable, substantive offence under sections 9 to 12 of the Act.

The maximum sentence for a section 10 offence is 14 years’ imprisonment.

New Guideline for Sexual Communication with a Child

Section 15A of the Act, which was inserted by the Serious Crime Act 2015, prescribes the offence of sexual communication with a child. For the offence to be made out, the offender must contact the child to obtain sexual gratification. This is a triable either way offence, with a maximum sentence of 2 years’ imprisonment.

The new guideline illustrates factors that may determine harm and culpability. In respect of the level of harm, the sending and receiving of sexual images/media will push the it into the higher category. Culpability will be higher where the offender uses threats, gifts or bribes to facilitate the offence, or where there is a degree of commercial exploitation and/or motivation involved.

Offences under section 15A are also subject to the same two-stage exercise detailed above.

Our Thoughts

The broadening and development of the sentencing guidelines in this area is a welcomed change that will inevitably assist the judiciary in determining the most appropriate sentence in each case.

While the two-stage approach gives the Courts a necessary degree of flexibility in circumstances where the activity did not take place, it also emphasises that the question more often than not is one of intent rather than what may have occurred.

In addition, the new sentencing guidelines for section 15A provides clarity on the factors that would be relevant for determining culpability and harm in sexual communication cases.​​​​​​

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Lily Beweley-West is a Paralegal located in London in our Business Crime & Regulation department

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