Revised sentencing guidelines to clarify the correct approach for assessing harm in child sexual offences involving decoys
The revisions will take effect on 31 May 2022 and apply to the following offences contrary to the Sexual Offences Act 2003:
- Arranging or facilitating the commission of a child sex offence (Section 14)
- Causing or inciting a child to engage in sexual activity contrary (Section 10)
The revised guidelines will reflect the principles established in the case of Alistair Reed, Mark Bennett v The Queen  EWCA Crim 572. Reed settled previously conflicting case law as to the proper assessment of harm where no sexual activity had materialised because, for instance, the case involved a decoy played by an undercover officer or member of a vigilante group as opposed to a real child, the offender failed to persuade the child to engage in sexual activity or the offender was otherwise thwarted.
Reed determined that earlier cases had fallen into error by focusing on the resulting rather than intended harm so that even where very serious harm was intended but thwarted, the offending would always be placed within the lowest category of harm. Reed observed that that approach was at odds with Section 63 of the Sentencing Act 2020 which requires the court to consider not only harm caused, but also harm that was intended or might foreseeably have been caused by the offence.
Reed corrected the position and endorsed a two-stage approach adopted in the case of Privett & Others  EWCA Crim 557 and now reflected in the revised guidelines.
First, the court should identify the category of harm based on the sexual activity the offender intended. Second, the court should apply a downward adjustment to reflect the fact that no or lesser harm in fact resulted.
The extent of that downward adjustment is discretionary. Where the offender would have carried out the intended sexual activity but was only prevented from doing so at a late stage because of the intervention of police or others, or because the victim was fictional, only a very small reduction will usually be appropriate.
By contrast, where an offender has voluntarily desisted at an early stage, a larger reduction is likely to be appropriate, and may result in moving outside the category range. As to the potential limits of such a reduction, it was stated in Reed that a reduction of two years was “notably generous” where the offender voluntarily desisted from his discussions with a fictional child some significant time before his arrest.
The effect of this approach is that a more severe sentence might properly be imposed in a case where very serious sexual activity was intended but did not take place than in a case where relatively less serious sexual activity materialised.
The principles in Reed will also be reflected in the new guideline for sexual communication with a child which will take effect on 1 July 2022. Whereas the draft sentencing guideline (for consultation only) referred simply to “significant psychological harm or distress caused to victim” as a feature of Category 1 harm, the new guideline has inserted the following words: “or very likely to have been caused to intended victim.”
These revisions bring welcome clarity and will serve to encourage consistency in the sentencing exercise for offences of this kind which had become unnecessarily complicated and burdened by conflicting authority. They also guard against an overly rigid approach by allowing for broad discretion as to the extent of the downward adjustment to be afforded in the circumstances of each case.