Sentencing in the age of the Decoy

September 10, 2021

Alex Menary and Charlotte Noddings consider the impact of R v Reed [2021] EWCA Crim 572

The recent (4/3/21) case of Reed was a final attempt by the Court of Appeal to align the overarching principle in sentencing practice in sexual cases involving children where either:

• the child involved was a fiction;
• the defendant failed to persuade the child to engage in activity;
• or otherwise the defendant was thwarted.

In the age of the rising prominence of the online vigilante group and associated confrontations and live-streaming, and the use of decoys being increasingly adopted by police officers as well, then an understanding of the inter-relationship between not only the offences but also the correct approach to sentencing is essential.

There was also further useful guidance about the circumstances in which it would be appropriate to charge s14 offences, and a recommendation as to the correct drafting of inchoate offences on the indictment.

The Correct Approach

In essence the Court approved the overarching principle approach taken in Privett [2020] EWCA Crim 557, a case dealing with sentencing under s14 SOA 2003 and now replicated in the online version of the Guideline, over the other line of sentencing authority represented by Gustaffson, Baker et al.

Gustaffson [2017] EWCA Crim 1078 involved an attempt to incite a child to engage in penetrative sexual activity: it was a decoy case where the defendant had believed he was chatting with a 14-year old girl online and openly discussed penetrative sexual intercourse with her. On appeal the Court assessed the appropriate Category of Harm to be Category 3, rather than the Category 1 assessment taken at the sentencing hearing, on the basis that there was no actual child and so no actual harm could have, or did occur. The Court also felt compelled to follow R v Buchanan [2015] EWCA Crim 172  and Attorney General’s Reference of 2015 [2015] EWCA Crim. 2384 which had endorsed that approach.

Privett reversed that position, setting out instead that it was the sexual activity intended by the defendant that determined categorisation of harm under the Sentencing Guidelines, rather than the result of any offending. The starting point was of course still subject to an appropriate reduction in order to ensure that the sentence was commensurate with, or proportionate to, the applicable starting point and range if no sexual activity had occurred. The Court also reinforced the legislative intention in respect of s14 offences, namely that it was a preparatory offence that focused on the agreement in much the same way as a criminal conspiracy, and so it was complete, and could be so, even in the absence of a real child. In those circumstances it was noted that the absence of a real child did not reduce culpability.

Whilst Privett related specifically to s14 offences, the Court noted at para 19 of Reed that to follow the Baker line as an overarching principle across inchoate sexual offences involving children would mean that whatever level of sexual activity was intended would result in an identical starting point. This was also contrary to s63 of the Sentencing Act 2020, in which the court is mandated to consider the defendant’s intention in any culpability assessment:

63 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.

At paragraph 23 the Court therefore indicated that this approach should apply as an overarching principle to all cases where the defendant attempts to commit the index offences, or incites a child to engage in certain activity, but the activity does not take place.

How then to deal with the issue that the child in question was fictitious, or the activity did not in fact take place? The appropriate downward adjustment approach was set out at para 24 as being fact specific:

• Where the defendant was only prevented from carrying out the offence at a late stage, or when the child victim did not exist and the defendant would have otherwise carried out the offence, then a small reduction in the category range was appropriate.
• Where relevant, no additional reduction should be made for the fact that the offending was an attempt;
• When a defendant voluntarily desisted at an early stage, and particularly if the offending had been short lived, then a larger reduction was appropriate, potentially going outside the category range.

Further Guidance

As set out above, the Court re-stated at paras 8-9 the legislative intention of s14 offences and their inter-relationship with other offences that defendants may typically commit at the same time: the Court stressed that s14 operated in a similar fashion to a conspiracy, in that it was the agreement itself that was the criminal act, and whether there was or was not a real child was irrelevant for the purposes of sentence. This was subject of course to the rider that the s14 Guideline simply re-refers to the s9 and s10 Guideline for the appropriate starting points, and it seems as a matter of common sense there should be some form of reduction where that Guideline deals with contact offences under s9 and incitement under s10.

Having dealt with the Appellants’ cases, the Court went on to consider the appropriate form of the indictment in cases involving attempts, noting that it would assist judges and others if the substantive offence underlying the attempt was identified in the particulars of offences, so as to ensure the identification of the correct section and therefore guideline to follow.

The Court went on to highlight a number of examples of good practice from the appeals they had heard, noting in the below example that whilst the word penetrative was not strictly necessary, it was an important component because it affected the maximum sentence:

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

Discussion

This judgement has provided much needed clarity in an area of law that had become unnecessarily complicated. Moving forward, when assessing sentence, it is clear the judge’s primary focus will be on the defendant’s intention when they were engaged in the activity.

However, what this shift is focus means is that those defendants who are caught contacting children who are in fact fictional can no longer fall behind that factor in mitigation. Mitigation now needs to be centred on the factual elements that means the court should adopt a downward adjustment, such as where the defendant voluntarily stopped the contact or the short-lived nature of the offending. However, it is worth noting the size of any adjustment is entirely discretionary.

In R v Reed, the Court of Appeal have been robust in setting straight and tying up the loose ends of both conflicting lines of authorities. In the process, they have removed several key arguments that could have been advanced in mitigation for a defendant charged with an offence involving a decoy. Whilst there are factual elements that could mean a downward adjustment, it is clear from now on sentences will be much harsher for those charged with offences in relation to a decoy.