Assessing ‘harm’ in cases of arranging/facilitating the commission of a child sex offence
May 13, 2020
In cases involving undercover police officers and fictional children, the offending does not automatically fall into Category 3 (‘other sexual activity’). The Court of Appeal has confirmed that the judge should first identify the category of harm on the basis of the sexual activity the defendant intended, then adjust the sentence to ensure that it is proportionate to the applicable starting point and range if no sexual activity had occurred, including because the victim was fictional.
In the recent case of Privett and Others  EWCA Crim 557, four unrelated cases were listed together to address the correct approach to assessing harm in section 14 (arranging or facilitating the commission of a child sex offence) cases.
The appellants had communicated via the internet with undercover police officers, believing them to be the mothers of six-year-old girls, or in W’s case a 10-year-old girl. They had engaged in explicit sexual conversations with the fictional mothers and arranged to meet them in order to sexually abuse or rape the fictional children. All of the appellants travelled to meet with the fictional child and when arrested were found to have items such as condoms, lubricant and children’s toys.
The argument advanced by the appellants:
The central argument advanced by the appellants was that whenever there is a fictional child victim, sentencing will fall into the lowest category of harm under the guidelines (category 3 – ‘other sexual activity’), subject to upward adjustment to reflect any relevant factors in the case.
The Sentencing Guidelines state that sentencers should refer to the guidelines for the applicable, substantive offence of arranging or facilitating under sections 9 to 12. Taking the sentencing guidelines for sexual activity with a child/causing or inciting a child to engage in sexual activity (Sections 9 and 10) as an example, the guideline sets out the following categories for determining harm:
- Penetration of vagina or anus (using body or object)
- Penile penetration of mouth
In either case by, or of, the victim
- Touching, or exposure, of naked genitalia or naked breasts by, or of, the victim
- Other sexual activity
The appellants therefore argued that even if the activity the defendant intended to arrange was, for example, penile penetration of the child’s vagina, it fell under category 3 ‘other sexual activity’ due to the fact the child was fictional.
The argument advanced by the Crown:
The Crown argued that it would be wrong in principle to ‘pre- categorise’ offences, simply on the basis that a police officer pretended to be a child victim. The prosecution submitted that each case should be assessed on its own facts and the court should adopt a flexible approach.
Therefore, the prosecution argued that when the evidence demonstrates that there was an intention to cause serious harm to a child victim, it may potentially come within category 1A notwithstanding the fact that this intention was revealed to an undercover police officer.
It was submitted that the appellants in the present cases merited being placed in category 1A given they had done all they could to prepare themselves to carry out very serious forms of child sexual abuse and they intended to commit those crimes.
The Court of Appeal stated that it was necessary to keep in mind the terms of this offence. It is intentionally arranging or facilitating activity which could constitute a child sexual offence, intending that it will happen. It is a preparatory offence which is complete when the arrangements for the offence are made or the intended offence has been facilitated and it is not, therefore, dependent on the completed offence happening or even being possible, and the absence of a real victim does not, therefore, reduce culpability.
The Court of Appeal said that they consider the position under the Guideline as clear. Sentencing judges should:
First, identify the category of harm on the basis of the sexual activity the defendant intended (“the level of harm should be determined by reference to the type of activity arranged or facilitated”).
Second, adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (“sentences commensurate with the applicable starting point and range will ordinarily be appropriate”).
The Court of Appeal rejected the submission that Baker  EWCA Crim 2752 was authority for the proposition that section 14 offences in which there was no real child had always to be treated as category 3A offences under the Guideline. It stated:
“this approach may lead to the result that a defendant who arranges the rape of a fictional 6 year old is punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15 year old. In our view, there is nothing necessarily wrong in principle with the result. The sentence should be commensurate with the applicable starting point and range, and in cases where the child is a fiction, this will usually involve some reduction (as in Bayliss  EWCA Crim 269) to reflect the lack of harm.”
However, it should be noted that it will not always be the case that there is a reduction to reflect the fact the child is fictional. For instance, S’s offending in the current appeal was found to fall at the top of the range for a category 1A offence. The Court of Appeal regarded this as fair given the extreme facts of his case.
Harriet Lavin is Exchange’s criminal pupil barrister in her second six.