Following on from a consultation that begun in May 2021, the Sentencing Council has, today, released new guidelines for various offences relating to child sexual offences. The guidelines can be found here. The focus of these changes appear to try and resolve conflicting judgements in how the courts should deal with cases in which no actual harm was caused due to the child in question not being real.
Undercover police officers
A large number of cases involving sexual communication with a child, including inciting a child to engage in sexual activity, or causing a child to watch a sexual act, relate to undercover operations, where the ‘child’ in question, is actually an experienced police officer. Whilst such cases are charged as ‘attempts’, to acknowledge the fact that the accused never actually made contact with a child, there has been a question over recent years as to what reduction should be apportioned for the lack of harm caused.
When determining the appropriate sentence, the court is told to consider where they place the defendant in terms of his or her culpability, and to then consider what degree of harm was caused. Some have argued that, in cases where no child ever existed, harm should be in the lowest category, whereas others have submitted that, as the offence is only an ‘attempt’, a person’s culpability is low. The new guidelines, however, appear to move away from either attitude to sentencing such cases, with the Sentencing Council putting the focus on the accused’s ‘intention’ when committing the offence. Regardless of the actual age of the person they were talking to, the question is how old did they think they were.
No actual child
Sentencing Council member, Her Honour Judge Rosa Dean, said:
“The sentencing guidelines published today bring greater clarity to the courts on how to deal with cases of arranging or facilitating child sexual offences, even in cases where no actual child exists, or no sexual activity took place.”
Departure from sentencing guidelines
Whilst these guidelines certainly seem to clarify the position that the courts should take in such cases, it is worthy to note that the court is permitted to look at the circumstances of each case, and can depart from the sentencing guidelines if they are satisfied that it is in the interests of justice to do so. They are therefore not binding, and Judge’s retain discretion in relation to every case they hear. They are also reminded of their power to suspend any period of imprisonment, up to two years, in cases where they feel rehabilitation is a real possibility.
The guidelines also make it clear that in historic cases, the court should look at the age and maturity of the offender at the time of committing the offence, and explains how this can be a significant mitigating feature.
Olliers Solicitors – specialist sexual offence lawyers
This clarity in the law means it is even more important for someone accused of any such offence to obtain specialist advice at the outset.
We have many years of experience of dealing with allegations of a sexual nature and understand that for many individuals this may be their first involvement with the criminal justice system. Being arrested for the first time is a harrowing experience made worse when the allegation is a sexual one.
We understand how daunting the situation may be for you. We promise not to judge and seek to work together with you to achieve the best outcome. We aim to explain the process and procedures to you in clear and unambiguous language whilst at the same understanding the anxiety you face.
Olliers take a pro-active approach for individuals who are under investigation for sexual offences and communication with a child offences.
Laura is known for her pro-active approach during the ongoing investigation stage of a case. She will always look to bring an investigation to a conclusion without the need for a prosecution. She is known for her strategic approach liaising with investigators throughout. She applies a combination of formal and informal representations to police and prosecutors ensuring that the chances of a prosecution are kept to a minimum. Laura has significant experience in dealing with cases at this stage particularly cases involving sexual allegations and indecent images.