Reed & Others [2021] EWCA 572

Thu 29th Apr 2021

On 21st April 2021 the Court of Appeal gave judgment in respect of 6 cases which had been joined together in order to address the correct approach when sentencing particular offences under the Sexual Offences Act (2003). The offences all concerned children. The facts were either that the offence did not take place either because the child did not exist, or the defendant failed to persuade the child to behave as intended, or the intentions of the defendant were thwarted.

The reason for the Court so doing was to clarify the contradictions in the case law between AG’s Ref. (No. 94 of 2014) (R. -v-Baker) [2014] EWCA Crim 2752 [2016] 4 WLR 121, on the one side, and Privett & Others [2020] EWCA 557; [2020] 2 Cr App R (S) 45, on the other.

On 29th April 2020 year the Court of Appeal in Privett gave guidance on sentencing offenders in relation to Section 14 of the Act (arranging or facilitating the commission of a child sexual offence). The Court held the sentencing court should identify the category of Harm by way of the kind of activity that the defendant intended. In cases where there was no child, the court should then adjust the starting point to that applicable if no activity had taken place.

The Court in Privett declined to review the sentencing principles in respect of S.9 (sexual activity with a child) and S.10 (causing or inciting sexual activity with a child), but said it was likely that the cases of Baker (and Cook, which followed that line of authority) would need to be reviewed in the future.

Baker concerned offences under S.9 (sexual activity with a child) and S.10 (causing or inciting sexual activity with a child). The Court held that attempted S.9 and 10 offences would come in the lowest category of Harm, (‘other’ sexual activity’) if there was no child or actual activity. The Court in Reed said that this approach did not make sense. There could not be ‘other sexual activity’, if there was no sexual activity.

The Court in Reed said, as did that in Privett, that the fundamental of the sentencing process was Section 143 (1) of Criminal Justice Act (2003), (now Section 43 Sentencing Act (2020)) –

Assessing seriousness
When 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

It followed, therefore, that the decision in Baker (and strong which followed the same reasoning) were unsustainable, in light of this statutory requirement, because the court was not entitled to put such cases into the lower category of Harm, since it is necessary to consider the intended harm, or harm which might foreseeably have been caused by the actions of the defendant. In other words, it was necessary to look at the gravity of the offence which was intended by the defendant.

The judgment in Reed establishes a clarity of approach in relation to a wide range of offences and attempted offences under the Sexual Offences Act.

Broadway House Chambers
29th April 2021

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