Court of Appeal Reviews Sentencing Guidelines in Downloading Indecent Images Cases

BSQ partner Roger Sahota comments on a recent important Court of Appeal decision - R v Pinkerton [2017] EWCA Crim 38 - in which the Court reviewed the operation of sentencing guidelines in downloading indecent images cases. In P the Judge had sentenced an offender taking a starting point beyond the Sentencing Guidelines Council (“SGC”) guidelines because of the particularly depraved nature of images found and the harm this type of behaviour caused.  

Background

Amended sentencing guidelines for indecent image offences were introduced on 1 April 2014. They replaced the old guidelines which had been in force since 14 May 2007. The new simplified regime saw a reduction from the five levels of categories introduced in the 2007 guidelines to 3 levels of categories as follows;

Category A (Images involving penetrative sexual activity and images involving sexual activity with an animal or sadism) incorporates the former Levels 4 & 5.

Category B (Images involving non-penetrative sexual activity) incorporates the former Levels 2 & 3. There is accordingly no longer a distinction between non-penetrative sexual activity between adults and children and between children.

Category C images are Indecent Images not falling within A or B.

Decision

The main points arising from the decision are summarised below. It is important to note that the decision is unlikely to change the general sentencing practice in the Crown Court where first time offenders not engaged in distribution remain likely to receive non-custodial sentences. The Court did however criticise the approach that the Judge took both in the procedure adopted during sentencing and the way the sentence was calculated. Notably;

1.     While the Court of Appeal upheld the sentence imposed, it felt it inappropriate for the judge to have strayed beyond the upper range of the sentencing guidelines. The SGC guidelines were created after extensive research and consultation. It was not for police officers and judges to create their own separate categories above and beyond those created by the SGC as the dangers of inconsistency and subjectivity were all too obvious.

2.     The SGC guidelines for downloading cases took into account concerns this behaviour caused harm and in particular indirect harm – downloading played a part in perpetuating a market for this type of material – and Judges should not give undue weight to this factor.

3.     Given the existence of the database, it was unnecessary for judges to view the materials produced in these cases save in exceptional circumstances

Conclusion

BSQ welcomes an end to the worrying trend for prosecutors and police officers to provide their own gloss and commentary on the guidelines and their application when providing detailed descriptions of images found during sentencing. By providing greater clarity in the application of the guidelines this decision will hopefully result in more consistency in the sentences handed down for the most serious cases and enable lawyers to better advise their clients of the possible outcomes.