Date: Jun 27, 2026

Charging-Date Defects and Totality Uplifts in Indecent Images Sentencing: No Need to Amend Where Basis Is Agreed

1. Introduction

In Bornes, R. v [2026] EWCA Crim 808, the Court of Appeal (Criminal Division) (Lady Justice Andrews, Mr Justice Jay and Mrs Justice Thornton) dismissed an appeal against a sentence of 28 months’ imprisonment for multiple offences involving indecent images of children (IIOC), including distribution, making, and possession.

The appellant (a student in the UK at the time) pleaded guilty in the magistrates’ court and was committed for sentence under section 14 of the Sentencing Act 2020. The lead offence was distribution of Category A images contrary to section 1(1)(b) and (6) of the Protection of Children Act 1978. A further offence included possession of a prohibited image contrary to sections 62(1) and 66(2) of the Coroners and Justice Act 2009.

Two issues dominated the appeal:

A procedural anomaly: some charges alleged a date range that extended to periods when the appellant was under the age of criminal responsibility and (for the prohibited-image offence) before the 2009 Act existed.
A sentencing challenge: whether the judge wrongly uplifted the lead offence for totality and should instead have reduced from the guideline starting point such that suspension became realistic.

2. Summary of the Judgment

Charging-date defect: Despite the erroneous date ranges, the convictions and sentence were not unsafe because everyone proceeded on (and the judge sentenced on) an agreed factual basis placing the conduct within a lawful timeframe (roughly 31 July 2022 to 4 July 2023).
Totality uplift upheld: The judge was entitled to treat the Category A distribution count as the lead offence (guideline starting point 3 years custody; range 2–5 years) and to adjust upward to reflect the overall criminality, including substantial additional possession and other counts.
Possession not “subsumed” by distribution: Possession of nearly 4,000 images (including numerous Category A moving images) was a distinct and significant element of harm/culpability and properly informed the totality assessment.
Outcome: A notional 3½ years before plea credit (leading to 28 months after credit) was not manifestly excessive; the appeal was dismissed.

3. Analysis

3.1 Precedents Cited

R v Gould [2021] EWCA Crim 447

The court’s treatment of the defective charge dates was anchored in R v Gould [2021] EWCA Crim 447, which addressed prosecution failures in charging and, in particular, how courts should respond to obvious typographical or formal errors.

The Court of Appeal in this case extracted and applied the reasoning in R v Gould that a court is not necessarily “constrained” by an obvious charging error where the true factual basis is not in dispute and can be treated as agreed. The judgment also adopted the Blackstone, Criminal Practice 2021 proposition (quoted in R v Gould) that divergence between charged dates and the evidence is not automatically fatal; sometimes it is unnecessary to amend, particularly where there is no jury to confuse and the basis for sentence is clear.

Influence on outcome: Using R v Gould as the template, the court held that the erroneous date ranges did not invalidate committal for sentence or the legality of sentence, because the parties and judge proceeded on the correct operative period supported by the forensic evidence and timestamps.

Section 66 of the Courts Act 2003 (context from R v Gould)

The judgment referenced section 66 of the Courts Act 2003 only through the lens of R v Gould, where an attempt to “correct” a typographical mistake via a procedural power was described as unnecessary. Here, by analogy, the court concluded that no procedural repair was required given the agreed factual basis.

3.2 Legal Reasoning

(A) The charging-date anomaly: why it did not undermine sentence

The court first confronted an uncomfortable feature: charge wording that, if taken literally, alleged offending across periods when (i) the appellant could not be criminally responsible, and (ii) one statutory offence could not exist. The court accepted the error was “regrettable” but treated it as functionally comparable to an obvious typographical mistake because:

The Crown had not put its case on the literal dates; instead it relied on forensic/time-stamped material showing the real period of offending.
The defence did not seek to vacate pleas or challenge conviction; it accepted the case had been opened, mitigated, and sentenced on the correct timeframe.
There was no risk of jury confusion (guilty pleas), and no disputed “basis of sentence”.

The key move was to distinguish between (i) a defect that truly leaves the court sentencing for conduct that is not criminal (or not attributable to the defendant), and (ii) a defect where the conduct being sentenced is clearly understood, agreed, and within the law—making the drafting error non-decisive.

(B) Totality and the “lead offence” structure

On the merits of sentence, the court emphasised orthodox totality principles: where multiple offences are sentenced concurrently, a single count’s notional sentence may not reflect overall wrongdoing. The court quoted the Sentencing Council Guideline on Totality that:

“If concurrent, it will often be the case that the notional sentence on any single offence will not adequately reflect the overall offending. Ordinarily some upward adjustment is required and may have the effect of going outside the category range appropriate for a single offence.”

Applying this, the court held the judge was entitled to:

Select Category A distribution as the lead offence (starting point 3 years).
Increase the notional sentence to reflect the additional counts—especially additional distribution (Category B) and substantial possession across Categories A, B, and C, plus prohibited images.

(C) “Inexplicably linked” offending and whether possession could be treated as part of distribution

A central defence submission was that the judge should not have treated the volume of possession as aggravating to distribution because the offences were “inexplicably linked”. The court rejected this on the facts: distribution involved 22 Category A images and 3 Category B images, whereas possession was of nearly 4,000 images (including substantial Category A moving images). That disparity justified treating possession as a major additional component of criminality rather than mere “background” to the distribution.

(D) Aggravation, mitigation, and the “manifestly excessive” threshold

The court accepted there was significant mitigation (good character, remorse, therapeutic engagement, neurodiversity diagnoses, personal history including childhood abuse) but held aggravation remained weighty, including:

very young children depicted;
large number of victims;
moving images and the seriousness of the distributed content;
a period of distribution approaching a year; and
high overall volume of images possessed.

Ultimately, the appellate test was not whether a different sentence was arguable, but whether the sentence was manifestly excessive. The court concluded a notional 3½ years (pre-credit) properly reflected totality and was well within rational sentencing judgment.

(E) Suspension

Although suspension was advanced as an outcome that should have been available if the starting point had been reduced, the court’s reasoning foreclosed it: once a totality uplift to a substantial custodial term was justified by the combined offending (distribution plus large-scale possession), the premise that the case fell into a suspensible band was rejected. The court did not undertake a separate extended suspension analysis because it found the custodial length itself was not wrong in principle or manifestly excessive.

3.3 Impact

Although the decision is fact-specific, it is likely to be cited for two practical propositions:

Defective charging dates can be treated as a non-fatal error (akin to a typographical mistake) where guilty pleas are entered, the operative timeframe is clear from the evidence, and the parties and judge proceed on an agreed basis of sentence—reducing incentives for last-minute procedural satellite litigation where no real injustice arises.
In IIOC sentencing, large-scale possession remains a distinct and significant factor even where there is distribution. Courts may reject arguments that possession is automatically “subsumed” by distribution when the possession materially exceeds what was distributed; it may drive a totality uplift on the lead count.

For prosecutors, the case nonetheless underscores the importance of accurate date drafting—because while the appeal failed here, the court’s concern and its reliance on party agreement implies that a disputed basis (or a trial) could make such defects far more consequential.

4. Complex Concepts Simplified

Category A / B / C images: A guideline classification of indecent images by seriousness: Category A is the most serious (typically penetrative activity), Category B involves serious non-penetrative sexual activity, and Category C covers other indecent images not falling in A or B.
“Making” indecent images: In this area, “making” commonly includes downloading or saving images to a device—not only producing images with a camera.
Totality: A sentencing principle requiring the overall sentence to reflect the overall criminality across multiple offences. When sentences run concurrently, judges often increase the lead offence to ensure the total reflects all wrongdoing.
Manifestly excessive: The appellate standard for sentence severity: the Court of Appeal intervenes only if the sentence is outside the range of reasonable outcomes, not merely because it might have chosen a different sentence.
Typographical/charging error vs invalid conviction: A wrongly stated date range does not automatically invalidate a conviction or sentence if the conduct actually being sentenced is clear, agreed, and criminal at the relevant time; but such errors can be critical where they create genuine uncertainty, unfairness, or a real dispute about what the defendant admitted.

5. Conclusion

[2026] EWCA Crim 808 confirms that obvious and undisputed defects in the drafting of charge dates may be treated as non-fatal where guilty pleas are entered and the basis of sentence is plainly understood and agreed, drawing on R v Gould [2021] EWCA Crim 447. On sentence, it reinforces that in IIOC cases a judge may legitimately apply an upward totality adjustment to a lead distribution offence to reflect substantial additional possession and related counts, and that large-scale possession is not necessarily absorbed by distribution. The court’s refusal to interfere illustrates the high threshold for appellate intervention where the sentencing judge has correctly identified guideline ranges, aggravation, mitigation, and structured the outcome around totality.