Clarifying Harm Categories for Low-Level Child Sexual Activity

Introduction

The appeal in R v BZG & ARY [2025] EWCA Crim 598 arises from an Attorney General referral under section 36 of the Criminal Justice Act 1988 challenging allegedly unduly lenient sentences imposed on two offenders who involved an 18-month-old child in sexual activity. The key issues are:

• The proper harm categorisation under the Sentencing Council’s guidelines for section 8 (causing or inciting a child under 13 to engage in sexual activity) when the acts were limited to kissing and smacking;
• The weight to be given to the child’s extreme youth;
• The extent to which appellate courts should interfere with a discretionarily calibrated sentence in a highly unusual factual context.

The appellants are:

• BZG: a 29-year-old man, a predatory offender with no previous convictions at the time of arrest, convicted of multiple sexual offences involving this child and others;
• ARY: the child’s mother, aged 28 at sentence (23 at the time of offending), convicted after trial of assisting BZG in the offences against her own son.

Summary of the Judgment

The Court of Appeal granted leave for referral but declined to increase or quash the sentences. It held:

• The trial judge’s categorisation of harm as Category 3 under the section 8 guideline was justified by the limited nature of the sexual acts (kissing on the lips and smacking);
• The mere extreme youth of the victim did not automatically elevate harm to Category 1 when the guideline contemplates more serious or penetrating acts;
• The sentencing judge applied both relevant guidelines (section 11 and section 8 offences), calibrated culpability, credit for plea, delay and the very different personal circumstances of ARY and BZG;
• In ARY’s case a two-year sentence was suspended with a mental health treatment requirement, reflecting her lower culpability and the child’s welfare;
• In BZG’s case an extended determinate sentence of eight years (five years’ custody) was upheld, supported by his predatory history and high risk profile;
• The Court emphasised restraint in appellate interference where a judge has engaged in detailed, fact-specific harm analysis and proportionality balancing.

Analysis

Precedents Cited

• R v AZ [2022] EWCA Crim 620: Held that rape of a very young child (2½ years) falls into Category 1 harm under the rape guideline because extreme youth elevates the harm factor to its highest level.

Though AZ concerned rape, the Attorney General sought to transpose its reasoning into the section 8 guideline, arguing that a child under two is “particularly vulnerable due to extreme youth” and therefore should be elevated to Category 1 harm (starting point 13 years). The Court declined to read AZ so broadly into guidelines for lower-level sexual activity.

Legal Reasoning

The Court’s reasoning rests on three pillars:

1. Guideline structure and purpose: Section 8 offences cover a spectrum from minimal acts (kissing) to penetration. The harm categories must reflect the level of actual or intended sexual activity and its typical impact, not solely victim age.
2. Fact-specific harm assessment: While the child’s youth is an aggravating factor (falling within Category 2), the guideline directs courts to reserve Category 1 for “extreme” examples—normally involving more serious acts or profound harm. Kissing and smacking, though criminal, did not automatically trigger the highest harm band.
3. Appellate restraint: The sentencing judge conducted a granular assessment of culpability, mitigation (delay, guilty plea, mental health) and aggravation (planning, recording, breach of orders). The Court emphasised that unless the judge applied the wrong legal principle or reached a manifestly unjust result, appellate interference is inappropriate.

Impact

This decision will guide sentencing courts and practitioners:

• It confirms that harm categorisation under child-sexual-activity guidelines requires close analysis of the nature and gravity of the acts, not age alone;
• It underscores that extreme youth is an aggravating factor but does not automatically produce the highest guideline band for non-penetrative or low-level acts;
• It affirms the Court of Appeal’s limited role in disturbing well-reasoned, fact-specific sentences, even where the Attorney General challenges leniency;
• It signals that future section 8 cases with minimal contact will likely remain in lower harm categories, unless there is clear evidence of serious or penetrative abuse.

Complex Concepts Simplified

• Sentencing Council Harm Categories: Frameworks that group offences by typical harm level (Category 1 highest, then 2, 3). Each category has a “starting point” and “range” of months or years.
• Culpability Levels (A–C): Reflect offender’s blameworthiness—A for planning, group offending or breach of trust, down to C for more opportunistic or lower-blame conduct.
• Extended Determinate Sentence: A custodial term with an extension period on licence, imposed when public protection concerns are high.
• Section 36 CJA Referral: The Attorney General can refer an unduly lenient sentence to the Court of Appeal within 28 days of sentence. The Court may increase it if found unduly lenient.
• Sexual Harm Prevention Order (SHPO): A civil order imposing restrictions on a sexual offender after release to protect the public, here indefinite for BZG and five years for ARY.

Conclusion

The Court of Appeal in BZG & Anor [2025] EWCA Crim 598 has :

• Clarified that under section 8 guidelines, low-level sexual activity (kissing, smacking) remains in a lower harm category despite victim’s extreme youth;
• Resisted a broad reading of R v AZ beyond its rape context;
• Demonstrated judicial restraint by upholding nuanced, fact-specific sentencing decisions;
• Established a precedent that harm categorisation must reflect the true gravity of conduct, guiding future child-sexual-activity sentencing.

This judgment ensures proportional, careful application of sentencing guidelines where child involvement in sexual activity varies greatly in seriousness, and it sets a boundary against elevating harm categories based solely on victim age in low-level offences.