Sentencing Limits: No “Production” Basis Where Creation Pre-dated Criminalisation and Conviction Is for Possession

1) Introduction

R v Johnston ([2026] EWCA Crim 341) concerned an application for leave to appeal against sentence by Mr Johnston, aged 78 and of previous good character, following his conviction (by guilty plea) for possession of 63 category C indecent photographs of a child contrary to section 160(1) of the Criminal Justice Act 1988.

The images were digital copies derived from Polaroid photographs taken when the complainant (“C”) was a schoolboy (about 15) in 1976–1977, when Mr Johnston was a teacher at a boarding school and met C in circumstances of vulnerability and trust. Mr Johnston was tried (and acquitted) of two counts of buggery (contrary to section 12(1) of the Sexual Offences Act 1956). A count of making indecent photographs contrary to section 1 of the Protection of Children Act 1978 was not proceeded with because the prosecution could not prove the photographs were taken after the offence came into force in August 1978.

The key sentencing issue was whether the Crown Court judge was entitled to sentence Mr Johnston using the sentencing guideline category for “production” (starting point 18 months’ custody), notwithstanding that he pleaded guilty only to possession under the 1988 Act and the original taking of the photographs occurred at a time when such “production” was not itself a criminal offence under the 1978 Act.

2) Summary of the Judgment

The Court of Appeal (Criminal Division) granted leave and allowed the appeal in part. It held that the sentencing judge had impermissibly “crossed a line” by sentencing Mr Johnston on a production basis, because:

  • Mr Johnston had not pleaded guilty to production/making, nor been convicted of it; and
  • the act of taking the photographs in 1976–1977 was not criminal at the time (under the 1978 regime which began later).

The court resentenced on the proper footing: the offence of possession, while treating the circumstances as materially aggravating. It concluded the offending sat at the top of the possession range, justified going beyond the guideline range, and imposed: 9 months’ immediate custody (replacing 51 weeks), refusing suspension due to the seriousness reflected in prolonged possession and breach of trust.

3) Analysis

A. Precedents Cited

i) R v Canavan & Ors [1998] 1 WLR 604

R v Canavan & Ors [1998] 1 WLR 604 supplied the foundational principle: a defendant is not to be sentenced for an offence unless it has been proved by admission or verdict, or admitted and asked to be taken into consideration. Interpreting a provision materially identical to section 230 of the Sentencing Act 2020 (then section 3(3) of the Criminal Justice Act 1991), Lord Bingham drew the critical distinction between:

  • taking account of acts done “in the course of committing” the offence of conviction (even if separately chargeable), and
  • impermissibly basing sentence on “the commission of offences not forming part” of the offence(s) for which the offender is to be sentenced.

In Johnston, this distinction was decisive: the Court of Appeal accepted that the background to the possession offence could be assessed, but held the judge went beyond background evaluation and effectively sentenced for production—conduct which was not only uncharged/unconvicted, but also non-criminal at the time.

ii) R v Marshall [2023] EWCA Crim 1640

R v Marshall [2023] EWCA Crim 1640 illustrated the sentencing error that arises when a court selects a guideline category that corresponds to more serious conduct (there, “distribution”) absent charge or plea to that distinct criminality. The Court of Appeal quashed the sentence because the judge sentenced on “distribution” despite no such count and no amendment to the indictment.

In Johnston, Marshall supported the applicant’s submission that choosing the “production” category starting point risked sentencing for a more serious offence than the one admitted/proved. The Court of Appeal treated this as part of the broader rule that guideline categorisation must remain tethered to the offence of conviction, even where other facts are available.

iii) R v Jaycock [2024] EWCA Crim 954; [2024] 4 WLR 65

R v Jaycock [2024] EWCA Crim 954; [2024] 4 WLR 65 addressed categorisation within the “making” offence under the 1978 Act and how guidelines distinguish “possession” and “production” behaviours for sentencing purposes. Jaycock emphasised that:

  • simple downloading may technically “make” an image, but is generally treated as “possession” for guideline purposes; yet
  • where conduct creates a new indecent image (e.g., digital manipulation), it can properly be treated as “production” for sentencing.

The prosecution relied on Jaycock to argue that, because Mr Johnston had taken the original photographs and later created digital images, “production” categorisation was permissible. The Court of Appeal distinguished the point: even if the judge could be sure the applicant “produced” images by photographing C, in this case the relevant “production” act occurred when it was not a criminal offence. Thus, Jaycock’s flexible categorisation principles could not justify a sentence that, in substance, punished non-criminal historic conduct.

B. Legal Reasoning

The court’s reasoning proceeds in three connected steps:

  1. Legality and fair labelling in sentencing: The court reaffirmed the “fundamental principle” that a defendant may not be sentenced for an offence not admitted or proved, and “cannot be sentenced for actions which were not criminal at the time that they were committed.” This engaged both (a) the scope of sentencing fact-finding, and (b) the prohibition on retrospectively punishing non-criminal conduct.
  2. Section 230 Sentencing Act 2020—what “taking into account” permits: Section 230(6) permits the court, when deciding custodial seriousness under section 230(2), to consider all available information about the circumstances of the offence including aggravating and mitigating factors. Applying R v Canavan & Ors [1998] 1 WLR 604, the Court of Appeal held this is not a licence to base sentence on separate offending (or, here, on conduct which was not criminal at the time).
  3. Correct guideline anchoring—and calibrated uplift for aggravation: The correct anchor was the guideline category for possession (starting point: high-level community order; range: medium-level community order to 26 weeks’ custody). The court accepted powerful aggravation intrinsic to the possession offence:
    • possession persisted for at least 38 years;
    • continued abuse of trust, including breach of the promise to destroy the photographs;
    • the child was known to the offender;
    • the child was depicted intoxicated.
    Those factors justified placing the case at the top of the possession range and, “in the interests of justice,” going beyond it. After considering plea credit and mitigation (notably age and health), the court settled on 9 months. It then separately addressed suspension, concluding that the seriousness required immediate custody.

The important nuance is that the court did not exclude the historic taking of photographs from the sentencing narrative; rather, it confined its use to explaining why the possession was seriously aggravated (breach of trust, prolonged retention, continued control), while rejecting its use as a basis to sentence as though the offender had been convicted of (or could be punished for) “production.”

C. Impact

The decision is likely to influence sentencing in three recurring scenarios:

  1. Historic child image cases straddling legislative commencement: Where original image creation occurred before the relevant “making/production” offence existed (e.g., pre-1978), courts must avoid guideline categorisations that effectively punish that creation as criminal.
  2. Guideline categorisation must track the offence of conviction: The judgment reinforces that courts cannot select a higher guideline track (production/distribution) merely because factually it appears the defendant did more, unless that additional criminality is properly before the court (by charge/conviction or a proper mechanism such as TICs where applicable).
  3. But serious possession can justify sentences above the “possession” range: The Court of Appeal endorsed a structured approach: start with the correct category, then (where justified) move beyond the range to reflect exceptional aggravation, while remaining conceptually faithful to the offence of conviction.

4) Complex Concepts Simplified

  • “Production” vs “possession” (guidelines): “Production” generally means creating a new indecent image (taking photographs, filming, or materially manipulating images to make a new one). “Possession” is having the indecent images (even digitally) without necessarily creating them. Guidelines use these labels to reflect seriousness, but courts must not use “production” to punish uncharged/unconvicted conduct.
  • Category C images: A guideline classification indicating indecent images that do not depict penetrative or non-penetrative sexual activity (less severe than categories A or B), though still criminal and potentially very serious depending on context (e.g., abuse of trust, duration, known child).
  • “Taking into account circumstances” vs “sentencing for another offence”: Courts may consider surrounding facts to assess seriousness of the offence of conviction. They may not impose a sentence that effectively punishes a different offence (especially one not charged/convicted), or punish conduct that was not criminal when it occurred.
  • Suspended sentence: A custodial term not immediately served, subject to conditions and a period during which reoffending can activate the term. Even where rehabilitation prospects are good, the court may refuse suspension if only immediate custody achieves proportionate punishment.
  • Anonymity of complainants: C had lifelong anonymity under the Sexual Offences (Amendment) Act 1992.

5) Conclusion

[2026] EWCA Crim 341 restates a clear sentencing boundary: courts must not sentence on a basis that in substance punishes uncharged/unconvicted criminality, and must not punish conduct that was not criminal at the time. Even where the facts show the defendant originally created the images, if that creation pre-dates criminalisation and the conviction is for possession, guideline categorisation must begin with possession.

At the same time, the case confirms that exceptionally grave features of possession—prolonged retention, breach of trust, and exploitative circumstances— can justify moving beyond the usual possession range and can require immediate custody, provided the court remains faithful to the offence actually proved.