R v Barnes [2025] EWCA Crim 1686: Adjusting Sentences for Section 14 Child Sex Offences When Intended Abuse Does Not Occur

1. Introduction

The decision in Barnes, R. v [2025] EWCA Crim 1686 is a significant Court of Appeal (Criminal Division) authority on the sentencing of preparatory child sexual offences under section 14(1) of the Sexual Offences Act 2003 (“SOA 2003”). It addresses the correct use of Sentencing Council guidelines for completed child sexual offences when sentencing an inchoate offence, and clarifies the requirement to reduce the sentence to reflect the absence of actual harm, even where a real child was intended to be abused.

The case sits squarely within the framework established in R v Privett [2020] EWCA Crim 557, but goes further in illustrating how that framework must be applied in practice: judges must (a) assess harm by reference to the intended sexual activity, and (b) then explicitly adjust the sentence to make it “commensurate” with the fact that the planned child sexual offence did not in fact occur.

The appeal also raises questions about:

How to categorise harm in online child sexual offending where no abuse takes place;
How mental health conditions and neurodivergence (ADHD, probable ASD) and drug addiction function as mitigation;
The meaning of “manifestly excessive” in the context of sentencing for the most serious forms of online sexual offending.

1.1 Parties, Court and Procedural Posture

The appellant, Jamie Barnes, was convicted at Cambridge Crown Court on 29 November 2024 of:

Arranging or facilitating the commission of a child sex offence, contrary to section 14(1) SOA 2003; and
Two counts of making indecent photographs of a child.

He had earlier pleaded guilty to possession of small quantities of cannabis and heroin. On 28 February 2025 he received a total sentence of 12 years’ imprisonment, of which 11 years 6 months was imposed on the section 14 count. A Sexual Harm Prevention Order (“SHPO”) and indefinite notification requirements were imposed, as well as the usual surcharge and forfeiture/destruction orders.

Barnes appealed against sentence with leave of the single judge. The appeal was heard by the Court of Appeal (Criminal Division), judgment being delivered by Cheema-Grubb J on 18 November 2025.

1.2 Central Legal Issue

The key legal question was:

How should a court sentence an offender under section 14(1) SOA 2003 for arranging or facilitating the rape of a child, where the intended abuse never actually occurs, and what adjustment is required from the guideline sentence for the completed offence?

The appellant argued that the sentencing judge failed to give adequate credit for the absence of actual harm, contrary to the principles in Privett, and that harm was mis-categorised and mitigation under-valued. The Court of Appeal accepted that there was an error in the application of Privett, holding that the sentence was manifestly excessive and substituting a lower term.

2. Factual Background

The facts were, in the words of the Court, capable of being “stated briefly”, but are extremely serious:

Barnes engaged in highly sexualised online conversations (approximately 10 separate interlocutors) via messaging applications.
In those conversations he actively sought to pay to watch the live streaming of penetrative sexual abuse of an 8-year-old child, and also referred to a 4-year-old child.
The content included graphic requests that an 8‑year‑old girl be raped, including an expressed desire to see “a man’s sperm inside her” and references to a brother raping the girl.
He engaged in negotiations over price, appeared to send money, and was offered the opportunity to watch abuse live.
During some of these exchanges he appeared to be masturbating and set out in detailed terms what he wanted done to the child.

Crucially, and contrary to what is often seen in undercover “sting” operations, the trial judge found as a matter of fact that these were not decoy conversations. The judge concluded:

“In my judgment you sought a real child, you thought certainly you’d see a real child being raped, there is no suggestion that that was not a real child. The conversations clearly envisaged a real child and real activity and the exchange of money for those purposes.”

On that basis, Barnes was convicted of the section 14 offence: he had arranged or facilitated an act which, if carried out, would have constituted a serious child sexual offence.

3. Sentencing at First Instance

3.1 The Judge’s Approach to Harm and Culpability

The sentencing judge approached the section 14 count by reference to the Sentencing Council guideline for rape of a child under 13. For that completed offence, the judge noted:

“The maximum sentence in relation to the offence for which you were convicted on count 1, of course, is 14 years, but then I take into account the guidance in relation to rape of a child under 16. There is, as Mr Spence helpfully pointed out on behalf of the prosecution, the starting point is one of 13 years with a range of a sentence between 11 and 17 years. Of course, it's not possible to go beyond 14 because that is the maximum for this offence.”

On harm and culpability, the judge concluded that:

The offence should be treated as Category 2 harm (serious harm, but not at the very highest level); and
Category A culpability (high culpability) because of significant planning, persistence over time, and willingness to pay to have the abuse carried out and live streamed.

This placed the section 14 offence in the guideline bracket often denoted “2A” – Category 2 harm + Category A culpability.

3.2 Aggravating and Mitigating Features

The judge had the benefit of a pre-sentence report and a psychiatric report from Dr Utpaul Bose.

(a) Aggravating Features

A long criminal record: 31 convictions for 91 offences, primarily acquisitive crime linked to drug misuse.
Pervasive sexual preoccupation with young female children, as assessed by the risk report.
High assessed risk of serious sexual and psychological harm to children.
Persistence, negotiation, and willingness to pay to watch the rape of young children.

(b) Mitigating Factors

The judge noted several mitigating elements, but attached limited weight to them:

No previous sexual offending (though significant non-sexual record).
Diagnosed ADHD and probable ASD, linked to impulsivity and poor emotional regulation, which would make custody more difficult and could help explain some compulsive behaviour.
History of trauma, including emotional abuse by his mother and physical abuse by his father.
A long history of Class A drug misuse, but recent abstinence: he had weaned himself off heroin and crack cocaine, and remained sober in prison.

The judge concluded that these factors mitigated to some degree, but did not substantially reduce overall seriousness.

3.3 Sentence Imposed

For the section 14 offence, the judge imposed:

11 years 6 months’ imprisonment on count 1 (section 14(1) SOA 2003).
Further concurrent and consecutive terms on the indecent images and drug possession counts, producing a total sentence of 12 years’ imprisonment.

SHPO and notification requirements were made to apply indefinitely. There were no reporting restrictions on the case.

4. Grounds of Appeal

The “essential ground” of appeal was that the sentence was manifestly excessive. This was developed under three heads:

4.1 Ground 1 — Failure to Discount for Absence of Actual Harm (Misapplication of Privett)

It was argued that, following R v Privett [2020] EWCA Crim 557, the judge should have made a clear and substantial reduction to reflect the fact that:

No child was in fact abused; and
The section 14 offence was a preparatory offence completed before any abuse occurred.

The appellant contended that any uncertainty about whether a real child was to be involved should have been resolved in his favour.

4.2 Ground 2 — Mis-Categorisation of Harm

The defence accepted Category A culpability, but argued that the harm should have been assessed as Category 3, not Category 2, on the basis that:

The interactions “never developed into actual arrangements to abuse children” (i.e. remained theoretical or exploratory); and
There was alleged uncertainty about the involvement of real children.

4.3 Ground 3 — Insufficient Weight to Mitigation

Finally, it was submitted that insufficient weight was given to:

The absence of any prior sexual convictions;
The diagnosed ADHD and probable ASD, contributing to impulsivity and compulsivity;
His Class A drug addiction at the relevant time; and
His successful abstinence from Class A drugs by the time of sentence and continued sobriety in prison.

5. The Court of Appeal’s Decision

5.1 Application of Privett and Rejection of the Harm/Category Arguments

The Court began by reaffirming the key passages from Privett, emphasising that:

Section 14 criminalises intentionally arranging or facilitating conduct that would constitute a child sexual offence, “intending that it will happen”.
It is a preparatory offence; it is complete when the arrangements are made or the intended offence has been facilitated. It does not depend on the completed offence taking place or even being possible.
The absence of a real victim does not reduce culpability, but as a general rule harm will be greater when there is a real victim than when the victim is fictional.
Section 143(1) Criminal Justice Act 2003 (“CJA 2003”) requires a court to consider the intended harm.

The Court held that the sentencing judge was correct to:

Rely on the guideline for rape of a child under 13, given the intended sexual activity was penetrative sexual abuse of an 8‑year‑old child;
Place the case in the 2A bracket (Category 2 harm, Category A culpability); and
Reject defence submissions that only Category 3 harm was applicable.

The Court described as “unarguable” any suggestion that a different guideline or a lower harm category should apply.

5.2 The Error: Failure to Adjust for Non-Occurrence of the Intended Offence

However, the Court identified a material error in the sentencing exercise:

“As Privett makes clear, where the offence arranged did not actually occur, a reduction within the category range is required to reflect the absence of actual harm. Mr Ball is right that the judge made no reference at all to this obligation or indicate that he had considered how to make the sentence commensurate with the range and starting point he alighted on. It seems to us that some adjustment was required and is absent.”

In other words, having correctly used the child rape guideline to identify the seriousness of the intended offence, the judge failed to step back and reduce the sentence to reflect:

That no child was actually abused; and
That section 14 is an inchoate or preparatory offence.

5.3 Re-Sentencing

The Court concluded that the sentence for the section 14 offence was manifestly excessive and substituted a lower term:

The 11 years 6 months on count 1 was quashed.
A new sentence of 9 years 6 months’ imprisonment was imposed for the section 14 count.
The sentences on other counts (including a consecutive sentence on count 2) and all ancillary orders were left unchanged.
The total custodial term was therefore reduced from 12 years to 10 years’ imprisonment.

The Court emphasised that this reduced sentence still reflected:

The intention that serious sexual harm be inflicted on a real child; but
The fact that, in the event, no actual abuse occurred.

6. Precedents and Legal Authorities

6.1 Section 14 Sexual Offences Act 2003

Section 14(1) SOA 2003 creates the offence of arranging or facilitating the commission of a child sex offence. The key features are:

It covers conduct where someone intends that a child sex offence will be committed;
The offence is complete when the arrangement or facilitation occurs, even if:
- the sexual offence is never carried out; or
- it would in fact have been impossible to carry it out (e.g. where the “child” is a decoy).
The maximum sentence, as the Court noted, is 14 years’ imprisonment.

6.2 The Sentencing Guideline: Rape of a Child Under 13

The Sentencing Council guideline for “rape of a child under 13” provides the framework that was used by both the sentencing judge and the Court of Appeal. In outline:

It categorises harm (by seriousness of the effect and nature of the abuse) and culpability (by the offender’s conduct, planning, etc.).
For a Category 2 harm / Category A culpability offence, the guideline gives:
- A starting point (SP) of 13 years’ custody; and
- A range of 11–17 years’ custody.
This range assumes that the rape has actually occurred.

In Barnes, this guideline was treated as a reference point: what would the sentence have been if the intended rape of the child under 13 had been carried out? That answer then had to be adjusted because section 14 covers preparation, not the completed rape.

6.3 R v Privett [2020] EWCA Crim 557

Privett and the conjoined appeals are the leading authority on sentencing section 14 offences, particularly in cases involving undercover operations or fictional children. The key propositions adopted and applied in Barnes are:

The section 14 offence is complete at the stage of arranging or facilitating. It is a “preparatory offence”, and does not depend on the completed offence being carried out.
Sentencers should:
1. Identify the intended sexual activity (e.g. penetrative rape of a child under 13);
2. Use the guideline for the completed offence to determine harm category, culpability, and the provisional starting point and range; and
3. Then adjust the sentence to ensure it is “commensurate” with the inchoate nature of the offence, making a reduction where the intended offence did not occur.
The absence of a real victim does not diminish the offender’s culpability where they believed they were grooming or arranging abuse of a real child.
However, as a general matter, harm is greater where abuse is actually inflicted on a real child than where it remains intended or fictional.

Barnes is a practical application of this framework to a case where the intended child is real (or at least believed to be real), but abuse is not actually carried out.

6.4 Section 143(1) Criminal Justice Act 2003

Section 143(1) CJA 2003 provides that:

“In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.”

This statutory focus on intended harm underpins the approach both in Privett and in Barnes: for an inchoate sexual offence, courts must sentence by reference to both:

What the offender meant to bring about; and
What, in reality, actually happened.

7. Analysis of the Court’s Legal Reasoning

7.1 Real Child vs Decoy: Evidence and Findings of Fact

A central plank of the defence case on appeal was that there was uncertainty as to whether real children were involved, and this uncertainty should have operated in the appellant’s favour.

However, the Court of Appeal placed decisive weight on the findings of the trial judge, who had heard all the evidence and concluded:

The conversations were “real”, not decoy;
Barnes believed he would see a real child being raped;
The discussions clearly envisaged a real child and real activity, with money changing hands.

On appeal, the Court accepted these findings:

It did not revisit or dilute them;
It treated Barnes’ intention to see a real child raped as a settled factual basis for sentencing.

This demonstrates the Court’s usual deference to the trial judge’s fact-finding role, and the limited scope of appellate challenge where the sentencing judge has made clear primary findings after hearing evidence.

7.2 Harm Categorisation: Why Category 2A Was Appropriate

The appellant’s attempt to argue for Category 3 harm was firmly rejected. The Court reasoned that:

The relevant question under section 143(1) CJA 2003 and Privett is the intended harm – here, penetrative sexual activity with an 8-year-old, i.e. child rape.
The judge was right to emphasise the age of the child (8 years) as making her “particularly vulnerable” and therefore consistent with Category 2 harm (serious psychological and physical harm) at least.
The prolonged communications, detailed negotiation, and willingness to pay pointed squarely to Category A culpability.

The Court described as “unarguable” the contention that this was not a 2A case. The fact that the planned abuse did not “develop” into a finalised logistical plan or was not carried out did not reduce the level of intended harm; it instead became relevant only at the later stage of adjusting the sentence to reflect non-occurrence.

7.3 The “Privett Discount”: Adjusting for Non-Occurrence of the Intended Rape

The crucial part of the Court’s reasoning lies in how it applied the Privett framework:

Step 1 – Identify intended offence: here, rape of a child under 13, with a guideline SP of 13 years and range of 11–17 years (for a completed offence).
Step 2 – Place the case in the appropriate harm/culpability category: 2A (Category 2 harm, Category A culpability).
Step 3 – Adjust for the fact that the offence was inchoate: the rape was intended but did not occur.

It was at Step 3 that the sentencing judge erred. Having reached the 2A category, the judge effectively imported a sentence (11 years 6 months) that sat close to the range for the completed offence, without:

Explicitly acknowledging the need for a reduction because the rape did not happen; or
Showing how the sentence was “commensurate” (proportionate) to the harm actually caused (none) as opposed to intended.

The Court of Appeal expressly held that:

“…where the offence arranged did not actually occur, a reduction within the category range is required to reflect the absence of actual harm.”

In practice, however, the Court then imposed a sentence of 9 years 6 months, which is below the lower end (11 years) of the 11–17 year range identified for the completed offence. This is doctrinally important:

It shows that the guideline range for the completed offence (11–17) is the starting framework, not a rigid floor, when dealing with a section 14 preparatory offence.
The “reduction within the category range” language is best understood as a description of the analytical process (starting from that range and moving downward), not as a hard rule that the final sentence must remain at or above the lower limit of the completed-offence range.
Barnes therefore refines the practical application of Privett: the final sentence can properly fall below the guideline range for the completed offence where the abuse never occurs.

The Court’s choice of 9 years 6 months signals that even where:

The intended abuse is the gravest kind (rape of an 8-year-old child); and
The offender genuinely believes a real child will be raped;

There must be a substantial discount compared with the sentence that would have been imposed if the abuse had been carried out. Otherwise, the preparatory offence would be punished almost as heavily as the completed rape, undermining the principled distinction between intended and actual harm.

7.4 Treatment of Mitigation: ADHD, ASD and Drug Addiction

The Court of Appeal was not persuaded that the sentencing judge had failed to give adequate weight to mitigation. In particular:

The absence of previous sexual convictions was acknowledged and treated as a mitigating factor, but set against a very long criminal record for other offending.
ADHD and probable ASD were recognised as conditions making custody harder and contributing to impulsivity and emotional dysregulation. However:
- They did not negate sexual interest in female children;
- They did not substantially undermine his capacity to understand what he was doing;
- They did not significantly reduce his responsibility for the choices he made.
Drug addiction and subsequent abstinence were acknowledged, but again given limited weight in light of the gravity of the planned offending.

The Court stated that it did not find the mitigation argument “attractive” and was clear that the principal basis for reducing the sentence was the failure to reflect the absence of actual harm, not any re-balancing of mitigation and aggravation.

7.5 Why the Original Sentence Was “Manifestly Excessive”

A sentence is “manifestly excessive” where, even allowing for the discretion properly available to the sentencing judge, it lies outside the range of sentences that could reasonably be considered appropriate.

In Barnes, the Court held the original 11 years 6 months on count 1 to be manifestly excessive because:

The judge correctly identified the seriousness of the intended harm, but then failed to apply any clear discount for non-occurrence of the intended rape.
The sentence effectively treated Barnes as if the child had been raped, giving insufficient effect to the fact that no abuse actually took place.
Such an approach was inconsistent with the principles laid down in Privett, and with the proportionality requirement under section 143(1) CJA 2003.

The Court’s substituted sentence of 9 years 6 months re-established proportionality between:

The extreme seriousness of arranging to watch a real child raped; and
The reality that the intended rape was not carried out and no child suffered actual physical or psychological harm.

8. Complex Concepts Simplified

8.1 “Preparatory” or “Inchoate” Offence

An offence is “inchoate” or “preparatory” when it criminalises conduct before the harm actually occurs. Section 14 SOA 2003 is such an offence. It punishes:

Making arrangements intended to lead to a child sex offence;
Even if those arrangements are never carried through.

This is different from the completed sexual offence (e.g. actual rape of a child), which requires the sexual act itself to have taken place.

8.2 “Manifestly Excessive” Sentence

On appeal, the Court does not re-sentence from scratch unless it finds an error. It asks whether the sentence imposed was “manifestly excessive” – meaning:

Not merely on the high side; but
So high that it lies outside the range of what could reasonably be justified on the facts and applicable law.

In Barnes, the failure to discount for absence of actual harm made the sentence manifestly excessive.

8.3 Sentencing Guidelines: “Starting Point” and “Range”

Sentencing guidelines use:

A starting point: the sentence appropriate for a typical case of that level of harm and culpability, with no particularly strong aggravation or mitigation.
A range: the bracket of sentences that may be appropriate once all aggravating and mitigating factors are taken into account.

For rape of a child under 13 in category 2A, that starting point is 13 years’ custody with a range of 11–17 years – assuming the rape actually occurred.

8.4 “Commensurate” Sentence

The requirement that a sentence be “commensurate” with the seriousness of the offence means it must be:

Proportionate to the combination of:
- The offender’s culpability (how blameworthy the conduct was); and
- The harm caused, intended, or foreseeable.
Not so high that it treats a preparatory offence as severely as a completed offence, absent compelling justification.

8.5 Sexual Harm Prevention Order (SHPO) and Notification Requirements

A SHPO is a civil order imposed at sentence to prevent future sexual harm. It can include:

Restrictions on internet use;
Prohibitions on unsupervised contact with children;
Requirements to report devices or online identities.

Notification requirements (often known as being on the “sex offenders’ register”) oblige the offender to:

Register with the police;
Notify changes of address, travel, and other details;
Remain subject to monitoring over a prolonged or indefinite period.

In Barnes, both the SHPO and notification requirements were made to apply indefinitely, reflecting the high ongoing risk assessed to children.

9. Impact and Future Significance

9.1 Sentencing for Online Child Sexual Offences Under Section 14

Barnes reinforces and refines the approach already set out in Privett:

Courts must first measure the seriousness of the intended sexual offence using the relevant guideline (here, rape of a child under 13).
They must then make a clear, reasoned adjustment to account for:
- The fact that the abuse did not happen; and
- The preparatory nature of the offence under section 14.
Failure to explain or apply this adjustment risks a finding that the sentence is manifestly excessive.
The final sentence may legitimately fall below the range that would apply to the completed offence, as the 9 years 6 months in Barnes illustrates.

9.2 Distinguishing Real vs Fictional Victims

While many Privett-type cases involve decoy officers and fictional children, Barnes is important because:

The Court treated it as a case in which Barnes believed he was arranging to watch a real child being raped;
Nonetheless, the absence of actual abuse still required a material sentencing discount.

This confirms that:

The presence or absence of a real child affects culpability and, indirectly, perceived seriousness;
But the non-occurrence of the abuse remains a crucial harm factor, even where the offender believed the child to be real.

9.3 Neurodivergence, Addiction and Personal Mitigation

The Court’s treatment of ADHD, probable ASD and drug addiction highlights several points:

Such conditions can explain aspects of behaviour and justify some reduction in culpability and recognition of hardship in custody;
But in serious sexual offending, especially involving planned child rape, their mitigating effect is generally limited;
Where risk assessments indicate continuing sexual interest in children and high risk of harm, these factors are not capable of substantially reducing sentence.

Future defendants seeking to rely heavily on neurodevelopmental conditions or substance misuse in this context will face an uphill struggle unless they can show a more direct and substantial impact on their moral culpability or capacity to understand and control their actions.

9.4 Practical Guidance for Sentencers and Advocates

Barnes offers clear, practical guidance:

For Sentencers

Make explicit findings on whether the offender believed they were dealing with a real child.
Identify the intended sexual offence and apply the guideline for that completed offence (e.g. child rape guideline) to determine harm category, culpability, and the provisional SP and range.
Then consciously step back and adjust downward to reflect:
- That the intended abuse did not occur; and
- The preparatory nature of the section 14 offence.
Explain, in sentencing remarks, how the final sentence relates to the completed-offence guideline and why the discount is appropriate.

For Advocates

Defence counsel must explicitly invite the judge to apply the Privett discount and explain how the non-occurrence of the abuse should be reflected numerically.
Prosecution counsel should accept that some reduction is required in non-resulting section 14 cases, while ensuring the court properly reflects:
- The seriousness of the intended harm; and
- Any evidence of high ongoing risk.

10. Conclusion

Barnes is an important reaffirmation and refinement of the Privett approach to sentencing for preparatory child sexual offences under section 14 SOA 2003.

Its key contributions can be summarised as follows:

It confirms that where an offender arranges or facilitates what they believe will be the rape of a real child, the sentencing court must:
- Use the completed child rape guideline (here, rape of a child under 13) to assess intended harm; and
- Place the case within the appropriate harm/culpability category (2A in this case).
It makes clear that the absence of actual abuse requires a substantial sentencing discount, and that failing to apply or articulate such a discount can render a sentence manifestly excessive.
It illustrates that, for section 14 offences, the final sentence may properly fall below the lower end of the guideline range for the completed offence, reflecting proportionality and the preparatory nature of the crime.
It underscores that personal mitigation (neurodivergence, addiction, traumatic history) will, in cases involving planned child rape, be acknowledged but rarely capable of materially reducing sentence in the face of severe intended harm.

In practical terms, Barnes will serve as a reference point in future online child sexual offending cases, ensuring that courts:

Continue to treat such conduct with the utmost seriousness; but
Preserve a principled distinction between intended and actual child sexual harm.