R v ECC [2025] EWCA Crim 1173: Dangerousness may be founded on uncontested material from acquitted counts; modern guideline applied with downward adjustment to respect historic maximum

Introduction

In this renewed application for leave to appeal against sentence, the England and Wales Court of Appeal (Criminal Division) addressed the sentencing of a mother convicted of cruelty to a child under section 1(1) of the Children and Young Persons Act 1933. The case raises two recurrent and practically important issues: (1) the proper application of the current Sentencing Council guideline where the statutory maximum has increased since the date of offending, and (2) the scope of the sentencing court’s assessment of “dangerousness” for an extended determinate sentence (EDS), particularly whether it can draw on material connected to counts on which the defendant was acquitted or which were not pursued.

The applicant, anonymised as ECC to protect the victim’s identity, pleaded guilty on the second day of trial to one count of child cruelty. The sentencing judge imposed an EDS comprising a six-year custodial term and a three-year extended licence under section 279 of the Sentencing Act 2020. Leave to appeal, refused by the single judge, was renewed before the full court.

The applicant advanced three challenges: (i) the trial judge mis-categorised culpability and harm under the child cruelty guideline by placing the case in Category 1A; (ii) the judge failed to give sufficient weight to personal mitigation, including domestic abuse; and (iii) the judge erred in finding dangerousness, allegedly relying on material from an indictment on which the applicant had been acquitted and failing to give due weight to the passage of time.

Summary of the Judgment

The Court of Appeal (Dingemans LJ giving the judgment) refused the renewed application. It upheld:

The categorisation of the offence as Category 1A under the Sentencing Council’s offence-specific guideline for cruelty to a child, given multiple high culpability factors and Category 1 harm.
The sentencing judge’s approach to mitigation, including the treatment of domestic violence and mental health, finding that the judge was entitled to conclude that aggravating and mitigating factors broadly balanced out.
The finding of dangerousness and the imposition of an EDS, holding that (a) the passage of time did not preclude a finding of significant risk of serious harm, and (b) the judge could take account of sexualised communications attributed to the applicant because they were before the court at sentence, were not contested, and no Newton hearing was sought.

The court also noted two ancillary but instructive points: (i) the sentencing judge appropriately adjusted the guideline starting point downward to reflect the lower statutory maximum (10 years) applicable at the time of the offending, and (ii) the victim surcharge was not ordered to avoid retroactive effect, because the offending began in May 2011. The court emphasised the preservation of the victim’s anonymity under the Sexual Offences (Amendment) Act 1992, noting that anonymising the applicant was a necessary—albeit undeserved—consequence to avoid identifying the victim.

Factual Background in Brief

The applicant and her co-defendant formed a relationship in their teens and had a child together. The co-defendant perpetrated repeated sexual abuse of the child from an early age, including rape. The abuse continued over years, with instances occurring in the applicant’s presence and after she had entered into and breached an agreement with social services not to allow the co-defendant back into the home. School concerns arose after the child exhibited sexualised behaviour. Later investigations uncovered chats between the co-defendant and a third party concerning the rape of an 8-year-old girl. The applicant pleaded guilty to cruelty on the basis that she knew of at least five separate acts of rape/sexual assault by the co-defendant and did nothing to protect the child.

Analysis

1) Precedents and Authorities Cited

The judgment is concise and does not cite specific case authorities. It proceeds by applying well-established principles under:

Section 1(1) Children and Young Persons Act 1933 (the offence of child cruelty).
Section 279 Sentencing Act 2020 (the framework for extended determinate sentences and the dangerousness assessment).
Sexual Offences (Amendment) Act 1992 (lifelong anonymity of sexual offence victims) and the practical consequence of anonymising the defendant to protect the victim from identification.
Sentencing Council’s offence-specific guideline for Cruelty to a Child (culpability/harm categorisation; starting points and ranges).
General sentencing principles: the court may take into account any information before it at sentence, subject to fairness; non-retroactivity of penalties; the use of victim personal statements; and the guilty plea reduction regime.

While no cases are cited, the court reiterates foundational propositions familiar to practitioners, including that:

Sentencing judges may consider material beyond the count(s) of conviction if it is properly before the court and not disputed, and may do so to assess risk.
Where the statutory maximum has increased after the date of offending, the court must avoid retroactive severity by calibrating the guideline-derived figure to the lower historic maximum.
Findings of dangerousness depend on a holistic, fact-sensitive appraisal; the passage of time is relevant but not dispositive.

2) Legal Reasoning

a) Guideline categorisation and historic maximum

The sentencing judge treated the offending as Category 1A under the child cruelty guideline, identifying multiple high-culpability features: prolonged and multiple incidents of serious cruelty/neglect; deliberate disregard for the child’s welfare; and failure to prevent harm. Harm was assessed as Category 1, reflecting the victim’s serious psychological and emotional sequelae. Although the judge recognised one lesser culpability factor—domestic abuse suffered by the applicant—this did not displace the overall categorisation.

Crucially, the judge recognised that the guideline starting point of nine years (with a seven to twelve year range) was framed against the current 14-year maximum, whereas at the time of the offending the maximum was ten years. The judge therefore applied a downward adjustment to honour the historic cap, settling on a pre-plea term of seven years and five months, leading (with a 20% plea reduction) to a six-year custodial term. The Court of Appeal endorsed both the categorisation and the methodological adjustment for the lower historical maximum.

b) Mitigation: domestic abuse and personal circumstances

The judge accepted the applicant had suffered domestic violence and had mental health difficulties, and that the offending was of some age; however, the aggravating features were powerful: extreme youth of the victim, repeated and serious harm, breach of an agreement with social services, and repeated failure to intervene. The judge found that aggravation and mitigation broadly balanced out, and the Court held that this evaluative judgment was within the permissible range, especially given the trial judge’s vantage point from having presided over related proceedings.

c) Dangerousness and the Extended Determinate Sentence

The EDS required the court to determine that the applicant posed a significant risk of serious harm to members of the public by committing further specified offences. Two aspects of the reasoning are noteworthy.

Passage of time: Although the offending began more than a decade earlier, it spanned a long period and involved grave, repeated harm. The Court held that the lapse of time did not prevent a finding of dangerousness on the facts; temporal distance is merely one consideration in assessing current risk.
Use of communications linked to acquitted counts: The applicant complained that the judge relied on sexualised communications about child abuse even though she was acquitted of related counts after the judge entertained a submission of no case to answer. The Court stressed that at sentence the judge may consider any information before the court. Here, the sexualised messages were treated as the applicant’s communications; importantly, they were not contested at sentence and no Newton hearing was sought to resolve authorship or meaning. In those circumstances, it was open to the judge to take them into account when assessing risk, particularly given the broader picture of prolonged failure to protect and the applicant’s expressed sexual interest in child abuse.

The Court emphasised that the sentencing judge, having presided over the related trial, was best placed to evaluate risk. On the facts, it was “not particularly surprising” that dangerousness was found and a three-year extended licence imposed.

d) Ancillary points: guilty plea credit, victim surcharge, and anonymity

Guilty plea: Although the plea came on day two of trial, the judge allowed a 20% discount, noting the procedural context (counts later not pursued). The Court did not disturb this.
Victim surcharge: None was ordered because the earliest offending predated the applicable surcharge regime; this avoided retroactive punishment.
Anonymity: To safeguard lifelong anonymity for the sexual offence victim, the defendant’s name was anonymised. The Court candidly described this as an “undeserved windfall” for the applicant, but a necessary step to prevent identification of the victim.

3) Impact and Significance

This decision consolidates several practical points likely to influence future cases:

Historic maxima and current guidelines: Sentencers may apply the current guideline structure (culpability/harm, starting points, ranges) even for historic offences, but must adjust the outcome to ensure it does not exceed the earlier statutory landscape. Advocates should be ready to assist the court with principled calibration when the guideline is pegged to a later, higher maximum.
Dangerousness and acquitted conduct: The court confirms that unchallenged material associated with discontinued or acquitted counts may be considered for risk assessment at sentence. Where the defence contests the accuracy or relevance of such material, a Newton hearing should be sought; failure to do so may leave the court free to rely on it.
Passage of time: Time alone will rarely neutralise risk in historic cruelty or sexual harm contexts, particularly where the offending was prolonged, deliberate, and involved grave breaches of protective duties.
Domestic abuse as mitigation in failure-to-protect cases: While domestic abuse is a material mitigatory factor, it does not automatically negate high culpability where the evidence shows deliberate disregard for the child’s safety and repeated opportunities to intervene were eschewed. Practitioners should marshal cogent evidence of coercion and its impact on agency if seeking to move a case out of the highest culpability bracket.
Practical advocacy: If sexualised messages or similar material are to be excluded from the risk assessment, the defence must squarely contest them at sentence and seek a Newton hearing. Silence or equivocation will be treated as acceptance that they can be weighed.

Complex Concepts Simplified

Child cruelty under s.1(1) Children and Young Persons Act 1933: This offence includes causing a child unnecessary suffering or injury to health, or exposing them to such risks, which encompasses gross failures to protect where serious harm was foreseeable and preventable.
Sentencing Council guideline (culpability/harm): Sentencing starts by assessing culpability (how blameworthy the offender is) and harm (how serious the harm or risk is). Category 1A indicates the highest combinations of harm and culpability.
Historic maximum vs current guideline: Courts apply today’s guidelines but cannot impose a sentence harsher than was legally possible when the offence was committed. When the guideline’s numerical ranges reflect a later, higher maximum, judges “downshift” to fit the historic cap.
Guilty plea discount: Credit is given for saving court time and sparing victims. The maximum is typically for pleas at the first opportunity; late pleas attract reduced credit. The judge has some discretion depending on the case’s procedural posture.
Dangerousness and Extended Determinate Sentence (EDS): If the court finds a significant risk that the offender will commit further specified offences causing serious harm, it may impose a determinate custodial term plus an extended licence period to protect the public.
Newton hearing: A mini-hearing to resolve factual disputes relevant to sentence. If material is disputed and important to sentence (e.g., authorship of messages), a Newton hearing should be requested; otherwise, the court may proceed on the basis of the prosecution’s account if it is not contested.
Use of acquitted or unpursued conduct at sentence: Sentencing courts can consider reliable information about what happened, even beyond the count(s) of conviction, provided it is fairly proved or uncontested and relevant to the sentence (such as risk assessments).
Anonymity of sexual offence victims: The law grants lifelong anonymity to victims of sexual offences. If naming a defendant would risk identifying the victim, courts may anonymise the defendant too, prioritising victim protection.

Conclusion

R v ECC is not a lengthy doctrinal treatise, but it delivers clear, practice-oriented guidance. It confirms that:

Serious child cruelty involving sustained failure to protect may properly be categorised at the top of the guideline, even where the offender has suffered domestic abuse, if the evidence shows deliberate disregard and repeated non-intervention.
When sentencing historical offences after an increase in the statutory maximum, the court should still use the present guideline but must adjust the sentence downward to reflect the historic maximum.
For dangerousness, the passage of time does not bar a finding of significant risk, and courts can rely on any information before them— including material connected to counts on which the defendant was acquitted—where it is not disputed at sentence and no Newton hearing is sought.

The extended determinate sentence was therefore properly imposed. For future cases, the decision underscores the importance of actively litigating contested sentencing facts, preparing targeted mitigation where domestic abuse is advanced, and assisting courts to reconcile modern guidelines with historical statutory maxima. Above all, it reaffirms that the protective focus of sentencing in offences involving grave harm to children justifies robust assessments of risk on the fullest, fair evidential basis available.