R v Mills [2025] EWCA Crim 1285: On‑Duty Police Status and Public Trust as “Other Relevant Factors” Justifying Upward Departure from Sexual Assault Guideline Ranges—With a Recalibration for Totality and Personal Mitigation

Introduction

This commentary examines the Court of Appeal (Criminal Division) decision in R v Mills [2025] EWCA Crim 1285, a sentence appeal concerning two sexual assaults (Sexual Offences Act 2003, s.3) committed by a serving police officer against two female colleagues. The case addresses the proper application of the Sentencing Council’s Sexual Offences guideline to workplace assaults by police officers, the role of public trust as an aggravating feature, and the circumstances in which a court may depart from the guideline category ranges under “Step 2” by invoking “other relevant factors.” It also restates the importance of totality and personal mitigation in multi-count sentencing.

The anonymity provisions of the Sexual Offences (Amendment) Act 1992 apply; reporting must not identify the victims (referred to as X and Y).

Parties: The appellant, a Greater Manchester Police officer at the time of the offences, appealed the total sentence imposed by HHJ Swinnerton. The respondents were the Crown. The Court of Appeal’s judgment was delivered by Sir Robin Spencer on 31 July 2025.

Key issues:

Whether the sentencing judge misapplied the Sexual Offences guideline by reclassifying category 3B offences as category 2B due to aggravating circumstances.
How “other relevant factors” at Step 2 of the guideline (particularly on-duty police status and public trust) justify moving outside the identified category range.
Whether the judge adequately reflected personal mitigation and the principle of totality in framing consecutive sentences across two counts.

Summary of the Judgment

The Court of Appeal allowed the appeal in part, reducing the total sentence from 18 months to 13 months’ immediate imprisonment, while affirming that:

The judge was entitled to move outside the category 3B range to category 2B on count 4 (the later offence) due to a combination of aggravating factors and “other relevant factors,” including the appellant’s on-duty police status, the undermining of public trust, an imbalance of power with the victim, and serious psychological harm short of “severe.”
The same upward movement was not appropriate on count 2, which should have remained within category 3B with some reduction for personal mitigation.
Consecutive sentences were appropriate given separate victims, but totality and personal mitigation required a lower overall term.

Orders:

Count 2: Sentence quashed and replaced with 4 months (formerly 6 months).
Count 4: Sentence quashed and replaced with 9 months (formerly 12 months).
Consecutive terms maintained, yielding a total of 13 months’ immediate custody.
Victim surcharge corrected from £156 to £100.

Detailed Analysis

The Factual Context

The appellant, a police constable, sexually assaulted two colleagues in separate incidents years apart:

Count 2 (2015; victim X): While X was driving a police car on duty, the appellant lifted her hand from the gearstick and placed it on his erect penis over clothing. X immediately rejected the conduct. She disclosed promptly but did not support disciplinary action at the time; the appellant later received only a verbal warning.
Count 4 (2019; victim Y): During a College of Policing course, the appellant, older and previously Y’s supervisor and mentor, took Y’s wrist and placed her hand on his erect penis over clothing in a conference room. He continued sexualized comments and implied quid pro quo on the return journey. Y was 21 and relatively junior at the time.

Both victims reported substantial, enduring psychological impact and adverse career effects. The appellant had no previous convictions and positive character references but denied the offences and showed limited insight in the pre-sentence report.

The Guidelines Framework

The Sentencing Council’s Sexual Offences guideline for sexual assault (s.3) is typically applied via:

Step 1: Assess harm (categories 1–3) and culpability (A–C) to identify a starting point and range (e.g., category 3B: high-level community order, with a range up to 6 months’ custody).
Step 2: Adjust for aggravating/mitigating factors. Critically, the guideline expressly permits moving outside the identified category range if a combination of listed factors or “other relevant factors” justifies it.
Further steps: Consider totality, reasons for custody vs. suspension, etc. Consecutive sentences are common where offences involve separate victims.

Precedents and Authorities Cited

R v Chall [2019] EWCA Crim 865; [2019] 2 Cr App R (S) 44: Confirmed that where psychological harm is serious but not “severe” (i.e., insufficient to place an offence in category 1), the sentencer may move upwards from the guideline starting point to reflect harm significantly greater than typical for the offence. The Court of Appeal in Mills deployed Chall to support an upward movement for count 4.
Sentencing Council Guidelines:
- Sexual Assault (s.3) Guideline—particularly Step 2’s permission to draw on “other relevant factors” to move outside the category range.
- Totality Guideline—supporting consecutive sentences for distinct victims and the need to ensure the overall sentence is just and proportionate.
- Imposition of Custodial Sentences/Suspension—applied by the judge; the refusal to suspend was not appealed.

Legal Reasoning

1) “Other relevant factors” at Step 2: on-duty police status and public trust

The decisive clarification in Mills is the recognition that a defendant’s on-duty police status, with the attendant undermining of public trust, constitutes a highly significant “other relevant factor” under Step 2 of the Sexual Assault guideline. The Court underscored that:

The offences were committed by a serving police officer at work (technically on duty) and against colleagues.
The impact extended beyond victim harm to institutional harm: offending by police officers undermines public confidence in the police as a whole.
This institutional/public-trust harm, combined with other aggravating circumstances, can justify an upward departure from the category range.

2) Aggravating features justifying uplift on count 4

For the 2019 assault on Y, the court affirmed a move out of 3B into 2B due to a combination of factors:

Imbalance of power: The appellant was older, a uniformed officer, Y’s prior supervisor and mentor; Y was young and inexperienced in her first professional role.
On-duty/professional context: Conduct occurred during a policing course, in a conference setting, leveraging workplace dynamics.
Public confidence harm: Misconduct by police damages trust in law enforcement.
Serious psychological harm (short of “severe”): The victims’ statements showed substantial and persisting impact, warranting upward movement per Chall.
Appellant’s exploitation of a non-reporting culture: The court accepted the judge’s finding that the appellant relied on a culture of not reporting colleagues, exacerbating culpability.

3) Why no uplift beyond 3B on count 2

On the 2015 assault of X, the Court found that while location and circumstances were aggravating, the sentence should have remained within 3B. The judge had imposed 6 months (the top of the 3B range) but, in the Court of Appeal’s view, insufficiently allowed for personal mitigation and overall proportionality. Two points stand out:

Location as aggravation (car, victim driving): Although the guideline’s location factor can be context-sensitive, here it legitimately aggravated because the victim was driving; surprise and shock could have endangered road safety. Still, the accumulation of factors did not warrant moving into 2B for this earlier count.
Mitigation and totality: With two counts and separate victims justifying consecutive sentences, the top-of-range term on count 2 should still have reflected personal mitigation, which the Court considered underweighted.

4) Personal mitigation and totality

The Court emphasised that personal mitigation must be credibly weighed even where immediate custody is necessary:

Mitigation present: Previous good character, severe career and financial consequences (dismissal for gross misconduct, potential pension implications), impact on family (including the spouse’s job loss), and the passage of time (albeit diminished by the non-reporting culture).
Totality: Consecutive terms for distinct victims were appropriate, but the overall sentence must remain proportionate. A total of 18 months was “manifestly excessive”; 13 months was appropriate.

5) Immediate custody vs. suspension

The judge’s decision that only immediate custody would constitute appropriate punishment was not challenged on appeal and stands as an orthodox application of the suspension guideline given the seriousness and breach of public trust.

Impact and Significance

This judgment delivers several important messages for sentencing practice in sexual assault cases, particularly involving professionals with public-facing authority:

On-duty status and public trust: For police officers (and likely by parity of reasoning, other public office-holders with enforcement or safeguarding functions), misconduct at work can be treated as a significant “other relevant factor” under Step 2, permitting movement outside the ordinary guideline category ranges. This is especially so where the misconduct leverages workplace dynamics or non-reporting cultures.
Serious (but not “severe”) psychological harm: Consistent with R v Chall, substantial harm that falls short of “severe” can still justify a material upward movement from starting points.
Location-specific aggravation: Even if “location” as a general proposition may be equivocal in the guideline dropdowns, context can make it a real aggravator—e.g., assaulting a driver in motion with road safety implications.
Structured use of Step 2: The Court reaffirms Step 2’s flexibility: a combination of listed and unlisted factors can justify departure from category ranges. However, the reasoning must be specific to the facts of each count.
Totality and mitigation remain essential: Even amid strong aggravation, sentencers must calibrate the global sentence to ensure proportionality, recognising personal mitigation and the interaction of consecutive terms.

Complex Concepts Simplified

Sexual assault (s.3 Sexual Offences Act 2003): Intentional sexual touching without consent and without a reasonable belief in consent.
Guideline categorisation (e.g., “3B”): A two-dimensional matrix:
- Harm (1 = most serious; 3 = least serious).
- Culpability (A = highest; C = lowest).
Category 3B typically starts at a high-level community order, with a range up to 6 months’ custody. Category 2B has a starting point of 12 months’ custody and a range up to 2 years.
Step 2 (“other relevant factors”): After identifying an initial category, the court can adjust up or down based on aggravation/mitigation. If factors—listed or not—justify it, the court may move outside the category’s range.
Serious vs. severe psychological harm: “Severe” harm triggers category 1; “serious” harm short of “severe” does not change the category but can increase sentence within or (with other factors) beyond the range (per R v Chall).
Totality: Ensures the overall sentence across multiple offences is just and proportionate. Separate victims often mean consecutive sentences, but the total must not be excessive.
Manifestly excessive: The appellate threshold for interfering with sentence; the overall result must be clearly too high.

Application to Each Count

Count 2 (X; in a police car, victim driving)

Harm/Culpability: Judge identified 3B; CA agreed it should not rise to 2B.
Aggravation: On-duty context; location aggravated because victim was driving, creating risk to road safety; serious psychological impact.
Mitigation: Good character; collateral consequences; passage of time (limited weight due to non-reporting culture).
Outcome: Reduced from 6 months to 4 months to reflect mitigation and totality while maintaining consecutive structure.

Count 4 (Y; conference setting, prior supervisory relationship)

Harm/Culpability: Judge elevated to 2B; CA upheld uplift.
Aggravation: On-duty/at-work; imbalance of power (older officer; prior supervisor/mentor; young and inexperienced victim); serious psychological harm; exploitation of a non-reporting culture; damage to public trust.
Outcome: Reduced from 12 months to 9 months due to overall proportionality, but the principle of an uplift beyond 3B was affirmed.

Practice Guidance and Takeaways for Sentencers and Practitioners

Record Step 2 reasoning explicitly: When moving outside a category range, specify the combination of aggravating and “other relevant factors” that justify it. Mills confirms on-duty police status and public confidence harm are valid “other relevant factors.”
Contextualise “location”: Do not assume location always aggravates; explain how the specific context (e.g., a moving vehicle) increases harm/risk.
Weigh personal mitigation and totality: Even with consecutive terms for separate victims, ensure the total reflects mitigation and remains proportionate.
Use R v Chall appropriately: Where psychological harm is serious but not “severe,” move upwards from the starting point to reflect more-than-typical harm, potentially in tandem with other aggravation.
Professional misconduct dimension: Where the offender holds public-facing authority (especially police), articulate how the conduct undermines institutional trust and why that warrants an upward adjustment.

Conclusion

R v Mills clarifies that in sentencing sexual assault by a serving police officer committed while at work, the offender’s on-duty status and the resultant erosion of public trust can constitute “other relevant factors” at Step 2, justifying an upward departure beyond the guideline category range. The Court of Appeal applied this principle to uphold an uplift on the more serious count (with an imbalance of power and serious psychological harm), while recalibrating the less serious count to lie within its category range and reducing the overall sentence to satisfy totality and mitigation.

Key takeaways:

On-duty police status and public trust are valid Step 2 factors that can move a case outside the identified guideline range.
Serious (but not “severe”) psychological harm permits upward adjustment per R v Chall.
Location can aggravate depending on concrete risk (e.g., assaulting a driver).
Consecutive sentences for separate victims remain appropriate, but the global sentence must not be manifestly excessive; mitigation must be meaningfully reflected.
In Mills, the total sentence was reduced from 18 months to 13 months to achieve proportionality while preserving immediate custody.
Administrative accuracy matters: the Court corrected the victim surcharge to the applicable £100.