Reflecting Separate Harm to Multiple Child Victims in Historical Sexual Offence Sentencing: Commentary on R v Hopcroft [2025] EWCA Crim 1598

Reflecting Separate Harm to Multiple Child Victims in Historical Sexual Offence Sentencing: Commentary on R v Hopcroft [2025] EWCA Crim 1598

1. Introduction

This commentary examines the decision of the England and Wales Court of Appeal (Criminal Division) in R v Hopcroft [2025] EWCA Crim 1598, an Attorney General’s Reference on the ground of an allegedly unduly lenient sentence imposed for historical sexual offences against children.

The case concerns Stephen Hopcroft, a 65‑year‑old man at the time of sentence, who was convicted after trial of:

  • Three counts of indecent assault (counts 1, 2 and 5), and
  • One count of engaging in sexual activity in the presence of a child contrary to section 11(1) of the Sexual Offences Act 2003 (count 8).

The offending occurred between 2002 and 2004, when the two complainants — anonymised as “A” and “B” — were 13–14 years old. Hopcroft was then 42–44 and employed A in his barber’s shop, giving rise to a clear position of trust and authority. Following conviction in June 2025, he was sentenced in August 2025 to a total of 31 months’ imprisonment, with all counts ordered to run concurrently.

The Attorney General applied for leave to refer the sentence to the Court of Appeal on the basis that it was unduly lenient, principally because it did not adequately reflect the separate harm to each victim and the overall criminality of the offending.

The Court of Appeal:

  • Granted leave for the Reference;
  • Found the sentence to be unduly lenient; and
  • Increased the total custodial term from 31 months to 49 months by making one of the counts relating to A consecutive to the principal count relating to B.

The judgment is especially significant for its clear articulation that, in historical child sexual offence cases involving multiple victims, failing to reflect the separate harm to each victim — particularly by defaulting to concurrent sentences — can render a sentence unduly lenient. It reinforces and applies the Sentencing Council’s Totality Guideline in that context.

2. Summary of the Judgment

2.1 The factual matrix

Between 2002 and 2004, over a roughly six‑week period (the precise dates could not be pinned down), Hopcroft:

  • Groomed A and B with sexualised conversation and behaviour in his barber’s shop;
  • Encouraged both to sit on his lap while he rubbed them over clothing;
  • On one occasion, rubbed B’s genitals inside her trousers but over underwear (count 1 – indecent assault);
  • On another occasion, offered B around £30 for oral sex; she agreed and he ejaculated in her mouth in A’s presence (count 2 – indecent assault);
  • On a further occasion, rubbed A’s genitals beneath clothing without vaginal penetration (count 5 – indecent assault); and
  • On at least one occasion, masturbated openly in front of A, ejaculating on the floor (count 8 – engaging in sexual activity in the presence of a child).

Both victims provided victim personal statements describing long‑term emotional and relational consequences, including shame, guilt, low self‑esteem, and entry into toxic relationships, as well as the destruction of their friendship with each other because it reminded them of the abuse.

2.2 The original sentence

The judge at first instance, HHJ Sheridan, accepted that modern Sentencing Council Guidelines for sexual offences (in their “historical” application) provided an appropriate framework for assessing seriousness and starting points:

  • Count 1 (B – indecent assault, touching over clothing): Harm category 3, culpability A → guideline starting point 6 months, range community order – 3 years.
  • Count 2 (B – oral penetration, ejaculation): Harm category 1, culpability A → starting point 5 years, range 4–10 years.
  • Count 5 (A – touching of naked genitals under clothing): Harm category 2, culpability A → starting point 3 years, range 2–6 years.
  • Count 8 (A – sexual activity in presence of child, masturbation): Starting point 2 years, range 1–3 years.

He recognised various aggravating factors, including:

  • Ejaculation;
  • The presence of another child during some of the abuse;
  • The location (his place of work, a barber’s shop); and
  • Breach of trust as A’s employer.

Nonetheless, in relation to the lead offence (count 2), he selected a “notional” sentence of 40 months’ imprisonment (already well below the modern guideline starting point of 5 years), then:

  • Reduced that to 36 months to reflect the delay since the offences and Hopcroft’s prior good character; and
  • Further reduced it to 31 months because he was “shocked” by Hopcroft’s deteriorating health.

He imposed:

  • 31 months on count 2 (lead count);
  • 20 weeks concurrent on count 1;
  • 18 months concurrent on count 5; and
  • 10 months concurrent on count 8.

The overall term was therefore 31 months’ imprisonment.

2.3 The Attorney General’s Reference

The Attorney General argued that:

  • The categorisation of the offending under the modern guidelines was correct;
  • The effective starting point of 40 months for the lead offence was unexplained and too low given the harm and culpability;
  • Most importantly, the sentence failed to properly reflect the fact that there were two distinct child victims, and that serious offending had been committed against each of them.

For Hopcroft it was contended that:

  • The pre-sentence report, though arguably unrealistic in suggesting a community order, underlined his exceptional vulnerability;
  • The offending spanned only about six weeks, within a broader two‑year date range which could not be more precisely specified;
  • There was an element of “paid for” sexual activity in one incident with B; and
  • Overall, the sentence, whilst lenient, was not unduly lenient, and could fairly be seen as merciful given his age and serious ill‑health.

2.4 The Court of Appeal’s decision

The Court of Appeal:

  • Noted that the judge had clearly explained the reductions from 40 to 36 to 31 months for count 2, based on mitigation (delay, good character, health);
  • Emphasised, however, that the judge had not explained how he arrived at the “starting point” of 40 months for that count in the first place;
  • Critically, found that the judge’s sentencing remarks failed to reflect the separate harm caused to A by the distinct offences against her (counts 5 and 8);
  • Concluded that this failure meant the overall sentence was not just lenient but unduly lenient; and
  • Applied the Totality Guideline by making the sentence on count 5 (18 months) consecutive to the 31 months on count 2, while keeping count 8 concurrent with the others.

The revised sentence thus became:

  • 31 months (count 2) + 18 months (count 5, consecutive) = 49 months’ total custodial term.

The Court explicitly stated that this new total “reflects the important issues of totality and of course the particular difficulties that Mr Hopcroft has in serving his sentence.”

3. Legal and Doctrinal Background

3.1 Historical sexual offences and the sentencing framework

The Court referred to the Sentencing Council’s Sexual Offences Guideline (Historical), which sets out the approach to sentencing offences committed before the current statutory regime came into force.

The key principles summarised by the Court include:

  • The offender must be sentenced according to the sentencing regime applicable at the time of the offence.
  • Under sections 57 and 63 of the Sentencing Act, the court must have regard to:
    • the statutory purposes of sentencing (punishment, deterrence, rehabilitation, protection of the public, reparation); and
    • the seriousness of the offence as the principal determinant of sentence.
  • The sentence is limited by the maximum sentence available at the time of commission; if the maximum has since been reduced, the lower figure applies.
  • The court should still use any relevant modern guideline for an equivalent offence under the Sexual Offences Act 2003 as a “measured reference” point to assess seriousness and proportion, while keeping within the historical statutory maximum.

In Hopcroft, although the underlying offences pre‑dated the 2003 Act (at least so far as “indecent assault” is concerned), the judge and the Court of Appeal treated modern guideline categories of harm and culpability as an analytical tool to calibrate seriousness, subject to the appropriate statutory maximums then in force.

3.2 The Totality Guideline

The Sentencing Council’s Totality Guideline provides that where there are multiple offences, the court must arrive at a total sentence that is “just and proportionate” to the total criminality.

Of particular relevance here is the statement (quoted by the Court) that consecutive sentences will normally be appropriate where:

offences are of the same or similar kind but the overall criminality will not be sufficiently reflected by concurrent sentences.

The Guideline’s own example, picked up in the judgment, includes:

where offences are committed against different people…

This point lies at the heart of Hopcroft: where there are separate victims, simply running all counts concurrently may substantially understate the gravity of the offending, because it treats multiple distinct harms as though they were one.

3.3 Mitigation: delay, good character, and ill‑health

The Court accepted that:

  • A long passage of time without further offending (here about 20 years) can be a mitigating factor;
  • Good character and positive contribution to society may mitigate, but their significance diminishes as the seriousness of the offence increases;
  • Severe ill‑health and age can also mitigate sentence, especially where imprisonment will weigh more heavily on the offender.

However, the judgment reiterates that in serious sexual offending against children:

  • Such factors cannot be allowed to “overwhelm” the need for a sentence that properly reflects harm, culpability, and the impact on victims;
  • The more serious the offence, the less weight can be given to good character or delay.

3.4 Attorney General’s References and the “unduly lenient” test

The Court summarised the well‑established principles governing Attorney General’s References under section 36 of the Criminal Justice Act 1988:

  • The sentencing judge is “particularly well placed” to weigh competing factors;
  • A sentence is only unduly lenient if it falls outside the range of sentences which such a judge could reasonably consider appropriate;
  • Leave to refer should only be granted in exceptional cases, not borderline cases;
  • Section 36 is intended for situations in which the judge has fallen into “gross error”.

This framework creates a high threshold: the question is not whether the appellate court would have passed a different sentence, or whether the sentence was merely lenient, but whether it was so low that it fell outside the spectrum of reasonable responses.

4. Detailed Analysis of the Court’s Reasoning

4.1 The central defect: failure to reflect separate harm to A

The core of the Court’s reasoning lies in paragraph 22–23 of the judgment:

  • The judge treated count 2 (oral penetration of B) as the “lead” offence and built the sentence around it.
  • He did not clearly explain how he derived a 40‑month starting point for count 2, given the modern guideline’s 5‑year starting point.
  • Although he transparently explained the mitigatory reductions (delay, good character, ill‑health), he did not explain how — if at all — he had factored in:
    • The separate indecent assault on A (count 5), and
    • The separate sexual activity in A’s presence (count 8).

The Court stressed that:

what is entirely missing from the sentencing remarks is the recognition of the separate harm that was caused by his separate offending against A…

On a proper application of the Totality Guideline, offending against separate victims typically calls for at least some consecutive element unless the offences are so closely linked in time and circumstances that they can fairly be treated as a single episode. Here, the offences:

  • Involved two distinct children;
  • Included separate instances of direct sexual touching of each; and
  • Included separate exposure of A to masturbation.

By making all sentences concurrent and not explaining any consolidating rationale, the judge failed to mark the distinctiveness of A’s victimisation. This was the “gross error” that justified intervention.

4.2 Application of the Totality Guideline: why count 5 became consecutive

To remedy the error, the Court looked at the individual sentences imposed by the trial judge:

  • 18 months on count 5 (A – indecent assault, touching naked genitals), and
  • 10 months on count 8 (A – sexual activity in her presence).

The Court then:

  • Maintained those tariffs as appropriate reflections of seriousness for each count;
  • Decided that count 5 (18 months) should run consecutively to the 31‑month term on count 2;
  • Kept count 8 concurrent, presumably on the basis that, in the overall structure, the harm from that count could appropriately be treated as subsumed, once count 5 was made consecutive.

This solution reflects the guideline principle that:

  • One should avoid excessive proliferation of consecutive terms that create a sentence greater than is just and proportionate;
  • Yet at the same time ensure that the sentence is “not unduly lenient” when viewed against the total criminality across victims.

By adding only the 18‑month term for the more serious of the A‑related offences, the Court struck a balance: it corrected the failure to mark the separate harm to A without imposing an excessively lengthy sentence given the offender’s severe ill‑health and the age of the offences.

4.3 The role of the modern sexual offences guidelines in historical cases

The Court endorsed the sentencing judge’s use of the modern Sexual Offences Guidelines, but clarified their function:

  • They are a tool for assessing seriousness (harm and culpability categories) and an indication of proportion;
  • They do not displace the historical statutory maxima and regimes;
  • They must be used in a “measured” way, rather than mechanically importing modern starting points wholesale.

Here, the judge appropriately:

  • Mapped each offence onto guideline categories;
  • Recognised the seriousness (particularly for count 2, harm category 1, culpability A);
  • Identified aggravating features consistent with guideline factors (grooming, breach of trust, ejaculation, presence of another child).

The Court’s concern was not with whether he used the guideline, but with:

  • How he translated that seriousness into a much lower “starting point” of 40 months for count 2; and
  • How he failed to integrate the harm to A into the structure of the overall sentence.

In other words, the modern guideline was properly engaged, but the internal logic of the sentence did not accurately reflect what that assessment of seriousness demanded, especially in relation to multiple victims.

4.4 Mitigation: passage of time, character, and ill‑health

The Court carefully acknowledged the mitigation on which the judge relied:

  • Delay and subsequent conduct: The offending occurred some 20 years earlier, and there had been no relevant further offending. That may suggest rehabilitation and can reduce the need for deterrence or public protection measures.
  • Good character: Apart from an unrelated shoplifting conviction, Hopcroft had worked continuously as a barber for decades and was essentially of good character before these offences.
  • Serious ill‑health: At sentence, he suffered from chronic osteoarthritis, diabetes (with eye injections), mobility impairment requiring leg braces and a frame, double incontinence, respiratory problems, and possible early dementia. He was housed in the prison hospital wing.

The judge at first instance was so struck by his condition that he gave substantial reduction on that basis. However, the Court of Appeal had before it evidence from the prison that his conditions were being managed, albeit imperfectly, and concluded that:

  • While these factors justified substantial mitigation, they could not justify a total sentence that failed to recognise the full extent of the offending;
  • It remained necessary to impose a term that properly reflected both the seriousness of the primary offending (oral penetration of a child) and the distinct harm to the second victim.

The Court explicitly took these difficulties into account when deciding on the appropriate extent of the increase (choosing 49 months rather than a potentially higher total), but refused to allow them to justify treating what was effectively serial abuse of two children as though it were an offence against one.

4.5 Attorney General’s Reference threshold: from lenient to unduly lenient

The Court reiterated that:

  • Not every lenient sentence is “unduly” lenient;
  • There is a range of reasonable sentences, especially in complex, fact‑sensitive cases;
  • Intervention is warranted only where the sentence falls outside that range — where the judge has made a material error of principle or failed to reflect key aspects of seriousness.

In Hopcroft, the Court’s shift from respecting leniency to finding “undue” leniency hinges on one point:

the failure to reflect the offending against A means that this is a sentence which we agree was lenient, and which we consider to have been unduly lenient.

The decision thus underscores that:

  • A failure to account for distinct harms to different victims is not merely an exercise of generous discretion but an error of principle which can cross the threshold into “undue” leniency;
  • Where totality is misapplied in this way, the Court of Appeal will intervene to impose at least one consecutive term to mark the separate victimisation.

5. Precedents, Guidelines and Legal Sources Discussed

5.1 Statutory provisions

  • Sexual Offences Act 2003, section 11(1) – The modern offence of “engaging in sexual activity in the presence of a child”. In this case, it applied to count 8 (masturbation in A’s presence with ejaculation on the floor).
  • Sentencing Act (sections 57 and 63) – These provisions (as summarised by the Court) require:
    • Adherence to the statutory purposes of sentencing; and
    • Sentencing based on the assessment of seriousness, subject to the applicable historical maximum sentence.
  • Criminal Justice Act 1988, section 36 (implied by the reference to “the 1988 Act”) – Governs the Attorney General’s power to refer unduly lenient sentences to the Court of Appeal.

5.2 Sentencing Council Guidelines

  • Sexual Offences Guideline (Historical) – Provides that:
    • Offenders must be sentenced under the regime in force at the time of offending;
    • Modern guidelines for equivalent offences should be used as a “measured” comparison for assessing seriousness;
    • Sentences are capped by the historical maximum (and if that maximum has been reduced since, the current lower maximum applies).
  • Overarching Principles: Totality – Emphasises:
    • Consecutive sentences are usually appropriate where concurrent sentences would fail to reflect cumulative criminality;
    • Offences against different victims are a classic example where totality requires at least some consecutive element;
    • The overall sentence must still be just, proportionate, and not “crushing” given the offender’s circumstances.

5.3 Attorney General’s Reference jurisprudence (as summarised)

Although the judgment does not cite specific case names, it recapitulates the orthodox principles derived from earlier authorities:

  • Deference to the trial judge’s assessment of sentence;
  • “Unduly” lenient as distinct from merely lenient;
  • Section 36 as a safeguard against gross sentencing error; and
  • Limiting references to exceptional, not borderline, cases.

Hopcroft applies these principles to a modern context of historical child sexual offending, illustrating how a misapplication of totality to multiple victims can satisfy the “gross error” threshold.

6. Complex Concepts Explained in Plain Terms

6.1 “Historical” sexual offences

A “historical” sexual offence is one where:

  • The conduct occurred in the past under an earlier legal regime (for example, when different offences or maximum penalties were in force);
  • The prosecution and sentencing take place much later, often decades afterwards.

Courts must:

  • Apply the law and maximum penalties that existed at the time of the offending, not those now in force; but
  • May use current sentencing guidelines for similar conduct as a tool to guide proportionality and comparative seriousness.

6.2 “Indecent assault” versus modern offences

“Indecent assault” was a pre‑2003 statutory offence capturing a wide range of sexual touching without consent, or involving children, under previous legislation superseded by the Sexual Offences Act 2003.

In modern terms, conduct once prosecuted as “indecent assault” would now fall under specific Sexual Offences Act offences (such as sexual assault of a child, causing a child to engage in sexual activity, etc.). For sentencing historical offences, the court:

  • Uses the old offence label and maximum (because that is what applied at the time); but
  • Looks at the modern equivalent guideline to gauge seriousness.

6.3 Engaging in sexual activity in the presence of a child

This offence (Sexual Offences Act 2003, s.11(1)) criminalises situations where:

  • An adult intentionally engages in sexual activity;
  • The activity occurs when a child is present and the adult is aware of the child’s presence; and
  • The behaviour is sexual in nature and intended or likely to be observed by the child.

In Hopcroft, count 8 involved masturbation and ejaculation on the floor while A was present in the barber’s shop.

6.4 Concurrent vs consecutive sentences

When a defendant is convicted of multiple offences, the sentencing judge must decide whether the custodial terms:

  • Run concurrently – at the same time. Only the longest term effectively counts as the total sentence; or
  • Run consecutively – one after the other. The terms are added together to form the total sentence.

The Totality Guideline says:

  • Concurrent sentences are typically imposed where multiple counts arise from the same incident or episode;
  • Consecutive sentences are usually necessary where:
    • Offences are distinct in time or nature; or
    • There are different victims, so each victim’s harm is separately recognised.

In Hopcroft, the error lay in making all sentences concurrent, which effectively treated:

  • Serious sexual offending against B (including oral penetration), and
  • Separate serious sexual offending against A,

as though they were harm to a single victim. Making count 5 consecutive corrected this.

6.5 “Unduly lenient” sentence

A sentence is “unduly lenient” when:

  • It is not just lenient or generous, but so low that it falls outside the range of sentences a reasonably informed sentencing judge could impose;
  • It typically involves an error of principle, such as ignoring a key aggravating factor, misapplying a guideline, or failing to reflect multiple victims.

In practice, this means:

  • The Court of Appeal must be persuaded that no reasonable judge, properly directing themselves, could have imposed such a low sentence;
  • Merely considering that a slightly higher sentence would also have been justifiable is not enough.

6.6 Attorney General’s Reference

An Attorney General’s Reference is:

  • A mechanism allowing the Attorney General to refer a sentence to the Court of Appeal if it appears unduly lenient;
  • Not an appeal by the prosecution as of right, but a safeguard intended to correct grossly inadequate sentences in serious cases.

Key features:

  • Only certain serious offences are eligible;
  • If the Court of Appeal agrees the sentence was unduly lenient, it may increase it;
  • The process is designed to promote consistency and public confidence in sentencing.

7. Impact and Significance

7.1 Clarifying sentencing for multiple victims in historical sexual cases

The principal contribution of Hopcroft lies in its clear reinforcement that:

  • In historical child sexual abuse cases involving more than one victim, sentencing must reflect the distinct harm to each victim;
  • A failure to do so, especially by ordering all sentences to run concurrently without explanation, risks rendering the overall sentence unduly lenient.

The judgment will likely influence future sentencing in such cases by:

  • Encouraging judges to articulate explicitly how they have taken into account:
    • The number of victims; and
    • The separate incidents of abuse involving each;
  • Promoting at least some consecutive element where different victims have suffered separate episodes of abuse, unless there are strong reasons (for example, an exceptionally high sentence for a principal count within the historical maximum) to do otherwise.

7.2 Sentencing remarks: need for transparency and structure

The Court’s criticism that the judge did not explain how he arrived at the “40 months” notional starting point for count 2 underscores the importance of transparent sentencing remarks, especially where:

  • The judge is departing significantly from guideline starting points;
  • There are multiple victims and complex considerations of totality; or
  • The defendant’s personal circumstances powerfully pull towards mercy.

Future sentencers are likely to be more cautious to:

  • Set out, step by step, how the notional guideline sentence is identified;
  • How mitigation is quantified or weighed; and
  • How totality has been applied to reach an overall term that is both proportionate and intelligible.

7.3 The limits of compassion in serious child sexual offending

Hopcroft also illustrates the limits of mitigation based on age, delay, and ill‑health in cases of grave sexual abuse:

  • Even where an offender is severely unwell and imprisonment will be very challenging, the court must still mark the seriousness of offending that includes oral penetration of a child and serious abuse of a position of trust;
  • While such factors can and did reduce the length of the sentence (including the Court of Appeal’s decision not to impose even longer consecutive terms), they cannot justify a structure of sentence that effectively “writes out” a victim from the reckoning.

The judgment thus balances:

  • Compassion for an elderly, infirm offender, with proper recognition that
  • The law must do justice to victims and maintain public confidence in the handling of historic sexual abuse.

7.4 Guidance for future Attorney General’s References

Finally, the case signals that:

  • The Court will be prepared to treat misapplications of totality in multiple‑victim cases as the kind of “gross error” that justifies intervention;
  • References will not be dismissed simply because a sentence is “merely” lenient when the sentencing structure fails to acknowledge separate harms;
  • However, the Court will continue to exercise restraint, as shown by its limited adjustment (adding only 18 months consecutive) rather than a wholesale re‑sentencing.

8. Conclusion

R v Hopcroft [2025] EWCA Crim 1598 stands as an important reaffirmation of a key principle in the sentencing of historical sexual offences: each child victim’s harm must be separately and visibly reflected in the structure of the sentence.

The original 31‑month total sentence, derived by making all terms concurrent and focusing primarily on the offending against B, was found to be not only lenient but unduly lenient because it effectively failed to mark the separate abuse of A. By:

  • Maintaining the 31‑month term for the lead offence (oral penetration of B);
  • Adding 18 months for the serious indecent assault on A as a consecutive sentence; and
  • Leaving the exposure count concurrent,

the Court of Appeal increased the total to 49 months in a way that directly addressed the misapplication of the Totality Guideline while still affording weight to Hopcroft’s age, ill‑health, and the historic nature of the offences.

The decision reinforces several broader themes:

  • Modern sentencing guidelines can and should inform the assessment of seriousness in historical cases, subject to historical maxima;
  • The Totality Guideline requires special attention where there are multiple victims—concurrency will rarely suffice without careful justification;
  • Attorney General’s References remain an exceptional remedy, but the Court will intervene where the sentencing structure fails to recognise fundamental aspects of the offending, such as distinct victims.

In the wider landscape of child sexual abuse sentencing, Hopcroft underscores that compassionate consideration of an offender’s current health and circumstances cannot come at the cost of erasing a victim from the sentencing equation. Each child’s distinct suffering must be seen, counted, and reflected in the court’s final order.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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