Unduly Lenient References: Appellate Deference to Charge Framing and the Suspendability of Category C “Production” Offences — R v Hargrave [2025] EWCA Crim 1233

Introduction

This commentary analyses the decision of the Court of Appeal (Criminal Division) in R v Hargrave [2025] EWCA Crim 1233, delivered by Singh LJ on 9 September 2025. The case arose on an application by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988 to refer a sentence said to be unduly lenient.

The respondent, a serving police officer at the time of the offending, covertly filmed his teenage stepdaughter (aged 14–15) in the family bathroom and her bedroom over approximately a year. He captured both still and moving images, some of which constituted Category C indecent images of a child, and stored material on his mobile phone and a USB device. On 2 July 2025, the Crown Court (HHJ Sellers) imposed a sentence of 13 months’ imprisonment suspended for 24 months, with a rehabilitation activity requirement, unpaid work, a 10-year Sexual Harm Prevention Order (SHPO), restraining orders, forfeiture/destruction of devices, and 10-year notification requirements under Part 2 of the Sexual Offences Act 2003.

The Solicitor General contended that the sentencing judge: (i) wrongly treated the “making indecent images” counts as falling under the “possession” subsection of the Sentencing Council guideline rather than “production”; (ii) thereby failed to identify and sentence the more serious counts as the lead offences; and (iii) wrongly suspended the term, given the seriousness and abuse of trust. The respondent argued that the case had been carefully pleaded and presented so that the voyeurism counts captured the creation of the images, while the “making” counts concerned later storage/copying to devices; and that, even had the images been treated as “production,” the sentence would still sit within guideline range and be capable of suspension after full credit and application of the Imposition Guideline.

The Court refused leave to refer, holding that the judge’s approach lay within the reasonable range and did not involve “gross error,” that the procedural history and charge framing mattered, and that the decision to suspend was open to the judge on the facts and under the applicable guidelines.

Note: In accordance with section 1 of the Sexual Offences (Amendment) Act 1992, this commentary does not include any details capable of identifying the complainant.

Summary of the Judgment

• The Court of Appeal refused the Solicitor General’s application under section 36 of the Criminal Justice Act 1988. The sentence was not unduly lenient.
• While the law officers are not bound by prosecutorial concessions at sentence (R v Stewart [2016] EWCA Crim 2238), the Court emphasised that the procedural history and deliberate charge framing/presentation in the Crown Court are relevant to whether it should recharacterise the offences on a reference.
• On the facts, the judge was entitled to treat the voyeurism counts as the main offending (the initial creation of images) and the “making indecent images” counts as dealing with later storage and copying to specific devices (phone and USB). The case had been charged and presented to avoid overlap.
• Even assuming the images could properly be treated as “production” under the Definitive Guideline (Category C; starting point 18 months; range 1–3 years), after full credit the sentence would remain within guideline range and be capable in law of suspension (at or under two years).
• The judge’s application of the Imposition Guideline, identification of a realistic prospect of rehabilitation, and decision to suspend were all reasonably open to him. No gross error was shown.
• Accordingly, leave to refer for undue leniency was refused.

Background and Procedural History

The respondent, stepfather to the complainant and known to her since infancy, installed covert cameras in the family bathroom and in her bedroom. Between May 2022 and June 2023, he captured extensive footage and images of her dressing and showering; some video doorbell footage zoomed in on her chest. The material (14 moving and 261 still images; 87 Category C) was found by the respondent’s son, who copied some to his computer and later a phone. On confrontation by the family, the respondent deleted some files and the backed-up phone disappeared; there were also searches on the respondent’s device about deleting purchase history.

The respondent pleaded guilty in the magistrates’ court to two counts of making indecent images of a child (committed to the Crown Court for sentence) and later, on re-arraignment, pleaded guilty to two counts of voyeurism on the indictment. He was sentenced on 2 July 2025 to a total of 13 months’ imprisonment suspended for 24 months, with 30 RAR days and 180 hours’ unpaid work, SHPO and restraining orders, forfeiture/destruction of devices, and notification for 10 years. The judge treated the voyeurism counts as the lead offences, applied the voyeurism guideline (category 1; SP 26 weeks; range 12 weeks–18 months), treated the indecent images as “possession” guideline cases (high-level community to 26 weeks), uplifted for aggravation/totality, and applied plea reductions (15% on voyeurism, 33% on images), concluding he was “just able” to suspend.

Analysis

Precedents and Authorities Cited

• Attorney General’s Reference (Egan) [2022] EWCA Crim 1751; [2023] 2 Cr App R (S) 16: Restates section 36 principles. A sentence is unduly lenient only if it falls outside the range of sentences reasonably open to the judge. Leave is exceptional and reserved for gross error.
• Attorney-General’s Reference No 4 of 1989 (1990) 90 Cr App R 366: Even where a sentence is unduly lenient, the Court retains a discretion whether to exercise its powers to increase.
• Attorney-General’s Reference No 132 of 2001 (Bryn Dorian Johnson) [2002] EWCA Crim 1418; [2003] 1 Cr App R (S) 41: The section 36 jurisdiction serves to allay public concern where a judge departs substantially from accepted norms.
• R v Stewart [2016] EWCA Crim 2238: The law officers are not bound by concessions made by the prosecution at sentence; departure requires proper and substantial justification.
• Atkins v DPP [2000] 2 Cr App R 248: “Making” indecent images is established by copying/downloading; one need not have taken the original photograph.
• Sentencing Council Definitive Guidelines:
  • Voyeurism guideline (maximum two years). Aggravating features include recording images, significant planning, abuse of trust, and recording in the victim’s home.
  • Indecent images guideline distinguishing “possession” from “production” (i.e., images made at source by the offender). For Category C production, SP 18 months; range 1–3 years. The guideline also contemplates suspension for Category C in appropriate cases.
  • Imposition of Community and Custodial Sentences guideline (the Imposition Guideline): Tests for custody and for suspending a custodial term, including realistic prospect of rehabilitation and whether immediate custody is necessary for punishment.

Legal Reasoning

1) The section 36 threshold: not a resentencing, but a safeguard against gross error

The Court reiterated that its role on an unduly lenient reference is not to conduct a fresh sentencing exercise. The question is whether the sentence fell outside the range reasonably open to the judge. This high threshold, repeatedly affirmed (Egan; AG Ref No 4 of 1989), frames the outcome: unless the Crown can show a clear and substantial misstep amounting to gross error, the Court will not intervene.

2) Deference to charge framing and the procedural history

Central to the appeal was whether the indecent image counts should have been sentenced as “production” rather than “possession” under the guideline. Although Stewart permits the law officers to depart from a concession made by prosecuting counsel at first instance where properly justified, the Court here gave weight to how the case was charged and presented.

The indictment and the Crown’s submissions had treated the voyeurism counts as capturing the creation of the images (i.e., the covert recording), while the “making” counts were particularised by reference to specific devices (the phone and the USB) to reflect later copying/storage. On that basis, the judge was entitled to treat the voyeurism as the lead offending and the image counts as secondary storage-related wrongdoing. The Court expressly found that this was not a case of gross error in characterisation; rather, it reflected a deliberate prosecutorial delineation to avoid substantive overlap and double counting between voyeurism and image offences.

3) Even if “production,” the sentence was within range and lawfully suspendable

The Court went further: even if the indecent images had been categorised as “production” (Category C, SP 18 months, range 1–3 years), the respondent had pleaded guilty at the first reasonable opportunity to those counts and was entitled to full one-third credit. A sentence after trial set within the 1–3-year range would reduce substantially on credit. The Court rejected the submission that the only reasonable after-trial sentence would exceed the top of the guideline range and emphasised that, after applying credit and totality, the judge could reasonably arrive at a sentence at or under two years—within the statutory limit for suspension.

4) The suspension decision was properly open to the judge

The sentencing judge expressly addressed the Imposition Guideline, finding:

• Risk could be managed in the community; there were no physical contact offences.
• There was a realistic prospect of rehabilitation, supported by a pre-sentence report and proposed rehabilitative work.
• Mitigation included the very significant personal consequences (loss of family and career) and the absence of a poor compliance history.

The Court of Appeal agreed there was ample evidence to support those findings. Importantly, the relevant Definitive Guidelines themselves invite consideration of suspension, particularly in Category C images cases. The judge’s conclusion that he was “just able” to suspend fell within the band of reasonable responses to the totality of the offending.

Key Points from the Precedents: How They Shaped the Outcome

• Egan and AG Ref No 4 of 1989 drove the high threshold: unless the sentence is outside the reasonable range, the Court does not intervene. The Court’s repeated reference to “gross error” made clear that disagreement with the evaluative balance struck below is insufficient.
• Stewart prevented the defence from arguing that a prosecutorial concession permanently bound the law officers; however, the Court used it alongside the procedural history to stress that departures must be justified and that deliberate charge framing matters. Here, that justification was not made out.
• Atkins v DPP underpinned the defence’s understanding that “making” includes copying or downloading. The Court accepted that the “making” counts were properly framed to deal with the later storage/copying, distinct from the initial creation (voyeurism offending).
• The Sentencing Council guidelines structured the analysis: the Court expressly aligned its approach to the ranges and to the suspension considerations embedded both in the Imposition Guideline and the offence-specific guidelines.

Impact and Significance

This decision is important in four respects:

1. Prosecutorial framing and overlap management: Where voyeurism and indecent image offences arise from the same factual matrix, prosecutors often face overlap between “creation” and “making” counts. Hargrave confirms that deliberate pleading that separates initial creation (voyeurism) from later storage/copying (making) will generally be respected on an unduly lenient reference, absent clear mischaracterisation. It is a signal to draft charges and particulars precisely, and to ensure sentencing submissions match that structure.
2. Limited appetite to recharacterise on section 36 references: While the law officers can depart from concessions, the Court will be slow to reclassify the guideline categorisation (possession vs production) where the trial process and submissions below evince a coherent framework, and where the judge’s approach avoids double counting.
3. Suspendability of Category C “production” cases: Hargrave affirms that even serious sexual image offending—where the offender has created images at source—can, after full credit and application of totality, attract sentences at or below two years and be lawfully suspended, provided the Imposition Guideline tests are met (notably, realistic prospects of rehabilitation). This is not a charter for routine suspension; rather, it underscores that suspension remains available where the guideline range and individual mitigation justify it.
4. The high bar for unduly lenient interventions: The reiteration of the Egan/AG Ref No 4 standards ensures stability. Public concern can inform the policy rationale for the section 36 regime, but the decisive question remains whether the first-instance sentence was outside the reasonable range. Here, it was not.

Complex Concepts Simplified

• “Unduly lenient” (section 36 CJA 1988):
  • Not a rehearing or fresh sentencing. The Court asks whether the sentence falls outside the range of reasonable decisions open to the judge.
  • Intervention is exceptional and targeted at gross error or substantial departures from norms.
• “Making” vs “taking” indecent images:
  • Under section 1 of the Protection of Children Act 1978, “take or make” covers both creating images at source and making a copy (e.g., downloading or saving) of an image (Atkins v DPP).
  • The Sentencing Council guidelines differentiate “possession” (having or copying images) from “production” (creating at source). Both are “making” in law, but the guideline treats them differently in culpability and range.
• “Possession” vs “production” in the guideline:
  • “Production” means the offender created the image(s) at source (e.g., by filming or photographing the child).
  • “Possession” (as a sentencing category) captures holding or copying images created elsewhere (or later copying/storing of images initially created by the same offender but now being sentenced for the storage conduct).
• Lead offence and totality:
  • When there are multiple counts, the judge identifies the lead offence(s) and calibrates concurrent or consecutive terms to ensure the overall sentence reflects total criminality without double counting.
  • Here, voyeurism was treated as the lead offending; the image counts (tied to storage on specific devices) were concurrent.
• Plea credit:
  • Early guilty pleas typically attract up to one-third reduction (first reasonable opportunity). Later pleas often receive reduced credit (e.g., 15%).
  • In Hargrave, the full one-third applied to the image counts; 15% applied to the later voyeurism pleas.
• Suspension of custodial sentences:
  • A custodial term of two years or less can be suspended if immediate imprisonment is not necessary and the Imposition Guideline criteria are satisfied (e.g., realistic prospect of rehabilitation; strong personal mitigation; risk manageable in the community).
  • For sexual imagery offences—especially Category C—guidelines invite consideration of suspension in appropriate cases.
• Ancillary orders and notification:
  • SHPOs, restraining orders, forfeiture/destruction, and sex offender notification requirements are protective and regulatory measures running alongside the principal sentence.

Practical Takeaways for Practitioners

• Charge selection and particulars matter. If the prosecution intends the “making” counts to be sentenced as “production,” the particulars and sentencing submissions should make clear that the images were created at source by the offender and are not merely later storage/copying.
• Where voyeurism and indecent image offences coexist, consider whether and how to avoid overlap. Hargrave shows that courts will credit deliberate structuring (creation vs storage) to prevent double counting.
• On a section 36 reference, expect the Court of Appeal to be slow to reframe the guideline categorisation absent a clear misstep; the procedural record below is highly material.
• Do not assume that “production” cases always preclude suspension. After plea credit and totality, Category C cases can yield totals at or under two years; robust application of the Imposition Guideline is pivotal.
• Mitigation such as strong prospects of rehabilitation, structured rehabilitative requirements (e.g., accredited programs), and demonstrated loss of status/employment can legitimately support suspension where risk is manageable.

Conclusion

R v Hargrave reinforces two enduring themes in the section 36 jurisdiction. First, appellate restraint: unduly lenient references are not vehicles for re-sentencing; only sentences plainly outside the reasonable range warrant intervention. Second, fidelity to the structure of the case as charged and presented: where the Crown has deliberately separated the creation of images (voyeurism) from subsequent storage/copying (making), the Court will be reluctant to recharacterise the latter as “production” on a reference unless the original approach was misconceived.

The judgment also clarifies that Category C “production” cases remain, in principle, capable of suspension once credit and totality are applied, and where the Imposition Guideline points to a realistic prospect of rehabilitation and community management of risk. For future cases, Hargrave stands as a reminder that precision in charge framing, principled application of guidelines, and careful totality analysis will generally be respected on appeal, and that suspension remains a legitimate tool in carefully selected sexual imagery cases within guideline ranges.